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Prior False Allegations & Your Case

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You are accused with child molestation or rape and your accuser has previously falsely accused another person of these horrific crimes. Can you bring up these prior false accusations in your case? The answer is yes.

State v. Burns Example

The Georgia Supreme Court held in State v. Burns, that a defendant in a sexual-offense prosecution may bring up evidence that the alleged victim has previously made false accusations of sexual misconduct. This evidence is admissible to attack the credibility of the victim and show that the current charges did not occur.

In this case, James Burns was charged with aggravated sexual battery, aggravated sodomy, and incest. It was discovered that the alleged victim had made up a prior rape allegation.

The Rape Shield Statute & Allegations

The Rape Shield Statute of Georgia does not prohibit testimony of previous false allegations by a victim. This is because prior false accusations establish that the victim has a propensity to make false statements regarding sexual misconduct. The Rape Shield Statute in Georgia is designed to prohibit bringing up the victim’s past sexual conduct. But it does not protect the victim in cases where a false allegation was made.

Your Rights for a Defense

A criminal defendant has a Sixth Amendment right to make a full defense. A defendant has the right to bring up prior false allegations where it can be shown that the allegation was indeed false. The Sixth Amendment also grants the defendant the right of confrontation. This includes the right to physically face the person who is testifying against him and the right to conduct a thorough cross-examination. A defendant is guaranteed the opportunity for effective cross-examination.

In addition, the due process clause of the Fourteenth Amendment guarantees a criminal defendant a meaningful opportunity to present a complete defense. The defendant does not have a right to offer any testimony that is either privileged, irrelevant or excluded under the rules of evidence. However, if the defendant has evidence of a prior false allegation of the alleged victim then it is admissible in order to protect the integrity of the trial.

In State v. Burns, the Georgia Supreme Court has made a bright line rule that prior false allegations are admissible, regardless of other rules of evidence.

Call us Today!

If you are charged with child molestation, rape or any other sexual offense in Georgia, it is imperative that you aggressively defend yourself and learn everything you can about the alleged victim. If the alleged victim in your case has ever made up an allegation against any other person, you must use this information to your advantage when confronting your accuser in court. If you are charged with any sexual offense in Georgia, please contact us at 404-581-0999 or mike@peachstatelawyer.com for a free consultation

DUI: Blood Alcohol Concentration

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This blog article serves to discuss how Georgia law handles varying Blood Alcohol Concentration (BAC) levels, from 0.00% to 0.08% and beyond.

BAC of 0.05% or Less

If a chemical test of your blood or breath falls within this range, then the law[1]provides the defense with a presumption of non-impairment. This means the trier of fact (judge or jury) is entitled to infer that the defendant is not impaired based on this low alcohol concentration. This presumption of non-impairment, may however, be rebutted by the prosecution. Typically, this is done through presenting evidence of “bad driving” (accident, traffic violation, etc.), or through other manifestations associated with alcohol impairment. If your blood alcohol comes back in an amount this low, a skilled DUI lawyer should be able to get the charge dismissed or reduced.

BAC Greater than 0.05%  but Less than 0.08%

In this situation, the law provides no inference the person was or was not under the influence of alcohol. This BAC range is treated as neutral territory, it doesn’t hurt, but it doesn’t help either. Again, this evidence is to be taken into consideration with other competent evidence determining impairment.

BAC Greater 0.08% or More

A BAC of 0.08 grams or greater amounts to a per se violation of the DUI statute. This means the law automatically deems you impaired, regardless of alcohol tolerance. For this reason, it is imperative defense counsel do anything possible to eliminate this BAC number from being introduced at trial. And if the BAC is admitted at trial, the defense lawyer is tasked with casting doubt on the validity of the BAC result. This can be accomplished through effective cross-examination, employment of an expert witness, and a thorough investigation of the case.

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

[1] O.C.G.A. § 40-6-392(b)(1)

Do I Need an Attorney for Traffic Court?

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The answer to that question is, it depends. In Georgia, all traffic citations, whether you were arrested or not, are misdemeanors and carry a punishment of up to one year in jail and a fine of up to $1,000. That being said, most traffic offenses will not involve jail time or show up on a background check or criminal history.

