Marijuana Possession in Georgia

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by Mary Agramonte

Even as the nationwide trend moves to legalization and decriminalization, possession of marijuana remains illegal in the State of Georgia. In most jurisdictions across the state, a possession of marijuana charge in Georgia will land you in jail, forcing you to dish out hundreds or thousands of dollars in bond money to be released. If you later plead or are found guilty, you can expect high fines, at least 12 months of probation, community service, drug evaluations, costly classes, and depending on your record, even more jail time.  An experienced criminal defense attorney has the ability to alleviate this by evaluating your defenses and advocating on your behalf.

If you have been arrested or cited for possession of marijuana less than an ounce, call the leading defense firm W. Scott Smith to protect your rights, your wallet, and your criminal history. A nolo contendere charge will not keep the charge off your record, and will not eliminate punishment. There are defenses beginning with the reason the officer stopped you, how the search was conducted, even down to the testing of the marijuana found. Being convicted of any crime can be detrimental to your future. Call us today for a free case evaluation at 404-581-0999.

 

 

First Offender Sentencing in Georgia

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First offender treatment is available in Georgia for anyone who has not been previously convicted of a felony and is not charged with a serious violent felony. Serious violent felonies are murder, felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery. Anyone charged with one of those offenses is automatically ineligible for first offender unless the charge is reduced to a lesser offense.

If a defendant receives first offender treatment, it can be both a blessing and a curse. If there are no issues during the period of probation, then no official conviction will ever be reported and the record itself will seal from public view. However, if the defendant commits a new offense while on probation or has any issues at all, then the judge has discretion to revoke the first offender status and re-sentence the defendant up the maximum sentence allowed by law.

While serving the sentence which will undoubtedly involve a period of probation, the defendant is not technically convicted of a crime but still cannot possess a firearm. After successful completion, all gun rights are restored.

Finally, first offender status can be granted retroactively if the defendant was eligible for first offender treatment at the time of the original plea but was not informed of his or her eligibility. Still, there is discretion, and the judge must find by a preponderance of the evidence that the ends of justice and the welfare of society are served by granting retroactive first offender status.

If you are charged with a crime in Georgia, then you should always consult with an attorney as to whether you are a candidate for first offender treatment. If you have already pled guilty, then you should still reach out to discuss whether you can receive retroactive first offender treatment. Give us a call today at 404-581-0999.

Are you entitled to Bond in the State of Georgia in Criminal Cases?

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The court is authorized but not required to grant a bond in most cases. The court may deny bond or grant a very high bond for more serious offenses, especially with repeat offenders. When deciding whether to grant a bond as well as to what amount, the court considers the following:

Does the person pose a significant threat of fleeing or failing to appear in court?

Does the person pose a significant danger to any person, the community or property?

Does the person pose a significant risk of committing a felony pending trial?

Does the person pose a significant risk of intimidating witnesses or otherwise obstructing the administration of justice?

Hiring an attorney shows that the defendant is committed to showing up to defend against the charges. If you have an active warrant for your arrest, then we can help streamline the turn in process and ensure that there is a bond for the charges so as to prevent excessive incarceration. If your loved one has been denied a bond, then contact us at 404-581-0999 to discuss how we can assist in bringing them back home.

City of Atlanta Municipal Court Practices and Procedure

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by Ryan Walsh

We get questions every day about how the Atlanta Municipal Court operates on a day to day basis. The Atlanta Municipal Court is the busiest courthouse in the southeast, and it is easy to get overwhelmed in the process. It is located at 150 Garnett Street, Atlanta, GA 30303 on the corner of Pryor Street and Garnett Street in downtown Atlanta. The courthouse is open from 7am – 5pm Monday through Friday (excluding city holidays).

The most important thing you can do to prepare for court at the Atlanta Municipal Court is to verify your court date and time. You can do this in three ways.

Two of those methods are done through online searches:

  • Go to Find My Court Case at the Atlanta Municipal Court’s website and put in your full name or citation number: http://court.atlantaga.gov/mycase/
  • You can search daily dockets for the current month of cases through the Atlanta Courtview system: http://courtview.atlantaga.gov/courtcalendars/default.aspx?Calendar=D Click on the date of your scheduled appearance and scroll through the court dates until you find your name. It should also tell you the time of your appearance and courtroom you are assigned.
  • Finally, you can call the Atlanta Municipal Court clerk’s office at 404-954-7914.

