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. 

Contact Us

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

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.

Aggravated Assault by Strangulation

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We see it happening more and more often: 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 offense of Aggravated Assault by Strangulation.

Why was my Battery Family Violence case transferred to the 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 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 the 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, you will be prosecuted by the District Attorney’s office in 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.

Domestic Violence Defense

Georgia DUI Law: DUI Second Offense in Five Years

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If you are charged with DUI in Georgia, you need to hire a skilled and experienced attorney to handle your case. DUI’s can be complex in nature and if convicted, will expose you to serious criminal liability. This article will discuss the criminal penalties to expect if you are convicted of DUI in Georgia for the second time within a five year period, measured by the dates of arrest for which a conviction was obtained.

Jail Time and Probation

Generally, a DUI is considered a misdemeanor offense. As such, the maximum penalty is up to one year in jail and a $1,000 fine. Can a judge sentence to the maximum? Yes. Will the judge sentence to the maximum? Unlikely. For a second DUI in 5 (or 10) years, there is a minimum mandatory 72 hours in jail. The judge may give you credit for time already spent in custody when you were first arrested. The remainder of the 12 months will be “probated,” meaning you will be placed on probation.

Probation is like walking around with a rain cloud over your head. While on probation, you are required to “report” to probation, either in-person, or by mail or phone (usually permitted if you live out of county or out of state). You are required to pay a monthly probation supervision fee separate from the fine assessed as part of the conviction (usually $30-$40 per month). You are also prohibited from drinking alcohol or doing drugs while on probation. If you are arrested for a new crime while on probation, this could cause serious issues as well. Your current probation could be “revoked” and you could go back to jail for the time remaining on probation.

Fines and Fees

The minimum fine for a second DUI is $600, the maximum is $1,000. This base fine is accompanied by court costs which add a hefty tax to the overall fine. Interestingly, Georgia law allows for a judge to reduce the base fine up to one-half if you are currently enrolled in a substance abuse program at the time of sentencing. The sentencing judge may also reduce the fine if not doing so would impose “an economic hardship” on the defendant. There are additional costs and fees associated with the required classes and counseling, discussed below.

Classes and Counseling

Typical DUI punishment includes mandatory participation in a Risk Reduction class, also referred to as “DUI School.” This 20 hour class focuses on the dangers of DUI driving and costs roughly $350. The Risk Reduction class must be completed within 120 days of the conviction. You will also be required to complete a Victim Impact Panel. This 2 hour class discusses the “impact” DUI cases have on victims and their families.

Furthermore, those convicted of DUI must undergo a clinical evaluation for alcohol and drug dependency. You must meet with a state certified counselor for an assessment and complete any treatment if treatment is recommended.

Community Service

Those convicted of what’s called a “second-in-five” DUI will also have to complete 240 hours of community service. Generally, you can choose which organization to work for, so long as it is a federally recognized non-profit organization and is not a religious institution. Some jurisdictions, however, force you to choose from certain designated organizations. At the end of your community service, you will want a document on the organization’s letterhead stating you successfully completed community service.

Publication of Conviction

A second DUI within a five year period also causes your conviction to be published in the local newspaper in the county you live in, or in the county where the conviction took place (for non-residents).  The publication is one column wide by two inches long and contains the person’s booking photograph, the name of the convicted person, the city, county, and zip code of the convicted person’s residential address, and the date, time, place of arrest, and disposition of the case. The publication is made once in either the second week following the conviction or shortly after the conviction. Furthermore, the person is assessed a $25 publication.

License Suspension

O.C.G.A. § 40-5-63 governs the driver’s license suspension for any person convicted of DUI. For a second-in-five conviction, your full driving privileges will be suspended for eighteen months. After first serving a 120 day hard suspension of your license which means no driving at all in those first 120 days, you will be eligible for a twelve month ignition interlock device permit if you have completed the following requirements.

You must submit an original certificate of completion of a DDS (Department of Driver Services) approved alcohol or drug use risk reduction program. Complete a clinical evaluation with a counselor licensed by the Department of Behavioral Health and Developmental Disabilities along with any treatment required by the counselor. Show proof of installation of an Ignition Interlock Device in your vehicle from a DDS approved vendor. Pay a $25 permit fee. If you cannot afford the cost to obtain an ignition interlock device in your vehicle, the court can exempt you from the requirements of the device, but you will still have to serve that additional twelve month suspension of your license. After serving the 120 day hard suspension and the additional twelve months with an ignition interlock device, you must still serve an additional two months without the interlock device for a total of eighteen months before you can reinstate your full license. For reinstatement you must pay the $210 reinstatement fee and show DDS proof that an ignition interlock device was maintained in your vehicle for twelve months or show an order from the court exempting you from the interlock device due to hardship.