How Can an Attorney Help?

In my experience, attorneys can help you in traffic court in Atlanta in a few ways. One, attorney cases are often handled at the beginning of the calendar, allowing you to get in and out of court quickly, and on your way to the rest of your day. Two, attorneys have relationships with the prosecutors in court and can often negotiate a better resolution than you might be able to on your own. Three, some citations in Georgia, such as No Insurance, or Driving with a Suspended License or Registration carry with them additional license suspensions or mandatory jail time. If you enter a plea of guilty to those offenses without understanding the potential punishments, you may impact your freedom or your ability to drive. Finally, an attorney may offer defenses to the charge that can get your traffic citation dismissed completely.

This advice is especially true for Smyrna Municipal Court, Cobb County State Court, the Municipal Court of Atlanta, Gwinnett County Recorders Court, and DeKalb County State Court – Traffic Division.

These are just a few of the reasons it is beneficial to talk to an attorney before going to traffic court. Our free consultation will give you valuable information to  help you decide whether you need an attorney in traffic court. Call us today at 404-581-0999.

by Ryan Walsh

Domestic Violence: Victims & Dismissal

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Will my domestic violence case get dismissed if the victim does not testify?

Our Fulton and Cobb County offices in the Atlanta area get victims of domestic violence who appear with or for their partners every day asking us if the Defendant’s case will get dismissed if they tell the prosecutor they do not want to move forward with the case. The answer is, it depends.

If there were no other witnesses to the event and neither party makes any statements to the police, then without a victim’s cooperation, there generally is not enough evidence to move forward with your case. But if there are other witnesses, or the incident continues once police arrives, then even without the victim’s testimony, there may be enough evidence to move forward with prosecution. If you make a statement, they can use that statement against you and they will move forward with prosecution.

It’s not the victim’s choice.

It is not the choice of the victim as to whether a prosecutor moves forward with a case. It is the sole discretion of the prosecutor to make the determination of whether they have enough evidence to move forward with trial.

As in all cases, we believe that if you are being investigated for any crime in the state of Georgia, it is best to politely decline to answer any questions, decline to make any statements, and assert your right to an attorney immediately. Our office of attorneys are all well-trained in handling domestic violence cases. We can get you into our office for a free consultation immediately to discuss your options. Call us today at 404-581-0999.

by Ryan Walsh

Sex Offender GPS Monitoring is Unconstitutional

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O.C.G.A. 42-1-14 required a person who is classified as a Level 3 sexually dangerous predator to wear and pay for a GPS Monitoring device even if no longer on probation or parole. This Statute allowed the State to monitor the person’s movements for the remainder of his or her life.

Joseph Park & Sex Offender GPS Monitoring

In 2003, Joseph Park was convicted of child molestation and sexual exploitation of a minor. Upon his release from custody in 2011, the Sexual Offender Registration Review Board classified him as a sexually dangerous predator under O.C.G.A. 42-1-14(a)(1). This Statute required Park to wear a GPS monitoring system the rest of his life.

Joseph Park challenged this statute on Constitutional grounds. The Georgia Supreme Court concluded that O.C.G.A. 42-1-14 was an unreasonable search and violated the Fourth Amendment to the United States Constitution.

The Court held that the wearing a GPS monitoring device to track the person’s whereabouts 24/7 for the rest of their life, even after the person has served their entire criminal sentence, constituted a significant intrusion upon the privacy of the individual. This would be an unreasonable warrantless search of an individual who is no longer serving their sentence.

The Georgia Legislature is likely already working to draft a new statute to allow for GPS monitoring for life.

Call us today!

If you are arrested for child molestation or any other sex offense in Georgia, it is imperative that you fight the case and win the case at the trial level. If you plead guilty to child molestation or any sex offense and are on the Georgia Sex Offender Registry, you will likely be restricted and monitored by the State even when your criminal sentence is over. It is vital to put the time, effort and money into fighting your child molestation case on the front end.

If you or a loved one are in need of a lawyer who handles child molestation cases and other sex offenses in Georgia, please email me at mike@peachstatelawyer.com or call 404-581-0999 for a free consultation.

