Clayton County Sexual Battery

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Clayton County and throughout Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in Cobb County or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

Reckless Conduct in Fulton County

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The Fulton County Solicitor General prosecutes crimes of reckless conduct. Under O.C.G.A. 16-5-60, reckless conduct is when you causes bodily harm to or endanger the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

Reckless Conduct involves an act of criminal negligence, not an intentional act.

What does criminal negligence mean in the contact of Reckless Conduct. Criminal negligence implies, not only knowledge of a likely consequence which may result from the act, but also willful or wanton disregard of the probable effects upon others likely to be affected.

Criminal negligence is more than ordinary negligence. Criminal negligence is the reckless disregard of any consequences, or an indifference to the safety of others.

If you are charged with reckless conduct in Fulton County, you face 1 year in jail and a $ 1,000 fine.

If you are charged in Fulton County with reckless conduct,  please call us at 404-581-0999. You need to zealously defend yourself against these allegations.

Enticing A Child for Indecent Purposes in Clayton County

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Enticing a child for indecent purposes is a serious crime in Clayton County. It is imperative that you retain a qualified attorney immediately if you are being accused of Enticing a child for an indecent act. Many allegations of enticing a child are false. Even if you know the allegation of enticing a child against you is made up, you still must take it very seriously and aggressively defend yourself. The Clayton County District Attorney’s office has a unit dedicated to prosecuting sex crimes.

O.C.G.A. § 16-6-5 defines Enticing a Child for indecent purposes as follows:

A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.

The Clayton County District Attorney must prove a joint operation of (1) the act of enticing a child and (2) the intention to commit acts of indecency or child molestation.

Enticing a Child for Indecent Purposes is different than Child Molestation because of the extra element of asportation. The asportation element is satisfied with the taking involving physical force, enticement or persuasion. The evidence must show some movement of the child. It can be slight movement.

Indecent Acts means illicit sexual conduct. Because the statute refers to both indecent acts and child molestation, it is reasonable to assume that indecent acts are different than acts punished by the child molestation statute.

Neither consent nor lack of knowledge of the child’s age is a defense to prosecution under the Enticing a Child statute.

The statute is intended to protect children from sexual predators. It is unlawful to entice any child under the age of 16.

The punishment for Enticing A Child is a mandatory of 10 years imprisonment up to 30 years and at least 1 year of probation.

The Clayton County District Attorney’s office vigorously prosecutes these cases.

Do not wait until the Clayton County District Attorney actually returns an indictment against you for Enticing a Child before seeking an attorney. It is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

Cobb County Drug Trafficking Attorney

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The war on drugs is alive and well in the Georgia criminal justice system. You may be surprised the amounts of each drug that Georgia law considers to be Drug Trafficking. While selling drugs of any kind is against the law and considered a felony, there is a threshold for each drug that will bump the case into drug trafficking. Drug trafficking has significantly harsher penalties than a simple Possession charge or even Possession with Intent to Distribute. Drug trafficking also can make obtaining a bond more difficult at the onset of the case because only a Superior Court Judge can grant bond in these situations. This can be an issue since the first Judge people typically see after arrest is a Magistrate Judge at First Appearance, and Magistrate Judges do not have authority to grant a bond in Drug Trafficking cases in Georgia. In some courts, Magistrate Judges “sit in designation” and can in fact handle bond hearings for trafficking charges. If this is not the case, attorneys must request a hearing by a Superior Court Judge in order to request a bond.

 

What is considered drug trafficking?

Simply possessing the following amounts will be considered Drug Trafficking under Georgia law, even if there is no evidence of selling or delivering it.

Methamphetamine: 28 grams or more

Heroin: 4 grams or more

Cocaine: 28 grams or more

Marijuana: 10 pounds

 

How much time am I facing if I am charged with Drug Trafficking in Cobb County?

The short answer is it depends. Each drug and amount has a different mandatory minimum sentence. For example, if you have anywhere between 28 grams and 200 grams of cocaine, Georgia law requires a sentence with a minimum 10 years and $200,000 fine. Those numbers go up with every amount over 200 grams.

If you are charged with trafficking marijuana in Georgia, and the amount seized was somewhere between 10 pounds and 2,000 pounds, it is a mandatory minimum sentence of five years and a $100,000 fine.  Similarly, these numbers will also go up for every amount over 2,000 pounds.

See O.C.G.A. § 16-13-31 for all mandatory minimum sentencing according to type of drug and amount seized. There is a lot of negotiation that can occur in these cases to avoid mandatory minimum sentencing.

