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Peach State Lawyer Welcomes John Lovell to Our Blogging Team

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I’d like to introduce a new member of our blogging team, John Lovell. John has practiced criminal law for a quarter century as an Assistant DA in New York and Atlanta. He also worked for 6.5 years in the U.S. Attorney’s Office in Atlanta. For over 11 years now he has zealously defended the accused. A recent successful case John handled typifies his work ethic.

The United States Court of Appeals for the 11th Circuit, the top federal court covering Georgia, Florida, and Alabama, awarded John’s client a new appeal to the Georgia Supreme Court. This will almost certainly result in a new trial. In 2009, his client was convicted of murder in Coweta County. However, she did not receive the trial the United States Constitution requires.

John accepted the case after his client had lost a trial and lost on appeal. 99+% of the time, the case is over at that time. However, as John looked closely at the record in the case, it became apparent to him that critical testimony was presented to the jury without his client having access to her attorney. John raised this issue in a habeas proceeding in Georgia. The judge who heard the evidence ordered a new trial. However, the state appealed the decision to the Georgia Supreme Court. The Georgia Supreme Court ruled unanimously that John’s client was not entitled to a new trial and that the conviction would stand.

John and his client did not give up. John was convinced that the unanimous Georgia Supreme Court was unanimously wrong. There was only one avenue available … an “appeal” to federal court using a mechanism called the federal habeas corpus. The federal habeas corpus is a mine field. The rules seem designed to exclude cases from the courts. The slightest mistake results in the case being forever dismissed. John had to flawlessly follow the rules and meet every deadline just to have his client’s case heard.

The battle wore on through federal court going all the way to the Eleventh Circuit Court of Appeals (one court below the U.S. Supreme Court). After reading his brief and hearing John’s arguments, the 11th circuit granted his client a new direct appeal which, based on the law in Georgia, should result in a new trial.

John began representing this client in 2011. It has taken six years to get a favorable result that will stand. John showed persistence on behalf of his client, a trait we pursue at Peachstate Law.

 

VIDEO – Police Searches and the 4th Amendment under Georgia Law

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by Scott Smith and Ryan Walsh

You’re driving and the blue lights come on behind you. You pull over and the officer comes up to your vehicle. He immediately asks if he can search? Do you know what your rights are? The Fourth Amendment’s protection against unreasonable searches is the subject of today’s video blog.
Hello, I’m Scott Smith. The Fourth Amendment of the United States Constitution prevents the government from unreasonable searches without a warrant.
Lets go back to the example we talked about in the introduction. You’re driving down the road and the blue lights come on behind you. The officer comes up to your vehicle and asks you if they can search. Are you going to let them? No.
For an officer to be justified in searching your car they must have probable cause that evidence of criminal activity will be found in your vehicle. It has to be more than just a hunch that they will find evidence of criminal activity inside. Always say no. But that doesn’t mean they can’t get probable cause to search. If you leave a bag of weed out in plain view for the officer to see, the officer has probable cause to search your car. They can also search you and your immediate area after you are placed under arrest. And if they have to impound your vehicle, they can do what’s called an inventory search of your vehicle.
Whether a search is reasonable is always up for argument. An experienced attorney can use the facts of the encounter to argue why this specific incident isn’t reasonable under the law. At the Peach State Lawyer we recommend always politely declining to allow an officer to search your home, vehicle, or belongings. A search can only hurt you, it can never help you.
If you feel like you’ve been the victim of an unlawful search, or you’ve been charged with a crime where a search was involved, call us today at 404-581-0999 for a free consultation. We’re available twenty four hours a day, seven days a week to meet with you. Thank you.

VIDEO – Seizure and the 4th Amendment under Georgia Criminal Law

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by Ryan Walsh and Scott Smith

You’re sitting in a park with friends. An officer comes up to you and asks you if you’ve been smoking weed. You say no, but they place you in handcuffs while they search the area. Is this legal? What are your rights? The 4th amendment’s protection against unreasonable seizures is the topic of today’s Peach State Lawyer video blog.

Hello, I’m Scott Smith.

