Conditional Discharge

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Conditional Discharge or Drug First Offender is a once in a lifetime opportunity that allows someone who has been charged for the first time with possessing drugs or a non-violent property crime related to drug or alcohol addiction to resolve their case without a felony conviction. The resolution will typically involve probation and some sort of rehabilitation and treatment. Once the terms of the sentence are completed successfully the case will be dismissed and will not be considered a conviction. If you or a loved one has been charged with a drug offense you need to speak with an experience attorney to determine if you could be eligible for conditional discharged. Please give us a call at 404-581-0998 for a free case consultation.

First Offender

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If you have been charged with a felony offense (with some exceptions) and have never pleaded guilty to or been convicted of a felony, you may be eligible for First Offender treatment under OCGA § 42-8-60. Charges that are considered serious violent felonies, e.g. murder, armed robbery, kidnapping, etc and sexual offenses are not eligible for First Offender treatment.

First Offender allows you to enter a plea to the offense, but it is not considered a conviction. If you successfully complete all the terms of the sentence, the case will be discharged and you will be exonerated as a matter of law. This means that you can honestly say that you have not been convicted of a felony and all of your civil rights are restored.

This is a once in a lifetime opportunity and if you or a loved one has been charged with a felony offense and you think you might be eligible for First Offender, please give us a call at 404-581-0999.

 

Aggravated Stalking

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By: Attorney Erin Dohnalek

In Georgia, aggravated stalking is charged as a felony. It is set out in O.C.G.A. § 16-5-91. This statute states that an individual commits aggravated stalking when:

  • He/she violates a “no contact” or “stay away” provision of their bond;
  • He/she violates a temporary restraining order, temporary protective order, permanent protective order, preliminary injunction, or permanent injunction ordering them to have no contact with the alleged victim;
  • He/she violates a “no contact” or “stay away” condition of their pretrial release, condition of probation, or condition of parole; and
  • The individual follows, places under surveillance, or contacts the alleged victim without his/her consent for the purpose of harassing and intimidating.

In Georgia, there is no requirement that the accused has to have actual notice of the “no contact” provision as a condition of bond, pretrial release, probation/ parole, or from a temporary protective order. The contact alone is enough, even if the accused was not aware of the “no contact” order. See Revere v. State, 277 Ga. App. 393 (2006). “Contact” can also be established by phone, email, or mail. It does not need to be in-person contact in order to be sufficient to convict for aggravated stalking. See Murden v. State, 258 Ga. App. 585 (2002).

Additionally, even if the alleged victim allowed contact, or initiated contact, after the “no contact” provision was ordered, that does not mean that an accused can no longer be prosecuted for aggravated stalking. An accused can be prosecuted if the alleged victim changes his/her mind, and decides that they no longer want contact with the accused, if at the time of the contact there is a “no contact” provision in place. See Revere v. State, 277 Ga. App. 393 (2006).

Finally, a single incident of stalking is not sufficient to convict an accused of aggravated stalking. There must be a pattern of harassing and intimidating conduct, and generally a single incident alone is not enough. See State v. Burke, 287 Ga. 377 (2010).

Sentencing:

Any individual convicted of this crime will be sentenced to 1-10 years in prison, and fined up to $10,000. However, the reduced charge of aggravated stalking is characterized as a “violation of a criminal protective order.” This charge is a misdemeanor and the sentencing is much less punitive. An experienced criminal defense attorney may be able to negotiate sentencing to fall under the misdemeanor statute.

Contact Us

Due to the severity of the punishment for aggravated stalking, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of this crime, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with aggravated stalking, please call our office today at 404-581-0999 for a free consultation.

I am under 21 and got a DUI… help!

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If you are under 21 and have been charged with DUI, it is important to note that there are big differences between defending a DUI when someone is over 21 and a DUI where you were under 21.

