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The Georgia First Offender Act

The First Offender Act is a progressive statute implemented by the State of Georgia where a person who has never been convicted of a prior felony offense can be sentenced on a pending charge, but subsequently, have those charges sealed by the court if he/she successfully completes their First Offender sentence.

According to O.C.G.A. § 42-8-60, the accused may be eligible under the First Offender Act if the following statements are true:

  • The accused has never been convicted of a felony;
  • The accused have never been previously sentenced under the First Offender Act;
  • The offense charged is not a serious crime committed against a law enforcement officer engaged in his/her duties;
  • The offense charged is not Driving Under the Influence (O.C.G.A. § 40-6-391);
  • The offense charged is not a serious violent felony (O.C.G.A. § 17-10-6.1);
  • The offense charged is not a serious sexual offense (O.C.G.A. § 17-10-6.2);
  • The offense charged is not related to child pornography (O.C.G.A. § 17-10-100.2);
  • The offense charged is not related to electronic sexual exploitation of a minor, computer pornography (O.C.G.A. § 17-10-100);
  • The offense charged is not trafficking of persons for labor or sexual servitude (O.C.G.A. § 16-5-46); and
  • The offense charged is not neglecting disabled adults or elderly people (O.C.G.A. § 16-5-101).

HOW IT WORKS

Trial counsel for the accused must ask the judge to sentence him/her under the First Offender Act. Then, the judge will consider whether to sentence the accused to First Offender after he/she hears arguments from both the prosecution and the defense. If the judge sentences the accused under First Offender, his/her official criminal history will describe the disposition of the crime charged as “First Offender” until the sentencing term is successfully completed. If the accused violates any conditions placed on him/her during their term of sentence, including committing another crime, the judge has the discretion to revoke the First Offender status. This means that the accused will be sentenced and convicted, which will be shown on his/her official criminal history. In revoking one’s status, the judge does have discretion to sentence the accused to the maximum penalty for the crime charged. However, if the term of sentence is successfully completed, the clerk of court will seal the offense charged from his/her official criminal history.

CONTACT US

At the Law Offices of W. Scott Smith, our attorneys are knowledgeable about the consequences of a criminal conviction on one’s record, as well as all possible options for our clients dealing with pending allegations. Therefore, if you have been recently arrested on a criminal charge or your case is currently pending, please call our office today at 404-581-0999 for a free consultation.

Theft by Receiving Arrest in Georgia

Georgia law has two different statutes that address the crime of theft by receiving. The first section defines the offense of receiving stolen property while the second Georgia statute describes receiving property that was stolen from another state.

The first statute describing the crime of theft by receiving is transcribed in O.C.G.A. § 16-8-7. In this section, theft by receiving occurs when a person receives, disposes of, or retains stolen property, which he/she knows or should have known was stolen unless the property is received, disposed of, or retained with the intent to restore it to the rightful owner.

In order for the prosecution to convict a person of theft by receiving, it must prove beyond a reasonable doubt the following four elements. These elements include:

  • The accused bought or received the goods in question;
  • The goods in question have been stolen by some person other than the accused;
  • At the time of the transaction, the accused knew or should have known that the goods in question were stolen; and
  • The accused acted with criminal intent.

Therefore, if the direct and uncontested evidence proves that the accused is the original thief of the goods in question then the accused cannot be convicted of theft by receiving. Furthermore, even if the accused is not certain, but has reason to believe that the goods in question are stolen, the accused may have committed theft by receiving according to Georgia law.

The second section regarding the crime of theft by receiving is described in O.C.G.A. § 16-8-8. This statute is read in the same manner as O.C.G.A. § 16-8-7, except for the fact that the property in question was received, disposed of, or retained in another state other than the state of Georgia.

Value of Goods

In determining whether the theft by receiving charge will be characterized as a misdemeanor or a felony depends on the value of the goods/property, which were allegedly stolen, and then received by the accused. For misdemeanor theft by receiving convictions, usually the value of the goods in question must be estimated at a value less than $1,500. For a felony conviction, the goods in question must at least be valued at $1,500 or more. However, if the value of the goods is estimated at more than $1,500, but less than $5,000, the judge has discretion in sentencing the accused to either a misdemeanor or a felony. This is also true for theft by receiving offenses in which the value of the goods is at least $5,000, but less than $25,000.

