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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.

Creating Fake Checks

Beyond the crimes of Deposit Account Fraud and Forgery in Georgia, it is also unlawful to create fake checks or other negotiable instruments that appear as they are the real checks of any financial institution.

What’s the Law on Fake Checks?

The statute, O.C.G.A. 16-9-21 reads:

It shall be unlawful for any person to print or cause to be printed checks, drafts, orders, or debit card sales drafts, drawn upon any financial institution or to execute or negotiate any check, draft, order, or debit card sales draft knowing that the account number, routing number, or other information printed on such check, draft, order, or debit card sales draft is in error, fictitious, or assigned to another account holder or financial institution.

Any person who is found to have broken the law as it relates to the above statute would be guilty of a felony with a prison sentence ranging from one to five years and a fine of up to $5,000.

What Should I Do?

If you are being investigated for creating fake or fraudulent checks in Georgia, call our office today for a free consultation. Our staff is experienced in defending these white-collar cases and can discuss potential defenses with you at your free consultation. Call us today at 404-581-0999.

by Ryan Walsh

Field Sobriety Tests Introduction

What are Field Sobriety Tests?

            In virtually every situation where a person has been pulled over for an alleged traffic violation and the officer “detects an odor of alcohol,” the officer will routinely ask the driver to perform Field Sobriety Tests (“FSTs”). These FSTs are used by the officer as tools used to assist them in determining whether probable cause exists to arrest a driver for the offense of DUI.

A Little About the Tests

            After many years of research and in an attempt to standardize Field Sobriety Testing, the National Highway Traffic and Safety Administration (“NHTSA”) adopted three field sobriety evaluations for use by police officers nationwide: the One Leg Stand, the Walk & Turn, and the Horizontal Gaze Nystagmus. NHTSA has issued strict standards by which the evaluations must be administered in order to ensure the tests’ results are consistently reliable and valid. These standards are published in a manual given to every NHTSA trained officer. The manual provides the precise procedures police officers are to use when administering the NHTSA-approved FSTs to DUI suspects.

FSTs to our Advantage

As a result, lawyers are able to question officers about their administration and interpretation of these FSTs under the NHTSA standards. In Georgia, every police officer is required to be trained under the standards provided by the Peace Officer Standards and Training Council (P.O.S.T.). As of October 1, 1995, P.O.S.T. adopted the three NHTSA-approved FSTs.

            This FST blog series will explore each of the three NHTSA FSTs in detail. We will discuss the tests themselves, how these tests are administered, how officers score the tests, and common mistakes officers make in giving these tests.  

by Casey Cleaver

Theft by Receiving

Everyone knows you can be arrested, and subsequently prosecuted, for taking something that doesn’t belong to you. But what about receivingsomething that doesn’t belong to you?

What Does This Mean?

Yep, you can be arrested for that, too. Welcome to the world of theft by receiving. Under Georgia law, you can be arrested for “receiving, disposing of, or retaining stolen property”. Sounds straight forward, right? But here’s the catch: the State has to prove that you (the accused) knewor should have known the property was stolen and that you did not intend to give the property back to its rightful owner.

Confusing? Let me explain using two hypothetical scenarios.

iPhone Gift

Your significant other gives you a present for your 3 month anniversary. Inside the wrapped package is the iPhone you’ve dropped not-so-subtle hints about wanting for your anniversary. Although grateful for the gesture, you’re a bit confused about why the iPhone isn’t in Apple factory packaging. Your significant other assures you they took it out of the box so it would fit in the gift box they wrapped for you.

A few weeks later your significant other is taken into custody on multiple theft by taking warrants. Turns out they’ve been involved in an iPhone theft ring the entire time you’ve been dating. The State then executes a theft by receiving warrant for your arrest because you have one of the stolen iPhones.

At trial,the prosecutor seeks to present evidence that you knew or should have known the iPhone was stolen. Pursuant to case law, they point to “circumstance[(s) that]would excite suspicion in the mind of an ordinary person.”[1]They’ll point out to the jury that the iPhone was not in factory packaging when you received it and, after all, how could you not have known your significant other was involved in a theft ring?

What’s My Defense?

As your attorney my primary defense on your behalf would be that you simply did not know the iPhone was stolen.Moreover, the circumstances do not indicate that you should have known the iPhone was stolen. You assumed they purchased the phone with their own money because your significant other is gainfully employed. They also explained away the iPhone not being in factory packaging as a consequence of fitting in the gift box. Most importantly, you have only been dating for three months, so you ultimately did not know them well enough to discover their criminal activity.

