DeKalb County Serious Injury by Vehicle

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

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

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.


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

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

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

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.

Aggravated Assault Strangulation Charges in Georgia

We deal with a number of cases involving a husband and wife or couple charged with aggravated assault after an argument.  Police know that in responding to a call involving domestic violence all they need to do is to ask the correct questions and a minor scuffle turns into a felony charge of aggravated assault by strangulation.  We commonly see officers responding to a domestic dispute ask the woman did he put his hands around your neck?  In some cases, out of anger, the response is “yes!”  Is it enough to put your hands around someone’s neck to justify a felony?  The answer is actually no.


Let’s start with the law in Georgia.


Georgia code Section 16-5-21 (a) (3) provides that “[a] person commits the offense of aggravated assault when he … assaults … [w]ith any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation[.]” 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.” OCGA § 16-5-19.


As such in order to be convicted on the charge of aggravated assault – strangulation – the State must prove beyond a reasonable doubt the person identified as the victim had a disruption in normal breathing or circulation of blood to their brain.


In one of the seminal cases in Georgia (Sutton), the victim testified Sutton put his hands around her neck, that she could not breathe, and that the pressure caused her to pass out, as well as to clench her teeth so tightly that it broke one of the teeth on her denture plate. The jury was able to view the photographs of the victim’s neck which showed injury. Thus, there is some competent evidence to satisfy the strangulation element of the aggravated assault charge.


The officer testified that the victim reported that she had begun to lose consciousness, but had not actually lost consciousness as a result of Sutton’s acts. To the extent that there was conflicting testimony as to whether the victim actually passed out, that was for the jury to resolve.

The Judge will charge the jury as follows:


Ladies and Gentlemen of the jury, a person commits the offense of aggravated assault when that person assaults another person with any object, device, or instrument that, when used offensively against a person, is likely to or actually does result in strangulation.


“Strangulation” means 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.


To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant (attempted to cause a violent injury to the alleged victim) (intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury).

The State must also prove as a material element of aggravated assault, as alleged in this case, that the assault was made with an object, device, or instrument that, when used offensively against a person, is likely to or actually does result in strangulation;


What if a victim of aggravated assault takes the stand and tells the jury (1) this didn’t happen – he never choked me, or (2) She doesn’t remember the incident.


It does not matter if the victim told the officer on the scene the defendant choked her.  When a statement in court at trial contradicts a previously given statement the previous statement is called a prior inconsistent statement and the statement to the officer on the night of the incident is admissible as substantive evidence.


Chambers v. State, 351 Ga. App. 771, 833 S.E.2d 155 (2019), is illustrative of a recanting victim or a victim that says she can no longer recall what happened.  In Chambers, the defendant contended the trial court erred in admitting into evidence the victim’s prior inconsistent statements to law-enforcement officers. Specifically, he argues victim’s statements claiming he attacked her, which were recorded by the police officer’s body camera, constituted inadmissible hearsay not subject to any exception. The court disagreed.


Under OCGA § 24-6-613 (b), extrinsic evidence of a witness’s prior inconsistent statement may be admitted so long as “the witness is first afforded an opportunity to explain or deny the prior inconsistent statement and the opposite party is afforded an opportunity to interrogate the witness on the prior inconsistent statement or the interests of justice otherwise require.” And under OCGA § 24-8-801 (d) (1) (A), [a]n out-of-court statement shall not be hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is admissible as a prior inconsistent statement or a prior consistent statement under Code Section 24-6-613 or is otherwise admissible under this chapter.


These statements are not hearsay, and, thus, they “may be admitted both for impeachment purposes and as substantive evidence.”


In this matter, when asked about Chambers’ attack on her, the victim testified that she did not recall any of the events of the night in question, claiming that her drinking and failure to take medications on the night in question contributed to her lack of recall. Ultimately, she testified that Chambers had not been violent toward her.  The State then called the police officer who initially responded to the scene as a witness and played a video of him questioning victim, which was recorded by his body camera and in which victim stated that Chambers punched and choked her.

Chambers tried to argue her statement to the police should not be admissible because the victim could not recall the details of the night in question, she was not actually subject to cross-examination as the rule requires. The court disagreed.  The court held “[t]he failure of a witness to remember making a statement may provide the foundation for offering extrinsic evidence to prove that the statement was made.” The foundation was laid for admission of the Victim’s prior statements to the responding officer when she gave testimony inconsistent with those statements, was confronted with that fact, and claimed not to recall them. Accordingly, the previous statements to law enforcement on scene that night were admissible and used to convict Chambers.