 

There are defenses to Drug Trafficking in Georgia

Drug trafficking cases typically implicate the Fourth Amendment more than any other type of case. Each of us has a Constitutional right to be free from unreasonable search and seizures. Each case is different and must be carefully analyzed in terms of whether the police officers acted lawfully in the search and seizure of the drugs. For example, if the officers had no right to enter your trunk or your safe in the closet, the drugs and case can be thrown out. Likewise, if the search warrant is not valid, or they did not get a warrant, this is another defense to getting the drugs suppressed or excluded.

Drug trafficking in Georgia and in Cobb County carries significant sentences, and the legal motions must be filed very early on in the case in order to preserve the issue and allow us to argue the suppression of the drugs. If you or a loved one has been arrested and charged with Drug Trafficking in Cobb County, reach out today for a FREE CONSULTATION with the experienced lawyers of W. Scott Smith by calling 404-581-0999.

 

DeKalb County Serious Injury by Vehicle

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DUI and Reckless Driving charges are considered misdemeanors in Georgia. However, if you were arrested for DUI or Reckless Driving and there was an accident with serious injuries involved, it is likely you will be arrested for the felony offense of Serious Injury by Vehicle under O.C.G.A. § 40-6-394.

 

A Serious Injury by Vehicle case in DeKalb County will be prosecuted by the DeKalb County District Attorney’s Office.  It is a felony charge, and the DeKalb County District Attorney has four years from the date of arrest to bring formal charges against you. Once your case is indicted or accused within the statute of limitations, your first court date will be your Arraignment date. This takes place at the DeKalb County Superior Court located at 556 N McDonough St, Decatur, GA 30030.

At your arraignment date, you will have the opportunity to enter a Not Guilty plea and make a demand to see the evidence. It is imperative to have an attorney at this phase in the case because certain Constitutional motions must be filed within 10 days of this court date, or the issues are waived. This means that an attorney must file motions challenging the constitutionality of the stop and the arrest, within 10 days of the Arraignment date, or you will lose the ability to fight the case on these issues later on.

What’s the Difference Between a Misdemeanor DUI and a Serious Injury by Vehicle?

The difference between a felony and a misdemeanor is the punishment and the other collateral consequences. DUI and Reckless Driving are misdemeanor crimes, and thus carry a maximum punishment of 12 months in jail. On the other hand, Serious Injury by Vehicle is a felony charges which could result in much lengthier punishment as society views felonies, generally, more harshly. Specifically, for the felony charge of Serious Injury by Vehicle, the minimum punishment is 1 year in prison, while the maximum is 15 years. Certain factors like the blood alcohol content, or whether there was any prior convictions can elevate punishment significantly. Compare that to a Driving Under the Influence charge where the minimum punishment is just 24 hours along with conditions like community service and DUI school.

What about my License?

The Department of Driver Services also treats this crime harshly, and if you plea or are found guilty of Serious Injury by Vehicle in DeKalb County or anywhere in the State, you are facing a driver’s license suspension for a period of three years in addition to the other requirements imposed by the Court.

The State does not have to prove you committed an unsafe act like speeding, cutting someone off, or hitting someone’s vehicle from the back. They can proceed only on the fact you were DUI and caused an injury under the statute, even if you were not the cause of the accident.

In order for the State to prove Serious Injury by Vehicle, they must prove the injuries were serious enough to fall under the statute. Courts have held broken bones, being unable to walk well for a period of time, and certainly brain damage, all to be sufficient for the state to proceed on felony charge.

Take the next step

If you or someone you know have been arrested for Serious Injury by Vehicle in DeKalb County or the Decatur and Atlanta area, it is imperative to meet with a law firm who has a high-level skill in DUI defense as well as in Serious Injury by Vehicle cases. Your future and your freedom depend on it. Call us today for a free consultation at 404-581-0999.

Using Cell Phone Data in Defense of Murder in Fulton, Dekalb, and Clayton Counties

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Cell phone data is becoming more and more popular as a tool that the State uses to try to place a defendant at the scene of a murder in Fulton, Dekalb, and Clayton Counties. The State often applies for, and is given, a search warrant for a suspect’s cell phone and performs a data dump of the phone to acquire all of the location data associated with calls and text messages around a given time. Fortunately, it is also a valuable tool that defense attorneys can use to prove that a defendant was not at the scene of a murder.

Utilizing cell phone data efficiently requires a basic understanding of how location data works. Each time a call or text message is sent or received, the phone pings off the nearest tower. Each tower is then divided into 3 sectors, or azimuths, comprising 120 degrees. Each azimuth then projects a “cone”, and the cone determines which direction the phone is (or is not) located. Thus, although the State will try to convince a jury that they can pinpoint the exact location of a defendant’s call phone, they can only show that the phone was located within one of the 120-degree cones and not at a specific location.