Used Car Purchase

After being found not guilty of theft by receiving the iPhone you decide to treat yourself by purchasing a car. You’re on a budget, so you’re looking for a well-maintained used car. After browsing listings on Autotrader, you decide to check one out in person. The car is perfect: low mileage, clean, even has that new car smell. The only weird thing is that the car is missing a VIN. But you found the car on Autotrader and it’s at a dealership, so you conclude it must be legitimate. Besides, you reallywant this car.

Shoving your suspicions aside, you decide to buy the car. Soon after rolling it off the lot you spy a police car in your rear-view mirror. Its blue lights activate within seconds. You pull off to the shoulder, totally confused as to why you’re being stopped.The police officer approaches your rolled-down window and asks if you’re aware the vehicle you’re driving has been reported stolen. You tell him you had no idea, but he takes you in to custody anyway on a theft by receiving warrant.

Telling the jury you didn’t know the car was stolen is not a convincing defense this time around. The jury finds you guilty on the basis you should have known the car was stolen because the car didn’t have a VIN when you purchased it. Here, knowledge of stolen property is inferred by circumstances that “excite suspicion in the mind of an ordinary person”.[2]

Don’t Take It!

Moral of the story: do not buy or keep anything you think could have been stolen because,even if you did not steal it yourself, you could be arrested for merely possessing stolen property.

If you or someone you know has been charged with theft by receiving contact our office today for a free consultation. We can help you fight your charges.

by Sarah Armstrong 


[1] Thomas v. State, 270 Ga.App. 181, 606 S.E.2d 275 (2004).

[2] Id.

Cobb County Misdemeanor Pretrial Diversion

Am I eligible?

If you are arrested for the following offenses, you may be eligible to participate in a diversion program.

The eligible offenses are:

  1. Minor in Possession of Alcohol
  2. Possession of a Fake ID
  3. Possession of Marijuana (VGCSA)
  4. Theft by Shoplifting
  5. Theft by Taking

So if you are arrested on any of these charges, do not walk in to court and plead guilty. You definitely will want to consider the diversion program. If you are accepted and complete the diversion program, then the case will be dismissed and your record will be sealed.

What do I do?

In Cobb County, the prosecutor, otherwise known as the Solicitor General, will require you to have an attorney. They will not let anyone enter into the diversion program if they are not represented by an attorney. We will work with you on a payment plan that fits your budget.

There is a $ 350 fee for any person that would like to participate in the diversion program.

There are several requirements that must be completed within 12 weeks once you enter the program. You can complete the requirements earlier than 12 weeks.

  1. Community Service:
    1. For Marijuana possession, theft by shoplifting and theft by taking, you must complete 40 hours of community service.
    2. For possession of a fake ID, you must complete 60 hours of community service.
    3. For minor in possession of alcohol, the community service varies:
      1. 40 hours – if you blow below a .08 or are not offered an opportunity to blow into a portable breath device
      2. 60 hours – if you possess a fake ID and blow below a .08
  • 80 hours – if you blow between a .08 and .15
  1. 120 hours – if you blow above a .15 or refuse.
  1. All Cobb County Police Officers are trained to request a breath test if you are caught with an alcohol and are not 21 years of age.
  1. Admissions
    1. For possession of a Fake ID and Minor in Possession of Alcohol, the defendant must admit, in writing, from whom and where they obtained the alcohol and fake ID
  2. Clean Screens
    1. You must pass 3 drug/alcohol screens during the 12 weeks. These drugs screens must be done through the Cobb County Superior Court Drug Lab unless previous permission is granted to do it elsewhere.
    2. These drug screens are for Minor in Possession of Alcohol, Fake ID and Marijuana Possession cases only.
  3. Alcohol and Drug Evaluation
    1. If you are charged with Minor in Possession of Alcohol, Fake ID or Marijuana Possession then you must complete an evaluation from a state certified evaluator. If this evaluation requires treatment, then you must complete the treatment within the allotted time.
  4. Theft Seminar
    1. If charged with theft by shoplifting or theft by taking, you must complete an approved theft seminar.
  5. Essay
    1. If you are under 21 years old, then you must handwrite a 2 page essay about why you should be admitted into the diversion program.
  6. Additional Classes
    1. For Minor in Possession of Alcohol, Possession of a Fake ID and Possession of Marijuana (VGCSA) you must complete one of the following:
      1. MADD Victim Impact Panel
      2. Teen Drug and Alcohol Impact Program (only if under 25 years old)
  • S.M.A.R.T. Program

So if you are arrested for any of the above, do not panic. Please call us so we can discuss your case, your defenses to your case and see if you are eligible to participate in the diversion program. It is a great way to make sure you do not have a criminal record.

Give us a call 24/7 at 404-581-0999 or email mike@peachstatelawyer.com

Can I Vote if I am a Felon in Georgia?

Can I Vote? Good News!