There are 10 Judges assigned to courtrooms in the Atlanta Municipal Court. Those Judges assigned by courtroom are:

3A – Judge Ward, 3B – Judge Gaines , 5A – Judge Portis, 5B – Judge Butler, 5C – Judge Sloan, 5D – Judge Dupre, 6A – Judge Bey, 6B – Judge Gundy, 6C – Judge Graves, and 6D – Judge Jackson

Judge Ward currently handles clients who have previously failed to appear in court. Judge Sloan only handles clients who are charged with Driving under the Influence (DUI). Judge Portis only handles code violations, which are generally residential, business, and noise ordinances. The other Judges handle a combination of state law offenses (traffic and some misdemeanors) and city ordinances.

Court is held at four times each day. Court times are 8:00am, 10:00am, 1:00pm, and 3:00pm. Depending which Judge you are assigned to will determine the time you need to appear in court each day.

Some charges in the City of Atlanta are eligible for the Pre-Trial Intervention program. Completion of the Pre-Trial Intervention program assures your case will be dismissed and your record will be restricted. Our office of experienced attorneys can guide you through the Pre-Trial Intervention program and determine whether we believe your charges will be eligible.

Clients often come to our office after failing to appear in court. Once you fail to appear in court in the Atlanta Municipal Court, your case is taken off the calendar and a bench warrant is issued for your arrest. If you do not address your failure to appear in twenty-one (21) days, the Atlanta Municipal Court sends information to the Georgia Department of Driver Services to suspend your Georgia driver’s license or your privilege to drive in the State of Georgia. At that point your case must be resolved in order to receive documentation to re-instate your driver’s license.

In order to get a court date after you fail to appear in court, you must show up between 7 and 8am at the City of Atlanta Courthouse. You will go downstairs to courtroom 1B where they will add your case to the failure to appear courtroom that day. That courtroom is courtroom 3A. You will then have the option to resolve your case through a plea, or ask for a trial. No matter what happens, you will receive paperwork that recalls the active bench warrant. After your case is resolved you will receive the paperwork to reinstate your driver’s license with the Department of Driver Services to lift any current suspension due to failing to appear.

The Atlanta Municipal Court is the busiest courthouse in the Southeast, handling more cases daily than any other courthouse. Navigating the court process can be difficult. Our firm handles charges in Atlanta every day. We are here to answer your questions and help you. Call us today at 404-581-0999 for a free consultation.

VIDEO – Marijuana Possession in Georgia May be Treated as a Felony

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Did you know that personal possession of less than one ounce of marijuana isn’t always classified as a misdemeanor under Georgia law? I’m Scott Smith and personal possession of marijuana is the subject of today’s video blog.

The statutes that cover marijuana laws are in the official code of Georgia Title Sixteen Chapter Thirteen. This chapter covers all controlled substances under the Georgia Code.

In Georgia, it is only a misdemeanor to possess less than one ounce of marijuana for personal use if that marijuana is still in plant form. That includes all areas of the plant including low potency areas like leaves, stalks, and stems.

But if that same less than one ounce of marijuana has been extracted or concentrated into a substance that no longer has a plant like appearance, then possession of any amount of that substance is considered a felony under Georgia law.

This includes marijuana infused foods like lollipops, brownies, and candies along with concentrated marijuana that takes the appearance of a wax and oil like substances.

Possession of any type of marijuana, plant or otherwise, of one ounce or more is a felony under Georgia law.

If you’re facing possession of marijuana charges, it is important to know your defenses. Was the marijuana found after an illegal traffic stop? Is there enough marijuana to be tested? Has the marijuana been tested and did it come back positive? Was the amount of marijuana found less than the officer states in their report?

At the Peach State Lawyer law firm, our experienced drug attorneys can evaluate these defenses and discuss strategy in handling your case. Georgia law provides options for handling your marijuana case that can allow experienced attorneys to prevent convictions on your criminal history, even for repeat offenders.

Call us today for a free consultation at 404-581-0999 and let us help you with your marijuana case. Thank you.

Drug Possession in Georgia

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Drug Possession in Georgia
By: Mary Agramonte
Read more about the attorney here.

The legal system in Georgia treats drug crimes very seriously. If you have been arrested for the possession of drugs in the State of Georgia, you are likely facing serious prison time. Due to the severity of the charges, you need a lawyer who is skilled in the state’s drug laws and any possible defenses.

