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Sodomy

Sodomy is a serious crime in Georgia. O.C.G.A. § 16-6-2 established two separate criminal offenses. O.C.G.A.  §16-6-2(a)(1) defines sodomy as the performance of or submission to a sexual act involving the sex organs of one person and the mouth or anus of another. O.C.G.A. § 16-6-2(a)(2) defines aggravated sodomy  as the commission of sodomy with force and against the will of the other person involved or with a person who is less than ten years of age.

The offense of aggravated sodomy protects individuals from violent acts where the offense of sodomy punishes consensual sexual behavior.

For sodomy, all that is required is contact between the sex organs of one person and the mouth or anus of another person. Proof of penetration is not required in a sodomy case unless is specifically listed in the indictment. Whether there was prohibited contact between the defendant and alleged victim is solely a question for a jury.

No corroboration is required in a sodomy case.

Aggravated Sodomy is different than Sodomy. In order to make out a case for Aggravated Sodomy, the State must show that the contact was made both with force and against the will or without the consent of the alleged victim. The standard of proof is the same as required for a rape case. Both the words and actions of the accused can be used to determine if the alleged victim was in reasonable apprehension of bodily harm.

O.C.G.A. § 16-6-15 prohibits the solicitation of sodomy. Solicitation of sodomy is defined as soliciting another individual to perform to a sexual act involving the sex organs of one and the mouth or anus of another and such act is to be performed in public in exchange for money or anything of value or by force or by or with an individual who is incapable of giving legal consent to sexual activity. In order to be convicted of solicitation of sodomy, the State must be present sufficient evidence of all three elements of the crime.

If you are convicted of sodomy, it is a felony punishable by not less than one nor more than twenty years in prison and is subject to the sentencing provisions of § 17-10-6.2 which requires the sexual offender to receive a split sentence including the minimum sentence of imprisonment.

Aggravated Sodomy is also a felony and is punishable by either life imprisonment or by a split sentence of imprisonment for not less than 25 years and probation for life.

Solicitation of sodomy is a misdemeanor. However if the solicitation is of someone under 18 years of age or the solicitation is for money then it is felony punishable of not less than 5 nor more than 20 years in prison.

If the victim is at least 13 years old but less than 16 years of age and the person convicted of sodomy is 18 years of age or younger and is no more than 4 years older than the victim, then the accused would be guilty of a misdemeanor and would not be subject to the sentencing provision of O.C.G.A. §17-10-6.2.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Georgia Criminal Law – Fulton Orders Stay-at-Home or Face Criminal Sanction

On Tuesday, March 31, 2020, Dr. S. Elizabeth Ford, district health director of the Fulton County Board of Health signed an order requiring all residents of Fulton County to stay in their residence. Individuals are “permitted to leave their places of residence only to provide or receive certain essential services or engage in certain essential activities and work for essential businesses and governmental functions.”

A violation of this order constitutes a misdemeanor offense which carries a maximum punishment of up to 12 months in jail and a $1,000 fine, or both.

According to the order, residents may leave their home for “essential activities” to ensure the health and safety of themselves, their families, or their pets. Outdoor activity like walking or running is allowed so long as social distancing is maintained (six feet apart from each other).

“Essential businesses” in Fulton County include:

  • Healthcare operations
  • Grocery stores
  • Farming, livestock, fishing
  • Businesses that provide food, shelter and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals
  • Newspapers, television, radio, and other media services
  • Gas stations, auto-supply, auto repair
  • Banks
  • Hardware stores
  • Hotels, motels, conference centers – but only to provide shelter not for gatherings
  • Plumbers, electricians, exterminators
  • Businesses providing mailing and shipping services, including post office boxes
  • Educational institutions for the purpose of facilitating distance learning
  • Laundromats, dry cleaners
  • Restaurants for drive-thru, deliver or carry-out
  • Cafeterias in hospitals, nursing homes, or similar facilities
  • Businesses that supply products for people to work from home
  • Home-based care, and residential facilities for seniors, adults or children
  • Legal or accounting services
  • Veterinary care facilities, animal shelters or animal care
  • Bike shops
  • Childcare facilities
  • Janitorial services
  • Funeral homes, crematories and cemeteries, while maintaining social distancing
  • Utility, water, sewer, gas, electrical, oil refining, roads and highways, railroad, public transportation, ride share, solid waste collection, internet services

All public and private gatherings of any number of people occurring outside a single household or living unit are prohibited, except for the limited purposes above. Nothing in the order prevents the gathering of members of a household or living unit. This order will remain in place until rescinded.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 for afree case evaluation. You’ll find a local Attorney ready to aggressively fight on your behalf.

DUI: Drugs

DUI drugs charges can be a source of confusion for defendants and lawyers alike. This article will explore these laws and explain their meaning, what must be proven, how they are proven, and how to defend against them.

There are three ways to charge DUI Drugs cases: (1) DUI Drugs – Less Safe; (2) DUI Drugs – Per Se; and (3) DUI Drugs – Combined Effect.