If you are finished with your felony sentence, then yes, you are able to vote in the State of Georgia. Many people incorrectly believe that once they are convicted of a felony, their voting rights are gone forever.  The good news is that Georgia will allow you to regain your voting rights back! As soon as you are finished with your felony sentence,  your right to vote is automatically restored even if you have a felony on your record. You may vote so long as you are not in prison for a felony sentence, nor on probation or parole for a felony sentence. Once you are done with your probation or parole sentence, your ability to vote is automatically restored. There is no separate application process.

But what if I am in jail pending my trial date?

 If you are in jail awaiting your trial in a felony case, then you are eligible to vote.

What if I am currently on First Offender felony probation?

You should be able to vote given you are not serving time for a felony conviction. A first offender case is not a conviction unless the judge chooses to revoke your first offender status for a violation of terms.

General Information

To register to vote, you must be a United States citizen, be 18 years old, not be serving a sentence for a felony conviction, and have not been found mentally incompetent by a judge. For more information and to download a voter registration application, visit the Secretary of State’s website here: http://sos.ga.gov/index.php/Elections/register_to_vote

Georgia DUI Blood Cases

Can The Government Take My Blood for DUI?

This section addresses the question of how law enforcement can legally obtain an individual’s blood in the context of a DUI arrest. Generally speaking, a law enforcement agent may obtain a person’s blood in three ways:

  • Pursuant to a lawful search warrant;
  • The presence of an emergency circumstance; and
  • Through that person’s consent
  • Search Warrant

“A suspect’s right under the Fourth Amendment to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution.” Williams v. State, 296 Ga. 817, 819 (2015). There are generally two types of searches, those with a search warrant and those without. Warrantless searches are per se unreasonable, “subject only to a few specifically established and well-delineated exceptions.” Id.

Therefore, if a police officer can obtain a valid search warrant for your blood, then they are entitled to draw your blood for purposes of investigating a DUI. It is important to note that even though your blood may have been drawn legally; there are still viable defenses to blood analysis (discussed in section below).  

Emergency Circumstances

One of the “specifically established and well-delineated exceptions” to the search warrant requirement is the presence of exigent [emergency] circumstances. But what constitutes an emergency circumstance? The answer is . . . it depends.

Georgia case law used to say that because intoxicants naturally dissipate in the body over time, this fact alone provided the exigency (emergency). Essentially, this meant that because the evidence of intoxication would disappear over time, the police would be prevented from obtaining that evidence if there was not enough time to get a search warrant. The Supreme Court of Georgia later adopted the United States Supreme Court’s decision rejecting this line of thought. The law now states that just because you have alcohol or another intoxicant in your system, that fact by itself does not create an exigency (emergency) justifying the drawing of a person’s blood. Instead, the court held, “whether a warrantless blood test of a drunk-driving suspect is reasonable [is to] be determined case by case based on the totality of the circumstances.”[1]

The resulting rule is that rather than automatically being entitled to drawing blood just because intoxicants naturally dissipate over time, courts will review police conduct on a case by case basis to determine whether an emergency situation exists sufficient to justify a blood draw.[2]

Defending Blood Test Cases

Analysis of a DUI suspect’s blood for intoxicants (alcohol or drugs) is considered to be the most reliable method of obtaining an accurate reading of a person’s blood alcohol content (BAC). This scientific procedure is designed to determine the amount of alcohol present in a person’s blood at a given time.

The BAC results from a blood analysis can be inaccurate, however, for a number of reasons:

  • Human error in performing the blood testing;
  • Flawed preservation and handling techniques of the blood sample;
  • Improperly maintained or malfunctioning machines which measure results;
  • Testing of blood plasma rather than whole blood can produce higher BAC readings;
  • Trauma or other incidents suffered by hospitalized suspect may affect BAC readings

Peach State Lawyers have been trained to attack the following aspects of blood test cases:

  • Qualifications of the person who drew the blood;
  • Qualifications of the analyst;
  • Whether the analyst followed laboratory procedures;
  • Whether the machine measuring results was working properly;
  • Whether the blood sample itself flowed through the proper chain of custody; and
  • Whether the analyst is required to testify

If you or someone you know has been arrested for DUI, do not hesitate to contact our office. Our highly skilled and experienced attorneys will work tirelessly to resolve your case. Feel free to call us 24 hours a day at 404.581.0999.

[1]  Missouri v. McNeely, 569 U. S. ___ (133 S.Ct. 1552, 1563, 185 LE2d 696) (2013)

[2] An potential example of such an emergency case is where there is a car accident and a DUI suspect is not located for several hours and after the suspect is found the police believe they do not have time to obtain a warrant; but they know if they do not get a blood sample soon, the possible evidence of intoxication will be lost.

 

by Casey Cleaver