The Fourth Amendment of the United States Constitution prevents the government from unreasonable seizures without a warrant. A seizure is a restriction on your freedom.

In order for you to be seized under the fourth amendment, the officer must have an arrest warrant, or have a legal reason to continue to detain you. Whether the officer has that reason depends on the interaction between you and the police officer.

Lets go back to the park example.

The officer comes up to you and He says hey, how you doing? He just asks if you’ve been smoking weed, but does nothing more. You’re free to respond to him or not. You’re free to walk away. This type of encounter is a tier 1 encounter. It can happen at any time.

But what if you’re sitting in the park and the officer says, hey, I smell marijuana over here. Are you guys smoking? Sit right here while we investigate. Is this seizure legal? The United States Supreme Court created this second tier of police-citizen encounters in the case of Terry vs. Ohio. It’s called a tier 2 encounter or Terry stop, and is lawful only if the officer has reasonable articulable suspicion that a crime has been committed.

You can’t leave in this situation, but the officer must also be in active investigation to find evidence of the specific criminal activity for which they’ve detained you.

Finally, you’re back in the park and the officer says, hey, I smell marijuana, are you guys smoking? Immediately, the officer places you in handcuffs while they look for evidence of weed. This is what’s called a tier 3 stop, which is the same as an arrest. An officer can’t arrest you without probable cause. Whether you’re under arrest depends on the officer’s statements and actions. Have they told you you are under arrest? Have they physically restricted your freedom? These factors and more are used to determine whether the encounter has escalated to this level.

Remember, in all situations the police officer’s job is to find evidence of criminal activity. Anything you say or do can be used against you later. Politely decline consent to search. Politely decline to answer any questions. Tell the officer you want to speak with your attorney.

The attorneys at the law offices of W. Scott Smith specialize in seizure issues. We’re available 24 hours a day, 7 days a week for free consultations. If you feel you’ve been arrested unlawfully, call us today at 404-581-0999. Thank you.

 

VIDEO – How to Choose a Georgia Criminal Defense Attorney

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by Scott Smith

I’ve been charged with a serious crime. How do I choose a criminal defense attorney to represent me? Choosing the right criminal defense lawyer is the subject of today’s video blog.

After you have been arrested or cited for a crime the first thing most people do is start a search for a criminal defense attorney to protect them and get them the best possible outcome.

Some people are fortunate to know a lawyer or have a lawyer in the family. Others, who are not so fortunate, will turn to the internet and google ‘criminal defense lawyer near me’ or ‘best criminal defense attorney near me.’

There are review sites to turn to such as AVVO and Google Plus. These sites can be helpful in finding someone to competently handle your case.

I suggest you look at it like buying a house or a car. First, do not buy the first car you step into. I would suggest making at least three appointments to see different lawyers. In my experience, you want to get a feel for the lawyer, his or her law firm and the personality of the lawyer themselves.

Things I would suggest you look for: Organization of the office itself, responsiveness on the phone and in person, how the lawyer dresses and how long you have to wait in their waiting room.

In meeting with the lawyer it is perfectly normal to ask the difficult questions, such as have you handled these types of cases before, do you handle solely criminal defense cases, what results should I expect and how do you feel about my case?

A lawyer should never guarantee results. If a lawyer guarantee’s a result, run. In Georgia it is unethical and reckless to guarantee a result.

Some people are looking for the best priced lawyer. I believe this is a mistake. There are certain things you want to skimp on the price. This works when it comes to bath towels and paper plates. Your freedom should never be one of those things.

Finally, I have always said every case can be won. It just takes the right lawyer, right time, and right jury. Keeping this in mind do not discount someone based on years of experience or familiarity with the court. Sometimes, a lawyer without ties to the county can have a bigger impact than a ‘local lawyer.’ Similarly, a young lawyer can out perform a seasoned lawyer as they can sometimes try harder. I much rather have a lawyer that is passionate with only a few cases under their belt than a lawyer with no personality that is a scholar of the law.

I hope some of these tips help in your search of the best criminal defense lawyer for your case. If you wish to meet with me or one of the lawyers in our office, come see us. We would love the have you. The office number is 404-581-0999.

