Handling Your Misdemeanor Case in Georgia during the COVID-19 Pandemic

The court system in Georgia has changed drastically over the past nine months. Judges have adopted virtual court appearances. Prosecutors and defense attorneys are working their cases from home. Clerks offices and entire courthouses throughout Georgia have been shut down due to positive COVID cases.

The handling of misdemeanor cases in Georgia has become a completely different process from arrest through closure. Police officers are issuing citations instead of arrest in many situations. Cases that would normally require fingerprints at the time of police interaction like theft by shoplifting, driving on a suspended license, misdemeanor possession of marijuana, and even DUI are ending with our potential client being released instead of taken to jail.

Court appearances are being postponed, sometimes to months later. It took the Municipal Court of Atlanta almost eight months to re-open after the beginning on the pandemic. They are still catching up on cases at this time. Delays in resolution means cases are outstanding for longer periods, and in some cases able to be seen by persons running background checks for a longer period of time. Also, just because you weren’t arrested doesn’t mean fingerprints will not be required before your case is resolved.

Having a Georgia attorney experienced with misdemeanors during this time is essential in trying to get closure as quick as possible on your case. An attorney can reach out to the prosecutor’s office and try and fast track your case to get it resolved as quickly as possible.

Our office is available 24 hours a day, 7 days a week for a free consultation. Call us today at 404-581-0999.

Georgia DUI Law: Challenging the Stop, Defective Equipment

Georgia DUI investigations usually begin with a routine traffic stop. At a minimum, in order to stop you and your vehicle, the stopping officer needs to have “reasonable and articulable suspicion” to believe a crime has, or is about to be committed. An officer normally satisfies this requirement by observing a traffic or equipment violation. However, if it is determined the officer did NOT have reasonable and articulable suspicion to stop your vehicle; this could result in the suppression of evidence and the ultimate dismissal of a DUI charge.

Therefore, it is crucial to examine the most common types of traffic violations that result in a DUI investigation. This article serves to inform you of the nature, methods of proof, penalties, and challenges to a defective equipment offense in Georgia.

The Offense

O.C.G.A. §§ 40-8-7(a) and (b) state:

(a) No person shall drive or move on any highway any motor vehicle, trailer, semi trailer, or pole trailer, or any combination thereof, unless the equipment upon any and every such vehicle is in good working order and adjustment as required in this chapter and the vehicle is in such safe mechanical condition as not to endanger the driver or other occupant or any person upon the highway.

(b) It is a misdemeanor for any person to drive or move, or for the owner to cause or knowingly permit to be driven or moved, on any street or highway any vehicle or combination of vehicles:

(1) Which is in such unsafe condition as to endanger any person;

(2) Which does not contain those parts or is not at all times equipped with such lights and other equipment in proper condition and adjustment as required in this chapter; or

(3) Which is equipped in any manner in violation of this chapter.

Even if you are driving perfectly, a police officer may still stop your vehicle if any of its equipment is non-operational. Examples include, but are not limited to, missing taillight, broken tag light, or a low hanging bumper. Although the spirit of this law is to protect other motorists from defective vehicles on the road, this traffic offense is often used as a “pre-textual stop,” meaning the officer stops you for this offense in hopes of discovering another criminal offense, particularly DUI. Although the law used to criticize these types of stops, a line of United States Supreme Court cases has weakened these types of challenges.[1]   

Penalties

Under Georgia law, technically, these equipment violations are misdemeanors and are therefore punishable with up to a maximum fine of $1,000 and up to one year in jail. Although these are the maximum punishments, equipment violations generally do not result in jail time. Normally, if you get the defective equipment fixed, and provide proof of such to the prosecuting attorney, your case will likely be dismissed.

Challenging the Stop

If an officer pulls you over for an equipment violation and ultimately arrests you for DUI, you may lodge a challenge to the stop of your vehicle through a motion to suppress or a motion in limine. These challenges are designed to attack the stop, arrest, or any evidence gathered as a result of an unlawful stop and/or arrest.

If you are facing a DUI-Less Safe case, the State will have to prove “less safe driving.” If you have only been cited for defective equipment, the State will have great difficulty in proving alcohol caused you to be a less safe driver because there is no “less safe” driving act (ie. speeding, failure to maintain lane, improper turn, etc.). This is a major issue a defense attorney should raise during trial.

Contact Us

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.


[1] See, Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536 (2001); Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769  (1996); Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417 (1996); and Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882 (1997).

Possession of Edibles in Georgia

In the past ten years, thanks to the decriminalization and legalization in other states, the possession and consumption of marijuana has changed drastically. Beyond just your typical green leafy marijuana, there are chocolates, gummy bears, hard candies, drinks, waxes, resins, oils, creams, and other substances used to intake THC into your body. 

Misdemeanor or Felony?

In Georgia, possession of green leafy marijuana  is a misdemeanor if you possess under an ounce. Possession of over an ounce of green, leafy marijuana is a felony. But what most people do not know is that possession of any other product that has THC in it that is not green, leafy marijuana is a felony. It doesn’t matter that the edible, weed cartridge, wax or other substance was under an ounce. It doesn’t matter if it was only one brownie, or gummy bear, or cartridge. It’s a felony in violation of the Georgia Controlled Substances Act (VGCSA). On top of that, if the THC is baked into a brownie, or in a beverage, officers use the entire weight of the substance to determine weight, and not just the part of it that has THC in it. These substances are heavy and can hit Possession with Intent and Trafficking levels quickly.

It’s important that you know the laws in Georgia.

Officers are now trained to look for substances beyond green, leafy marijuana. They are looking for cartridges. They are looking for edibles. They are looking for distinct smells given off by concentrated marijuana products. Five years ago we saw very few if any arrests for these weed products. But over the past year, we are seeing more and more clients come in and tell us, “He found my cartridges.” Or “They went looking straight for my wax.”

