Why is my child charged as an adult?

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There are two reasons why a minor might be charged as an adult. The first is they’re 17. Even though you’re not considered an adult until your 18th birthday for most things – i.e. voting, buying tobacco or a weapon – in the Georgia criminal justice system you are an adult at your 17th birthday.

The other reason is the crime the child is charged with. Under OCGA § 15-11-560 a child that is at least 13 will be charged as an adult in Superior Court if they are alleged to have committed certain crimes. These crimes include murder, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, armed robbery with a firearm, and aggravated assault or battery against a police officer. However, there are circumstances that allow these types of cases to be sent back to Juvenile Court.

Every case is different and if your child has been charged as an adult it is imperative to seek out an experienced attorney. Give us a call for a free case consultation.

Affray Law – Clayton County Defense Lawyer

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Fighting by two or more people in a public place to the disturbance of the public tranquility is a misdemeanor offense in Georgia known as affray. All misdemeanor offenses carry a maximum penalty of 12 months in jail and/or a fine of $1,000.

Affray requires an intent to fight, so it is a highly defensible case if you simply were a victim of the fight and had no intent to engage in the fight. The State must prove you were a willing participant. With that being said, self-defense is defense that can be explored and used in Affray cases. Even if you did engage in the fighting, but you did so in self-defense, this would be a full legal defense to the charge of Affray. Interestingly, automatic reflexes which including pushing back will also not rise to intent to fight.

Other defenses of Affray include focusing on where the fight occurred. Affray in Georgia requires it to have happened in a public place. Georgia law has held that jails and prisons are not public places for purposes of this statute. Likewise, fights at homes and other private property would not be unlawful under the Affray statute.

Affray, being a finger-printable offense, is one that remains on one’s criminal history forever. Paying a fine or pleading guilty will result in a lifetime criminal conviction. Given the various defenses that come into play wit Affray charges, it is important to consult with a skilled criminal defense lawyer who can advocate for you. Call us today for a FREE CONSULTATION at 404-581-0999 if you or a loved one has been charged with Affray in Clayton County or anywhere in Georgia.

A Recent Georgia Supreme Court Decision on Withdrawing Guilty Pleas

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A Georgia Supreme Court case that was recently decided sheds light on what circumstances would allow a guilty plea to be withdrawn and highlights the importance of hiring an experienced criminal defense lawyer early in the process of defending yourself against serious criminal charges.

In Moody v. State, decided on May 16, 2023, the Georgia Supreme Court explains when and why a defendant may choose to withdraw their guilty plea. In Moody, Jeremy Moody was charged with the rape and murder of a 13-year-old girl and the murder of her friend in Fulton County. The crimes occurred on April 5, 2007, Moody was indicted on April 20, 2007, and the State filed written notice that they were seeking the death penalty on May 1, 2007. Moody’s trial began on April 10, 2013, but Moody pleaded guilty to all charges shortly after trial began. The sentencing phase of Moody’s trial began on April 15 and, before a sentence was pronounced, Moody announced that he wished to withdraw his guilty plea.

In normal cases, according to O.C.G.A. § 17-7-93 (b), a defendant may withdraw their guilty plea at any time up until their sentence is pronounced. But, in cases where the State is seeking the death penalty, a defendant may only withdraw their guilty plea “to prevent a manifest injustice.” Browner v. State, 257 Ga. 321 (1987). In this case, Moody argues that his plea was not knowingly and voluntarily entered and that this creates a manifest injustice. The Court found that Moody was 35 years old, had completed his G.E.D., and was not under the influence at the time of his plea. Moody also told the judge that he understood what the plea meant and that he had sufficient time to discuss the plea with his lawyer. The Court found that Moody was not coerced into pleading guilty and that he was not doing so for any reason other than because it was what he wanted to do.

This case highlights why it is important to be represented by an experienced criminal defense lawyer. Although you may withdraw a guilty plea at any time before the sentence is pronounced in cases in which the State is not seeking the death penalty, it is very difficult to withdraw a plea after you have been sentenced by the court. The lawyers at W. Scott Smith are experienced in pre-trial negotiations and will work alongside you to determine if a plea bargain is in your best interest. If you desire a trial, the lawyers at W. Scott Smith will guarantee that you get your day in court. Call our office at 404-581-0999 today for a free consultation.

Affray Law – DeKalb Lawyer

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Fighting by two or more people in a public place to the disturbance of the public tranquility is a misdemeanor offense in Georgia known as affray. All misdemeanor offenses carry a maximum penalty of 12 months in jail and/or a fine of $1,000.

Affray requires an intent to fight, so it is a highly defensible case if you simplt were a victim of the fight and had no intent to engage in the fight. The State must prove you were a willing participant. With that being said, self-defense is defense that can be explored and used in Affray cases. Even if you did engage in the fighting, but you did so in self-defense, this would be a full legal defense to the charge of Affray. Interestingly, automatic reflexes which including pushing back will also not rise to intent to fight.

Other defenses of Affray include focusing on where the fight occurred. Affray in Georgia requires it to have happened in a public place. Georgia law has held that jails and prisons are not public places for purposes of this statute. Likewise, fights at homes and other private property would not be unlawful under the Affray statute.

