Criminal Defense Lawyer in Macon-Bibb County

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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: https://www.maconbibb.us/municipal-court/.

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: https://www.maconbibb.us/solicitor/ and https://www.maconbibb.us/state-court/.

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:  https://macondistrictattorney.org,   https://www.maconbibb.us/civil-court/,   and https://www.maconbibb.us/superior-court/.

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

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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

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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. 

Georgia Law: Nolo Contendere Plea

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Georgia law allows individuals to enter this special type of plea once every five years. This article serves to explore the meaning of this plea, its effect, who can use it, and when to use it.   

Nolo Contendere Defined

Nolo contendere literally means, “no contest.” By entering this plea, although you acknowledge there may be enough evidence to convict you of the alleged crime, you are technically not admitting guilt. It is important to note the nolo contendere plea (also called “nolo”) acts as a conviction. Additionally, a nolo plea will not reduce punishment ordered by the sentencing judge, you will have the same punishment as if you had plead guilty.

The Benefit of a Nolo Plea

If a nolo plea acts as a conviction, then what separates it from a guilty plea? A nolo plea to certain traffic offenses prevents the conviction from being reported to DDS. As a result, no points will be assessed to your license. But, whether your insurance company raises your insurance rates is uncertain as every insurance company has different terms and conditions.

Commercial Driver’s License (CDL) Holders and Nolo Pleas

Unfortunately, a nolo plea does not prevent a commercial driver’s license from being suspended or disqualified. CDL holders are held to a higher standard than the general public because commercial vehicles pose a greater risk to the public (they are much larger and more difficult to operate) than non-commercial vehicles. As a result, a nolo plea has no value to a CDL holder; the CDL holder should contact an experienced attorney to get the case dismissed or reduced to a non-reportable offense.  

Drivers Under 18 and 21 Years Old

Drivers under the age of 18 are unable to use a nolo plea. The law seeks to hold young drivers accountable for traffic violations to deter them from future offenses. Those under 18 should also consider hiring a lawyer to get their case dismissed or reduced to a non-reportable offense. Drivers under the age of 21 can use a nolo plea, but it rarely helps. For the following offenses provided under O.C.G.A. § 40-5-57, a nolo plea will not avoid a license suspension for drivers under the age of 21:

  • Reckless Driving;
  • Aggressive Driving;
  • Escaping or Fleeing Using a Motor Vehicle;
  • Racing;
  • Improper Passing on Hill or Curve;
  • Unlawful Passing of a School Bus;
  • Hit and Run / Leaving the Scene of an Accident; and
  • Exceeding the Speed Limit by 24 mph or greater

When to Use a Nolo Plea

For those drivers above the age of 21, a nolo plea can be very useful in many different circumstances. Nolo pleas are generally useful in driving without insurance, driving with a suspended license, and hit and run cases. That being said, it is still generally good practice to consult an attorney to determine whether you should use a nolo plea or try to get the case dismissed or reduced to a non-reporting offense, thereby saving your nolo plea (remember, you can use it only once every 5 years).

You do not want to use a nolo plea for minor traffic offenses where the case could be dismissed or reduced to a non-reporting offense. Examples include but are not limited to: failure to yield, speeding (over 14mph the limit but not super speeder), improper turn, following too closely, failure to maintain lane. A lot of times, prosecutors will dismiss the case if you successfully complete a driving course or something similar. You also do not want to use a nolo plea where other alternative sentencing options are available, such as: pre-trial diversion, conditional discharge pleas, or some type of informal agreement to dismiss. These are common in marijuana possession cases, minor in possession cases, and shoplifting cases if you have no prior criminal history. Lastly, you should not use a nolo plea on a traffic charge that would not show up on a Motor Vehicle Report because it would not be reported to DDS. Examples include but are not limited to: too fast for conditions, basic rules violations, speeding (14 mph or less above speed limit), expired registration, and parking tickets.

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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.

