Posts

Self-Defense

/in /by

Self-Defense

Self-defense is the most common defense to any murder, aggravated assault, battery, family violence battery, assault, or any other crime involving an act of violence.   Most people feel comfortable with the idea of defending themselves from harm.  In fact, it’s a natural reaction to defend your body from imminent harm.  But many Georgia citizens are not aware of how the law defines self-defense and often find themselves in a lot of trouble when the police feel that their actions didn’t conform with the law. Female self defense

In Georgia, self-defense is considered a justification defense. O.C.G.A. 16-3-20.   A justification defense applies when someone, who is charged with a crime, admits that they did in fact commit the crime, but they were justified in doing so, and thus cannot be convicted.   For example, someone who is being attacked by an angry neighbor fights back, striking the neighbor on the face with a closed fist.   Ordinarily, striking someone on the face would be a battery, but if you’re justified in striking the other person (self-defense) then the law says you cannot be convicted of that crime.  So how does someone establish a justification of self-defense?  Georgia law provides that:

“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm ONLY if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.” O.C.G.A. 16-3-21.

As you can see from the legal definition of self-defense, the use of force can easily be misinterpreted by a police officer as being too much or not necessary.   Because of that, we often see clients who come in saying they were exercising self-defense techniques to prevent themselves from being harmed, but nonetheless they are still being charged with a crime.  Often, self-defense claims must be presented to a jury to sort out the mixed question of fact and law.  The jury is charged with the same definition listed above and would have to make the determination as to whether or not someone charged with a crime was justified in their actions.

If you have found yourself in a situation where you believe you had every right to defend yourself, contact our office today at 404-581-0999.  Our lawyers are trained to take case to trial and fight for what is right.

Overcharged

/in /by

The Prosecution Overcharged My Case!

            I have seen the prosecution overcharge cases on multiple occasions.  The prosecutor’s office will, at times, define your alleged conduct as something much worse than it is.  A misdemeanor will be elevated to a felony, for example, or a felony will be charged as one carrying much more punishment than it should.  That doesn’t sound like truth and justice, does it?

There can be several reasons for a case to be overcharged.  Until defense lawyers get involved, the prosecutors (who are human beings) hear only one side of the story.  The police or the complaining witnesses unload with their side and the prosecutor doesn’t hear a word to the contrary.  And, unfortunately, defense lawyers may not be involved until the case has already been accused or indicted.  (There are exceptions…especially when the lawyer is hired early in the process and there is some form of evidence to support an opposing position).  So, acting only on the word or evidence given by the complainant, the prosecutor files the accusation or indicts the case.  It is extremely important for the lawyer to be thorough when talking to the client and finding out, in detail, what the facts of the case are.

Another reason that cases might be overcharged is that the prosecution is already thinking ahead to plea bargaining.  One prosecutor explicitly told me that he added the biggest charge in the indictment in hopes that he would work a plea to the lesser charges without too much hassle.

Sad?  I think so.  I am convinced that the anxiety people experience leading up to the disposition of the case is twice as bad as whatever punishment may be inflicted.  So many of my clients have suffered long, sleepless nights, loss of their jobs, broken relationships, substance abuse, and many other side effects of being charged with a crime (please note that I did not say convicted of a crime).  That is yet another reason to go early in the process to talk with a lawyer who believes in the presumption of innocence and who treats each client like a unique, special human being.  We take on the burden of your case for you.  We provide you with honest feedback that can give you peace about the situation and, hopefully, enable you to think about everything else going on in your life.  I like to think that my clients are able to dump the burden of the pending case on me and put their time and energy towards their kids, their jobs, their significant other, their hobbies, and everything else going on in their lives.

In my next blog, I will discuss some ways to combat overcharging by the State.

Always feel free to call us with any questions about your case.  You will get to speak with an attorney free of charge.  (404) 581-0999.

NEW YEARS EVE DUI CHECKPOINT

/in , , , , /by

NEW YEARS EVE DUI CHECKPOINT:

Every year, thousands of Georgians celebrate the dawning of a New Year by enjoying the several New Year’s parties around town.  As we all know, those parties often include music, food, and alcohol.  According to the Insurance Institute for Highway Safety, New Year’s Day is the second most deadly day for drivers with an average of 140 deaths related to alcohol.  Because of this, law enforcement agencies throughout the State set up DUI checkpoints to prevent drunk drivers from getting into accidents.   We certainly advise that you find a safe ride home on New Year’s Day.  But if you find yourself at a DUI checkpoint, it’s important to know your rights before the Officer mistakes you for a dangerous driver.

STAGE 1:

DUI checkpoints are often set up in two stages.   The first stage is an initial screening stage.   Here, a DUI trained officer will check for some of the common physical manifestations of a person who is driving under the influence.  Often, we see police reports that include the initial screening officer smelling the odor of alcohol coupled with bloodshot and watery eyes.  The DUI officer is also looking for the driver’s behavior.  Particularly, the DUI Officer is looking to see if the person is being belligerent or combative.