Criminal Defense Lawyer in Macon-Bibb County

If you have been charged with a crime in Bibb County, then you have come to the right place.  We specialize in criminal defense and stand ready to defend you.  The first question that needs to be answered is where your case will be heard.  In Bibb County, all the various courts are housed within the judicial center located at 601 Mulberry St., Macon, Georgia 31201.  Once you arrive at the judicial center, you will need to find your particular court and courtroom.  If you were arrested or cited within the city limits of Macon, then your case may begin in the Macon-Bibb County Municipal Court.  The municipal court only hears low-level offenses including traffic violations, DUIs, and various other misdemeanors and city ordinance violations.  In municipal court, you can have a bench trial where the judge hears the evidence and makes a ruling, but you cannot have a jury trial wherein your peers would decide your fate.  Therefore, we only resolve a case in municipal court if we can get a better resolution than we otherwise would in state court.  If we cannot get a favorable result in municipal court, then we request a jury trial which requires the case to be transferred to state court.  You can find more info about the municipal court on their website:

As mentioned above, any state law crime that originates in municipal court can be transferred to Bibb County State Court by requesting a jury trial, but more serious misdemeanors will go straight to state court from the outset.  Once your case is in state court, we continue our negotiations with the Bibb County Solicitor-General’s Office which prosecutes cases in state court.  If we are unable to obtain a resolution you find acceptable, then we maintain our demand for a jury trial and present your case to a six-person jury of your peers from Bibb County.  You can find more info about the solicitor-general and state court on their respective websites: and

All felonies will be ultimately be heard in the Bibb County Superior Court, but initial appearances, bond hearings, and preliminary hearings are held in the Bibb County Magistrate Court (and sometimes these appearances are held at the jail with a magistrate judge presiding).  If the magistrate judge finds sufficient evidence to support your charges, then your case proceeds to the Bibb County Superior Court where we begin negotiations with the Macon Judicial Circuit District Attorney’s Office.  If we are unable to obtain a resolution you find acceptable, then we maintain our demand for a jury trial and present your case to a twelve-person jury of your peers from Bibb County.  You can find more info about the district attorney, magistrate court, and superior court on their respective websites:,,   and

If you have been charged with a crime in Macon-Bibb County, call us today at 404-581-0999 to ensure you get the best outcome possible.

Georgia DUI Law: Motion to Suppress

A motion to suppress seeks to exclude illegally obtained evidence based upon a constitutional violation.[1] The purpose of a motion to suppress is to determine, before trial, whether particular evidence will be admissible at trial. If the judge finds the evidence is not admissible, the prosecuting attorney may determine they cannot go forward on the case and dismiss it entirely. If the judge rules the evidence is admissible, the defendant may be more inclined to enter a guilty plea knowing the objected to evidence will be admitted.

A motion to suppress must:

  • Be made in writing
  • Raise a constitutional ground or basis
  • Allege sufficient facts to place the prosecution on notice of the claim of unlawfulness
  • Be filed no later than 10 days after arraignment (unless judge allows for extension in writing)

A failure to comply with these requirements could result in a waiver of your motion and ability to resolve these issues before a trial.

Once a motion to suppress has been filed, the burden of proving the lawfulness of the legal issues raised is placed on the State. A defendant is general entitled to an evidentiary hearing unless the parties agree to the facts. If so, the judge may rule on the motion without a hearing as a matter of law. The hearing must occur outside the presence of a jury.

For example, in the context of a DUI case, a defendant should file a motion to suppress the results of a chemical test (ex. breath or blood) if there was insufficient probable cause to arrest. The prosecutor would have to call the arresting officer to court and prove to a judge there was probable cause to arrest. Not only could a judge rule in your favor, but a defendant also receives the benefit of officer testimony made under oath. Therefore, if the officer later testifies at trial to something inconsistent with what that officer said at the motion to suppress, the officer’s prior inconsistent statement could be used to impeach that officer (showing they are not credible). 

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[1] A motion to suppress does not apply to (1) attacks on the validity of charging documents (accusations or indictments); (2) chain of custody issues; or (3) to testimony. 

Self-Defense Laws in Georgia

Self defense is often used and necessary in some situations, especially when you feel your life or safety is being threatened. In Georgia, people are allowed to use self defense when they are confronted with a reasonable perceived threat that is perceived to be lethal or dangerous in nature. In those situations, people are entitled within Georgia law to use deadly force to stop the perceived threat instead of retreating or backing down. This is the same kind of deadly force an Atlanta or Dekalb County police officer may use in a threatening situation when the officer feels as though his life is in danger or the threat is perceived to be lethal. In those situations, people may continue to use deadly force until the threat is quashed or diminished. 

O.C.G.A. §16-3-21 is the Georgia statute that outlines the law that allows people to protect themselves or a third party against an imminent use of unlawful force in a reasonably believed threatening situation. The statute also states the face that a person is not justified in using deadly force if he/she is the initial primary provoker of the situation, is attempting to commit or flee after the commission of a felony, and if he/she was the aggressor. 

If you or a loved one is dealing with a situation where they or you used deadly force in a way to protect themselves or others against a threat, call the Law Office of Scott Smith today for a free consultation to assist you with every step and help you with the process.