Your Case in Municipal Court of Atlanta

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There’s no better firm out there for assistance with your upcoming case in the Municipal Court of Atlanta. Our team of highly trained attorneys has been practicing in the Municipal Court of Atlanta building relationships with the prosecutors and judges for as long as they’ve been at 150 Garnett Street.

What does MCOA handle?

The City Court of Atlanta handles almost every traffic citation occurring inside the city limits of Atlanta along with marijuana, shoplifting, and disorderly conduct charges. They also handle all city ordinance charges which involve business license issues, property issues, and some personal citations like disorderly conduct under the influence. There are eleven active courtrooms in the courthouse and most courtrooms have court twice a day.

A case in the Municipal Court of Atlanta has multiple ways it can be resolved. Unlike other municipal courts where your options are guilty or not guilty, the Municipal Court of Atlanta offers pre-trial diversion on a number of traffic and criminal charges, along with other alternative disposition methods if you qualify.

Did you miss court? There might be a warrant out for your arrest? Hiring an attorney may allow you to lift the warrant without appearing in court and risking potential arrest.

Do I need an attorney?

Skilled attorneys can appear in court on your behalf, speed up the process of resolving your charge(s), and negotiate resolutions that a non-attorney may not be able to obtain. It is important that before you resolve your case in the City of Atlanta you give our office a call to discuss potential outcomes and ways we can assist you. The consolation is free, and we are available 24 hours a day, 7 days a week to help. Call us today at 404-581-0999.

by Ryan Walsh

Marijuana at Atlanta Airport

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We are one of the top criminal defense law firms in Atlanta.  Our firm defends individuals arrested at Hartsfield-Jackson Atlanta International Airport (Atlanta Airport) charged with Trafficking Marijuana, Possession of Marijuana and Possession of Marijuana with intent to distribute. 

Who arrests me at the airport?

The majority of the time someone is arrested in Atlanta after landing the flights are from California to Atlanta, but we have seen flights into Atlanta from all fifty states and other countries.  The law enforcement agencies involved include the Federal Bureau of investigation, the U.S. Drug Enforcement Agency and Atlanta Police Department.  The cases usually do not get referred to Federal Court for prosecution but rather get sent to Clayton County Superior Court. 

What will happen after my arrest?

Once arrested for Marijuana Trafficking in Atlanta’s airport the traveler gets taken to the Clayton County Jail located at 9157 Tara Blvd, Jonesboro, Georgia 30236.  The person traveling with large amounts of marijuana through the airport will have bond initially denied.  It takes our law firm approximately two weeks to get an individual on a calendar for bond.  The bond amount depends on the criminal history and the amount of the marijuana.  We have never had a client with just marijuana, no matter the amount of marijuana, denied bond.  Recently we have been able to get clients’ bonds in the amounts ranging from $45,000 – $60,000 for marijuana trafficking through the airport. 

What should I do if approached?

As a reminder, if you are approached by law enforcement in the Atlanta airport be prepared to follow some simple directions. 

  1. Remain calm and always be polite. Assume you are being recorded. Start your own telephone’s audio recording function.
  2. Prepare to hand the officer your driver’s license and your luggage receipt.
  3. You are never required to answer questions. You should respectfully decline and ask for an attorney.
  4. You should decline a consensual search of your luggage. You never know what someone has put in your luggage.
  5. You are free to leave unless you have been detained or placed under arrest.  You are allowed to politely ask the officer if you can leave the airport.
  6. Call us immediately upon being arrested, no matter the time, night or day. 404-581-0999

DUI: License Suspension

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How can my license to drive be suspended administratively and again if I am convicted of DUI? 

This is a good question.  Georgia law thinks of driving as a privilege and not a right.  On the administrative end, the law provides the Department of Driver Services (hereafter “DDS”) may take your license (viewed as a privilege) if there is a showing that you were more likely than not driving under the influence.  This standard of proof is much lower than in a criminal case where the standard is beyond a reasonable doubt.  

Where does license suspension begin?

