SELF DEFENSE

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Self Defense

Defense of Persons and Property in Georgia and the Effect of the “Stand Your Ground” Law

As discussed previously, [Murph’s blog- http://www.peachstatelawyer.com/self-defense/] self-defense is a justification defense where an individual is admitting that he or she committed the crime but claiming that his or her use of force was justified.

Self-defense is part of a broader set of statutes that define the situations in which a person is justified in using force. In Georgia, an individual is typically justified in using force to defend both persons and property. See O.C.G.A. § 16-3-21; O.C.G.A. § 16-3-23; O.C.G.A. § 16-3-24.

Determining whether an individual was justified in using force requires a multi-factor analysis which varies greatly depending on the specific facts of the encounter. Some of the factors include: who was the aggressor, whether the harm was imminent, whether the force was proportional, and whether the individual’s belief was reasonable.

The individual claiming justification cannot be the aggressor.

An altercation can progress in stages, and the initial aggressor can become the innocent party if the other party escalates the altercation to a more violent level. Therefore, an individual who pulls out a knife during a fist fight can be deemed the aggressor even though the other individual initiated the fist fight. In this example, the individual wielding the knife can also withdraw from the confrontation by taking affirmative steps to indicate that he does not wish to fight any more. Such indications might include verbally communicating a desire to end the fight and walking away.

The individual must believe that he or she is defending against the imminent use of unlawful force.

The individual must believe that he or she is in imminent danger which means that the aggressor must appear to be capable of immediately carrying through with the threatened use of force. The individual can even be mistaken in their belief that he or she was threatened by imminent harm so long as the mistake is reasonable. If there has been a pause in the altercation (ie. the aggressor walks away) or additional steps must be taken before the aggressor can carry through with his or her threats then the danger is no longer imminent.

The individual’s use of force must be proportional to the threatened harm.

Generally, force can be divided into two main categories, deadly and non-deadly. An individual’s use of force must be no greater than necessary to defend against the threatened harm. A citizen is typically justified in using any means of non-deadly force to defend persons or property, but deadly force is only justified in response to a threat of imminent deadly force. The use of a deadly weapon is almost always considered deadly force, but even someone’s fists could be considered deadly force when considering the difference in size between the two individuals and relative strength.

The individual’s belief that force was necessary must be reasonable.

The standard by which reasonableness is measured is both subjective and objective. To satisfy the subjective standard, the individual must actually believe that force was necessary. This is where the individual’s prior dealings and experience with the aggressor can come into play. The objective standard looks at whether a reasonable person would have believed that force was necessary to defend against the threatened harm.

No Duty to Retreat – “Stand Your Ground” Law

In some states, an individual has a duty to retreat. However, Georgia has removed this requirement by passing a so-called “Stand Your Ground” law. O.C.G.A. § 16-3-23.1. Under this law, a citizen is not required to retreat from a violent confrontation. The key here is that an individual is not required to retreat, but the decision not to retreat can still factor into the previous considerations such as the reasonableness of the belief that force was necessary. Thus, this law does not give an individual unfettered discretion to use force.

Although Georgia has enacted statutory protections to allow an individual to stand his ground, one should not accept this protection as a license to kill. Any time deadly force is used, police will be involved and the decision to use deadly force will be scrutinized. It is always best to attempt to de-escalate a situation and avoid any loss of life. However, we recognize that these decisions can take place in a matter of seconds, and our firm has a history of success with self-defense cases. [Scott’s case – http://www.ajc.com/news/news/crime-law/woman-found-not-guilty-of-murder-in-killing-at-eas/nmyM4/] If you believe you had every right to defend yourself, others, or property, then contact our office today at 404-581-0999.

DUI: Forced Blood Draws

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DUI: Forced Blood Draws

By Mary Agramonte

The most shocking and disturbing development in DUI law is the practice of forced blood draws. Picture this: You have a glass or two of wine and are pulled over on your way home. The officer asks you a couple questions, but eventually requests you to step out of your car. He asks you to do a series of voluntary field sobriety tests, which are supposedly designed to accurately detect DUI. You do so in an effort to prove to the officer that you are clearly able to drive and are not impaired at all.

