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.

Labor Day: Traffic Stop Tips

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LABOR DAY WEEKEND EDITION: What Do You Need To Know During A Police Traffic Stop?

trafficstoppic

Most people share a general sense of anxiety when they see blue lights flashing in their rear-view mirror.  If you’re like me, when the blue lights come on your heart starts beating 100 mph, you start sweating, and your mind is racing.   Here are some helpful pointers on how to interact with a police officer during a traffic stop.

WHEN YOU SEE THE “BLUE LIGHTS”

1)   Slow down and pull over as quickly as possible.  You never want to give the officer the impression that you’re attempting to get away.  Also, you don’t want to slam on the brakes immediately.  Find a safe location (parking lot, driveway, open area on the side of the road, etc..) and pull over.

2)  Roll down your window, turn off your car, place the keys on the dashboard, and have your driver’s license ready to hand to the Officer.   Obviously, if a police officer pulls you over he/she is going to want to speak with you.  It’s always a good idea to go ahead and roll your window down as soon as possible.  You wouldn’t want the officer to think that you’re having difficulty with the simple task of rolling your window down.  So go ahead and do that first.

Placing your keys on the dashboard will put the officer at ease that you’re not going to take off.  A calm Officer can sometimes be the difference in going to jail and going home.

In addition, the Officers are trained to see if you have difficulty locating your driver’s license.  To many officers, the fact that you are nervous and may not be able to find your license right away is not normal and instead is an indication you’re drunk.  So go ahead and eliminate that assumption immediately.

3)   Let the Officer speak first.   The Officer is trained to get you to admit to the crime he/she thinks you’ve committed.  So a common question an Officer will ask is: “do you know why I pulled you over?”   A lot of people will say: “Yes, I was (insert traffic offense).”   If the Officer is recording your conversation, then there is a strong possibility that statement will be used against in court.  So go ahead and answer the question with an affirmative “no.”   It’s the Officers burden to prove you guilty of the alleged offense and not your burden to proof yourself innocent.

4)  BE POLITE!  This is the key to any interaction with a police officer.  If you are a jerk to the Officer the chances of you getting a ticket and/or getting arrested go up significantly.   Sometimes a police officer can say things that are rude or inconsiderate.   Take the high road.   Remember, on the road he feels like he is in charge and has the ability to really mess up your day.  You’ll have the final say if the case goes to court.  So don’t make it easier for the Officer.  Just be polite and your behavior won’t be used against you at a later date.

If you end up with blue lights in your rear view mirror, try some of the tips listed above.       We hope that no one ends up getting ticketed or, even worse, arrested.

Labor Day weekend is a great chance to relax and enjoy time with friends and family.  With so many people on the road, you can almost guarantee that the police will be out in force.  So be careful and have a great weekend.

GEORGIA LEGISLATURE CHANGES MUGSHOT LAWS

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A few months ago  we talked about the legality of having your mugshot posted all over the internet (see: Georgia Mugshot Websites). Recently, the Georgia General Assembly took another hard stance against companies who prey on those who are booked through Georgia jails.  Our legislature made some drastic changes to the Georgia mugshot laws.

Georgia law now requires that law enforcement agencies refrain from posting booking photographs on their jail inmate website.  The General Assembly went on to limit access to any booking photographs by restricting access to those who are (1) not using the photo for purposes for written publication or website publication; and (2) the person trying to obtain the photograph is not asking for removal or deletion of the booking photograph in exchange for money.  Law Enforcement agencies now can only release photographs to individuals who sign a statement affirming that the use of the photograph will NOT be for purposes of mugshot websites.

The General Assembly obviously recognized there was a serious problem with websites extorting those who have been booked through the criminal process.  Already, the Cobb County Sheriff’s Department has taken steps to remove all photographs from their jail website in accordance with the new law. Hopefully, these steps will put an end to for profit mugshot websites.

Please contact our office today at 404-581-0999 if you have been arrested in Georgia and you need help getting your mugshot removed.

They found my gun at the airport! What happens now?

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Bringing Your Gun to the Hartsfield-Jackson Airport in Atlanta, GA

In addition to being the nation’s busiest airport, Atlanta’s Hartsfield-Jackson International Airport is also known for confiscating more firearms during security screening than any other airport in the country.

Historically, at Hartsfield-Jackson, when a TSA officer would find a traveler’s firearm during security screening, they would detain the traveler, confiscate the firearm, and immediately notify local law enforcement.  This would happen regardless of whether the traveler had a permit to carry the firearm because Georgia law strictly prohibited the possession of all firearms in its airports.

So, before July 1, 2014, the traveler would be arrested by the Clayton County Police Department and taken to jail. Travel plans would obviously be ruined and a criminal charges would be brought against the traveler. Then, if the prosecuting authority determined that the traveler had no criminal history and there were no aggravating circumstances surrounding the firearm confiscation, they would invite the traveler to participate in their pre-trial diversion program. By successfully completing the program, which involves community service, a gun safety class, and often, drug testing, the traveler would avoid a conviction on their criminal history.

While Clayton County would go forward with their criminal case, TSA would be assessing a federal civil penalty for the firearm violation. Upon determining the fine amount, the traveler would receive a letter via U.S. mail notifying them as to the amount they owe TSA. The penalty would range anywhere from $500 to $10,000 and depend on a variety of circumstances including the traveler’s intentions, level of cooperation, prior history,  risk to the community, and negotiation skills.

That was before July 1…

Now, as of July 1, 2014, Georgia residents with licenses to carry firearms are permitted to carry their firearm in many public places, including the entrance and waiting area in the Hartsfield-Jackson airport. Obviously, this permission does NOT extend to the airport’s terminals due to federal law but TSA officers at security screening will no longer call Clayton County Police Department if the traveler can show proof of their permit to carry.

Instead of calling the police, TSA will give the traveler the following options: 1) check the firearm as luggage (if properly secured in a hard case), 2) return the firearm to their vehicle (if they parked it at the airport), 3) hand the firearm to an individual who is licensed to carry in Georgia and not traveling via the airport, or, in the event that no other option works out, 4) forfeit the firearm permanently to TSA.

Whether the traveler has a license to carry a firearm or not, TSA will still pursue a civil case against them. Like before, TSA will investigate the circumstances of the case and assess a civil penalty ranging from $500 to $10,000. TSA may also temporarily suspend a traveler’s “TSA Pre-Check.”

It is important to remember that Georgia’s new gun laws only affect Georgia residents with valid licenses to carry their firearm(s). All other travelers carrying guns in the Hartsfield-Jackson airport remain out of luck when it comes to TSA calling Clayton County Police Department. Those individuals will be arrested and charged like all gun-carrying travelers were charged prior to July 1, 2014.

If you were charged with bringing a firearm to the Hartsfield-Jackson airport or have any questions about the subject, do not hesitate to contact our firm for a free consultation. You can trust that our firm will work hard to protect your rights and secure the best possible outcome.