Shoplifting in Georgia Part III

Welcome to the third entry in a multi-part blog series about misdemeanor shoplifting in Georgia. We discussed what constitutes shoplifting under Georgia law, what to expect in court after you’ve been arrested for shoplifting, and what sentence you may receive if you either plead guilty or are found guilty of shoplifting (fingers crossed for a Diversion offer from the State).

Civil Demand Letters

Today I want to talk about Civil Demand Letters. Let’s say you have been accused of shoplifting from Wal Mart. You bonded out of jail and hired the Law Office of Scott Smith to defend you, so you’re feeling relieved and hopeful about resolving your case.

Then one day, soon after your arrest, you receive a letter in the mail from Wal Mart’s Corporate Loss Prevention Office. The letter is about the shoplifting accusation. In strongly-worded terms, it says Wal Mart is prepared to seek civil judgement against you in the monetary amount of the item (or items) you’re accused of stealing.

Scared and confused, you call your attorney at Scott Smith’s Office. After all, your attorney is taking care of the shoplifting so why is Wal Mart even contacting you? This is a scenario I handle frequently with clients accused of shoplifting. And it’s a confusing one. That’s because shoplifting charges exist in the worlds of both criminal and civil law.

What Does This Mean?

The State of Georgia can pursue criminal charges against you for (allegedly) shoplifting from Wal Mart. Criminal charges contemplate the deprivation of your freedom, meaning the worst-case scenario would be going to jail.  At the same time, Wal Mart, as a civil plaintiff, can sue you for damages (the idea being they suffered a financial loss from you stealing their merchandise). Unlike criminal charges, civil damages are for money. So Wal Mart would sue you for the cost of the item(s) you’re accused of stealing. Even more confusing, Wal Mart can sue you for the cost of the item(s) you allegedly stole even if they got the item back, or even if the item never left the store.

Often, these strongly-worded, bullying letters make a scary situation for my clients even scarier. But I’m here to tell you not to worry.

Do Not Worry

In a shoplifting case, your main concern is the criminal charge. With Scott Smith’s Office representing you, your criminal charge will easily be resolved. Wal Mart can, indeed, take action to sue you for monetary damages in the amount of the item you allegedly stole. But in the 18 years this office has existed (and in my two years of practicing criminal law), we have never seen a big store like Wal Mart actually sue for civil damages. That’s partially because the filing fee alone (to file suit in court) is more than the amount of money they’d win at trial.

Essentially, stores like Wal Mart send these letters in an effort to intimate people into paying them money. Moreover, some of my clients have responded to the letters by sending money thinking that doing so will resolve their case, not realizing the criminal charge has nothing to do with the civil demand letter.

What Do I Do?

In these situations I advise my clients that I will call the corporate loss prevention office to tell them my client is represented by counsel. That way all letters are sent to me rather than my client (which eases a lot of stress). I also advise my client not to pay the money demanded in the letters. This is important to defending your case, as the State could use that payment as an admission of guilt against you at trial. Finally, note that stores like Wal Mart only have two years to file suit against you for civil damages suffered as a result of your alleged shoplifting.

If you or someone you know has received a civil demand letter contact our office today for a free consultation.

by Sarah Armstrong 

Online Solicitation in Georgia

What is online solicitation?

Local law enforcement agencies are conducting more and more online child predator stings. Online solicitation of a child for purposes of engaging in a sexual act is a felony in Georgia. It carries a possible punishment of up to 20 years in prison and a $ 25,000 fine.

The Georgia Internet Crimes Against Children (ICAC) Task Force, The Georgia Bureau of Investigation’s Child Exploitation and Computer Crimes (CEACC) Unit and local law enforcement agencies are conducting operations all over the State of Georgia to catch individuals who are using the internet to solicit underage children for sex.

What should you do?

If you are arrested in one of these stings, do not talk to the police without a lawyer. Do not attempt to tell your side of the story without a lawyer. If the police tell you that they will cut you a break if you speak to them about the case, please tell them that you want a lawyer before making a statement. Nothing you say to law enforcement when you are arrested is going to benefit your case. Do not make any statements such as you thought the person was an adult or that you did not intend to actually go through with the sexual act. Do not talk to law enforcement without a lawyer present.