The biggest difference between them is the acceptable blood alcohol content for young drivers. While the legal limit for drivers 21 and over is .08, drivers under 21 may not “be in actual physical control of any moving vehicle while the person’s alcohol concentration is 0.02 grams or more at any time within 3 hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.” OCGA 40-6-391(k)(1). This means that folks under 21 can drink less and still be considered DUI.

The other main difference is the mandatory minimum punishment under law. For a first offense in 5 years, folks under 21 who plead or are found guilty to DUI must be sentenced to 1 day in jail (although you will receive credit for any time you already served, and may be able to serve your time on weekends or during non-working hours), 40 hours of community service which must be completed within 60 days of the date of sentencing, an alcohol and drug evaluation and any additional treatment recommended by the evaluator, an a DUI Risk Reduction class. You must also be on probation for 12 months. Your license may also be suspended.

If you are under 21 and you have been charged with DUI, it is important to understand your rights and any defenses. Call our office for a free consultation. 404-581-0999.

Hybrid Gangs and the Georgia Gang Statute

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With Georgia gang prosecutions on the rise thanks to the Georgia Street Gang Terrorism Act, it is important to know what the government classifies as a gang. The definition for what Georgia considers a gang is found in O.C.G.A.  § 16-5-3 (3) and reads:

“”Criminal street gang” means any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity as defined in paragraph (1) of this Code section. The existence of such organization, association, or group of individuals associated in fact may be established by evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics, including, but not limited to, common activities, customs, or behaviors. Such term shall not include three or more persons, associated in fact, whether formal or informal, who are not engaged in criminal gang activity.”

Under this definition, the State does not have to prove much to allege that a group of people are a gang. Additionally, even a group of people that are not part an official, well-known gang could be prosecuted under the Georgia Gang Statute if the government defines them as a “hybrid gang”. Hybrid gangs are less structured and are mostly composed of members from different gangs. Hybrid gangs are often formed when gang members relocate or when members of other gangs join forces. Additionally, the government often also alleges that a group of people are in a hybrid gang if they are a group of local neighborhood people that grew up together and wouldn’t traditionally form a gang together.

It is becoming more and more common to see gang charges added to other felony charges because the State can stretch the definition of a gang to include more and more people. When gang charges are added, a defendant’s possible punishment if they are convicted increases drastically. If you are charged with violating the gang statute in Cobb, Gwinnett, Fulton, Dekalb, Clayton, or any other Georgia county, it is important to hire a lawyer that will make the state prove that the gang the allege you are a part of actually fits the definition of “criminal street gang”. The lawyers at W. Scott Smith are experienced in defending gang cases and would love to represent you. Call our office today at 404-581-0999 for a free consultation.

 

 

Georgia Gang Statute

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O.C.G.A.  § 16-15-4 is commonly referred to as the Georgia Gang Statute. But, this statute can be difficult to understand. Georgia case law is clear that it is not illegal to simply be a member of a gang. In fact, a 2019 Georgia Supreme Court case called Chavers v. State says that a defendant cannot be convicted under the Street Gang Terrorism and Prevention Act for merely being associated with a gang that commits criminal acts; the defendant must personally commit an enumerated offense himself.  However, if the state can prove that you are a member of a gang AND commit an illegal activity to further the interests of the gang, you can be charged with violation of the Georgia Street Gang Terrorism Act. A conviction under the Georgia Gang Statute could result in up to 20 years in prison.

One way the state can charge an individual with violating the Georgia Gang Statute is under section (a) of the statute. Section (a) states that it shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3. The enumerated offenses in paragraph 1 of 16-15-3 include things like racketeering, stalking, rape, kidnapping, criminal trespass or damage to property, any crime of violence, or compromising the security of a jail or prison.

Another way the state can charge an individual under the Georgia Gang Statute is under section (c) of the statute. Section (c) states that It shall be unlawful for any person to acquire or maintain, directly or indirectly, through criminal gang activity or proceeds derived therefrom any interest in or control of any real or personal property of any nature, including money. This simply means that a person could violate the Georgia Gang Statute by accepting money that was gained from illegal acts by a known gang. For example, a person who is holding money that was acquired through gang activity could be prosecuted under the Georgia Gang Statute.