A second-in-five DUI conviction will greatly impact your ability to drive. Therefore, it’s important to get out in front of a second DUI arrest by consulting with an attorney to discuss your options in fighting the case.

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.

A Quick Guide to Probation Revocations

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Probation revocations in Georgia can be daunting for even your most seasoned criminal defense attorneys.  As I tell many of our clients when you are on probation it is like having one foot in the street and one foot in the jail.  Any little misstep can cause an over eager probation officer to file a petition to revoke your probation and place you in jail or prison. 

Two important aspects.

Two important aspects to mention when it comes to a probation revocation: first, the burden of proof on the state is much lower than in a criminal trial.  In a criminal trial the burden of proof is beyond a reasonable doubt – meaning any doubt that is reasonable requires a jury to acquit.  In probation revocation hearings the standard is preponderance of evidence.  Preponderance is a much lower standard.  Nonetheless, the government must prove you violated your probation.  Secondly, unlike a trial, the judge and not a jury sits as trier of fact.  This is important because instead of getting 12 reasonable minds to decide your case the judge himself or herself decides. 

Your options.

If your probation is being revoked because you were arrested for a new crime you actually have some options to avoid being revoked.  First, the State is obligated to prove you committed a new crime.  This means under Georgia law the probation officer must bring in competent evidence you actually committed a new crime.  Thus, if you have not been yet found guilty, the State must bring in actual live witnesses to the courtroom on the day your revocation is scheduled to testify to the new crime. 

If you have already been found guilty, the State is obligated to bring in certified copies of disposition showing you were found guilty.  In my experience, the best strategy is to put the new offense off as along as possible and to have the probation revocation after you go to trial on the new offense.  As discussed above, the standard of proof is different, but there is something to be said if you are exonerated on the new charges and those new charges are the basis of the Georgia probation revocation.

Call us today for your free consultation at 404-581-0999. We will hear the details of your case and provide you with expert legal advice. Don’t gamble on your freedom.

Has Georgia’s New Hemp Bill, House Bill 213, Caused Issues for Marijuana Prosecutions?

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The bill worrying Georgia police.

In 2018 President Trump signed the “Farm Bill” into law. The Farm Bill has a provision that allows states like Georgia to create their own rules, standards, and safeguards regarding the growth, production, processing, and handling of hemp based products. On May 10, 2019 Georgia Governor Brian Kemp signed House Bill 213 into law. House Bill 213 creates a standard for Georgians to grow and handle hemp. House Bill 213 also removes hemp from the list of schedule I controlled substances in Georgia.

Okay, hemp’s now legal. So what?

Hemp and marijuana are very similar plants. While they do have distinguishing characteristics, hemp contains a small amount of Tetrahydrocannabinol or THC. House Bill 213 provides that the hemp plant can have a concentration of up to .3% THC without violating the law. Most marijuana plants have somewhere between 3-5% THC.

The issue with taking hemp off the controlled substances list in Georgia is that even the most well-trained law enforcement officers can’t tell the difference between hemp and marijuana. Their test for determining whether a substance is marijuana is a simple reagent test where if there is any THC present in the substance, the test will return a positive. This causes issues in the enforcement of marijuana arrests because, as stated above, hemp contains some THC. So even if an officer stopped you and you had hemp in the vehicle, it would return a positive for marijuana.

If stopped with weed… be smart. Use your rights.

Georgia is currently looking for a solution that will test the percentage of THC in a substance, but until that test exists, we want to remind all readers that it is the law enforcement officers responsibility to find probable cause to arrest you. Don’t just give them your weed. Make them find it. Make them establish that is it actually marijuana and not another substance. Make them prove that the odor of marijuana and not the odor of hemp is what cause them to search your vehicle. It is not your responsibility to do an officers job for them. Make them prove it. While this new change in law may not guarantee your marijuana case is getting dismissed, it could have an impact in its resolution.

Our office is on the forefront of all the changes in drug laws in Georgia. We are here to help you. If you have any questions regarding your rights when it comes to drug offenses in Georgia, call us today for a free consultation at 404-581-0999. We are available 24 hours a day, 7 days a week.