Mary Agramonte is an attorney with W. Scott Smith P.C. and represents those charged with drug possession in Georgia.

Mary Agramonte is an attorney with W. Scott Smith P.C.

Under the Georgia Controlled Substance Act, drugs are classified into 5 Schedules based on their potential for abuse, tendency for addiction, and their recognized medical uses. Schedule I is considered to have the highest risk of physical and psychological dependency and are considered to have no medical use, while Schedule V is recognized to have lower risk of dependency and legitimate medical use. The following are examples of common drugs in each schedule.

Schedule I

Heroin, THC, LSD, and MDMA (ecstasy).

Schedule II

Cocaine, Codein, Hydrocodone, Morphine, Methadone, Amphetamine, Methamphetamine, Oxycontin, Percocet

Schedule III

Suboxone, Ketamine, Anabolic steroids

Schedule IV

Xanax, Ambien, Valium

Drug Possession Penalties in Georgia

The penalties for drug possession in Georgia are harsh. It is a felony if you are arrested for drug possession in Georgia, except for marijuana if it less than an ounce. If it is your first offense and you are found guilty of a Schedule I or II drug, you are looking at 2-15 years in prison, intense probation, and high fines.

On second or subsequent offenses of Schedule I or II drugs, you are looking at at least 5 years in prison, and up to 30, with the possibility of similar probation and high fines as the first.

If you are found with Schedule III, IV, or V drugs, the penalty will be 1 to 5 years in prison. If it is your second or subsequent offense, you are facing 1 to 10 years prison time.

Additionally, if the offense date was prior to July 1, 2015 and a car was used during the felony, your driver’s license will be suspended if you are found guilty of drug possession.

How the State Proves Possession

The drugs do not have to be found on your person for you to be guilty of drug possession. Driving a car in which drugs are found is enough for the law to determine that you are in violation of the Controlled Substance Act. Even if the drugs are found thrown out or hidden, the State will still try to prove you were in possession. Depending on where the drugs were found, two people or more can be considered to have possession of the same drugs. Important facts for for your case will be whether paraphernalia or residue was found, and also whether you attempted to flee.

Talk to an Attorney

Because a conviction of drug possession carries serious prison time, it is important you speak with an attorney who is knowledgeable about drug possession laws in Georgia. Pleading guilty to any drug possession offense will have lifelong consequences that we want you to avoid. We would like for you to understand what you are facing and all of your legal options so that you can move on from this arrest in the best way possible. Call us for a FREE CONSULTATION today at 404-581-0999 and mention this blog.

 

 

Understanding a DUI Citation

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What are these other DUI charges on my DUI Citation or Court Notice?

By: Ryan Walsh, Esq. 

I see it every time. Georgia State Patrol troopers arrest a prospective client of ours in the City of Atlanta for driving under the influence (DUI) of alcoh

Ryan Walsh is an Associate Attorney at the Law Office of W. Scott Smith

Ryan Walsh is an Associate Attorney at the Law Office of W. Scott Smith

ol and their DUI citation reads “in violation of Official Code of Georgia Annotated (O.C.G.A.) §40-6-391(a)(1-5). Our prospective client then receives a court notice from the Municipal Court of Atlanta after their first court appearance that lists each of the separate DUI code sections from (a)(1) through (a)(5). They appear as follows:

O.C.G.A. §40-6-391(a)(1) – DUI Alcohol Less Safe

O.C.G.A. §40-6-391(a)(2) – DUI Drugs

O.C.G.A. §40-6-391(a)(3) – DUI Multiple Substances

O.C.G.A. §40-6-391(a)(4) – DUI Inhalants

O.C.G.A. §40-6-391(a)(5) – DUI Alcohol Per Se (Test over .08)

Only O.C.G.A. code sections 40-6-391(a)(1) and 40-6-391 (a)(5) relate solely to alcohol involved DUI arrests. The other three code sections relate to DUIs involving non-alcohol related substances, or a combination of drugs and alcohol. So why are you charged with these other offenses when they played no part in your arrest? The answer is: the Georgia State Patrol Nighthawks division, also known as the State Patrol DUI Task Force writes a citation for DUI the same way every time they make an Atlanta DUI arrest. Their citation includes each and every DUI code section.