You have an absolute right to speak to a lawyer before making any statements. If you have already made a statement to the police, then please do not make any further statements without calling a lawyer. The stakes in these cases are too high to not retain a lawyer and fight these allegations. Your freedom is literally at stake in these cases. The State of Georgia and its local law enforcement agencies are aggressively prosecuting these cases.

What qualifies as solicitation?

Online solicitation is when you intentionally or willfully utilize the internet, local bulletin board, chat room, e-mail, instant messaging service, or any other electronic device, to solicit, seduce, lure, or entice a child, another person believed by such person to be a child, any person having custody or control of a child, or another person believed by such person to have custody or control of a child to commit any illegal act, by, with, or against a child as described in O.C.G.A. 16-6-3, sodomy or aggravated sodomy; O.C.G.A. 16-6-4, child molestation or aggravated child molestation; O.C.G.A. 16-6-5, enticing a child for indecent purposes; or O.C.G.A 16-6-8 public indecency, or to engage in any conduct that by its nature is an unlawful sexual offense against a child.

So, if you are talking to someone that you believe is underage and it turns out that you are actually speaking to law enforcement, you can still be charged and convicted of online solicitation. Do not think that just because the person you were chatting with turned out to not be a child, then you have nothing to worry about. It is still against the law, even if the child turns out to be law enforcement.

Direct communication with a minor is not required for a conviction. There is no requirement that you actually perform any type of sexual act to be convicted. All that is required is that you believed that the person you were speaking to was underage and your purpose in talking to them was for a sexual act.

If you have been charged with online solicitation and exploitation, child pornography and/or human trafficking, then it is very important to hire a lawyer who handles these types of cases. Please call my office 24/7 at 404-581-0999. We will meet with you for a free consultation to discuss the facts of your case and explain the procedure that will take place in court.


by Mike Jacobs

Possession of Drug Related Objects

What’s a drug related object?

It is not uncommon for an officer to search your car or home and not only arrest you for the marijuana or drugs they found, but also for Possession of Drug Related Objects. In Georgia, under O.C.G.A. § 16-13-32.2, it is illegal to possess objects used to smoke, store, ingest, manufacture, and conceal drugs with. The most common drug related object we defend against are the use of pipes, but other examples are syringes, grinders, and scales. Possession of a drug related object is a misdemeanor charge in Georgia, and can carry up to 12 months in jail and a $1,000 fine. Even if the pipe or other item does not have any residue in it, you can still be arrested. Even if there were no drugs found in the car, police officers will routinely arrest you nonetheless for any drug related object that comes up in the search.

What will my case look like?

The defense in these cases vary, but if the officer finds the paraphernalia or drug related object as a result of an unlawful search, then the drugs and the drug objects can be suppressed as what is referred to as fruit of the poisonous tree. Examples of unlawful searches include those without a warrant in some circumstances, or those with faulty search warrants. An experienced and aggressive criminal defense attorney can attack the search and seizure of the drug paraphernalia or drugs found during a search by police officers. If you or a loved one has been charged with possession of drugs or possession of drug related objects in Georgia, call us today for a FREE CONSULTATION at 404-581-0999.

by Mary Agramonte

Probation Revocation and Parole

Can a judge revoke my probation when I have allegedly violated probation after being sentenced but I have not yet started my probation?  Can a judge revoke my probation where it goes non-report or suspended upon completion of doing an act (classes, drug screens or evaluation).

The question requires some explanation as to situations as to where this scenario may rear its ugly head.  Defendant is sentenced in one county to a sentence of 10 years to serve 2, balanced probated.  While client is in prison or on parole he commits a new crime; ie he gets charged with possession of drugs in prison.  Even though he has not started probation as he is under the department of corrections supervision he can still be revoked on the county level by the judge.  Here are a couple of additional scenarios where the judge has the ability to revoke probation even though you are not technically on probation:

Judge sentences you in Cobb County to probation to run Consecutive to your sentence in Paulding County.  You are currently serving time in Paulding County and have not yet started serving your probation in Cobb.  Nonetheless, you can be revoked in Paulding and Cobb for committing a new crime.