Affray, being a finger-printable offense, is one that remains on one’s criminal history forever. Paying a fine or pleading guilty will result in a lifetime criminal conviction. Given the various defenses that come into play wit Affray charges, it is important to consult with a skilled criminal defense lawyer who can advocate for you. Call us today for a FREE CONSULTATION at 404-581-0999 if you or a loved one has been charged with Affray in DeKalb County or anywhere in Georgia.

Douglas County – Obstruction of a Law Enforcement Officer – Criminal Defense Attorney

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Obstruction of a law enforcement officer can be either a misdemeanor or a felony depending on the facts of the case. The Statute governing Obstruction of a Law Enforcement Officer can be found at O.C.G.A. 16-10-24. If the case is prosecuted as a misdemeanor, the Douglas County Solicitor’s Office will prosecute the case, whereby if it is a felony charge, it will be sent to the Douglas County District Attorney’s Office. The biggest difference between a misdemeanor obstruction case and the felony obstruction case is the maximum punishment if convicted. If you have been arrested in Douglas County for Obstruction of a Law Enforcement Officer, the first step is to be brought in front of a Douglas Magistrate Judge for a First Appearance hearing. At the First Appearance hearing, the Judge will read off the charges, notify you of your rights, and possibly set a bond. An attorney can be present at this stage to advocate for a reasonable bond.

 

Douglas County Misdemeanor Obstruction

Misdemeanor obstruction is when one knowingly and willingly obstructs or hinders a law enforcement officer in the discharge of his or her lawful duties. This includes police officers, but also probation officers,  jailers, or game wardens.

 

There are a few ways one can “obstruct” an officer under Georgia law. First, you can prevent an officer from discharging their official duties by running away, arguing, lying, or doing something that makes it more difficult or completely prevents them from doing their job. This would be classified as misdemeanor obstruction in Georgia and is punishable by up to twelve months in jail and/or a fine of up to $1,000. You don’t have to make any physical contact with the officer to be charged with misdemeanor obstruction. Felony obstruction, on the other hand, typically does involve physical contact with an officer, or a threat of violence.

 

Douglas County Felony Obstruction

Felony Obstruction is more serious under Georgia law and typically involves violence or threats of violence.  If you make violent contact with an officer in the process of he or she discharging their legal duties, or you threaten violence on an officer, you may be charged with felony obstruction of justice. Felony obstruction, both in DeKalb and across the State, carries a mandatory one-to-five year sentence for a first offense. It is a mandatory 2 to 10 years on a second offense, and 3 to 15 years on a third.

 

Defenses to Obstruction in Douglas County and in Georgia

Both felony and misdemeanor Obstruction of Law Enforcement cases are taken seriously in the DeKalb County justice system and throughout the State. There are, however, numerous defenses. For example, it is not against the law to obstruct a police officer during an unlawful arrest. Under Georgia law, it is also not Obstruction of a Law Enforcement to Officer to not immediately respond to an officer’s order. In order to obstruct, there must first be a clear command by law enforcement, not simply a request. As you can see, Obstruction of Law Enforcement is a fact-based inquiry under Georgia law. If you have been charged with Obstruction of a Law Enforcement Officer in Douglas County, call us today at 404-581-0999 so we can get you into the office for a free consultation.

Governor Kemp Signs Bill that will Enhance Penalties for Fleeing and Eluding in Paulding 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 Paulding 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 Paulding 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 Paulding 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 Paulding County, Georgia, please call our office today at 404-581-0999 for a free consultation.

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.

DUI Probation in Hall County

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If you are entering a plea to a DUI in Hall County, under Georgia law, there are certain penalties which the Court must impose when you enter your guilty plea.

According to Georgia Law, O.C.G.A. 40-6-391, if you plead guilty to DUI, the Court must:

  • Assess a fine of not less than $300 (but not more than $1,000
  • Sentence you to 24 hours imprisonment
  • Sentence you to complete 40 hours of community service at a 501(c)(3) organization
  • Require completion of a DUI Alcohol or Drug Use Risk Reduction Program
  • Require completion of a clinical evaluation for substance abuse treatment
  • Require you to serve 1 year on probation.

While on probation, you will also be responsible for paying any supervision fees, you will be regularly drug and alcohol screened, and if you commit any other crimes, you may face even stiffer penalties if your probation is revoked.

These sentencing requirements sound very serious (and they are!) but they are also very discretionary. Hall County judges have a lot of control over the sentence. For example, some judges will allow you to terminate your probation early if you complete any requirements of your sentence in a reasonable amount of time. Other judges will allow you to complete community service in lieu of paying a fine. Some judges will give you credit for any time served in jail at the time of your arrest, and other Hall County judges will not make you serve any time if you complete your probation requirements.

Entering a guilty plea to DUI in Hall County can be a tough pill to swallow. With the right attorney beside you, however, you will have your best chance of reducing the time and money spent on probation and incarcerated. Attorneys are able to present mitigating evidence for the Court’s consideration, and argue why the judge should withhold certain sentence requirements. If you are considering a guilty plea to DUI in Hall County, call our office first. We may be able to help you make the best of a bad situation, and ensure that you are only being sentenced to the absolute minimums. Call us for a free consultation at 404-581-0999.

 

Written by Attorney Katherine Edmonds

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.

Governor Kemp Signs Bill that will Enhance Penalties for Fleeing and Eluding in Hall 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 Hall 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 Hall 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 Hall 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 Hall County, Georgia, please call our office today at 404-581-0999 for a free consultation.