The administrative license suspension (ALS) process begins when the arresting officer takes your driver’s license and issues you a “1205 Form” which acts as a 45 day driving permit upon a DUI arrest. DDS must receive a copy of the 1205 Form from law enforcement before a hearing can be scheduled or a limited driving permit can be issued.

Despite the arrest, the driver’s license is still valid until DDS receives the 1205 Form and 45 days have passed since the 1205 Form was served. The suspension is “pending” once DDS receives the 1205 form until the outcome of the administrative hearing.  Once DDS receives the 1205 Form this 45 day driving permit will take effect and your driver’s license status will remain “pending.” This 45 day permit can be extended if the OSAH hearing is not held within 45 days. There are no limited driving restrictions with respect to this 45 day permit.

What are my options?

There are two approaches to dealing with an administrative license suspension: (1) request a hearing to appeal the suspension; or (2) elect to install an ignition interlock device on your vehicle. 

DDS must receive the request for a hearing within 30 actual days (not business days) of the service of the 1205 Form. The hearing request must contain a $150 filing fee, the correct date of the arrest or incident, and the correct name of the driver, date of birth, and driver’s license number. Incorrect information could delay the hearing or cause a delayed suspension. Once the hearing request letter is received, your driver’s license will not go into suspension until you are afforded the ALS hearing before the Office of State Administrative Hearings (OSAH).

What happens at the hearing?

If you requested a hearing, the DDS will send you and your attorney a notice of a hearing date, time and location.  The officer who stopped you is required to testify in front of an administrative law judge. The scope of the hearing is limited to the following:      

  • (A) Whether the law enforcement officer had reasonable grounds to believe the person was driving or in actual physical control of a moving motor vehicle while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for violating Code Section 40-6-391; or
  •   (B) Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and
  •       (C) Whether at the time of the request for the test or tests the officer informed the person of the person’s implied consent rights and the consequence of submitting or refusing to submit to such test; and
  •       (D) Whether the person refused the test; or
  •       (E) Whether a test or tests were administered and the results indicated an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more or, for a person operating or having actual physical control of a commercial motor vehicle, an alcohol concentration of 0.04 grams or more; and
  •    
      (F) Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences of the Georgia Bureau of Investigation on an instrument approved by the Division of Forensic Sciences or a test conducted by the Division of Forensic Sciences, including whether the machine at the time of the test was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order, which shall be required. A copy of the operator’s permit showing that the operator has been trained on the particular type of instrument used and one of the original copies of the test results or, where the test is performed by the Division of Forensic Sciences, a copy of the crime lab report shall satisfy the requirements of this subparagraph.

If the judge believes the officer legally satisfied the aforementioned requirements, your license shall be suspended.

What if I lose the ALS hearing?

If you took the requested test, your breath/blood results were over .08, and you lose the ALS hearing:

Your license/privilege to drive will be suspended for 1 year; however, after 30 days from the effective date of suspension, you may apply for reinstatement of your license, provided you do the following:

  1. 1. Submit an original certificate of completion of an approved DUI Alcohol/Drug Use Risk Reduction Program;
  2. 2. Remit a $210.00 restoration fee (or $200.00 if reinstatement is processed for by mail).

This suspension will not age off, but will remain active until you have completed the requirements listed above.[1]

If this is your first DUI in the last five years, you may be eligible for a Non-Ignition Interlock limited driving permit.[2] Your license must be under suspension (lose ALS hearing or no request for hearing is made). These types of limited permits are issued at DDS locations and are renewable in 30 day increments. They’re also referred to as “ALS Permits.”

What if I refused to take the requested test and lose the ALS hearing?

If you refused to take the State’s breath test, your license/privilege to drive in Georgia shall be suspended for one year.  You will not be eligible for a temporary/limited driving permit.  The suspension ages off at the end of 1 year.

What if you request a hearing but the officer never submits the 1205 Form to DDS?

Georgia law requires the officer to submit the 1205 Form to DDS within 10 days of serving you with notice.[3] If the 1205 Form is not received, OSAH will send you a 91 day letter stating they have not received the 1205 Form. You will be entitled to a refund of your $150 filing fee. You must request the refund through the DDS form.[4] In addition, the 1205 Temporary Driving Permit Extension is no longer valid. As a result, you can obtain a new driver’s license from DDS so long as you indicate on your application for new license that your previous license was taken by an officer.