Similarly, where a judge suspends a sentence.  For example you get 5 year sentence suspended upon completion of an alcohol evaluation.  You violate your probation shortly after being placed on the suspended sentence – in this scenario you can be revoked for the five years less any time that has elapsed since your sentence started even if you have already completed the evaluation – where the court has not signed an order allowing suspension to commence.

OCGA 17-10-1 (a) provides: that the trial court has the power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, including the authority to revoke the  [*630]  suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court, even before the probationary period has beg


Here are the reasons the court of appeals found persuasive on why  you can still be revoked even though you are not technically on reporting probation:

While probation may be considered a mild form of ambulatory punishment imposing meaningful restraints, its true nature is an act of judicial grace. The Legislature has granted to the judiciary discretionary power to grant probation as a means of testing a convicted defendant’s integrity and future good behavior. Unlike parole, granted by an administrative agency, probation is granted by the court when the sentencing judge deems the protection of society does not demand immediate incarceration. In cases where a convicted defendant’s “future good behavior” has already been compromised by the commission of another criminal act even before the formal probationary period begins, a trial court should not be required to allow such  defendant to serve a previously imposed probated sentence when the court deems the protection of society demands revocation.

by Scott Smith


False Identification in Georgia

A couple times a month we receive a call from someone who receives a letter from the Department of Driver Services stating they are being investigated for providing fraudulent information, false identification, on their drivers license. That crime and others are covered in Official Code of Georgia Annotated (O.C.G.A.) 16-9-4; Manufacturing, Selling, or Distributing False Identification Documents.

What exactly does this mean?

Under O.C.G.A. 16-9-4 it is unlawful for any person to knowingly possess, display, or use any false, fictitious, fraudulent, or altered identification document. It is also unlawful to make, alter, sell, distribute or deliver the identification document with intent to provide them for others. An identification document has to be issued by a government agency or by authority of the government and it must contain a name, and a description or photograph. Common identification documents include passports, VISAs, military IDs, driver’s licenses, or state issued ID cards. This also includes employer issues ID badges, if the badges contain a trademark or trade name and access cards that are unique to specific individuals.

What will happen?

Anyone found guilty of possessing an identification document for their own use would be guilty of a misdemeanor. If you’ve made, altered or sold identification documents for others, they you would be guilty of a felony. Also, if you’re found to use property to help you in violating this code section, you can be subject to civil forfeiture of the property used to aid in possessing, making, altering, or selling these identification documents.


If you’ve been charged or are worried you are going to be charged with an identification document violation in Georgia, call us today for a free consultation at 404-581-0999.


by Ryan Walsh

Pre-Trial Diversion in Georgia

Being arrested for the first time can be one of the most stressful experiences in one’s life. An arrest has the potential to change everything – where you work, go to school, your car insurance, where you live, and how others see you. If this is the first time you have found yourself in the position, do not walk into court and plea Guilty or Nolo Contendere, because there may be another option for you. A Georgia criminal defense attorney may be able to negotiate something different – something that doesn’t require you to plead guilty. If you enter a plea of Guilty or Nolo, the arrests and convictions do not age off your record; they remain on there forever. There are only a few ways that an arrest is restricted off your record from the public seeing it. Participating in a pretrial diversion program is one of those ways and might be an option to explore for your criminal case. Several counties and cities across Georgia have pretrial diversion programs designed to give you a second chance, and serve as an alternative to jail and convictions.

Pretrial diversion is an alternative to the traditional court process. It allows some first offenders, and even still others who have a history, to complete requirements prior to a court date in exchange for their case being completely dismissed. Requirements may include community service, theft class, or anger management. Pretrial diversion may be available for you if you were arrested in Georgia for Possession of Marijuana, Possession of drugs, Shoplifting, Battery, Assault, Minor in Possession, and the list goes on. A criminal defense attorney who is knowledgeable with the court can negotiate that the prosecutors potentially divert you from prosecution altogether, resulting in your case being dismissed.