Georgia Law: Minor in Possession of Alcohol – Charges and Penalties

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Georgia law prevents anyone under the age of 21 from possessing or consuming alcoholic beverages. Violating these Minor in Possession (MIP) laws can lead to significant consequences, subject to only a few specific exceptions.

The Offense

O.C.G.A. § 3-3-23 prohibits minors from purchasing, attempting to purchase, or knowingly possessing or consuming alcoholic beverages. The law also makes it a crime for minors to use a fake identification in order to purchase alcohol. If convicted, you could be sentenced to:

(First Offense)

  1. $300 fine (maximum)
  2. Up to 6 months in jail
  3. 6 month driver’s license suspension (no limited permit available)

(Second or Further Offense)

  1. $1,000 (maximum)
  2. Up to one year in jail
  3. 1 year driver’s license suspension

A sentencing judge could also order you to complete certain educational programs pertaining to alcohol and drug use. If a person under 21 is convicted of using a fake ID to purchase alcoholic beverages, you will be required to complete a defensive driving course and pay a $210 reinstatement fee in order to reinstate your license.

If found guilty of MIP while driving a motor vehicle, your license will be suspended for 120 days. You will have to submit proof of completion of a Risk Reduction Program along with a $35 fee in order to reinstate your license. However, a plea of nolo contendere will prevent the conviction from being reported to DDS. You are eligible to use a nolo contendere plea once every five years.

It is also important to note the consequences of a DUI conviction if under the age of 21.

Defenses and Exceptions

The law does not apply to the sale, purchase, or possession of alcoholic beverages when the consumption is for religious ceremony, medical purposes pursuant to a physician’s orders, or with the consent of a parent or guardian when the possession takes place in the home and the parent or guardian is present.

The law also permits people under 21 years of age to dispense, serve, sell, or handle alcoholic beverages as a part of their employment in any licensed establishment. The law allows people under 21 to be employed in any establishment in which alcoholic beverages are distilled or manufactured. The law also allows people under 21 to take orders for and having possession of alcoholic beverages as a part of employment in a licensed establishment.

If this is your first offense for MIP and have no prior criminal history relating to drugs or alcohol, the prosecutor may offer to dismiss your case if you successfully complete a “pre-trial diversion program.” If you successfully complete certain conditions (usually a fine, community service, educational courses, drug and alcohol screens) within a certain period of time, the prosecutor will agree to not prosecute the case, resulting in the case being dismissed. If you do not successfully complete the diversion program, your case will be placed back on the trial calendar. Your case could also be resolved through a “conditional discharge” which works the same as pre-trial diversion, except you have to first enter a guilty plea, so that if you do not successfully complete the terms, your guilty plea will take effect and remain on your record permanently.

If the case cannot be resolved through diversion (formal or informal), conditional discharge, or some other plea negotiation, then you may go to trial on the case and raise doubt as to whether you were in possession or whether you consumed alcohol while being under the age of 21. 

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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.

What do you do if you are arrested for child molestation in Fulton County?

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If you or a loved one is arrested for child molestation in Fulton County, it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence.

The Fulton County District Attorney’s office has a dedicated division called the Crimes Against Women and Children Unit. They will vigorously prosecute you if you are charged with child molestation. 

Do not think that just because you are innocent that the charges will be dismissed. Child molestation charges are aggressively prosecuted in Fulton County and the police believe children who make the accusations.

Make sure your attorney has had jury trials in child molestation cases and has won these cases. Do not let an attorney handle your case who does not specifically handle child molestation cases.

The law may say you are presumed innocent but in child molestation cases, you have to prove your innocence.

Here is what you should do if arrested for child molestation in Fulton County.

  1. Hire an attorney – Make sure that attorney actually handles and tries child molestation cases. Most criminal defense attorneys do not handle child molestation cases. Make sure the attorney you talk to does regularly handles child molestation cases in Georgia.
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for child molestation, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    1. Gather and preserve any physical evidence in your possession that might relate to the child making the accusation. This includes clothing, photos, video or any other tangible object.
    1. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    1. Witnesses – Immediately make a list of any person who you think might have information about this child molestation accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

Here is what you should never do if arrested for child molestation in Fulton County.