DUI Drugs – Less Safe

Georgia law prohibits a person from driving a vehicle while under the influence of any drug to the extent that it is less safe for the person to drive. O.C.G.A. 40-6-391(a)(2). This “less safe” statute requires proof (beyond a reasonable doubt) that the quantity or amount of the prescribed, illicit, or even over-the-counter drug in the person’s system caused impairment or rendered the person to be a “less safe driver.” Therefore, a person can be prosecuted even though the drugs were legally prescribed or were provided over-the-counter, so long as consuming those drugs caused you to be a less safe driver.

The “less safe” provision is the most common way DUI drugs charges are prosecuted. The State is not required to prove the accused had a particular level of drugs in their system. As a result, the State may prosecute even though no chemical test exists. The arresting officer will look for the following indications of impairment:

  • Admitting to using drugs
  • Bloodshot or watery eyes
  • Slurred or slow speech
  • Presence of drugs in vehicle or on person
  • Bad driving
  • Poor performance on Standardized Field Sobriety Tests

The key to defending these “less safe” drugs cases is raising doubt as to whether the drugs taken were the actual cause of the bad driving complained of. This causation element is something the State is required to prove. There are many reasons for bad driving unrelated to the consumption of drugs. In addition, defense counsel should raise challenges to the arresting officer’s training and experience in detecting and investigating DUI Drugs cases. In many instances, the arresting officer does not have the degree of training required to properly investigate these cases such as an officer who is qualified as a Drug Recognition Expert (DRE). Furthermore, defense counsel should raise a Harper challenge to the scientific validity of the Romberg Field Sobriety test if that test was performed by the accused. [1]

DUI Drugs – Per Se

Georgia law makes it illegal for a person to operate a vehicle while there is any amount of marijuana or a controlled substance, as defined in O.C.G.A. § 16-13-21, present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether any alcohol is present in the person’s breath or blood. O.C.G.A. 40-6-391(a)(6).

Given the language of the law, the mere presence of a drug (prescribed or not) will constitute a violation of this code section. The question becomes how an arresting officer would know whether the accused had a valid prescription or not? Without an admission, this would be difficult for a prosecutor to prove.

Issues of proof aside, Love v. State, 271 Ga. 398 (1999), has essentially wiped out the “DUI Drugs – Per Se” law entirely. The Love case held that O.C.G.A. § 40-6-391(a)(6), was too broadly drawn, as it incriminates both legal and non-legal users of marijuana, constituting a violation of the Equal Protection clause of both the Georgia and United States Constitutions. This is the primary reason most DUI Drugs cases are prosecuted as “Less Safe” cases.

What remains of the DUI Drugs – Per Se statute is to punish those cases where someone is driving with drugs in their system which offer no lawful use (cocaine, heroin, etc.).

DUI Drugs – Combined Influence

Under O.C.G.A. § 40-6-391(a)(4), a person is prohibited from driving a vehicle while under the influence of any two or more of the substances provided in the DUI code section (alcohol, drugs, or toxic vapors) to the extent it is less safe for the person to drive.

Again, we see the State being required to prove the accused was a less safe driver because of the combined effects of two or more intoxicants (alcohol and drugs – prescribed or not). Although these cases present greater challenges, a skilled attorney can raise doubt as to whether the combined effect of intoxicants actually caused less safe driving.  

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] The Romberg test consists of the subject tilting their head back, closing their eyes, and counting in their head until the subject believes thirty seconds has elapsed and then telling the officer when they believe those thirty seconds had elapsed.

DUI: Blood Alcohol Concentration

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?

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

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

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

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

Robbery by Force

Our last robbery blog discussed robbery by sudden snatching, and it is slightly different than robbery by force. Sudden snatching is when an offender is alleged to have stolen something from someone’s person or immediate presence without use of force or threat or intimidation. A key element of this crime is that the victim is aware of the theft before it’s complete.

What is Robbery by Force?

Robbery by force is the same except, of course, the offender uses force to steal something from another’s person or immediate presence. Force doesn’t have to be a violent act causing injury, per se. Think about it as any amount of force beyond snatching, usually resulting when the victim attempts to stop the offender from stealing their property and the offender responds with physical force.

What is Immediate Presence?

Let’s talk about “immediate presence”. How far does it extend? In Georgia, immediate presence is not limited to within arm’s length or facing the victim. Georgia case law seems to set the standard that so long as property is within the victim’s sight at the time of the robbery, it’s within their immediate presence. (See Perkins v. State, 256 Ga.App. 449, 568 S.E. 2d (2002) and Short v. State, 276 Ga. App 340, 623 S.E. 2d 195 (2005).

If you or someone you know has been charged with robbery contact our office today for a free consultation.

Financial Transaction Card Forgery Devices

Possession of financial transaction card forgery devices in Georgia is different than possession of the cards themselves. In Georgia it is illegal to possess any devices used to fraudulently make financial transaction cards of a bank or other financial institution. All that is required to be found guilty of possession of these devices is a knowledge of what they are and actual or constructive possession of the devices themselves.

More On the Law

It is also illegal to possess a financial transaction card that has not been completed. That card could be missing the name, card number, expiration date, security code or other marking besides the signature that would identify it as a valid financial transaction card.

Consequences

A conviction for possession of financial transaction card forgery devices in Georgia is a felony punishable by at least one year incarceration.

If you are being investigated for or charged with financial transaction card crimes, you need to call our office today at 404-581-0999. Our offices of experiences financial transaction card forgery attorneys is here to answer your questions.