Contact Us

Due to the severity of the punishment for a theft by receiving conviction, it is vitally important to hire a seasoned criminal defense attorney to defend you against such allegations. At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of theft by receiving, as well as all possible options for an accused dealing with such a serious charge. We are experienced and skilled at defending such allegations and we work tirelessly to advocate for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for theft by receiving, please call our office today at 404-581-0999 for a free consultation.

No Proof of Automobile Insurance in Georgia

Georgia law requires that drivers maintain minimum motor vehicle liability insurance. Additionally, drivers must carry proof of that insurance in their vehicle at all times. Georgia law does allow proof of insurance via electronic format or paper.

 

What is the Required Minimum Georgia Insurance Coverage?

  • Bodily Injury Liability: $25,000 per person and $50,000 per accident
  • Property Damage Liability: $25,000 per accident

If you are pulled over driving a vehicle that does not have minimum insurance, you can be arrested or cited and charged with violating Georgia’s No Insurance statute under O.C.G.A. 40-6-10.  Georgia law requires that police officers determine if the driver has minimum insurance coverage every time the law enforcement officer stops a vehicle or requests driver’s license. You can be charged under this statute even if you were not the driver so long as you “authorized” someone to drive your vehicle without insurance.

What is the Penalty for Driving with No Insurance in Georgia?

Driving without insurance is a misdemeanor criminal offense that carries minimum fines and the possibility of 12 months in jail, or both. The minimum base fine for No Insurance is $200.00 and the maximum fine is $1,000.00.

Convictions for No Insurance will result in a license suspension.  On a first conviction, it is a 60 day license suspension, with no limited permit available. In order to reinstate after this suspension, you must pay a $210.00 reinstatement fee, show proof of having prepaid for six months of minimum insurance coverage, and maintain that policy for three years. On a second conviction within 5 years, it is a 90 day license suspension, the same prepaid policy requirements as the first, and a higher reinstatement fee of $310.00.

 

No Proof of Insurance in Georgia

 

Failure to keep proof of insurance in the vehicle is a separate charge from having no insurance at all.  If you in fact did have valid insurance at the time of the citation or arrest, the Judge must reduce the fine to $25.00 and not submit your license to be suspended. However, if you simply pay the fine on the No Proof of Insurance ticket, you will still incur the license suspension as if you had no insurance at all.

 

There are numerous defenses and mitigating factors if you or a loved one is charged with No Insurance or No Proof of Insurance in Georgia. Skilled lawyers can use new insurance policies in mitigation to try to have the Court reduce or dismiss the charge and sentence.

 

Paying a ticket on these offenses will result in license suspension, high fines, potential jail, and lengthy probation sentences. If you have been cited or arrested for No Insurance or No Proof of Insurance, call us today for a FREE CONSULTATION at 404-581-0999.

 

Driving without a License or with a Suspended License in Georgia

Georgia, like most states, makes it a crime to drive a vehicle without a license or with a suspended license. This blog article will discuss the laws surrounding this type of offense and the possible punishment if convicted.

Driving Without a License

As you might expect, every person driving a motor vehicle on a road or highway must have, and display upon request, a valid driver’s license. There are two laws dealing with not being in possession of a valid license.

No License on Person: O.C.G.A. § 40-5-29 requires drivers in Georgia to carry their license in their immediate possession while driving. A driver must also produce a copy of their license at the request of a law enforcement officer. Failure to do so may result in a misdemeanor conviction where the maximum penalty is 12 months in jail and up to $1,000 fine. If the driver can later produce a valid license that was valid at the time of arrest or citation, the maximum fine is $10.

Driving Without a Valid License: O.C.G.A. § 40-5-20 prohibits and punishes unlicensed driving. This offense is more serious than the above No License on Person, but is still charged as a misdemeanor.

Driving With a Suspended License

O.C.G.A. § 40-5-121 prohibits a person from operating a motor vehicle on a suspended, disqualified, or revoked license. If convicted, the person can expect to face a fine, jail time, probation, and a license suspension. The license suspension would be added to the time left remaining on the current suspension. The below table describes penalties for repeat offenses:

  Jail Fine License Suspension
1st Offense 2 days – 12 months $500-$1,000 6 months
2nd Offense 10 days – 12 months $1,000 – $2,000 6 months
3rd Offense 10 days – 12 months $1,000 – $2,000 6 months
4th Offense (Felony) 1 – 5 years prison $2,500 – $5,000 6 months – lifetime

 

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

 

 

 

 

Possession of Marijuana is Still a Crime in Georgia

Arrests for possession of marijuana are very common in Georgia. If an individual possesses less than one ounce of marijuana, they likely will be charged with a misdemeanor. However, if they are found to have possessed more than one ounce of marijuana, the offense will generally be classified as a felony. A conviction of possession of marijuana can have serious consequences on one’s life, such as fines, possible jail time, risk of a criminal record, possible probationary term, employment concerns, suspension of a driver’s license, etc. Therefore, if you have been arrested for possession of marijuana, it is strongly advised that you speak to an experienced criminal defense attorney immediately about your pending case.

