Lesser-Included Offenses

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The Rule of Lenity and Lesser-Included Offenses

Last time, we talked about the problem of being overcharged.  Now, what are some remedies?  How can you combat the issue of the prosecution over-reaching?  We are going to discuss two possible remedies…

First, Georgia recognizes an unsung hero among principles of law: the Rule of Lenity. Law books

The Rule of Lenity is a legal principle that says if identical conduct, as charged, would support a conviction for two crimes with different penalties, then the person shall be punished only for the offense carrying the lesser punishment.  However, this analysis is not so simple in practice.  It is case-specific and very fact-intensive.

Second, there is a possibility that the judge will give a jury charge on lesser-included offenses at trial.  The law provides that a person accused of a crime may be convicted of a lesser offense if it differs from the more serious offense in that there was a less culpable mental state or that a less serious injury or risk of injury is involved.  So, was your conduct reckless or negligent rather than intentional?  Was the act, or result of the act, less serious than the State alleged?  Here again, this analysis is very case-specific and fact-intensive.  

If you or someone you know has been overcharged by the State, please let one of our lawyers help you.  We are always available to talk with you about your case: (404) 581-0999.

Overcharged

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The Prosecution Overcharged My Case!

            I have seen the prosecution overcharge cases on multiple occasions.  The prosecutor’s office will, at times, define your alleged conduct as something much worse than it is.  A misdemeanor will be elevated to a felony, for example, or a felony will be charged as one carrying much more punishment than it should.  That doesn’t sound like truth and justice, does it?

There can be several reasons for a case to be overcharged.  Until defense lawyers get involved, the prosecutors (who are human beings) hear only one side of the story.  The police or the complaining witnesses unload with their side and the prosecutor doesn’t hear a word to the contrary.  And, unfortunately, defense lawyers may not be involved until the case has already been accused or indicted.  (There are exceptions…especially when the lawyer is hired early in the process and there is some form of evidence to support an opposing position).  So, acting only on the word or evidence given by the complainant, the prosecutor files the accusation or indicts the case.  It is extremely important for the lawyer to be thorough when talking to the client and finding out, in detail, what the facts of the case are.

Another reason that cases might be overcharged is that the prosecution is already thinking ahead to plea bargaining.  One prosecutor explicitly told me that he added the biggest charge in the indictment in hopes that he would work a plea to the lesser charges without too much hassle.

Sad?  I think so.  I am convinced that the anxiety people experience leading up to the disposition of the case is twice as bad as whatever punishment may be inflicted.  So many of my clients have suffered long, sleepless nights, loss of their jobs, broken relationships, substance abuse, and many other side effects of being charged with a crime (please note that I did not say convicted of a crime).  That is yet another reason to go early in the process to talk with a lawyer who believes in the presumption of innocence and who treats each client like a unique, special human being.  We take on the burden of your case for you.  We provide you with honest feedback that can give you peace about the situation and, hopefully, enable you to think about everything else going on in your life.  I like to think that my clients are able to dump the burden of the pending case on me and put their time and energy towards their kids, their jobs, their significant other, their hobbies, and everything else going on in their lives.

In my next blog, I will discuss some ways to combat overcharging by the State.

Always feel free to call us with any questions about your case.  You will get to speak with an attorney free of charge.  (404) 581-0999.

Hit and Run

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Hit and Run

Do you know your responsibilities when involved in a car accident in the State of Georgia?  Many people don’t.  Every day, Georgia drivers find themselves charged with one of the worst traffic offenses someone can have on their driving record, hit and run.

Every person driving on Georgia roads has five distinct responsibilities that they must adhere to when involved in car accident involving death, injury, or damage to someone else’s vehicle.   The responsibilities must be met in order to avoid being charged with hit and run.

First, if you are involved in a car accident involving damage to another vehicle, injury, or death then you must provide the other driver your name, address, and the registration number of the vehicle you are driving.   Next, upon request, you must present your operator’s license (driver’s license) to the person struck or the driver or occupant of the other vehicle.  If someone is injured, you are required to give reasonable assistance to that person, including transporting or make arrangements to transport the person to a medical professional.  Also, if the other driver is unconscious or deceased, you must make every reasonable effort to contact medical services and local law enforcement (Call 911).  Finally, and most importantly, you must remain at the scene of the accident until all of the requirements mentioned above are fulfilled.