However, not everyone has the same balance and coordination skills. You might have been the kid in school who was picked last for team sports because you were notoriously uncoordinated. Or you might have a bad back or are recovering from a knee surgery. Or maybe you are one of the many people who feel extreme nervousness when an officer pulls you over. Regardless, the officer asks you to stand on one leg, and you accidentally have to tap the ground and hold your arms up to keep your balance. You “fail” the test, and are immediately arrested.

Mary Agramonte received her juris doctorate degree from Georgia State University.

Mary Agramonte received her juris doctorate degree from Georgia State University.

At this point, you might decide to refuse the breath test since your efforts to demonstrate that you are not intoxicated have already proven completely useless. You probably have heard that it is best practice to decline a breathalyzer test, which is true. However, the reality is when you refuse a breathalyzer, it is likely your driver’s license will be suspended for a year under Georgia’s Implied Consent law at O.C.G.A. § 40-5-67.1(d). The law states that yes, you have a right to refuse a chemical test, but if you do, you may face a one year loss of all driving privileges. And now, a more disturbing reality may come after your refusal of a breath test. In 2006, the Georgia legislature added another section to the Implied Consent law, effectively stating that even after exercising your right to refuse a chemical test, that the evidence can still be obtained by a search warrant, against your will.

The Reality of Forced Blood Draws

As inconceivable as it may sound, Georgia law actually allows the police officer to take you to the jail to strap you to a table, place you in a head lock, and force a needle in your arm to get evidence of your blood alcohol level. Forced blood draws occur without your consent and completely against your will. The procedure that includes the gurney, straps, and headlock is the same in every case, even if you are compliant and are no longer refusing the test. Forced blood draws allow the State of Georgia to have a higher DUI conviction rate since the blood evidence will significantly strengthen their case.

CHECK OUT THE FOX 5 ATLANTA STORY ON BLOOD DRAWS: Fox 5 Atlanta Blood Draw Story

What about my Constitutional rights?

The Fourth Amendment to the Constitution guarantees the right to be secure from unreasonable searches, and that search warrants must be supported by probable cause.

Unfortunately, current Georgia law allows police officers to make a quick roadside phone call to a judge to obtain a search warrant to obtain a blood sample from that individual. All they need is probable cause that you are driving under the influence. Evidence might come from your performance on the voluntary field sobriety tests, your appearance (blood shot eyes, disheveled clothing), and your behavior (smell of alcohol, slurred speech, admissions). These factors tend to be very subjective and it is all in the hands of the arresting officer to determine what he saw.

The law and reality is troubling. With this knowledge, I hope that Georgia residents can prepare themselves for the possibility that the officer won’t take “no” for an answer when it comes to getting a hold of your blood in order to prove in court that you are guilty of the misdemeanor crime of driving under the influence. If you are pulled over, you can politely decline all field sobriety and chemical tests, but be informed about the possibilities of losing your driver’s privilege and even being held down to have a needle forced in your arm.

Do I need a Lawyer?

Yes. If you have been arrested for driving under the influence of alcohol or drugs, and then forced to submit to a blood test under a search warrant, please call our office to speak with an experienced DUI attorney. We know the ways to attack every facet of a DUI case, even a forced blood draw. Call us today for a FREE CONSULTATION at 404-581-0999 and maximize your chances of excluding the blood results in your day in court.

 

The “Slow Poke” Law

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The “Slow Poke” Law

Traffic Ticket for Driving The Speed Limit? Can you really get a ticket for driving the speed limit?

In Georgia, the answer is YES you can!