Is Medical Marijuana Legal in Georgia?

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By: Mary Agramonte

Mary Agramonte is an attorney with W. Scott Smith P.C.

While Georgia does have a medical marijuana law in place, it is particularly limited when comparing it to similar laws in effect across the United States. Under Georgia’s medical marijuana law, found at O.C.G.A. § 16-12-191, certain qualified individuals may lawfully possess up to 20 fluid ounces of “low THC oil.” But what is low THC oil? And who is allowed to have it?

Low THC oil is much different than the leafy substance you may associate with marijuana. The marijuana plant itself consists of over a hundred different chemical compounds. For example, it is comprised partly of THC, the compound within the plant that we associate with the mind-altering effects. However, there are other lesser-known chemical compounds that make up the marijuana plant.  Cannabidiol, also known as CBD, is another naturally occurring component of the plant, but it does not have the same intoxicating effects as THC. Instead, CBD is a cannabis compound that has been recognized to have significant medical benefits. It is for these medical benefits that the Georgia legislature has enacted a medical marijuana bill regulating which Georgians may use this low THC oil medicinally.

Under the medical marijuana law, the Georgia Department of Public Health can issue a “Low THC Oil Registry Card” to certain people that will protect them from arrest and prosecution if they are ever found possessing the oil. Currently, there are only eight specific diseases eligible to apply to be on the registry. Adults with the following conditions below may apply, as well as legal guardians of adults with the disease. Additionally, parents or guardians of minor children who suffer from the following diseases may apply to be on the registry. The diseases eligible for the Low THC Oil Registry are below:

  • (1) Cancer, when such diagnosis is end stage or the treatment produces related wasting illness, recalcitrant nausea and vomiting;
  • (2) Amyotrophic Lateral Sclerosis (ALS), when such diagnosis is severe or end stage;
  • (3) Seizure disorders related to diagnosis of epilepsy or trauma related head injuries;
  • (4) Multiple Sclerosis, when such diagnosis is severe or end stage;
  • (5) Crohn’s disease;
  • (6) Mitochondrial disease;
  • (7) Parkinson’s disease, when such diagnosis is severe or end stage; or
  • (8) Sickle Cell disease, when such diagnosis is severe or end stage.

Not all CBD oil is legal, even with a medical marijuana card. The law explicitly states that the oil must contain less than 5% by weight of THC. The Georgia medical marijuana law does not address where qualified persons can obtain it. Instead, the law’s purpose is simply to prevent them from being arrested and prosecuted for the crime of marijuana possession. Other than the above described CBD oil, all forms of marijuana remain illegal in Georgia. Possession of marijuana less than an ounce (in leaf form) is still a misdemeanor, with or without the medical marijuana card.  If any person, whether on the registry or not, possesses more than 20 fluid ounces, or makes, sells, distributes the low THC oil, they will be guilty of a felony, with a punishment of 1 to 10 years, and a fine of $50,000, or both. The punishment and fines significantly increase depending on the amount of CBD oil.

If you are in need of legal CBD oil that conforms to the requirements above, a physician will need to recommend you to be on the registry, so that you can be protected from arrest and prosecution. Earlier this year, the Georgia House proposed an overhaul in regards to medical marijuana to include more diseases and conditions eligible for treatment. For now, the medical marijuana law in Georgia is extremely limited. If you have been arrested for any marijuana crime, it is important to talk to an experienced criminal defense attorney so they can advise you on the current state of the law, as well as any defenses available to you. Please call us today for a free consultation at 404-581-0999.

Restoration of Rights and Pardons from the State of Georgia

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by Mary Agramonte

Mary Agramonte is an attorney with W. Scott Smith P.C.

Mary Agramonte is an attorney with W. Scott Smith P.C.

A felony conviction on your record comes with many consequences. You served the time, but now you are finding more and more ways that your record is stopping you from getting to where you want to be. For example, convicted felons lose various civil and political rights. Felons cannot vote while they are still incarcerated or on parole or probation. A convicted felon is unable to run for and hold public office or serve on a jury.