The Ignition Interlock Device Permit Approach[5]

The issuance of an “Ignition Interlock Device Limited Permit”, is conditioned upon you waiving your right to an administrative hearing and having an ignition interlock device installed your vehicle.  The current ALS process, including the right to an administrative hearing, will remain in place as an option if you do not qualify for or do not wish to obtain this type of permit.     

In addition to waiving your right to an administrative hearing and having an ignition interlock device installed on your vehicle, you must also meet the following conditions:

  • Application for the permit must be made with DDS within 30 days of the person being served notice of the ALS by the arresting officer through the DS-1205 form, or—in the event of a DS-1205S form—within 30 days of receiving such notice of the ALS from DDS;
  • The ALS cannot stem from a motor vehicle accident involving fatalities or serious injuries;
  • You must be licensed in Georgia and not have any other suspensions, cancellations, or revocations against his or her Georgia driver’s license;
  • If you hold a Georgia commercial driver’s license (CDL), you must downgrade to a non-commercial Georgia driver’s license in order to obtain and maintain the permit;
  • You cannot have any prior convictions for DUI in the 5-year period preceding application for the permit;
  • You must surrender his or her Georgia driver’s license, either to the arresting officer at time of arrest or to DDS prior to issuance of the permit; and,
  • You must pay a $25.00 permit fee.

The period of time in which you must successfully maintain the ignition interlock device on their vehicle depends on whether you consented to or refusedS the state-administered chemical test requested by the arresting officer.

Consent v. Refusal

A person who consents to the state-administered chemical test and opts for the new permit will be required to successfully maintain the ignition interlock device on their vehicle for a period of 4 months.  If you are subsequently acquitted of the underlying DUI charge, or the underlying DUI charge is dismissed or reduced, the ignition interlock restriction may be removed at no cost and the driver’s license may be replaced.  The decision as to whether a fee is charged for removal of the ignition interlock device from your vehicle under such circumstances will be at the discretion of the device provider. A person who refused the state-administered chemical test and opted for the Ignition Interlock permit will be required to successfully maintain the ignition interlock device on their vehicle for a period of 12 months, regardless of the outcome of the underlying DUI charge.   

Successful maintenance of the ignition interlock device must be evidenced by the permit holder to DDS through the production of satisfactory monthly monitoring reports prior to DDS removing the ignition interlock restriction from the permit.  A permit may be renewed for a fee of $5.00 if additional time is needed for the permit holder to comply with the terms of the ignition interlock device, but it may only be renewed one time once the permit holder becomes eligible to reinstate his or her driver’s license. Following the designated term of successful compliance, the ignition interlock device restriction may be removed from the limited driving permit in person at a DDS customer service center for a fee of $100.00 (or $90.00 if removal of the restriction is requested by mail or other approved alternate means).  The removal fee is in addition to any reinstatement fee that may be required.

Driver’s License Suspension Under Criminal Law

O.C.G.A. § 40-5-63 provides for the terms and conditions governing the driver’s license suspension for any person convicted of DUI. Upon the first conviction, the suspension period is for 12 months. Like we saw before, after 120 days, you may apply to DDS for a reinstatement of your driver’s license (upon proof of Risk Reduction and restoration fee, discussed above).

Upon a second DUI conviction in the last five years (measured from the date of arrest), the suspension period is three years. You can still apply for reinstatement but would not be eligible for reinstatement until after ten months (as opposed to 120 days).

Upon a third conviction within the last five years, you will be considered a habitual violator and your driver’s license shall be revoked.

Periods of suspension under this code section begin on the date you are convicted of the offense. It is important to note that suspension time pursuant to an Administrative License Suspension under to O.C.G.A. § 40-5-67.1 shall be counted toward fulfillment of any period of suspension subsequently imposed as a result of a conviction of violating O.C.G.A. §40-6-391 which arises out of the same violation for which the Administrative License Suspension was imposed. O.C.G.A. § 40-5-67.2(b). For example, if your license was suspended for 6 months after an adverse ALS hearing and you are ultimately convicted of DUI, then you will receive credit for those six months towards time your license is to be suspended as a result of the conviction.