Although Georgia’s “slow poke” law has been in effect since July 1, 2014, many people are still unaware of the law and its impact. States across the country have begun cracking down on drivers that impede the flow of traffic by lingering in the left lane. As part of this effort to combat traffic congestion and road rage incidents, the Georgia legislature amended O.C.G.A. § 40-6-184 to criminalize the act of driving in the left lane regardless if the driver is driving the speed limit. Specifically, it is illegal to “impede the normal and reasonable movement of traffic.” Thus, a driver who is driving the speed limit in the left lane with drivers behind them can be ticketed for failure to move over one lane to the right. In areas with more than 2 lanes of traffic, the law only applies to the “most left-hand lane other than a high occupancy vehicle lane” so drivers are not required to move all the way over to the far right.

Most jurisdictions began implementing the law through the issuance of warnings, but officers are not required to give you a warning because ignorance of the law is not a legal defense. Remember to only use the far left-hand lane when passing slower vehicles and always yield to faster traffic by merging back over to the right. If ticketed with a violation of the “slow poke” law, it’s important to remember that while officers have a wide range of discretion in determining whether a driver is impeding traffic, there are also many other factors such as weather conditions, time of day, and the general flow of traffic in the area that can affect your case.

If you are ticketed for impeding the flow of traffic you may receive a fine up to $1,000, 3 points on your license, and a substantial increase in your insurance premiums. If you have been charged with a violation of Georgia’s “slow poke” law, call our office and we can help you deal with the court. Our office has extensive experience in traffic violations and DUI defense. Fighting traffic tickets with an attorney’s help is essential because any conviction on your record will greatly reduce the possibility of having future citations lowered or dismissed.  If you have received a traffic ticket give us a call for a free consultation at 404-581-0999.

First Offender Act

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First Offender Act: Retroactive Treatment

Many people make mistakes in their youth.   For some of us, those mistakes went without tremendous consequence, but for others their mistakes cost them their freedom and labeled them a criminal for the rest of their lives.  Our firm has met with Georgia residents that have criminal histories that continue to haunt them and their career prospects.   Several people had heard about expunging their records from either the internet or friends.  Unfortunately, not everyone was eligible for expungment and, until recently, there wasn’t much we could do.  But now, with the passing of a new law, there is hope for some non-violent offenses to be removed from someone’s record with the use of the First Offender Act.

Traditionally, the First Offender Act is a tool that can be used in a plea deal for certain non-violent offenses like theft or drug charges.   The First Offender Act gives a probationer the opportunity to complete probation in exchange for having the Judge withhold adjudication and seal the probationer’s record.   The purpose of the act is to allow Georgia citizens the ability to not have one mistake ruin their lives.    Unfortunately, not everyone was aware of the First Offender Act and some individuals may have entered guilty pleas without really understanding the long term consequences of a criminal history.  The Georgia General Assembly recognized the problem and passed a new law that would allow some individuals to retroactively petition the court for treatment under the First Offender Act.

In order to have the First Offender Act apply retroactively the petitioner would have to file a petition with the court and obtain permission from the both the prosecutor and the Judge to apply the First Offender Act retroactively.   The Judge then is required to schedule a hearing where the petitioner can introduce evidence of the progress they have made after their earlier conviction.   If the Judge grants the petition, then the petitioner’s criminal history will be sealed in accordance to the First Offender Act.

We were excited to hear the news of this new provision of the First Offender Act.   If you have been convicted of a crime and feel that you may be eligible to have your record sealed, call our office immediately at 404-581-0999.   Our lawyers can help answer any questions you may have about the First Offender Act.

Statutory Rape

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Statutory Rape

By Andrew Powell J.D.

Georgia’s statutory rape law is often times misunderstood.  Many people believe that statutory rape is a crime that only a male can commit. Some also believe that if the two people consent to the sexual act then there can be no crime, regardless of the age. However, these misconceptions can get you into a lot of trouble.

Georgia does not distinguish between male and female genders when it comes to charging someone with statutory rape. Simply put, statutory rape is when any individual has sex with someone else who is not at the age of consent. In Georgia, the age of consent is 16. If both individuals are under 16 years old, then both individuals can be charged with misdemeanor statutory rape.