Most of the requirements seem to be common sense.  But a common, and unfortunate situation, is when a Georgia driver is involved in a car accident where both parties appear to be ok and there is little damage to the vehicles.  The other driver, we’ll call him John, tells you: “Everything is fine.  I don’t think we need to call the cops.”  Initially, you think that everything is fine and you can go about your business, only to later find out that “John” has called the police and reported the accident.   To make matters worse, “John” let the police know that you left the scene!   The police can then go the magistrate court and take a warrant for hit and run, leaving you with an active warrant for your arrest…

Sound like a nightmare? Believe me, it is.driving-car-accident

A conviction for a hit and run charge can result in severe consequences on your criminal history and the suspension of your driver’s license.  If someone is injured or dies as a result of the accident, then you can be charged with a felony and face up to three years in prison.   More common, if there is damage to other driver’s vehicle, and you are convicted of hit and run, you can receive up to twelve months in jail and $1000 fine.  And if that’s not enough, a conviction for hit and run will suspend your driver’s license.

If you have found yourself charged with hit and run, do not go to court and just plead guilty.  Contact our lawyers immediately to discuss your options and how to protect your rights going forward.  Our lawyers are trained to handle hit and run cases and are available for a free consultation.  Please call 404-581-0999 to setup a consultation as soon as possible.

Criminal Trespass

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CRIMINAL TRESPASS

No_trespassing_by_Djuradj_Vujcic

In Georgia, there are several ways you can get charged with criminal trespass.  The law provides:

  1.  A person can be charged with criminal trespass if that person intentionally damages another’s property, without consent, and the cost of the damage is $500 or less.
  2. Criminal trespass can be the knowing and malicious interference with another person’s personal property. Meaning that a person withholds another’s property without their permission.
  3. Criminal trespass can also be entering the property of another after being instructed by the rightful owner to not return.
  4. Another variation of criminal trespass is when a person is told by the rightful owner of the property at issue to leave the property and that person remains on the property.
  5. Entering onto someone else’s property with the purpose of committing an unlawful act can be considered criminal trespass.
  6. Finally, defacing a monument, grave site, or memorial dedicated to a service member of the United States military or the Confederate military can be deemed criminal trespass under Georgia law.

As you can see, there are several ways someone can be charged with criminal trespass.  The most common form of criminal trespass that we see stems from arguments between family members.  We all know that families argue.  But sometimes those arguments can escalate beyond just words and can result in damage to property.  When that happens the police often get involved.

When the police arrive they tend to immediately gravitate to the person who first called 911. The police officers are trained to separate all of the parties involved so that there are no additional arguments.  Often, the police receive a very one-sided version of the story and are shown a piece of property that the other person is alleged to have damaged.   The police officers will confront the accused with the property and try and get a confession.   If that person does not say anything then it generally result in the accused being charged with criminal trespass.

We also see criminal trespass cases in the context of young people going onto someone’s property for a prank.  Everyone has heard the stories of the neighborhood kids throwing toilet paper on the trees of the perceived “mean guy” in the neighborhood.  Well, in Georgia, that can result in being charged with the misdemeanor offense of criminal trespass.

There are several different variations of criminal trespass.  If you or someone you know has been charged with criminal trespass, please call the office immediately at 404-581-0999.

SB-440

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Being Charged as an Adult in Georgia

Part 1: SB-440: Automatic Transfers to Superior Court

 In 1994, Georgia enacted State Bill 440 (more commonly referred to as SB-440) to “provide that certain juvenile offenders who commit certain violent felonies shall be tried as adults in the superior court. This SB-440 law granted adult courts exclusive jurisdiction over criminal cases involving juveniles (ages 13-17) who are charged with one or more of the following “Seven Deadly Sins”:

  1. Murder
  2. Armed Robbery with Firearm
  3. Rape
  4. Voluntary Manslaughter
  5. Aggravated Sexual Battery
  6. Aggravated Sodomy
  7. Aggravated Child Molestation

 

O.C.G.A. 15-11-560(b)

In essence, juveniles (age 13-17) charged with one of the above-mentioned crimes in Georgia will automatically have his or her case  transferred from juvenile court to superior court, where he or she will be charged, tried, and punished as an adult. If convicted and sentenced to prison, the juvenile will not be sent to a Youth Detention Facility through Georgia’s Department of Juvenile Justice. Instead, the juvenile will be housed with other juvenile inmates in the custody of Georgia’s Department of Corrections until he or she reaches the age of 17 and is thrown into the general prison population.