But a citation is just a charging document. A charging document (like a citation, or more formally an accusation or indictment) presents charges the solicitor can move forward on. The solicitor then looks at the evidence and decides what charges best fit each individual situation. In the majority of all DUI cases, these are just the alcohol related code sections. In other DUI cases it may just be a Drugs case. Very rarely do we see DUI multiple substances or DUI inhalants cases.

Because you may have been overcharged in your case by a Georgia State Patrol Trooper, it is important to consult with an experienced Georgia DUI attorney. The attorneys at W. Scott Smith PC are knowledgeable in each and every subsection of the DUI code, and effectively advise you on the strengths of your case. Call us today at 404-581-0999.

Miranda Rights

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MIRANDA RIGHTS

By Andrew Powell Esq.

Almost everyone has seen a crime television show and heard the infamous phrase “you have the right to remain silent, anything you say can and will be used against you in the court of law, you have the right to an attorney, and if you cannot afford one an attorney would be appointed to you.” However, most people do not know when or why this phrase is so commonly used by police. In 1966, the United States Supreme Court decided to require law enforcement officials to read this list of rights to someone who has been taken into custody. These rights are known commonly as your “Miranda Rights.”

Purpose Of Reading The Miranda Rights

The United States Constitution and specifically the Fifth Amendment guarantees anyone who has been arrested the right not to incriminate themselves. Plainly put, an individual does not have to talk to police when they have been arrested. The Constitution and our form of justice requires that the government carry their burden and prove to a judge or jury that someone charged with a crime is guilty beyond a reasonable doubt.georgia-juvenile-defense

Too often law enforcement officials become overzealous with their search for the truth and overstep the Constitutional bounds in their pursuit. It may not surprise you that police use coercive tactics or even lie to someone to get them to confess to a crime. Miranda warnings are a safeguard to protect against those who may cross that Constitutional boundary. The government must show the court that you were read your Miranda rights and that you waived your rights guaranteed by the Constitution.

When Does Miranda Apply To Me?

Confessions are the leading source of Miranda violations. When someone has been accused of a crime, big or small, they are often questioned in connection with that crime. Miranda rights must be read to someone after they are under arrest and before any law enforcement official asks any questions to the suspect.  Law enforcement officials have a tough job and they investigate crimes every day. Many officers are trying to make quick decisions based on little information. However, this does not allow them to just simply force people to talk to them and answer their questions.

Many times law enforcement officials will arrest someone and take them back to the police station for an interview. Generally, they will quickly go over your rights with you and ask you if you want to talk to them. If you have been charged with a crime this is where you want to stop and tell the law enforcement official that you would like to speak to your attorney.

When Does Miranda Not Apply To Me?

People sometimes think that any encounter with law enforcement requires them to read you your Miranda rights. This is untrue. Most encounters between people and law enforcement do not require the reading of your Miranda rights. As discussed above, the Miranda warnings are only required when you have been placed under arrest and the police are asking you questions regarding the crime.

Traffic stops are a common place to have an encounter with law enforcement where Miranda warnings are not required to be read to someone. In this circumstance, generally you are not under arrest and law enforcement is just going to ask you some general questions and write you a ticket.

In terms of a DUI, the police officer is not required to read the Miranda warnings. The officer may ask you to take a series of tests, known as Field Sobriety Tests or request you to blow into a machine that registers your blood alcohol content. Even though the officer does not have to read your Miranda rights to you, you have the ability to refuse these tests and refuse giving a breath sample.

Another common scenario is when law enforcement asks you to come to the station and make a statement. In this circumstance, Miranda warnings are not necessary because you have voluntarily come to the police station and are not under arrest. Remember, law enforcement is only required to give you the Miranda warnings once you have been arrested and before they initiate any questioning of you.

What Does A Miranda Violation Mean For Me?

Confessions or statements made to law enforcement will not be allowed at trial if law enforcement has not, first, read you the warnings required in Miranda. If you were forced into making a statement or the police did not read your rights to you and you then confess to a crime, whether it is a DUI or murder, that confession cannot be used against you at your trial. With your statement or confession tossed out it can help strengthen your case and possibly force the prosecutor’s office to drop the charges because they do not have enough evidence to prosecute you.

If you have been charged with crime and feel your rights were violated during the process, call our office and we can help you navigate the system. Our office has extensive experience in misdemeanors and felonies. Fighting charges with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future charges lowered or dismissed. At the W. Scott Smith law firm we can identify where the police have violated your rights and ensure evidence will be kept out. Our firm can handle your misdemeanor or felony case with the expertise you need to save your record. Give us a call for a free consultation at 404-581-0999.