Our office has been on the forefront of this shift in marijuana products in Georgia. Our team of educated and knowledgeable attorneys can help you find defenses to your felony weed charges. Call us today for a free consultation at 404-581-0999.

Is DUI a Felony?

In most instances, the crime of DUI is considered a misdemeanor in Georgia. A misdemeanor is defined as a crime that has a maximum punishment of 12 months in jail. If this is your first time being charged with a DUI and no one was hurt, you will be facing a misdemeanor DUI.  Additionally, even if this is your second or third DUI in a short period of time, your DUI will still be charged as a misdemeanor.

Misdemeanor Punishments

Even if you are facing a misdemeanor-level DUI, the State can stack punishment, and request a longer sentence by adding additional jail time to an underlying charge. For example, if you are charged with DUI and Failure to Maintain Lane, the Judge can sentence you up to 12 months on each charge, for a total of 24 months in custody. Additionally, misdemeanor DUIs do still appear on criminal histories and can require jail, probation, and a license suspension if you are convicted. The goal after a DUI arrest is to avoid a criminal conviction so you can avoid the harsh punishments associated with a conviction for DUI. 

When DUI is a Felony

There are situations where you will be facing a felony after a DUI arrest. A felony is defined as a crime that is punishable more than a year in jail. The first instance is when you are being charged with a fourth DUI within a 10 year period, measured from the dates of previous arrests. A fourth DUI within 10 years is a felony in Georgia, with considerable mandatory minimum jail time if convicted.

Another situation where a DUI is considered a felony in Georgia is if you were arrested for the crime of Serious Injury by Vehicle. This occurs when someone causes an accident resulting in bodily harm while Driving under the Influence. This felony is punished by imprisonment between 1 and 15 years. Bodily harm under Georgia law is defined as an injury to another person which deprives them of a member of their body, or renders part of the body useless, or seriously disfigures, or causes brain damage. There are certainly defenses to this serious crime including the causal connection as well as what constitutes a serious injury.

The final situation where a DUI is prosecuted as a felony offense is Homicide by Vehicle in the first degree, meaning you are arrested for DUI and someone actually dies in the accident. You can be charged with Homicide by Vehicle if it is your passenger who dies.  If convicted, the crime is punishable from 3-15 years. The law requires the State to prove a causal connection between the violation of the DUI statute and the victim’s death. However, under Georgia law, the person does not actually have to commit an unsafe act before facing this type of charge.

Call us today!

DUIs in Georgia require knowledgeable and skillful representation as the stakes are high. If you are facing a felony DUI, it is imperative to find a law firm with a track record of success, who are well-informed on the ever-changing aspects of DUI law in Georgia. If you or a loved one is facing a DUI, whether it be a misdemeanor or felony DUI, call us today for a free consultation at 404-581-0999. 

Do I Need an Attorney for Traffic Court?

The answer to that question is, it depends. In Georgia, all traffic citations, whether you were arrested or not, are misdemeanors and carry a punishment of up to one year in jail and a fine of up to $1,000. That being said, most traffic offenses will not involve jail time or show up on a background check or criminal history.

How Can an Attorney Help?

In my experience, attorneys can help you in traffic court in Atlanta in a few ways. One, attorney cases are often handled at the beginning of the calendar, allowing you to get in and out of court quickly, and on your way to the rest of your day. Two, attorneys have relationships with the prosecutors in court and can often negotiate a better resolution than you might be able to on your own. Three, some citations in Georgia, such as No Insurance, or Driving with a Suspended License or Registration carry with them additional license suspensions or mandatory jail time. If you enter a plea of guilty to those offenses without understanding the potential punishments, you may impact your freedom or your ability to drive. Finally, an attorney may offer defenses to the charge that can get your traffic citation dismissed completely.

This advice is especially true for Smyrna Municipal Court, Cobb County State Court, the Municipal Court of Atlanta, Gwinnett County Recorders Court, and DeKalb County State Court – Traffic Division.

These are just a few of the reasons it is beneficial to talk to an attorney before going to traffic court. Our free consultation will give you valuable information to  help you decide whether you need an attorney in traffic court. Call us today at 404-581-0999.

by Ryan Walsh

Forgery Laws in Georgia

by Ryan Walsh

There are four degrees to the offense of Forgery in the State of Georgia.

Forgery in the first and second degree involves the making, possession or alteration of a writing other than a check in a fake name or in a manner that alleges the document was made by another person at another time without the authority of that other person. It is forgery in the first degree if that writing is used, presented , or delivered; and forgery in the second degree if it is never used, presented or delivered.

To be found guilty of forgery in the first or second degree you have to have knowledge that the writing is forged and that you have made, possessed or altered the document with the intent to defraud another party.

Forgery in the third and fourth degrees involve the same elements of forgery discussed above but the writing involved is a check.  If the check is for $1,500 or more or you have ten or more checks in your possession then you will be charged with forgery in the third degree. If the check is for less than $1,500 or you have less than ten checks in your possession then you will be charged with forgery in the fourth degree.

Forgery in the first through third degrees is a felony offense in the State of Georgia. Forgery in the fourth degree is a misdemeanor offense.

If you’ve been contacted by a law enforcement official about a potential issue at a bank it is important that you exercise your right to remain silent and call a lawyer immediately to discuss your case, your options, and potential outcomes.

Being convicted of a forgery charge can impact your ability to gain future employment or obtain professional certifications in the State of Georgia.

Our office of Georgia criminal defense attorneys have experience in defending forgery and fraud crimes. Call us today at 404-581-0999 for a free consultation.