Call Us Today

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.           

[1] Suspension time pursuant to an Administrative License Suspension pursuant to O.C.G.A. §40-5-67.1 shall be counted toward fulfillment of any period of suspension subsequently imposed as a result of a conviction of violating O.C.G.A. §40-6-391 which arises out of the same violation for which the Administrative License Suspension was imposed. O.C.G.A. Code Section 40-5-67.2(b).

[2] O.C.G.A. § 40-5-64

[3] O.C.G.A. § 40-5-67.1

[4] https://dds.georgia.gov/documents/refund-request-form

[5] The information contained in this section is taken from DDS’ website: https://dds.georgia.gov/press-releases/2017-06-27/new-ignition-interlock-device-limited-permit-available-july-1st-updated

Protect Yourself from Financial Transaction Card Theft in Georgia

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We get calls all the time from people who have been charged in Georgia with taking your financial transaction (debit/credit) card information after you have voluntarily provided it to a business. You may have paid at the pump at a gas station, given your card to a fast food employee at the counter or a drive thru, or even paid for a product or service online only to find out that card has been compromised and unauthorized charges were placed on it.

Helpful tips to protect yourself from Financial Transaction Card theft!

But that’s all right. You can protect your financial transaction cards from theft in Georgia by following some basic steps.

  1. Be vigilant about checking your cards for unauthorized purchases. Every bank and credit card company has the ability to create an account where you can monitor your cards at your convenience. Depending on your activities that may be a daily monitoring or less frequently if you choose.
  2. Always choose credit over debit if that is an option with your debit card. Purchasing as a credit card offers additional protections that using a debit card does not.
  3. If you “pay at the pump” make sure the pump has not been tampered with. Most gas stations use tape to determine whether that pump has been compromised. If that tape has been broken, do not use your card at that pump.
  4. Be careful when you give your card to someone who takes your card from you to process payment. They could be copying your card information, taking pictures of your card, or even using your card in the time they have it in their possession.
  5. Make sure your PIN and passwords are secure. Do not use common PIN numbers or passwords. Change your passwords regularly. There are sites on the Internet that will tell you if a password you use has been compromised. Check those sites regularly. Consider using a password manager to manage your Internet presence.
  6. If you receive strange mail regarding accounts you have not opened or activated, do not ignore them, that could be someone attempting to steal your identity.

Give us a call today if you find yourself in a situation like this.

The best way to protect yourself from financial transaction card theft in Georgia is to be vigilant. Stay on top of your accounts. Monitor your activity. If you see something out of the ordinary, report it immediately. If you have any questions regarding your rights if your card information has been stolen, call our office at 404-581-0999. If you know where your card information was stolen, call the police.

Criminal Receipt of Goods and Services Fraudulently Obtained in Georgia

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While it’s clearly illegal to fraudulently purchase goods and services with forged and fake financial transaction cards, currency and other financial devices, it is also illegal in Georgia to receive money, goods, services, or anything of value when you know that these goods were fraudulently obtained.

What’s the law on criminal receipt?

O.C.G.A. section 16-9-35 reads A person commits the offense of criminally receiving goods and services fraudulently obtained when he receives money, goods, services, or anything else of value obtained in violation of subsection (a) of Code Section 16-9-33 with the knowledge or belief that the same were obtained in violation of subsection (a) of Code Section 16-9-33.

If you are found guilty of the criminal receipt of goods and services fraudulently obtained in Georgia you are guilty of a felony and can potentially serve prison time.

As with all fraud and forgery crimes we have discussed so far, knowledge and intent are essential elements of committing this crime. The State must be able to prove beyond a reasonable doubt that you had the required intent to commit the crime, which in this case would be the knowledge that the goods or services were fraudulently obtained before receiving them, or once aware they were fraudulently obtained to return the goods or alert authorities.

Call us today!

If you believe you may be under investigation or have already been charged with criminal receipt of goods and services, please call our office immediately at 404-581-0999 to schedule a free consultation.