Occasionally, at the discretion of the prosecutor, a SB-440 case may be transferred back to juvenile court after “after investigation and for cause” if the case has not been indicted yet. By contrast, after indictment, a SB-440 case can only be transferred to juvenile court for “extraordinary cause.” O.C.G.A 15-11-560(d), O.C.G.A. 15-11-560(e). Therefore, time is of the essence when it comes to advocating for the case to be transferred back to juvenile court.

If you know someone charged as an adult with an SB-440 crime, PLEASE contact us at the Law Offices of W. Scott Smith. We would be happy to help you with your case and answer any and all of your questions about juveniles charged as adults.

Open Container

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OPEN CONTAINER 

Think about this scenario for a second.  You’re driving home with your significant other from a dinner party.  As you’re driving  you begin to discuss with your passenger how wonderful the evening was, especially the fantastic wine that you drank.  You’re thrilled that your dinner host graciously gave you the rest of that wonderful red wine that they brought back from Italy.  Next thing you know, you look up and you see blue lights in your rear view mirror.  Now, you know you may have been driving too fast, but nonetheless you expect to get a either a warning or a speeding ticket.

The Officer approaches the car and sees that you have a bottle of wine, with the cork lodge tightly on top, sitting in your back seat.  He says: “Ma’am, I pulled you over for speeding and it looks like you have got an open container in the back seat!”  OPEN CONTAINER!?  That’s right, now you have another ticket to worry about…

open-container

In Georgia, it is illegal to have an open bottle of an alcohol beverage in the passenger area of a motor vehicle. O.C.G.A. 40-6-253.   We often think of open container in the context of someone driving down the road with an open beer or maybe a mixed drink in a solo cup.  But it can also constitute someone carrying home an already open bottle of alcohol.  In fact, Georgia law defines an “open alcoholic beverage” (open container) as any bottle, can, or other receptacle that contains ANY amount of alcoholic beverage and: (1) is open or has a BROKEN SEAL; OR (2) the contents of which are partially removed.

So be careful out there! If you’re one of those lucky folks who gets the gift of a fine wine from Italy, go ahead and put it in the trunk.   That will avoid any headache with the police officer believing your impaired AND will help avoid you getting ticketed for open container.

However, if you have found yourself with an open container violation, please contact the office immediately at 404-581-0999.

 

Social Media: How it can impact your case.

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Don’t let it happen to you: THINK ABOUT WHAT YOU POST BEFORE YOU POST IT

More than ever, police officers and investigators are using social media sites like Facebook, Twitter and Instagram to collect evidence and solve crimes. This is because we, as social media users, have become accustomed to publicizing our private lives. Obviously, there are many benefits to socializing online with friends and family. However, it is important to remember that law enforcement could be looking. So, this is a reminder to all of my fellow social media friends out there….

Think about what you post before you post it. I know it feels good to get “likes” and “followers” and I understand wanting to flaunt what you have but your posts can be used against you….

For example, in recent news:

So, in light of the rampant use of social media evidence in criminal investigations, how can you protect yourself?

Obviously, the best way to avoid trouble is to refrain from engaging in criminal activity, in public, and posting about it.

Here are some obvious examples of what NOT to post online:

  • Photos/Videos of
    • Large amounts of cash
    • Drugs/Drug Paraphenalia
    • Underage drinking
    • Guns
    • Gangs flashing known gang signs
    • Fights
    • Mistreatment of animals
  • Statements that could be interpreted as:
    • A threat
    • A confession
    • An illegal offer

But, sometimes, in the moment, it is hard to know whether your post is, in fact, incriminating.  For example, it seems completely harmless to post your whereabouts and who you are. However, by sharing things like your location and your daily activities, you are essentially creating a date and time stamped timeline of your life (no Facebook pun intended). This can become a problem if you put yourself somewhere where a crime is committed or with someone who is suspected of committing a crime.