The Offense

Georgia Criminal Code § 16-13-30 states that it is illegal for any person to possess, purchase, or have under their dominion and control a controlled substance, such as marijuana. To have possessed marijuana, there must be actual or constructive possession of it by the defendant. This does not necessarily mean that it needs to be found on their person, instead the defendant can merely have constructive possession of the marijuana to be convicted of this offense.

Actual Possession: For purposes of determining possession of marijuana, a person who knowingly has direct physical control over the drug is considered to have actual possession of it.

Constructive Possession: Constructive possession of marijuana exists where a person, though not in actual or direct physical possession of the drug, knowingly has both the power and the intention at any given time to exercise dominion and control over it. This means that where a defendant knows that marijuana is in proximity to him/her, and they have an intent to possess or physically control it, that individual can be found guilty of possession of marijuana. However, spatial proximity to drugs alone, without any additional evidence such as evidence of the intent to possess, is not enough to support a conviction for possession of marijuana. Therefore, at trial an experienced criminal defense attorney could argue that if a defendant is not aware of the marijuana, does not have the intent to possess or control it, and does not have direct physical possession of it then they cannot be convicted of possession of marijuana.

Punishment

A defendant’s first conviction of possession of marijuana, where they possessed less than one ounce, can risk them facing up to one year in jail or a $1,000 fine. If the defendant possesses between one ounce and ten pounds of marijuana, the offense is a felony and the defendant can face anywhere from 1-10 years in jail or prison. If the aggregate amount of marijuana is more than ten pounds, the offense is considered to be trafficking of marijuana and a defendant can face up to fifteen years in prison. Because of the severity of the punishment for possession of marijuana, it is vital to hire an experienced criminal defense attorney that understands the law, is aware of the defendant’s rights in the criminal justice system, and can zealously defend their client at trial. At the Law Offices of W. Scott Smith, our lawyers are trained to know the possible options if you have been arrested and charged with possession of marijuana, we are experienced and skilled at defending such a charge, and we work tirelessly at advocating for our client’s rights. Thus, if you or a loved one has been arrested for possession of marijuana, please call our office today at 404-581-0999 for a free consultation.

Georgia Analysis of Utah vs. Strieff Decision

by Ryan Walsh

The Fourth amendment of the United States Constitution protects citizens from unreasonable searches and seizures. Traditionally, evidence found after a 4th amendment violation is excluded under what is known as the “fruit of the poisonous tree” doctrine. That is, any evidence recovered after a fourth amendment violation occurs is suppressed by the court and cannot be used against the defendant in his case. However, in the last ten years the United States Supreme Court has limited this exclusionary “fruit of the poisonous tree” doctrine to situations where exclusion is the last resort by highlighting a number of exceptions. ryan-walsh

Exceptions to the exclusionary rule under federal law include when an officer acts in good faith in what he believes is a legal search, when evidence is acquired through an independent source, when evidence would inevitably been discovered without the unconstitutional source, and the attenuation doctrine. The attenuation doctrine states that evidence is admissible when the connection between the 4th amendment violation and the evidence found is distant or the connection between the 4th amendment violation has been interrupted by a change in circumstances. The recent United States Supreme Court opinion, Utah vs. Strieff directly addresses the attenuation doctrine, creating situations where intervening circumstances cause Georgia citizens to be subject to searches and seizures that would otherwise be unreasonable under the Fourth amendment of the United States Constitution. Utah vs. Strieff, 579 U.S. ___ (2016).

In Utah, Edward Strieff left a home on foot that had been tied to drug activity and walked to a gas station. Officer Fackrell, who had been surveilling the home, approached Strieff, identified himself, asked Strieff for identification, detained him, and then questioned him regarding what he was doing at the residence. Officer Fackrell gave Strieff’s information to a police dispatcher, who told Fackrell that Strieff had an outstanding arrest warrant for a traffic violation. Strieff was arrested and a search of his person was performed incident to the arrest, where Officer Fackrell found methamphetamine and drug paraphernalia on Strieff. Strieff then moved to suppress the evidence of methamphetamine and drug paraphernalia. The State of Utah conceded that Officer Fackrell did not have reasonable suspicion for the stop, but argued that because of the arrest warrant, the connection between the unlawful stop and the search had been attenuated and the search incident to arrest and seizure were valid under the Fourth Amendment.