Interestingly, you can still be charged with statutory rape even if the alleged victim lies about their age.  If you are a young person and find yourself in a situation where you are about to have sex, it is critical that you are certain that the person you are about to have sex with is at least 16 years old. Never take someone’s word in a matter as serious as statutory rape.georgia-juvenile-defense

Several of our clients find themselves in these situations far too often.  In several situations, the parents of the alleged victim find out that their child is having sex and file charges with law enforcement.  The same happens at a school where teachers know of students having sex and report it to law enforcement. In any scenario it is important to stay ahead of the charges and seek legal counsel to help navigate you through the legal process.

There are few circumstances where a person charged with statutory rape may face a misdemeanor instead of a felony charge.  In Georgia, it is a misdemeanor if you are 18 years old or younger and the alleged victim is between 14 and 16 years old.  In any other circumstance, statutory rape is a felony with a penalty of one to twenty years in prison. However, if you are over the age of 21, then you will face a minimum of ten years in prison and a maximum of twenty years. In addition, if you are convicted of felony statutory rape you must register as a sex offender for the rest of your life.

If you have been charged with a violation of Georgia’s statutory rape law, call our office and we can help you navigate the system. Our office has extensive experience in misdemeanors and felonies. Fighting charges with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future charges lowered or dismissed. Our firm can handle your misdemeanor or felony case with the expertise you need to save your record. Give us a call for a free consultation at 404-581-0999.

Move Over Law

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MOVE OVER LAW

By Mary Agramonte J.D.

Georgia’s “move over” law is designed to keep officers, emergency workers, and first responders safe when they are stopped on the side of the road with their emergency lights flashing. The law was passed in 2003 to reduce the number of police officer and HERO fatalities that were occurring due to traffic crash responses. The “move over” law saves lives and makes sense, but unfortunately, too many Georgia motorists are unaware that it exists until they are slapped with a $500 fine.

Under O.C.G.A. § 40-6-16, Georgia law requires drivers to move over to the next lane if safely possible when passing a stationary emergency vehicle, towing vehicle, or recovery vehicle when their lights are flashing. If moving over is absolutely impossible, the law requires you to slow down to below the speed limit and be prepared to stop your car if necessary. Violations can result in a fine of $500 for the first offense. Once you factor in the court costs, however, this can put you well above $500, even if this was your first offense, and even if you had never heard of the law. Paying the fine on your citation means you are admitting you are guilty to the offense which raises a number of consequences.

MaryPic2

Mary Agramonte has her Juris Doctorate from Georgia State University.

A violation of this statute could cost you much more than the fine itself. A conviction for this traffic offense will also add 3 points to your driving record, and it will stay on your record forever. A driver who is over the age of 21 is allotted 15 points in a 24 month period before the Department of Driver Services will suspend a driver’s license. Points on your record also subject you to higher car insurance rates because your insurer believes you are more likely to file a claim than someone with lower points on their record. Getting just one traffic ticket can boost an average person’s auto insurance premiums by as much as 22 percent.

Additionally, violating Georgia’s move over law can be a basis for an officer to stop your vehicle which can lead to even more serious charges. Under both the Georgia and the United States Constitutions, an officer needs “reasonable articuable suspicion” to justify pulling your vehicle over for an investigative stop. Violating this statute gives the officers that power to stop you and investigate you, which ultimately can lead to a DUI arrest or the investigation of other potential and more serious crimes.

To avoid these repercussions of violating Georgia’s move over law, always drive attentively and don’t risk being pulled over or injuring the emergency workers on the side of road. If you see lights ahead, do all that you can to safely move over. If moving over safely is impossible, remember to slow down below the speed limit when passing emergency lights, and be prepared to stop. It can save lives, and it can save you money and the hassle.