Once you successfully complete a pretrial diversion program in Georgia as a first offender, the arrest itself disappears off your criminal record from the public’s view, and you can truthfully state with pride that you have never been convicted of a crime before. Your case will be dismissed in its entirety and you can breathe a sigh of relief.

If you are interested in resolving your case through pretrial diversion in Georgia, call us today for a free consultation at 404-581-0999. W. Scott Smith and his team have years and years of experience negotiating clients into pretrial diversion programs with the most favorable terms, even if the clients were ineligible under the State’s traditional guidelines.


by Mary Agramonte

Rape Shield


If you are charged with Rape in Georgia, it is imperative that you retain a sex crimes defense attorney immediately. There are rules in Georgia that protect the alleged victim from having her character attacked.

O.C.G.A. 24-4-412 prohibits certain evidence from being introduced at trial. This is known as the Rape Shield Statute. The evidence that is excluded from trial include, but not limited to, evidence of the alleged victim’s marital history, mode of dress, and general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.

The Rape Shield Statute contains an exception to its exclusionary rule. The past sexual behavior of the complaining witness is not admissible unless the trial court found that the past sexual behavior directly involved the participation of the defendant and found that the evidence expected to be introduced supported an inference that the defendant could have reasonably believed that the complaining witness consented to the conduct complained in the prosecution.

Do not think that if you are charged with Rape in Georgia that you can attack the alleged victim for her past sexual behavior or think that just because she was dressed a certain way that you can argue that to the jury. The laws in Georgia protect rape victims from a character assassination in Georgia.

If you want to bring in evidence that fits the exception to the Rape Shield Statute, then the defendant shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine the accused’s evidence. At the conclusion of this hearing, if the court finds that any of the evidence introduced at the hearing is admissible or is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence, the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced.

So, if you are accused of Rape, it is important to write out a log of every interaction you have had with the alleged victim, exactly what you remember talking about with the alleged victim and any evidence or witnesses that may help you establish that you believe consent was given.

In a Rape case, your life is literally hanging in the balance. Do not think that just because you believe you had consent and just because you know it did not happen, that the case will just go away or the judge and jury will just understand your side. Once you are accused of Rape, you need to go on offense in your preparation and show that either 1) you were misidentified as the person accused of rape or 2) you had consent of the alleged victim.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

If you face charges in Georgia for Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Rape cases in Georgia. You must protect your rights and take this matter very seriously. The statute of limitation for a prosecution of rape is 15 years. 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.

by Mike Jacobs


Georgia DUI- What to Do

Remain calm. Getting pulled over by the police is a stressful experience. By keeping cool and following these tips you will greatly decrease the likelihood of a DUI arrest and/or conviction.

Pull Over!

At this point the police officer will be documenting everything you do. You should slow down, signal, and pull over to the nearest and safest place possible. Even if you believe the officer is going to stop someone else, state law requires drivers to yield to emergency vehicles with activated lights.

Put your car in park, engage the parking brake, and turn off the engine. Roll down both driver and passenger front windows as the officer may approach from either side. You don’t have to roll the windows all the way down, just enough as to where the officer can clearly see and hear you. However, if the officer asks you to roll them all the way down, do so.

Place both hands on the steering wheel so the officer can clearly see them. Do not move your hands out of sight or in a fast motion. Doing so could unnecessarily escalate the situation. Also, address the officer as: officer, sir, or ma’am. Respect goes a long way with law enforcement, especially if they suspect you of DUI.

Have Your Documents Ready

Be sure to always keep your updated proof of insurance, driver’s license, and vehicle registration in a place that is easily accessible. If you are fumbling around or have difficulty in producing these items, the officer will perceive this as evidence of impairment and include it in their report. By keeping these documents together and accessible, you can save yourself a lot of trouble.

