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Family Violence Battery

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FAMILY VIOLENCE BATTERY

A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors.   Frequently, I meet with individuals who come to our office with citations from a police officer charging our client with battery or simple battery.  The stories range in complexity, but often I learn from our initial consultation that the alleged victim in the case is someone who can elevate the charges from Battery to Family Violence Battery.  Many times the Officers do not include the Family Violence component on the citation and clients are surprised to learn that their case can be modified by the State prosecutor to include even more consequences.  For some clients, this is their first interaction with law enforcement and their concerns include: jail time, criminal history reports, and trial options.   All of these concerns are very real when facing Family Violence Battery charges.

Before we get started with the impacts of a Family Violence Battery conviction, it’s important to note that not all charges for Battery and Simple Battery have a Family Violence Battery component.  In order to be charged with Family Violence Battery the alleged victim must be:

  • A spouse
  • Persons who are parents of the same child
  • Children
  • Step-Children
  • Foster Children
  • Other persons living in the same household (roommates)

State prosecutors will often include multiple counts of Battery, Simple Battery, and Family Violence Battery within one formal charging document, called an accusation.  Unfortunately, many people go to court on their first court date, without exploring the consequences of a Family Violence Battery conviction, and enter a plea.   Whether the person committed the acts alleged or they simply just want to put this chapter of their life behind them, even though they’re innocent, it’s vital to consult with an attorney.  At the very least, an attorney can discuss the implications of being convicted of Family Violence Battery.

So how does it work?  Every citizen who has been arrested for a crime is fingerprinted and has criminal history created that includes the arrest, the charging document (accusation or indictment), and the ultimate outcome of the case.  A first conviction for Family Violence Battery is a misdemeanor that carries a maximum penalty of 12 months in custody and a $1000 fine.  A second or subsequent conviction with the same family member (as classified above) or another family member results in a felony conviction with a maximum penalty of five years in prison.   O.C.G.A. 16-5-23.1.

While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several ancillary consequences that do always appear at first glance.  For instance, under Federal law, any person convicted of a crime of domestic violence can no longer lawfully possess a firearm.   Georgia’s classification of Family Violence Battery falls within the Federal definition of “domestic violence.”  Thus, a Georgia citizen who has a conviction of Family Violence Battery can no longer possess a firearm without the possibility of facing criminal charges in Federal court.

In addition, while the maximum includes 12 months in custody and a $1000 fine, many Judges throughout the State will require individuals convicted of Family Violence Battery to serve time on probation in lieu of jail time, but with the conditions of completing a domestic violence program.  These programs go by several different names, but they generally include 24 weeks of classes, counseling, and program fees that are no included in the fine levied by the Judge.  In addition, Judges can add community service, counseling requirements, fines, and alcohol and drug evaluations.  It is important to know that all of these things can be negotiated by your attorney.

Being charged with Family Violence Battery can be a stressful event in anyone’s life.  At the Law Offices of W. Scott Smith, our lawyers are trained to explore the legal issues with every Family Violence Battery case.  We are aware of all the possible options available to avoid jail time and to protect your criminal history and ultimately your privacy.   If you or a loved one has been charged with Family Violence Battery, please contact our office today at 404-581-0999 for a free consultation.

NEW YEARS EVE DUI CHECKPOINT

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NEW YEARS EVE DUI CHECKPOINT:

Every year, thousands of Georgians celebrate the dawning of a New Year by enjoying the several New Year’s parties around town.  As we all know, those parties often include music, food, and alcohol.  According to the Insurance Institute for Highway Safety, New Year’s Day is the second most deadly day for drivers with an average of 140 deaths related to alcohol.  Because of this, law enforcement agencies throughout the State set up DUI checkpoints to prevent drunk drivers from getting into accidents.   We certainly advise that you find a safe ride home on New Year’s Day.  But if you find yourself at a DUI checkpoint, it’s important to know your rights before the Officer mistakes you for a dangerous driver.

STAGE 1:

DUI checkpoints are often set up in two stages.   The first stage is an initial screening stage.   Here, a DUI trained officer will check for some of the common physical manifestations of a person who is driving under the influence.  Often, we see police reports that include the initial screening officer smelling the odor of alcohol coupled with bloodshot and watery eyes.  The DUI officer is also looking for the driver’s behavior.  Particularly, the DUI Officer is looking to see if the person is being belligerent or combative.