It is important to remember that the state must prove 4 elements in order to convict someone of violating the Georgia Gang Statute:

(1) the existence of a “criminal street gang,” defined as “any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity”;

(2) the defendant’s association with the gang;

(3) that the defendant committed any of several enumerated criminal offenses, including those involving violence, possession of a weapon, or use of a weapon; and

(4) that the crime was intended to further the interests of the gang.

If you are charged with violating the Georgia Gang Act in Fulton, Dekalb, Gwinnett, Clayton, Cobb, or Rockdale counties, it is important that you hire an attorney who understands the intricacies of the statute. At W. Scott Smith, our lawyers have handled numerous gang cases and require the state to meet their burden.  If you have been charged with gang crimes, call our office at 404-581-0999 for a free consultation today.

Governor Kemp Signs Bill that will Enhance Penalties for Fleeing and Eluding in Henry County, Georgia

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By: Attorney Erin Dohnalek

On April 25th, 2022, Governor Kemp signed legislation to further public safety efforts in the State of Georgia. One of the bills that he signed, which was passed in the House, as well as the Senate, will enhance or increase penalties and sentencing for individuals charged with fleeing or attempting to elude a police officer in Henry County. This bill went into effect on July 1st, 2022.

This bill states that:

  • It is unlawful for a driver to fail to stop his/her vehicle or attempt to flee or elude a police officer when he/she is given a visual or audible signal to stop.
  • Any person convicted of a first, second, or third violation of this law will be guilty of a high and aggravated misdemeanor.
  • Any person convicted of a fourth or subsequent violation of this law will be guilty of a felony.

Sentencing:

  • The penalties for a first conviction will be a fine of at least $1,000 and 30 days in jail.
  • The penalties for a second conviction within a 10-year period will be a fine of at least $2,500 and 90 days in jail.
  • The penalties for a third conviction within a 10-year period will be a fine of at least $4,000 and 180 days in jail.
  • The penalties for a fourth conviction, and any subsequent conviction, within a 10-year period will be a fine of at least $5,000 and 12 months in custody.

This bill will dramatically change the penalties for fleeing and attempting to elude in Henry County. A high and aggravated misdemeanor generally means that the accused will have to serve the entire jail-sentence in custody without the possibility of receiving 2 for 1 credit. The fourth conviction of this crime in a 10-year period will constitute a felony offense. Furthermore, a nolo contendere plea will not avoid mandatory jail time, or a conviction.

Any arrests that occur prior to July 1st, 2022, in Henry County, for fleeing or attempting to elude a police officer will still be pursuant to the prior statute that allows for lower penalties and sentencing. However, if an accused is arrested for fleeing or attempting to elude on, or after, July 1st, 2022, the sentencing will be enhanced due to this new law.

Contact Us

Due to the severity of the punishment for fleeing or attempting to elude, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of this new law, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with fleeing or attempting to elude in Henry County, Georgia, please call our office today at 404-581-0999 for a free consultation.

Hiring an Attorney to Preserve Alibi Evidence

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If you have been falsely charged with a crime, there may be evidence that supports an alibi defense. For example, there may be surveillance video that shows you at a location other than the crime scene at the time of the crime or your cell phone might show that you were in another state altogether.  Unfortunately, this evidence will not be accessible forever. Video surveillance is often only stored for a short period of time and cell phone records, depending on the company, are only stored for about 10-90 days.

However, if hired in time, a lawyer can send something called a spoliation letter to companies demanding that certain evidence is preserved. This letter simply alerts the company that a criminal investigation is ongoing and that the evidence should be preserved to assist your attorney in supporting your alibi. For example, if you are charged with murder in Fulton County but you were shopping at a Walmart in Cobb County at the time of the murder, it is important that we reach out to Walmart and preserve the surveillance video of you entering the store at the time of the murder. Or, if you are charged with an armed robbery in Dekalb County but your cell phone is pinging off a tower in Gwinnett County at the time of the robbery, it is important that the location data from your cell phone is preserved.