If you have been charged with a violation of Georgia’s move over law, call our office and we can help you navigate the system. Our office has extensive experience in traffic violations and DUI defense. Fighting traffic tickets with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future citations lowered or dismissed. Our firm can handle your traffic ticket case with the experience you need to save your record. Give us a call for a free consultation at 404-581-0999.

Illegal Search

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Illegal Search

The Fourth Amendment of the United States Constitution protects citizens from illegal searches of their homes, property, and belongings.   The founders of our country believed that “each man’s home is his castle” secure from unreasonable searches.    The founder’s belief in this notion was so strong that they included it in the Bill of Rights by way of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.  IV Amendment, United States Constitution

For decades, both Georgia courts and Federal courts have wrestled with the language of the Fourth Amendment, and whether the actions, procedures, or techniques used by police officers constitute an illegal search.  Questions of illegal searches and Fourth Amendment questions come into play in almost every facet of criminal defense.  From drug cases to murder, the issue of whether the search is legal is almost certainly going to be an issue for a lawyer to explore.   So where do you start?  How do you know if you have been subjected to an illegal search?   This article will lay out the broad areas to explore.  While we will cover some topics, not every issue can possibly be included in one blog post.  It’s important to consult with an attorney about any possible illegal searches that occur in your case.

HOW DID THE POLICE GET THERE?

The starting point for every illegal search is whether the police officer/s had a lawful reason to be our client’s home, car, or the area being searched.   If the case involves a traffic stop, then we look to see whether the Officer had a lawful reason to pull our client over.   On the other hand, if the police obtain a search warrant for a residence, then we examine the search warrant affidavit to see if the Judge was presented with accurate information for the issuance of a warrant or whether the warrant is sufficient on its face.   Nevertheless, it’s critical to first determine how the police make initial contact with our client and for what purpose because it can mean the difference between the evidence being included at trial or a case being dismissed.

WAS THERE PROBABLE CAUSE TO SUPPORT THE SEARCH?

Probable cause is a legal term of art.   It is often the basis of courtroom debate on the actions of a police officer during an illegal search.   Black’s Law Dictionary defines probable cause as:

“A reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime.”

Seems easy on its face, but as we have seen over the years, it’s never quite that simple.  Probable cause is ultimately the hurdle that the State must clear in order to survive a motion to exclude evidence obtained in an illegal search.   Every case, whether it be a DUI or a drug trafficking case, presents different scenarios in which Georgia courts have set limits on techniques used by police officers.   We could go on for days on the different types of searches that courts have found lacked probable cause.   Unfortunately, it would take years to cover every possible situation.  SO, I can say that the question of probable cause is critical in almost every case and a lawyer who is trained on the different circumstances and know the law can certainly assist in determining if an illegal search has occurred your case.

WHAT HAPPENS TO MY CASE IF THE POLICE ILLEGALLY SEARCHED ME OR MY PROPERTY?

The fruit-of-the-poisonous-tree doctrine is the rule that prevents evidence that has been illegally obtained by police officers to be introduced by the State at trial.   If you have a drug case and the police found the drugs as a result of an illegal search, then the evidence obtained in that illegal search is excluded at trial.  On the other hand, if the evidence obtained from a cell phone, a house, a computer, or even a purse or wallet was found as a result of an illegal search, then it will be excluded at trial.   Once the evidence has been excluded, then the State has to make the determination if they can proceed with their case without the excluded evidence.  If not, then your case may be dismissed.

WHAT I DO NOW?

If you’ve been arrested for any crime in the State of Georgia, call our office today!  Our lawyers are trained on how to examine the State’s evidence to for illegal searches and expose any illegal searches to your benefit.   As you can see above, many of these issues can be complicated and require someone who has the training and experience to attack the State’s case.   If you’ve been arrested call us today at 404-581-0999 for a FREE CONSULTATION.