What Is Arraignment?

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WHAT IS ARRAIGNMENT?

“What is arraignment?”

That’s the first question every client asks us when they receive their first court date, and it’s a great one.   Most of our clients have either received a court date prior to meeting with us or they were told when they leave the jail that they will receive an arraignment date in the near future.  So, what is arraignment?

In Georgia, every person is entitled to due process of law under the Georgia Constitution and the United States Constitution.  A citizen’s due process rights include the right to be placed on notice of any charges the State intends to seek.   The State files charges through either a formal indictment or accusation. These documents are ultimately the framework of how the case will proceed.  As such, arraignment is the first opportunity for the court to inform the accused of the charges against them.  Under Georgia law, every person accused of a crime has the right to be arraigned.  Formal arraignment is when the court reads the charges in open court and an accused has an opportunity to enter a plea of either guilty or not guilty. courtroomdoorfrombench1 (1)

So what actually happens in court at the arraignment hearing?  From a practical stand-point three things happen at arraignment.   First, one of our lawyers will likely inform the court that we are waiving formal arraignment (reading of the charges in open court) because we have received the actual charging document and we would prefer, for the sake of privacy, for our clients charges not to be read in front of hundreds of people.  Second, we enter a plea of not guilty.  At this juncture the State has not provided the evidence they intend to use at trial and we would essentially be accepting guilt without evaluating the case.  Thus, it makes sense to plead not guilty, collect evidence, and then proceed accordingly.  Finally, we inform the court that we will be filing legal motions and ask the court for ten-days to file.  Legal motions cover many issues including asking the Judge to force the State to provide evidence, suppress evidence, hold a hearing on legal issues, and many other topics.

If you have been charged with a crime then your case will eventually be set for an arraignment hearing.  Please contact our office today at 404-581-0999 for a free consultation at either our downtown location or our Marietta location to discuss arraignment and how we can help with your case.

How do I get a bond?

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If you or a loved one has recently been arrested, the first thing on your mind is getting out of jail.  Unfortunately, the process of bonding out is more complicated than expected.  So, what do you need to know to get out of jail as quickly as possible?

1)      Will I get a bond?  If so, when?

In Georgia, the rules are organized according to whether the arrest offense is a felony or a misdemeanor.  If it is a misdemeanor, then you are entitled to a bond by law.  If the charge is a felony, then it is in the judge’s discretion whether to grant bail.  There are certain serious offenses for which only a superior court judge can grant bail.  In that case, the superior court will be notified of your arrest within 48 hours.  The superior court is then required to set a bond hearing within 30 days after receiving the notice.  However, if you file a petition for a bond, then the hearing must be held within 10 days after receiving the petition.

2)      What does the court consider when determining whether to grant bond and when determining high the bond should be? 

Judges consider four factors when determining whether to grant bond, and when determining how much the bond should be: (1) Are you a risk to run away and not come back to court?; (2) Do you pose a threat or danger to people or property in the local community?; (3) Is it likely that you will commit a felony before your case is resolved?; and (4) Are you likely to intimidate witnesses against you?

3)      Once I get a bond, what are my options for covering the amount? 

Cash bond – This requires you to put up the entire bond amount in cash or by money order.  Most people cannot afford the entire amount, and that is where bondsmen come in.  As long as you are able to pay 13-15% of the bond, then a bondsman will put up the money for you and require that you pay a fee.

*The money that you pay to bond out will be refunded at the close of the case as long as it is not forfeited by your failure to appear in court.  The fee to the bonding company will not be refunded. 

Property bond – You may be able to put up real property (house or land) as a way to guarantee your appearance in court.  Generally, you must have enough equity in the home or property to cover the amount of the bond.  In some places, you have to have twice the amount of the bond in equity.  Most bondsmen will still help you bond out of jail, and they may accept more than just real property.  For example, some will allow you to put up the title to your car as a guarantee that you will return to court.  Remember, if you use property to bond out and you fail to appear in court, then you are at risk of losing that property!

If you or a loved one have recently been arrested and want help bonding out, do not hesitate to contact us at 404-581-0999. You can trust that our firm will do everything possible to get you or your loved one out of jail and to make the process as simple and painless as possible.