It’s important to remember to always be polite in these situations.  If the DUI Officer becomes agitated with the way you respond to his questions, then you’ll likely find yourself at the DUI checkpoint much longer than you would expect.   The Officer will likely ask you how much you’ve had to drink.  If you’ve only had one beer then it’s ok to let the Officer know that.   In Georgia, it is not illegal to consume alcohol and drive.  However, it is illegal to consume alcohol the extent you become a less safe driver.  So, the fact that you have had one beer does not automatically mean you’ve broken the law.

STAGE 2:

The DUI Officers are trained to instruct drivers to the second stage of the checkpoint if they feel there is enough evidence to continue a DUI investigation.  The second stage will often include a second DUI Officer who will almost certainly request the driver to perform field sobriety testing.  As we’ve discussed in the past, field sobriety testing is weighed heavily against the driver.  For example, the walk and turn evaluation is one of the three standardized field sobriety tests.  The evaluation includes a series of clues the Officer is trained to look for.  There are seventy-six opportunities for the driver to display a clue.  If the driver shows two of the seventy-six clues then that is enough for the Officer to establish someone are impaired.   More concerning is the initial studies on this examination showed only a 65% accuracy rate in optimal conditions.

Because of the unreliability of field sobriety testing, we always suggest to our client to refuse any field sobriety testing.  The chances of the Officer making a mistake are extremely high and the consequences to the driver can be drastic.   Finally, if the DUI Officer feels there is enough evidence obtained from all of the interactions then he or she will make an arrest.

As I mentioned earlier, the easiest way to avoid a DUI is call a cab or have a sober driver.  Personally, I’ve found the car service Uber to be fantastic.  But, sometimes we find ourselves in difficult circumstances.

If you or a friend ends up getting charged with DUI on New Year’s Day please contact the office immediately at 404-581-0999.   Our lawyers will be on call and available to for a free consultation.

I Got Arrested for DUI, But They Never Read Me My Rights

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One of the most common DUI questions we get at W. Scott Smith, P.C. is: “Why didn’t the Officer have to read me my Miranda rights?”  What a great question!  Let me see if I can explain.

The Miranda warning stems from a famous United Supreme Court case, Miranda vs. the State of Arizona.   In that case, the Supreme Court of the United States said that IF you are placed into custody and then the Officer attempts to interrogate you, he/she has to warn you of a few rights.  We know these rights as the Miranda Rights and they go like this:

You have the right to remain silent.

Anything you say or do may be used against you in a court of law.

You have the right to consult with an attorney before speaking to the police and to have an attorney present during questioning now or in the future.

If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.

If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.

Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney?

If the officer chooses not to read you the warning while you are in custody and still proceeds with questioning, then any statements you make may be suppressed by the court at a later date and ultimately result in your case being much stronger.

 

So Why Didn’t the Officer Read Those to Me When He Placed Me Under Arrest for DUI?

In most DUI cases, not all, the Officer is NOT required to read you the Miranda Warning.  Most Officers will wait to place a driver they suspect to be under the influence of alcohol or drugs under arrest (or in custody) to avoid having to read the Miranda Warning.  Which makes sense, right?  The Officer is trying to get you to answer questions about your consumption of alcohol and have you submit to testing that he/she plans to use against you at trial.  If he starts telling you that you have the right to have a “pesky” lawyer like me present, you’re probably not going to do anything.   In Georgia, our appellate courts have determined that when you are asked to exit the vehicle and perform field sobriety testing or answer questions about where you were or where you are going, you are NOT deemed to be in custody, and thus, not entitled to have the Miranda Warning read to you.

BUT, the question of whether or not you are in custody CAN be a sticky issue.  We encourage anyone who has been arrested for DUI in the State of Georgia to contact our office immediately for a FREE consultation (404-581-0999).   Our lawyers can use their knowledge and experience to determine whether or not the Miranda Warning should have been read in your case, which sometimes can mean the difference between your case being dismissed and a conviction for DUI.