IN THE NEWS: Supreme Court OKs Method of Execution

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IN THE NEWS: Supreme Court OKs Method of Execution

The Supreme Court of the United States, in a 5-4 opinion, approved the use of midazolam in lethal injection executions. For years, several States have wrestled with what chemicals to use during a lethal injection execution. More recently, pharmaceutical companies began to limit the sale of certain chemicals that were being used. The result was many states, such as Oklahoma, had to seek alternative chemicals for lethal injection executions. Today the Supreme Court held that Oklahoma did not violate the 8th Amendment in their use of midazolam, the chemical used in the recent execution of Richard Glossip, John Grant and Benjamin Cole.

For more information on this case check out CNN.com article:

Lethal Injection

Bench Warrant

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Bench Warrant

Being arrested and having to show up for court can be stressful enough.  What’s even more stressful is missing a court date and knowing that there is a bench warrant out for your arrest.  Clearing a bench warrant is different in every jurisdiction, but there are a few common aspects of the law that can help in clearing a bench warrant.

First, it’s important to understand how a bench warrant is issued.  When a Georgia citizen is arrested and released from custody they are either given a court date at the jail or the person is told that a court date will be sent to them by mail.

Some cases, especially felony cases, are not immediately docketed with the court and it can take time before the courts add your case to the calendar.  In some jurisdictions that can mean months and even years before a court date is set up for your case.   Unfortunately, those court dates don’t always make it into your hand and if you missed your court date, then the Judge can issue a bench warrant for your arrest.   A bench warrant is warrant issued directly by the Judge for missing court.  A bench warrant instructs all law enforcement authorities to immediately arrest the person listed on the bench warrant and return them to court.Marietta-Office-Courtroom

So what do you do if you if you have a bench warrant?  Well, if you’re aware of a warrant it’s important to realize that it is unlikely that the warrant is going to go away on its own.  In fact, the warrant will remain until the Judge addresses the issue of why you missed court.   Because of that, it’s important to contact a lawyer immediately to address possible options.  Some jurisdictions will allow the attorney to discuss the case with the prosecutor and potentially resolve the warrant without you having to go back to jail.  In other jurisdictions, it will be on you to turn yourself in and allow your lawyer to work diligently on getting you in front of the Judge as soon as possible.

In some circumstances it can be shown that you did not in fact receive notice.  If the evidence shows that to be the case then the Judge would have the ability to lift the bench warrant and give you a new court date.  Or you may have been in custody in another jurisdiction and you were not able to make court because you were not transported to the courthouse. In those situations a lawyer can obtain a proof of incarceration and ask the Judge to lift the bench warrant immediately.   In any event, a lawyer can assist in helping lift a bench warrant and get you back to your loved ones as soon as possible.

Every courthouse is different.  It’s important to have a lawyer who knows how to effectively represent individuals with bench warrants.  At W. Scott Smith P.C., our lawyers have handled cases all over the State of Georgia and know the quickest ways to lift a bench warrant.  If you have an active bench warrant and need assistance, please call 404-581-0999 for a free consultation.

IN THE NEWS: Body Cameras

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IN THE NEWS: Body Cameras

In the wake of the highly publicized police shootings throughout the country, many counties in Georgia are looking at equipping their officer’s with body cameras. The debate has proponents of body cameras leaning heavily on police transparency and the opponents of body cameras raising concerns of privacy and cost.

Advancement in technology has always provided law enforcement with new tools. In the early 1990’s police officers began to wear bullet proof vests in order to protect themselves on the job. Several police officers chose to wear the vests voluntarily, but many did not. Police Departments around the country began to implement policies that required police officers to wear bullet proof vests as a part of their standard uniform. With increasing public concern with citizen/police interaction, those same types of policies may come into play with body cameras.

WABE.org has been covering the body camera debate extensively. Check out Michell Eloy’s article on the recent meeting between Fulton County police chiefs.

FULTON POLICE DEPARTMENTS DISCUSS BODY CAMERA PROS, CONS

Let us know what you think! Do feel body cameras should be implemented for every police officer in Georgia? We’d love to hear your feedback.