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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.

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.

Self-Defense

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Self-Defense

Self-defense is the most common defense to any murder, aggravated assault, battery, family violence battery, assault, or any other crime involving an act of violence.   Most people feel comfortable with the idea of defending themselves from harm.  In fact, it’s a natural reaction to defend your body from imminent harm.  But many Georgia citizens are not aware of how the law defines self-defense and often find themselves in a lot of trouble when the police feel that their actions didn’t conform with the law. Female self defense

In Georgia, self-defense is considered a justification defense. O.C.G.A. 16-3-20.   A justification defense applies when someone, who is charged with a crime, admits that they did in fact commit the crime, but they were justified in doing so, and thus cannot be convicted.   For example, someone who is being attacked by an angry neighbor fights back, striking the neighbor on the face with a closed fist.   Ordinarily, striking someone on the face would be a battery, but if you’re justified in striking the other person (self-defense) then the law says you cannot be convicted of that crime.  So how does someone establish a justification of self-defense?  Georgia law provides that:

“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm ONLY if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.” O.C.G.A. 16-3-21.

As you can see from the legal definition of self-defense, the use of force can easily be misinterpreted by a police officer as being too much or not necessary.   Because of that, we often see clients who come in saying they were exercising self-defense techniques to prevent themselves from being harmed, but nonetheless they are still being charged with a crime.  Often, self-defense claims must be presented to a jury to sort out the mixed question of fact and law.  The jury is charged with the same definition listed above and would have to make the determination as to whether or not someone charged with a crime was justified in their actions.

If you have found yourself in a situation where you believe you had every right to defend yourself, contact our office today at 404-581-0999.  Our lawyers are trained to take case to trial and fight for what is right.

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.

Municipal Court of Atlanta Strikes Again

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Peach State Lawyer Daniel Farnsworth here.  I was in the Municipal Court of Atlanta today once again trying to correct the court’s error.

Background: If you have a court date and you fail to appear in court, the court may report this Failure to Appear (FTA) to the Georgia Department of Driver Services (DDS).  DDS will then suspend your privilege to drive in Georgia as a result of the FTA.  The suspension will go into effect 28 calendar days after DDS receives notice you failed to appear.  In the City of Atlanta, if you fail to appear, there is a procedure to follow to get your case out of FTA status (which may include paying $100 FTA fee).  More importantly, the court is supposed to transmit a clearance letter, also known as a Release of Fine and Fees Form (DS-912) to DDS indicating the FTA has been cleared.  This will allow you got back to DDS and reinstate your driving privilege.

THE PROBLEM: Today, I was in the municipal court of Atlanta to clear up a FTA issue.  The problem was MY CLIENT DID NOT FAIL TO APPEAR!!!  Read that again.  My client and I appeared in court on the assigned court date.  The case was reset.  We were given a court date notice to come back at a later date.  To client’s shock and surprise, client received a notice from DDS stating that his license was going to be suspended due to FTA.  WHAT?!?!

So I appeared in Atlanta this morning and I had to have my client’s case specially set on the calendar so the judge could address this FTA.  The good news is that I was successful in getting the judge to remove the FTA and notate the court’s error.  The bad news is that this happens FAR TOO OFTEN in the Municipal Court of Atlanta.

If this has happened to you, or you missed a court date, please contact me today and see if I can help correct the issue.  Time is of the essence in order to avoid a suspension.