In this situation, time really is of the essence. The lawyers at W. Scott Smith recognize that swift action is required in situations like this. If you are charged with a crime and believe that evidence exists that proves your innocence, call our office at 404-581-0999 for a free consultation.

Changes to the Way Search Warrants for Cell Phone Content Must be Obtained

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A new decision released by the Georgia Supreme Court changes the way police must obtain warrants if they want to search the contents of your cell phone. In State v. Wilson, released on February 21, the Court tightened the reigns on what officers must include in their search warrants.

In Wilson, a defendant was on trial for murder. The defendant’s lawyer argued that the search of his cell phone was illegal because it did not specify what police were looking for and sought to have any evidence recovered from his phone kept out of his trial. The trial court agreed with the defendant’s attorney and said that “the search warrant was overly broad and authorized a general search of [the defendant’s] personal effects without probable cause in violation of the Fourth Amendment and O.C.G.A § 17-5-21”.  The judge ruled that evidence found in defendant’s phone could not be used in trial.

The State appealed the trial court’s decision, but the Georgia Supreme Court agreed with the trial court. The Supreme Court reminded us that the Fourth Amendment requires that search warrants list the particular items sought in order to prevent “general, exploratory rummaging in a person’s belongings”. Because the search warrant in Wilson just listed “contents of phone” and didn’t mention that it was limited to evidence pertaining to the commission of a certain crime, it was overbroad and illegal, and the search was unconstitutional.

This means that search warrants for the contents of phones must contains a particular description  of the things to be seized (i.e. text messages or pictures in a child molestation case, or internet search history in a murder case). If you have been charged with a crime in Fulton, Cobb, Dekalb, Forsyth, Gwinnett, Clayton, Rockdale, or any metro county,  and the police searched your phone, it is important to have a lawyer review the search warrant and see if it was properly executed. The lawyers at W. Scott Smith specialize in spotting issues like this and standing up to the State to protect our clients’ constitutional rights. Call our office at 404-581-0999 today for a free consultation.

 

 

Was my search warrant obtained properly?

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In order for an investigator to obtain a search warrant, they have to prove to a magistrate judge that they have probable cause that a criminal activity occurred or is occurring. Probable cause basically means that investigators can communicate a “reasonable belief” that a criminal activity is taking place. Investigating officers have to lay out this probable cause in an affidavit attached to an application for search warrant. Then, a magistrate judge will review the affidavit and application and grant or deny the warrant. In addition to the written affidavit, magistrates may consider oral testimony of the officers during the warrant application process.

In Georgia, the courts have laid out several scenarios that instruct when probable cause has or has not been communicated. For example, a tip from a confidential informant in a drug case is not enough to establish probable cause. The tip would have to be corroborated by other circumstances. However, if police come to your door and you voluntarily speak with them and admit to a crime, there is enough probable cause to obtain a search warrant.

If a warrant is granted and it lacked probable cause, the warrant is bad and any search resulting from the warrant violates your Fourth Amendment rights. In this case, you need a lawyer to argue that your rights have been violated and that any evidence obtained during the execution of the bad search warrant must be suppressed.

At the Law Offices of W. Scott Smith, we are experienced at spotting issues with search warrants and often successful at having evidence suppressed. Often, after a judge has ruled that evidence must be suppressed, prosecutors are more willing to negotiate or even dismiss charges because they no longer have a strong case. If you are in Cobb, Clayton. Fulton, Gwinnett, Henry, or Rockdale County and are charged with a serious offense like Violation of the Georgia Controlled Substance Act, trafficking drugs, or possession of drugs with the intent to distribute and believe that your Fourth Amendment rights have been violated by a warrant lacking probable cause, call us for a free consultation at 404-581-0999.