It’s important to remember to always be polite in these situations.  If the DUI Officer becomes agitated with the way you respond to his questions, then you’ll likely find yourself at the DUI checkpoint much longer than you would expect.   The Officer will likely ask you how much you’ve had to drink.  If you’ve only had one beer then it’s ok to let the Officer know that.   In Georgia, it is not illegal to consume alcohol and drive.  However, it is illegal to consume alcohol the extent you become a less safe driver.  So, the fact that you have had one beer does not automatically mean you’ve broken the law.

STAGE 2:

The DUI Officers are trained to instruct drivers to the second stage of the checkpoint if they feel there is enough evidence to continue a DUI investigation.  The second stage will often include a second DUI Officer who will almost certainly request the driver to perform field sobriety testing.  As we’ve discussed in the past, field sobriety testing is weighed heavily against the driver.  For example, the walk and turn evaluation is one of the three standardized field sobriety tests.  The evaluation includes a series of clues the Officer is trained to look for.  There are seventy-six opportunities for the driver to display a clue.  If the driver shows two of the seventy-six clues then that is enough for the Officer to establish someone are impaired.   More concerning is the initial studies on this examination showed only a 65% accuracy rate in optimal conditions.

Because of the unreliability of field sobriety testing, we always suggest to our client to refuse any field sobriety testing.  The chances of the Officer making a mistake are extremely high and the consequences to the driver can be drastic.   Finally, if the DUI Officer feels there is enough evidence obtained from all of the interactions then he or she will make an arrest.

As I mentioned earlier, the easiest way to avoid a DUI is call a cab or have a sober driver.  Personally, I’ve found the car service Uber to be fantastic.  But, sometimes we find ourselves in difficult circumstances.

If you or a friend ends up getting charged with DUI on New Year’s Day please contact the office immediately at 404-581-0999.   Our lawyers will be on call and available to for a free consultation.

Do I Have A Criminal History?

/in , , , /by

“I’ve been arrested.  Does that mean I have a criminal history?”

Many of our clients have two primary goals when they come in the office for a free consultation: 1) stay out of jail and 2) keep their record clean.    Often people are amazed to hear that even though they have not yet been convicted of anything, they STILL have a criminal history!  How could this be?

The short answer: in Georgia, your criminal history is tracked by your finger prints.  Your criminal history begins when the Officer placed you under arrest and took you to the jail.  Most jails in Georgia have an electronic fingerprinting system.  The jailer takes your fingerprints and those images are transmitted to the Georgia Crime Information Center (GCIC).  GCIC then creates a profile for each person who has been fingerprinted.  The profile includes your name, your height, weight, eye color, and any distinguishing marks that you may have.   Your profile will list what the police officer charged you with,  what the State’s attorney intends to charge you with in court, and ultimately the final result of your case.

If you are arrested for ANY crime in the State of Georgia and you are fingerprinted, then you have a GCIC profile.   There are several ways a case can be resolved in a way that would restrict your profile so that future employers cannot see that you were arrested.   Our goal in every case is to find a solution that not only keeps you out of jail, but also protects your criminal history.  Your future is our priority.

Please contact our office for a free consultation if you have been arrested and fingerprinted in the State of Georgia.

Peach State Lawyer’s Marijuana Blog Series Part 1: Don’t Smoke and Drive

/in /by

When you google: “legal marijuana in Georgia” the results seem endless.  That’s probably because the legalization of marijuana has become one of today’s hottest political and social issues.  Everywhere you turn, the “marijuana” debate is front and center. In fact, CNN, Fox News, and other major news sources have been exploring the topic on a daily basis–presenting opinions about and predicting the effects of marijuana legalization.

Georgians have also joined the debate.   Supporters of marijuana legalization in Georgia have been vocal about the drug’s medicinal benefits and the industry’s potential profitability. Additionally, supporters have been calling for an end to the criminalization of marijuana possession, comparing it “Prohibition,” which ended in 1920. Those who are against the legalization of marijuana argue that marijuana is a gateway drug that will lead to widespread drug abuse and make our communities less safe.

What makes this debate so fascinating is the fact that there is bipartisan interest in legalization. Just recently, Georgia House Speaker, David Ralston, a conservative Republican, announced that even he would be interested in learning more about the medical benefits to marijuana and how Georgia can incorporate the legalization of marijuana into its own law.

Since we are still a few years away from legalization of marijuana in Georgia, it is important to understand how Georgia handles DUI-marijuana cases in the meantime.