What to Say

Say as little as possible. Remember, everything you say and do is being documented in the officer’s mind and may also be recorded on a body or dash camera or microphone. Your answers to questions, and any inconsistencies in those answers, will be used in court against you if you are arrested for DUI. In addition, the less you say the less likely an officer can reasonably testify to you having “slurred speech” or “odor of alcohol” coming from your breath. These phrases appear frequently in Georgia DUI cases.  

The officer will likely begin the encounter by asking something like, “Do you know why I pulled you over?” This question is designed to get you in trouble. The best way to answer this question is by simply saying, “no.” By saying, “yes” you invite having to explain yourself. If you admit to breaking a traffic law, you not only establish probable cause to arrest for the traffic violation, but you also bolster the officer’s decision to stop your vehicle.

Next, the officer will likely ask you questions like:

  • Have you been drinking tonight?
  • How much have you drank tonight?
  • What did you drink tonight?
  • Where are you coming from?
  • Where are you going?

DO NOT ANSWER THESE QUESTIONS. Instead, politely say something to the effect of, “I do not wish to answer these questions.” If the officer tries to force the issue, politely ask if you need to get a lawyer.

UNDER NO CIRCUMSTANCES should you ever, ever, admit to drinking or describe how many drinks you’ve had. By doing so you are practically begging for the officer to arrest you, or at least thoroughly investigate you for DUI.

Decline to Perform Field Sobriety Tests

If an officer asks you to step out of the vehicle, do it. But DO NOT agree to perform any field sobriety tests (eye tests, alphabet tests, numerical counting tests, walking tests, balancing tests, etc.) DO NOT agree to a roadside breath test (portable breath test). Although the BAC number of a portable breath test is inadmissible (as opposed to the much larger Intoxilyzer breath machine at the police station or jail) , a positive result is a green light for the officer to arrest for DUI. A simple, “no thank you” or “I respectfully refuse” should be sufficient.

These tests are voluntary and are designed elicit failure. The officer who is deciding whether to arrest you will be the sole judge of your performance. Even if stone sober, you should decline to perform field sobriety tests.

If You Are Arrested…

Do not argue with the officer, you will not win. Do not ask for sympathy or try to explain why you cannot be arrested (work, children, etc.); you will only hurt your case. Remain silent. Again, everything you say can and will be used against you. ASK TO SPEAK WITH AN ATTORNEY even if the officer does not advise you of your right to an attorney.

When You Get to the Police Station

ASK FOR AN ATTORNEY. Renew your earlier request to speak with an attorney. This will prevent the officer from asking you additional questions until you have spoken with an attorney. Call us at 404.581.0999 and we will be glad to assist you. If you have the opportunity to meet with an attorney, be sure to ask the officer for privacy.

DO NOT ANSWER QUESTIONS. If arrested, the officer is supposed to advise you of your 5th Amendment Rights before questioning you. DO NOT WAIVE YOUR RIGHTS by voluntarily speaking with police. REMAIN SILENT. If you do not understand your rights, tell the officer you do not understand your rights. The officer cannot offer legal advice but does have to clarify confusion about the consequences of taking or refusing a test.

Exercise Caution in Agreeing to a Chemical Test  

Be extremely careful in deciding whether to submit to a chemical test of your breath, blood, or urine. Chemical tests are a double-edged sword. Refusing a chemical test benefits you by depriving the officer of potentially incriminating evidence produced by the test. But, if you refuse you suffer a “hard suspension” of your driving privileges for one year. If you have consumed a significant amount of alcohol, you should refuse the State chemical testing.

If you do submit to a chemical test ASK FOR AN ADDITIONAL INDEPENDENT TEST. You have the right to independent testing and the officer must reasonably assist you in obtaining the test.