So, if you are like me and do not want to stop using social media, the next best thing to do is implement the strictest privacy settings. This will allow you to protect your posts from the general public.

Unfortunately, even with the strictest privacy settings, law enforcement officials can gain access to our social media accounts using a variety of techniques. Sometimes, officers create fake profiles and send friend requests to potential suspects who they are investigating. If that fails, they will sometimes request the assistance of the suspect’s social media friends and review their posts that way. And if both of those strategies fail, officers can often obtain criminal search warrants that require social networks to turn over identifying information about us, their account holders (including IP addresses associated with the account). Although officers rarely seek these types of search warrants, it is important to know that they can get them.

So, if you aren’t interested in abstaining from social media completely, please avoid posting anything incriminating and implement the strictest privacy settings. It is for your own protection.

Also, one more thing:

If law enforcement can do online investigation and use it to prosecute us, there is no reason why we can’t use it to defend ourselves too!

If you or someone you love is charged with a crime and there may be exculpatory evidence (evidence to demonstrate your innocence or the circumstances justifying your actions) online, investigate! And, whatever you find, make sure to preserve it by taking a screenshot or printing it out. You never know how it can help you down the road.

For more advice about using social media evidence to fight criminal charges, contact me at 404-581-0999 or via email at Rachel@peachstatelawyer.com

What Is Arraignment?

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WHAT IS ARRAIGNMENT?

“What is arraignment?”

That’s the first question every client asks us when they receive their first court date, and it’s a great one.   Most of our clients have either received a court date prior to meeting with us or they were told when they leave the jail that they will receive an arraignment date in the near future.  So, what is arraignment?

In Georgia, every person is entitled to due process of law under the Georgia Constitution and the United States Constitution.  A citizen’s due process rights include the right to be placed on notice of any charges the State intends to seek.   The State files charges through either a formal indictment or accusation. These documents are ultimately the framework of how the case will proceed.  As such, arraignment is the first opportunity for the court to inform the accused of the charges against them.  Under Georgia law, every person accused of a crime has the right to be arraigned.  Formal arraignment is when the court reads the charges in open court and an accused has an opportunity to enter a plea of either guilty or not guilty. courtroomdoorfrombench1 (1)

So what actually happens in court at the arraignment hearing?  From a practical stand-point three things happen at arraignment.   First, one of our lawyers will likely inform the court that we are waiving formal arraignment (reading of the charges in open court) because we have received the actual charging document and we would prefer, for the sake of privacy, for our clients charges not to be read in front of hundreds of people.  Second, we enter a plea of not guilty.  At this juncture the State has not provided the evidence they intend to use at trial and we would essentially be accepting guilt without evaluating the case.  Thus, it makes sense to plead not guilty, collect evidence, and then proceed accordingly.  Finally, we inform the court that we will be filing legal motions and ask the court for ten-days to file.  Legal motions cover many issues including asking the Judge to force the State to provide evidence, suppress evidence, hold a hearing on legal issues, and many other topics.

If you have been charged with a crime then your case will eventually be set for an arraignment hearing.  Please contact our office today at 404-581-0999 for a free consultation at either our downtown location or our Marietta location to discuss arraignment and how we can help with your case.

Carrying A Firearm Through a TSA Checkpoint: PART II

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Carrying A Firearm Through a TSA Checkpoint: PART II

A few months ago, Attorney Mike Jacobs from our office wrote a blog about the consequences associated with being charged with carrying a firearm through a TSA (Transportation Security Administration) checkpoint (see http://www.peachstatelawyer.com/gun-at-the-airport/).   Rachel discussed how being charged with carrying a fire arm through the TSA checkpoint generally means you have two cases: a civil case and a criminal case.  The criminal case, in Georgia, will always be in the Clayton County Courthouse because the Hartsfield-Jackson International Airport is within Clayton County’s Jurisdiction.   The civil case is actually a federal case and can be handled in several different ways.  This article will discuss the option our clients have when facing TSA fines in conjunction with a criminal charge for carrying a firearm through a TSA checkpoint.