CURRENT GEORGIA LAW AND DUI-MARIJUANA CASES

Georgia has already addressed driving under the influence of marijuana to some extent. Currently, the crime falls under Georgia’s broad DUI-drug statute. This statute allows a police officer to place a driver under arrest for DUI if the police officer believes a driver is under the influence of ANY drug (prescription or not) and that the drug is causing the driver to be a “less safe” driver.

There are a few different ways the officer can try to establish a case for DUI drugs and more specifically driving under the influence of marijuana.

First, the officer is trained to look for all the tell-tale signs that someone is high on marijuana.   Think about the people you knew growing up that liked to smoke marijuana. They often would have slower speech, blood shot eyes and a carefree attitude. Sometimes, marijuana smokers cannot control their laughter either. In addition to personal characteristics, police officers often include the smell of burnt marijuana as evidence of DUI-marijuana. Throughout any given investigation, police officers are looking for each and all of these signs.

Often times, police officers do not see all of the above-mentioned characteristics and therefore struggle to find probable cause to arrest a driver for DUI-Drugs.

In these situations, police officers are trained to establish a DUI-drugs case using the National Highway and Traffic Safety Administration’s (NHTSA) marijuana field sobriety test.  NHTSA, as you may know, is the federal agency tasked with designing field sobriety tests and training police officers to administer those tests in the most objective and scientifically accurate manner possible. Even though NHTSA has that responsibility, NHTSA is known for launching aggressive anti-DUI ad campaigns. In one ad, there is a car filled to the brim with beer and liquor. In another ad, there is an invisible police officer who stalks bar patrons as they head to their cars in an inebriated condition and drive recklessly on public roads. Georgia, like many other states, uses NHTSA’s manual to train its police officers on DUI investigation.

When a Georgia police officer believes a driver is impaired but cannot immediately determine what substance is causing the impairment, the officer is trained to conduct the DUI-Alcohol field sobriety tests.  If it appears that alcohol is not the reason why someone seems to be impaired, then the officer is trained to go into additional field sobriety tests to narrow down the potential causes of the impairment.  With these results, police officers can then make a determination as to whether there is probable cause (more likely than not) that the driver is under the influence of marijuana.

WHAT ABOUT MY LICENSE?

The post-arrest process for DUI drugs is very similar to a DUI alcohol arrest.   If an officer wants the driver to undergo additional chemical testing (which they almost always do), the officer MUST read the Georgia Implied Consent warning to the driver immediately after he is arrested. Basically, the Georgia Implied Consent warning tells the driver that his license is going to be suspended if he refuses to provide a sample of his blood, breath or urine.  In DUI-Alcohol cases, a breath test is the most popular form of chemical testing because it provides the officer with a quick, but not always accurate, printout of the drivers blood alcohol concentration. However, in DUI drug cases, a blood test is usually preferred because it can detect a variety of intoxicants–not just alcohol. Urine tests are rarely used in DUI investigations because the results have been found to be less accurate.

In Georgia, if a driver agrees to take a blood test, the driver will be taken to a nurse or phlebotomist who will then administer the blood draw.  If the driver agrees to the test then the blood will be packaged and sent to the Georgia Bureau of Investigations (GBI) crime lab, where it is tested for the presence of marijuana and other intoxicants. When looking for marijuana in a blood sample, GBI looks for the mere presence of THC, the active chemical in marijuana that causes a person to feel high. GBI does not, however, examine or ascertain the level of THC in a person’s blood. So, if a driver smoked marijuana a week prior to getting behind the wheel and still had THC in their system, then that drivers GBI report would read the same as the driver who smoked while driving.

DS-1205: Where is my License, and What’s this Piece of Paper?

/in , , , /by

If you are arrested in Georgia for DUI, you should immediately have two concerns; 1) you have criminal charges pending against you after you were cited with at least one ticket for DUI, which is a misdemeanor, and 2) a civil case relating to a potential suspension of your driver’s license.  The criminal charges pertain to the tickets that the officer wrote and will be handled through the normal criminal justice process.  The civil case pertains to your driver’s license and, as we will discuss in this blog post, time is of the essence.

DS-1205 Form

You may not know it, but if you have a Georgia driver’s license you have actually given consent to the State to obtain a chemical test of your blood, breath, or urine.   Any Officer in the State of Georgia, upon making an arrest for DUI, can request a chemical test to determine whether or not you are under the influence of alcohol and/or drugs.   That said, the State does allow a driver to withdraw that consent and “refuse” any chemical testing by the State. The process by which the Officer requests the test and the response you give the officer is crucial in determining the status of your license.  Normally, the Officer will seize your driver’s license and submit DDS 1205 form which is a petition to the Department of Driver Services (“DDS”) to suspend your driver’s license.    You have 10 business days from the date of your arrest to appeal any petitions submitted to DDS.  The Department will then place your case onto an Administrative License Suspension hearing calendar where you can contest the suspension of your license (SEE ALS HEARING BLOG POST).