In Georgia, felons can apply to restore these civil rights that were lost at the time of their conviction. The right to vote is automatically restored upon completion of the sentence. However, if you are looking to restore your civil and political rights, a special application must be submitted asking the State of Georgia to allow you to serve on a jury and hold a public office. To be eligible to have your civil and political rights restored, you must have completed your sentence within two (2) years prior to applying, and you must demonstrate that you have been living a law-abiding life. There is no fee to apply to have your civil and political rights restored through the State Board of Pardons and Paroles.

If you are finding that your criminal history is following you, but that you are not eligible for Record Restriction, which is Georgia’s version of expungement, Georgia Record Restriction Blog there may be a way for you to advance in your employment and education, despite the felony conviction on your record. In limited circumstances, the State of Georgia can pardon your offense, which is an official forgiveness granted to you. The pardon does not expunge or erase the crime from your record. However, a pardon will serve as an Official Statement attached to your criminal record that states the State of Georgia has pardoned, or forgiven, your crime. The State will make this decision based on the fact that you have maintained a good reputation after completing your sentence, and have truly changed your life after the conviction. Pardons have a better chance of being granted if there is clear proof that the felony is disallowing your qualification for employment in your chosen field. An official pardon will also automatically restore your civil and political rights. In order to apply for a pardon, you must have completed your sentence at least five years ago, and have not gotten into trouble at all in the last five years. All restitution must be paid in full by the time you apply.  Letters of recommendation, school documents, resumes, and awards and certificates, are all helpful to show the State how important a pardon would be in your life.

There is no fee and the State uses the same application for restoring civil and political rights, and for pardons. The application can be found here: Restoration of Rights Application

Our law firm consists of seven criminal defense attorneys who represent individuals facing felony and misdemeanor charges in Georgia. We hope this information helps you restore your civil or political rights in Georgia. If you are currently facing criminal charges, our knowledgeable and experienced criminal defense lawyers have what it takes to defend against the most serious offenses. Call us today for a free consultation at 404-581-0999.

VIDEO – Testifying in Court in Your Georgia Criminal Case

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Testifying in court can make even some of the most seasoned attorneys nervous. But what about people charged with crimes who want to express their innocence and have never testified in court before? Watch this video below and call our office with questions.

Telling your story through testifying in court is about understanding the important pieces of your case. And what does that mean? It means what does the jury need to know about what happened? What does your jury need to know about you? How do you best tell your story to the jury? What does all of that include?

Well first and foremost you must tell the jury the truth. Jury members are smart. They will know if what you are telling them is not true. And as you are telling your story, truthful testimony will help the jury understand you as a person.

Next, listen to the entire question being asked and answer that and only that question.

Often, questions will begin with one of the classic question words like who, what, where, when, why, and how. You answer a where question with a location. Answer a question about time with the time. Jurors will stop caring about your story if you give non-responsive answers.

And if you do not fully understand the question being asked, take a moment and ask for clarification or ask for the question to be asked again.

Take a moment before answering each question to thing about your answer before actually saying it.

Let the pause calm yourself. Calm your nerves. Some questions will be inflammatory. Other questions asked by the state might even be offensive. Use that moment to center yourself to answer each question in a calm and collected manner.

You are allowed to qualify your answers on cross-examination. If the Georgia prosecutor is asking you for a yes or no answer and that’s all, you can explain your answer after responding yes or no. Do so when necessary.

Also, always remember you are telling your story to the jury. You aren’t speaking to the state’s prosecutor when they are asking you questions. Turn and make eye contact with each and every juror. Through eye contact, you will actually connect with the jury.

Putting these pieces together takes practice. It takes time. At our law firm we pride ourselves on discovery our client’s stories and preparing them for trial to connect with the Georgia jury. If you are our client and you want to practice, we are the only law firm that does criminal defense with our own mock courtroom where you can shake off your nerves and practice for testifying in court.

We want to help you tell your story. Call us today at 404-581-0999 for a free legal consultation on your Georgia criminal defense trial.

Thank you.