  1. Never talk to the alleged victim or the family.
  2. Never have any contact with the alleged victim through a 3rd party or through social media.
  3. Never talk to law enforcement without an attorney present.
  4. Never talk to a child welfare agency or any other governmental agency without an attorney present.

If you are arrested for child molestation or any sex offense in Fulton County, please call our office 24/7 at 404-581-0999 or send us an email at mike@peachstatelawyer.com. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.

DeKalb County’s Domestic Violence Pre-Trial Intervention Program (DVPTI)

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              If you are facing a domestic violence charge in DeKalb County, the Domestic Violence Pre-Trial Intervention Program (DVPTI) may be an option for you. The DeKalb County Office of the Solicitor General has enacted a program that allows certain defendants arrested for family violence battery the option to enroll in a program that will result in the case being dismissed. The terms of the DVPTI program can differ, and they typically range from a few anger management courses to a full 24-week program. This program gives first-time domestic batterers the opportunity to receive classes and counseling versus jail and conviction. The purpose is to reduce the risk of re-offending while giving first-time offenders a second chance.

Why Pick DVPTI?

              DVPTI is completely voluntary. It is essentially a diversion from the typical criminal justice process. If you decline the enrollment in the program, the case will be sent to a trial court to be formally prosecuted. What this means is you will be asked to enter either a Guilty or a Not Guilty plea to the charges. A guilty plea will result in a criminal conviction that will remain on your record forever as well as a sentence which tends to be more harsh than that which is offered in the DVPTI. Alternatively, a Not Guilty plea will result either in a jury trial or a trial in front of a judge. DVPTI, on the other hand, does not require a plea at all since it is a diversion option. It gives you the opportunity to be in charge of the dismissal.

End Results

              If you successfully complete the terms of the DVPTI program in DeKalb County, the case will be fully dismissed against you, and the arrest will be sealed off of your record. This means potential employers will not be able to see that you have been arrested for family violence battery and you can honestly say you have not been convicted of the crime.

              If you have been arrested for Family Violence Battery in DeKalb County (or any county in the State of Georgia), call us now for a FREE CONSULTATION at 404-581-0999.

Fulton County Rice Street Jail Bond – What You Need to Know

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If you have been arrested in Fulton County by one of the county’s municipalities you may be transported to the Fulton County jail for a bond hearing.  These municipalities include the following: Alpharetta, Atlanta, Chattahoochee Hills, College Park, East point, Fairburn, Hapeville, Johns Creek, Milton, Mountain Park, Palmetto, Roswell, Sandy Springs, South Fulton, and Union City. This is a brief informational to explain what to expect.

First Thing to Know

To be on the calendar for bond consideration the day after your arrest you must finished being booked into the Fulton County Jail no later than 2 a.m.  So, for clients turning themselves in we recommend you turn yourself in directly to the jail no later than 6 pm in order to make the calendar the following day.  The court runs six days a week; no court on Sunday.

If you are charged with a misdemeanor you will have court at 9:00 a.m.

If you are charged with a felony you will have court at 11:00 a.m.

Visitor Rules

The Court does allow for visitors.  However, there are certain rules to abide by.  You are not allowed to bring electronics into the jail, including cell phones.  No smart watches are allowed either.  The Fulton County jail does not permit you to wear open toed shoes or bring in a purse or handbag, so leave it in your car.  You must bring with you a valid Georgia ID, and note that the jail will sometimes run your criminal record for warrants while going to first appearance.  If you are a victim in the criminal case the judge will acknowledge your presence.

Will I get a bond?

Factors the judge will consider in whether to grant a bond include:  

(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;

(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;

(3) Poses no significant risk of committing any felony pending trial; and

(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

The trial court must explain its reasons for denying bond to assist appellate review. The granting or denial of bail will not be set aside unless there is a manifest and flagrant abuse of discretion.

How Much Will It Cost?