Refusals vs. Breath Test Cases

The Officer will note on the DS-1205 petition whether or not you agreed to submit to chemical testing or if you refused to take the test the officer requested.  The length of the suspension and the type of license you may be eligible for are all dictated by whether or not you agreed to take the test.

If this is the first time you have been arrested for DUI alcohol, and you agree to take a the State administered test, and the results of that test are above a .08, then you may be eligible for a temporary work permit immediately after the license suspension goes into place.  The temporary work permit will allow you to travel to and from school/work.  Before the criminal case is resolved, DDS requires drivers eligible for a temporary work permit to go onto a temporary work permit for at least 30 days, complete the Georgia Risk Reduction Course (DUI School), and pay a reinstatement fee of $220 before reinstating the drivers full driving privileges.  On the other hand, if the driver refuses to take the test on a first lifetime DUI arrest, then DDS will issue a one year hard suspension, meaning no driving at all. All suspensions will run immediately if you do not submit an appeal within 10 business days of your arrest.

The 10-day Letter

On the back of your DDS 1205 form you will find the required process of appealing any petition submitted by the Officer to suspend your license.  Ultimately, DDS requires that you send a letter to DDS indicating that you wish to appeal any license suspension and wish to be placed onto an Administrative License Suspension hearing.   DDS also requires that you include a $150 filing fee with your letter.   It is good practice to send all 10-day letters by certified mail to insure that your request for an appeal is received by the department.  Also, it’s a good idea to send the letter even if the Officer did not seize your driver’s license.  The Officer does have some time to submit the petition at a later date or he/she may submit the petition and forget to take your license.  In those cases, it’s always best to play it safe and send a letter to DDS to make sure your license does not go into automatic suspension.

There are ways to avoid license suspensions, regardless of what your decision was at the time of your arrest.  We encourage anyone who has been arrested in Georgia for DUI to contact our office immediately (404-581-0999) for a FREE consultation.   W. Scott Smith, P.C. is dedicated to helping our client’s navigate through an often very difficult license suspension process.

VIDEO: Charged with Carrying a Firearm into Hartsfield-Jackson International Airport?

/in , , /by

http://www.youtube.com/watch?v=EO70ooDXuEw&feature=youtu.be

Forgot you left your Glock 19 in your carryon bag?

This happens more often than you would imagine.

In 2012, Hartsfield-Jackson Airport in Atlanta had more guns seized at TSA checkpoints than any airport in the U.S. with 96.  Don’t leave your gun in your carry-on bag, because what results is being charged with Carrying a Weapon in an Unauthorized Area.  Your weapon will be seized and you will be arrested.

Once arrested, you will be fingerprinted and need to make bond.  If arrested at Hartsfield-Jackson Airport for Carrying a Weapon in an Unauthorized Area, your court case will be assigned to the Clayton County State Court Solicitor General’s Office for prosecution.  Bond will likely be $3,500.00.

Our firm has handled a number of these cases and every case to-date has been dismissed.  There are several proactive steps we can take in order to make sure the case gets dismissed; including a gun safety course and community service.  It should be noted there is also an administrative component to these cases where the Department of Homeland Security/TSA will move to fine you through the administrative courts.  If you find yourself having been charged and want to protect your record, CALL US immediately 24 hours a day, 7 days a week at 404-581-0999.

VIDEO: DUI Courthouse Procedure in Municipal Court of Atlanta

/in , , , , /by

Peachstate’s own W. Scott Smith discusses procedure in the Municipal Court of Atlanta for people arrested for DUI in the City of Atlanta.

http://www.youtube.com/watch?v=8EYTmmB0KDc&feature=youtu.be

For those arrested for DUI in the city of Atlanta, you are generally pulled over by a city of Atlanta police officer or a Georgia Department of Public Safety state trooper. They will give you a citation to appear in court at 150 Garnett Street, Atlanta, GA 30303 generally within 72 hours of the time of arrest. The Municipal Court of Atlanta generally has between 800 and 1500 people on its calendar daily. The courtroom that handles DUI in the Municipal Court of Atlanta is Courtroom 5A and the Judge is Christopher E. Ward. He takes the bench promptly around 8:10 every morning. He handles all cases for citizens who have retained private counsel first before handling unrepresented persons or persons who have hired the public defender. No electronic devices are allowed in his courtroom and he requires everyone pay attention to all proceedings (no reading of books, newspapers, or magazines, either).

If you’ve been arrested, we can handle that first court appearance for you. If you hire our law firm we will file an entry of appearance on your behalf and show up at that first court date. We will also show up at all subsequent court dates on your behalf which will hopefully ease the burden of arrest. Don’t go into the City of Atlanta unrepresented. Call 404-581-0999 today for a FREE CONSULTATION. We will meet with you on the weekend if necessary to discuss your case and representing you in this pending DUI charge.