Cell phone data is more appropriately used by a defense attorney to prove that a defendant’s cell phone was not located at or near the scene of a murder. For example, if a murder occurred in the 120-degree cone of a certain cell tower pointing northwest, but the defendant’s cell phone is pinging off the cone pointing southeast from the same tower, the defendant’s phone may be excluded from being near the scene of the murder (if there were call or text messages being sent or received at or near the time of the murder).

The State will likely call an expert witness to present the cell phone data and try to place a defendant at the scene of a murder or other serious crime. Having an attorney that is familiar with how cell phone data works is important because they can cross-examine the witness and show why their analysis is incorrect. The defense attorney may then call an expert of their own to teach the jury about how to use cell phone data to show that the defendant’s cell phone was, in fact, not present at the scene.

The attorneys at W. Scott Smith have a proven track record of using cell phone data to exonerate their clients. If you are charged with a serious crime in Fulton, Dekalb, or Clayton Counties and feel that your cell phone data would show that you were not near the scene of the crime, call our office at 404-581-0999 for a free consultation.

Aggravated Assault in Fulton County

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In Fulton County, Georgia, there are two types of assault offenses that an accused person may be convicted of, they are simple assault and aggravated assault. Generally, simple assault is classified as a misdemeanor where aggravated assault is a felony offense. In this blog, we will solely discuss the latter.

According to O.C.G.A. § 16-5-21, a person commits the offense of aggravated assault when he/she commits an assault in one of the following aggravating circumstances:

  • The accused has the intent to murder, rape, or rob;
  • The accused commits the assault with a deadly weapon or object in which could result in serious bodily injury;
  • The accused commits the assault with an object, which is likely or is actually used for strangulation; OR
  • The accused commits the assault without legal justification by discharging a firearm from within a motor vehicle.

When the accused person commits an assault in Fulton County, in one of the above-mentioned manners, the accused may be sentenced, if convicted, anywhere between 1-20 years in prison. However, the following offenses, as listed below, have different penalties due to the enhanced circumstances that surround the incident:

  • If the accused commits the aggravated assault upon a police officer while he/she is engaged in his/her official duties, the accused person may be sentenced to at least 10 years, but no more than 20 years in prison if such assault occurs from the discharge of a firearm. However, when the aggravated assault does not involve the discharge of a firearm, the accused person may be sentenced anywhere between 5-20 years in prison;
  • Any person who commits such an assault against the elderly may be sentenced to at least 3 years, but no more than 20 years in prison. The same punishment is true for any person who commits the aggravated assault in a public transit vehicle or station;
  • If the accused commits the aggravated assault upon public school personnel or on school property, he/she may be sentenced anywhere between 5-20 years in prison;
  • If such an assault is committed against a family member, as defined as “family violence” under Georgia law, the accused may be sentenced to at least 3 years, but no more than 20 years in prison; AND
  • Lastly, any person who commits such an assault with the intent to rape a child under the age of 14 years old, may be punished by a prison sentence of anywhere between 25-50 years.

 CONTACT US

Due to the severity of the penalties for an aggravated assault conviction, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such charges. Therefore, if you or a loved one has been arrested for aggravated assault in Fulton County, please call our office today at 404-581-0999 for a free consultation.

Fulton County – Aggravated Assault by Strangulation

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We see it happening more and more often in Fulton County: Battery-Family Violence charges being upgraded to Aggravated Assault-Strangulation. This means that the person originally arrested for a misdemeanor, can now be facing not only the misdemeanor of Battery-Family Violence, but also the serious felony offense of Aggravated Assault by Strangulation.

Why was my Battery Family Violence case transferred to the Fulton County District Attorney’s Office?

Officers initially make the arrest decision, but prosecutors have the ability to draft up indictments to present to a grand jury based on the facts within the officer’s original report. If there is any mention that the person placed their hands on the victim’s neck, it is possible and probable that the case will be upgraded to a felony offense of Aggravated Assault-Strangulation. Given the fact that it is a felony, the case will be sent to be prosecuted in felony court also known as Fulton County Superior Court, by attorneys who prosecute more serious cases.

What is Aggravated Assault Strangulation?