100111_tsa_ap_289

Most of our clients receive a notice via mail from a TSA representative indicating that they are being assessed a $3000.00 civil penalty for violating 49 C.F.R. §1540.111(a).   The letter will instruct the recipient that the fine will be lowered to $3500.00 fine if paid within 30 days of the receipt of the letter.  This is where many of my clients call in a panic about the prospect of having to pay a $3500.00 on top of the mess they already are dealing with in Clayton County.   Have no fear; there are several options to explore.

The first option would be to just pay the fine and move on with your life, but that’s generally not why you would want to hire an attorney…

The second option would be to challenge the fine in a formal hearing in front of a Federal Administrative Judge.  The TSA representative would then have to present evidence showing that you are in violation of the Federal Code and should be assessed a civil penalty for carrying a firearm through a TSA check point.  However, this option can be tricky.   The code classifies carrying a firearm through a TSA checkpoint as a “strict liability” offense.   That’s a fancy way to say:  you either did or you didn’t.   If the TSA officer is able to present evidence showing that you in fact had a gun while going through a TSA checkpoint, then it doesn’t matter that it was a complete mistake.  Losing this hearing would then leave you at the mercy of the administrative judge.

The third option would be to schedule an informal meeting with an attorney from our office and the General Counsel for TSA.   The General Counsel will let us know what his TSA officers are saying happened.  We then fill in the gaps on how the gun got there.   Nine times out of ten, our clients completely forgot their firearm was in their luggage (i.e. carry on, purse, or briefcase).   In addition, we let TSA know how the case is being handled in Clayton County.   We have had a lot of success in having the fine either eliminated or lowered drastically from the original $1500.00 offer.

Our lawyers are trained to handle both the civil and criminal aspects of carrying a firearm through a TSA checkpoint.  Our fee includes representation for both cases.  If you or a friend are facing charges for carrying a firearm through a TSA checkpoint, contact our office today at 404-581-0999.

MY PAST IS STILL HAUNTING ME

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MY PAST IS STILL HAUNTING ME

DUI defense in Newport Beach 888-280-6839

“I do have a prior DUI, but I was not drunk this time!  Am I really going to be judged for things I did in the past?  What happened to the presumption of innocence?”

So often, I see people get arrested simply because they drank some alcohol and then drove.  Guess what?  It is not illegal to drive after drinking alcohol!  How often does a grown man or woman get drunk off of one or two drinks?  I mean, really.

Now imagine that you find yourself in that situation and you actually have a DUI conviction from years past.  Are you doomed?  Do you stand a chance at trial?

The answer is yes, you do stand a chance.

Due to the tremendous amount of prejudice that evidence of a prior conviction provides, the law is strict and narrow as to when the prosecution can use that prior conviction as evidence against you in a new case.  Specifically, the government has to satisfy a three-part test to get that evidence into court:

(1)   Is it relevant to something besides trashing your character?

(2)   Do they have the proof still to prove that you committed the prior?

(3)   Is the prior conviction an important enough piece of evidence that it substantially outweighs the prejudice it causes?

In a DUI case, the government must show one of the following:

(1)   That you refused the state-administered test and the past DUI is relevant to show that you knowingly refused, and your refusal was part of your plan rather than an accident;

(2)   That you did not give an adequate breath sample and that the past DUI is relevant to show, again, that it this was part of your plan rather than an accident; or

(3)   That your identity as being the driver of the car is in dispute and the past DUI is relevant to prove that you were the driver now.

The Georgia Court of Appeals put it succinctly: “Evidence of a prior crime is highly and inherently prejudicial, raising…an inference that [a person] who acted in a certain manner on one occasion is likely to have acted in…a similar manner on another occasion and thereby [puts that person’s] character in issue.”  Jones v. State, 326 Ga. App. 658 (2014).

Do not allow the prosecution to bully you by threatening to use your past against you.  Go see a lawyer who is willing to fight back and stand up for your rights.

Our lawyers are trained to handle just these types of cases.  If you’re facing multiple DUIs on your criminal history, please give us a call at 404-581-0999.