When fixing the amount of bail, the judge is to consider chiefly the probability that the accused, if freed, will appear at trial; other factors to be considered include the accused’s ability to pay, the seriousness of the offense, and the accused’s character and reputation.

If a lawyer is at your bond hearing, your chances of getting a bond are significantly increased. That’s why, when you or a loved one is in custody at Fulton county jail, contact a lawyer as soon as possible. Don’t miss your chance at bonding out.

Call us at (404) 581-0999 to speak with our experienced defense lawyers and get a lawyer at a bond hearing as early as today.

Georgia DUI law and Breathalyzers

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If you are being investigated for DUI in Georgia, you will likely be asked to submit to two different breathalyzers. This article serves to explain the differences between these machines, and your rights and obligations concerning these machines.

Preliminary Breath Test (PBT)

PBT device. These are small, handheld devices carried by police officers in the field.

The PBT is likely the first breathalyzer you will encounter. This test is offered road-side during the DUI investigation but prior to an arrest. This device is designed to estimate a driver’s blood alcohol content from air stored in the deep recesses of your lungs.

Because the PBT is not reliable, the numerical results cannot be used against you at trial. However, an officer is permitted to testify as to whether the PBT results tested positive or negative for alcohol. As a result, officers will use a positive PBT result to demonstrate whatever impairment they are claiming to observe is the result of alcohol consumption. In addition, the police will use it to justify an arrest decision.

DO NOT BLOW INTO A PBT DEVICE. THE PBT IS OPTIONAL. Politely decline to take the PBT if you have consumed any amount of alcohol, even if it was hours prior. “Officer, I respectfully decline to take the PBT along with any other road-side evaluations.”

Intoxilyzer 9000 under the Implied Consent Warning

Intoxilyzer 9000. This device is kept at police stations. It is very distinctive, and much larger than handheld devices.

This second type of breathalyzer is administered after arrest and is usually performed at the police station or jail. This is the “required” test under the Implied Consent Law.  

The manufacturer of Georgia’s breath machine is CMI, located in Owensboro, Kentucky. CMI sells their machines to law enforcement only. The company will not sell a machine to a defense lawyer. This prevents any experimentation or meaningful research regarding the reliability or accuracy of the machine.

As opposed to the PBT, the results of the Intoxilyzer 9000 can be used against you at trial. If you blow a 0.08% or higher, you will likely be facing not only a DUI – Less Safe charge, but also a DUI – Per Se charge. A skilled defense attorney will not only attack the machine (maintenance history), but also the operator of the machine to ensure no issues are overlooked.

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.

Georgia DUI Law: Do You have the Right to an Attorney When Being Investigated for DUI?

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Does a Person Have the Right to Contact Counsel During a DUI Investigation?

Unfortunately, the answer is “no.” In Rackoff v. State, 281 Ga. 306, (2006), the specific issue was whether a person arrested for DUI entitled to the advice of counsel before deciding if he should take a breath test.  The Supreme Court of Georgia stated:

[T]he right to counsel does not attach automatically upon arrest. In fact, the Sixth Amendment right to counsel does not come into play until the criminal process has progressed to a “critical stage” after the initiation of adversary judicial proceedings . . . and Georgia’s constitutional right to counsel does not attach unless the proceeding constitutes a “critical stage.” A critical stage in a criminal proceeding is that point at which rights may be lost, defenses waived, privileges claimed or waived, or the outcome of a case may be substantially affected.

Id. at 308-309. The Court reasoned individuals do not have the right to counsel at this stage because ‘no formal proceedings had been initiated,’ and, ‘there is little value a lawyer could add that would substantially affect the fairness of the trial.’

But how can this decision stand in light of our discussion regarding the implications of the State requested chemical test under the Implied Consent Warning? Why is this decision not a critical stage in the case?

Know Your Rights

Because the Court has ruled you do not have the right to legal counsel during a DUI investigation, it is incredibly important you know your rights if being questioned by the police. First, do not make any statements to the police. Second, politely decline to perform any Field Sobriety Tests and the Portable Breath Test. These tests are voluntary.

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.