Georgia law states that a person commits the offense of Aggravated Assault by Strangulation when he or she assaults with any object, device, or instrument, which when used offensively against a person, is likely to or actually does result in strangulation. There are defenses in these cases as Georgia no longer defines what Strangulation means. The Georgia statute used to say that “Strangulation” is defined as impeding the normal breathing or circulation of blood of another person by applying pressure to the throat or neck of such person or by obstructing the nose and mouth of such person. Without that definition on the books anymore, it is very fact specific on whether or not the State can actually prove strangulation. In most cases, where there has been no loss of conscious, it will be difficult for the State to prove actual strangulation. Therefore, when the facts state that someone’s hands were placed on another’s neck, then arguably the person has committed a misdemeanor battery instead of the serious felony offense of Aggravated Assault by Strangulation.

What does it mean for my Fulton County criminal case if I am now facing Aggravated Assault by Strangulation?

Having the case upgraded to Aggravated Assault-Strangulation can lead to much harsher sentence if you are found guilty.  The crime itself carries 1-20 years in prison, which can be stacked with the other crimes originally charged and can result in a lengthy prison sentence. If you are charged with Aggravated Assault by Strangulation in Fulton County, you will be prosecuted by the Fulton County District Attorney’s office in Fulton County Superior Court and the stakes are certainly higher. Given the harsher penalties associated with violent felonies, it is imperative to seek a Georgia criminal defense attorney early on who can evaluate the case and immediately begin building the defense. Being proactive by speaking to a lawyer immediately after an arrest is the best way to ensure a strong defense when your case goes to court. Call us today for a FREE CONSULTATION about your Aggravated Assault by Strangulation case at 404-581-0999

Driving with a Suspended License in Fulton County

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By: Attorney Alex Henson

In Georgia, driving with a suspended license can result in an arrest and conviction for a misdemeanor. If you are found guilty of driving on a suspended license you will face no less than two days in jail and a fine of $500 to $1000. You could also be placed on probation. Pleading guilty to driving on a suspended license will also result in a new suspension of your Georgia driver license for six months. You can avoid a new suspension by pleading nolo contendre (no contest), but this option is only available once every five years.

A second or third conviction of driving on a suspended license in a five-year period will result in no less than 10 days jail and a fine of $1000 to $2,500. You can also face additional penalties such as probation. A fourth conviction in a five-year period will be considered a felony and is punishable by 1 to 5 years in prison as wells as fines and probation. If you are arrested or cited for driving with a suspended license having a lawyer fight your case can result in a better outcome. Call us at (404)  581-0999 for a free consultation.

Racing on Highways – DeKalb County Lawyer

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Street racing is considered a major traffic violation in Georgia. Since 2020, there have been a significant increase in Street Racing and Laying Drag tickets and arrests in DeKalb County, and the Atlanta Area. In response, police in DeKalb County have implemented a substantial effort to reduce street racing and laying drag on highways. This blog will explain in detail the law on Racing in Georgia.

Racing on Highways or Streets, defined by O.C.G.A. § 40-6-186, means the use of one or more vehicles in an attempt to outgain, outdistance, or prevent another vehicle from passing, to arrive at a given destination ahead of another vehicle or vehicles, or to test the physical stamina or endurance of drivers over long-distance driving routes. Georgia law prohibits any vehicle on a highway or street to engage in any race, or speed competition. It is considered a misdemeanor criminal offense. Officers in Georgia can either issue a citation or make an arrest for Racing. After citation or arrest, there will be an arraignment hearing where you will be asked to enter a guilty or not guilty plea. During the course of the criminal case, there may be plea negotiations, a bench trial, or a jury trial.

What is the punishment of Racing in Georgia?

Since it is a misdemeanor offense, the maximum penalty is 12 months in jail for this charge.  In addition to Racing, the officer may also cite you with Speeding and Reckless driving, which each can carry another 12 month sentence consecutive. In addition to probation or jail, and high fines, there will be insurance premium increases, and a mandatory license suspension. If you are convicted of Racing in Georgia, the license suspension is a minimum 120 days. A limited permit is an option that can be explored.

However, the driver’s license suspension could be much longer depending on any previous tickets on your motor vehicle report. This is because Racing is a contributing offense towards Habitual Violator status. For example, if in the past five years you were convicted of Suspended Registration, DUI, and Racing, it would be a five-year habitual violator suspension. A skilled defense lawyer will evaluate your motor vehicle report to help advise you on license consequences as well as negotiate favorable resolutions where license suspension, points, and jail are always avoided where possible. Lastly, bench and jury trials are also an option in Racing and other traffic cases in DeKalb County.

If you or a loved one has been cited or arrested for Racing in Atlanta, give us a call for a FREE CONSULTATION at 404-581-0999. With increased focus throughout DeKalb County and Atlanta, on these types of charges, it is imperative to have an advocate in court if you are charged with Racing or Laying Drag in Georgia.