Talk to a DUI Lawyer

If you or someone you know has been arrested for DUI, do not hesitate to call us. The offense of DUI is a vast and complex collection of laws that continue to puzzle lawyers and judges alike. Our office will assist in defending your case and getting the best resolution possible.


by Casey Cleaver

Marijuana Possession in Georgia

by Mary Agramonte

Even as the nationwide trend moves to legalization and decriminalization, possession of marijuana remains illegal in the State of Georgia. In most jurisdictions across the state, a possession of marijuana charge in Georgia will land you in jail, forcing you to dish out hundreds or thousands of dollars in bond money to be released. If you later plead or are found guilty, you can expect high fines, at least 12 months of probation, community service, drug evaluations, costly classes, and depending on your record, even more jail time.  An experienced criminal defense attorney has the ability to alleviate this by evaluating your defenses and advocating on your behalf.

If you have been arrested or cited for possession of marijuana less than an ounce, call the leading defense firm W. Scott Smith to protect your rights, your wallet, and your criminal history. A nolo contendere charge will not keep the charge off your record, and will not eliminate punishment. There are defenses beginning with the reason the officer stopped you, how the search was conducted, even down to the testing of the marijuana found. Being convicted of any crime can be detrimental to your future. Call us today for a free case evaluation at 404-581-0999.



DUI Less Safe

by Casey Cleaver

O.C.G.A. § 40-6-391 prohibits a person from driving or being in actual physical control of a moving vehicle when alcohol or a drug makes it “less safe” for that person to drive. The wording of the statute begs two major questions: (1) What does “less safe” mean? (2) How can the State prove alcohol or drugs made someone a less safe driver? This article serves to answer these questions.

In Jones v. State, the Georgia Court of Appeals held that the DUI statute does not require a finding that the driver was unsafe; it only requires a finding that the person was a less safe driver than they would have been were they not under the influence of alcohol [or drugs].[1] Therefore, there is no requirement that the person actually commit an unsafe act.[2]

In State v. Kachwalla the Supreme Court of Georgia held that “less safe to drive” under paragraph (a)(2) of O.C.G.A. § 40-6-391 and “rendered incapable of driving safely” under paragraph (a)(6) of O.C.G.A. § 40-6-391 set the same standard of impairment necessary to establish that a driver was driving under the influence of alcohol or other intoxicating substance.[3]

Case law indicates that circumstantial evidence, opinion testimony, and/or expert witness testimony can be sufficient to prove that drinking alcohol or doing drugs made a defendant a less safe driver.[4] These cases, however, seem to avoid the issue of how, if a witness does not know a defendant’s usual driving habits (e.g. he/she usually speeds, weaves, fails to use turn signals, etc.) that witness can determine whether in a particular situation, consumption of alcohol rendered the driver less safe. It seems necessary that in order to prove alcohol or drugs made someone a less safe driver, the State would also have to provide evidence of the defendant’s normal driving habits and then compare those normal habits against the driving observed by law enforcement.[5]

If you or someone you know has been charged with DUI under the “less safe” provision contact our office today for a free consultation.

[1] Jones v. State, 207 Ga. App. 469 (1993)

[2] Moss v. State, 194 Ga. App. 181 (1990)

[3] State v. Kachwalla, 274 Ga. 886, 887-888 (2002) (stating, “less safe to drive” and “rendered incapable of driving safely” are equivalent standards, legally, historically, and semantically)

[4] Dudley v. State, 204 Ga. App. 327 (1992) (holding expert witness testimony that the amount of cocaine found in defendant’s system would render him a “less safe” driver was sufficient to support the jury’s finding of guilt); Geoffrion v. State, 224 Ga. App. 775, 779 (1997) (holding testimony that the defendant weaved and crossed the centerline was sufficient evidence to sustain a verdict that defendant was a less safe driver); Duggan v. State, 225 Ga. App. 291, 293 (1997) (holding that when there is evidence that the defendant has been drinking, evidence of the manner of driving, including excessive speed, may be taken into consideration to determine whether the intoxicant affected him to the extent that he drove less safely); Hamilton v. State, 228 Ga. App. 285 (1997) (holding officer testimony regarding his observations of defendant and defendant’s performance on Field Sobriety Tests was sufficient to establish the defendant was intoxicated to the point that he was less safe to drive).

[5] See Peck v. State, 245 Ga. App. 599 (2000)