The United States Supreme Court agreed with the State of Utah. Despite the fact that the stop of Strieff was unlawful, the Court held that the valid arrest warrant created a change in circumstances that “attenuated” the illegal stop from the valid search and seizure. In looking towards whether there was a sufficient change in circumstances between the conduct that violated the fourth amendment and the discovery of methamphetamine and drug paraphernalia on Strieff, the Court looked to three factors. The three factors are (1) “the temporal proximity between the unconstitutional conduct and the discovery of the evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 603-604 (1975). The Court found that factor one favored Strieff in that the time between the unconstitutional conduct and the discovery of evidence was very brief. But the Court found that factors two and three favored the State. The existence of a valid arrest warrant was a significant intervening circumstance, and that Officer Fackrell was at most negligent in his stopping of Strieff outside the gas station. In discussing Officer Fackrell’s negligence, the Court addresses what they call his “good-faith mistakes.” Therefore, the evidence seized by Officer Fackrell was admissible at trial against Strieff. Now that we’ve analyzed the law applied by the United States Supreme Court, is the holding in Utah v. Strieff applicable to Georgia citizens?

Georgia’s restrictions on searches and seizures are greater than the protections provided by the United States Government. Georgia codified their exclusionary rule in O.C.G.A. §17-5-30. The language in that statute provides no good-faith exception to the exclusionary rule. Further, Georgia courts don’t officially recognize any specific exceptions to the exclusionary rule, but they do offer their rationale in determining whether evidence that could be excluded as “fruit of the poisonous tree” will be excluded. That rationale is most clearly articulated in Vergara v. State. Vergara v. State, 283 Ga 175 (2008). In Vergara, the Supreme Court of Georgia says, “Under the fruits doctrine as

explicated by the (United States) Supreme Court and adopted by this Court, we need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. … The more apt question … is ‘whether… the evidence … has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged by the primary taint.’” Vergara, at 182-183.

Applying the absence of a good-faith exception along with the guidance provided in Vergara, it’s unclear what Georgia courts would do if presented with the facts of Strieff. Edward Strieff was approached by Officer Fackrell and asked for his identification, which he provided. Fackrell ran his identification and saw the outstanding warrant, arrested, Strieff, and found the contraband. Because there is no good-faith exception to unreasonable searches and seizures under Georgia law, Officer Fackrell cannot be said to be merely negligent in his stop of Strieff. The evidence was clearly found as a direct result of the bad stop. And the evidence is of the sort that may not have been found independently or inevitably. There are strong arguments that this sort of evidence is still fruit of the poisonous tree under Georgia’s application of the Fourth Amendment.

However, until Georgia addresses this issue, it is unclear whether a valid arrest warrant can trigger a search incident to arrest for an otherwise unlawful stop. If you’ve been arrested and feel your Georgia rights have been violated, call the Peach State Lawyer today for a free consultation at 404-581-0999.

VIDEO – Your Right to Remain Silent!

by  Scott Smith and Ryan Walsh

What do you do when the police begin to ask you questioning in relation to a criminal investigation? We are all familiar with those magic words we hear so often in television and film. You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney.
That’s the beginning of the Miranda warning, a warning that must be given in any situation where a government agent or police officer has placed you in custody, is questioning you, and seeks to admit those responses into evidence against you at trial. What most of us don’t realize is that warning doesn’t have to be given in every situation where you are being questioned. For the Miranda warning to apply, the Georgia government agent or police office must be questioning you while you are in custody. Custody is a legal term that doesn’t have an exact meaning. It is determined by looking at a totality of the circumstances surrounding the questioning.
Circumstances that impact whether you are deemed to be in custody to trigger a Miranda warning include:
  • Who asked the questions?
  • How many officers were present?
  • Were any non-law enforcement officials or government agents present?
  • Did the officer tell the suspect the interview was voluntary?
  • Where did the questioning take place?
  • Did the officer use any physical restraints, like handcuffs?
  • How long was the conversation?
  • Was the suspect free to leave at the end of the conversation?
These factors, along with others, are things the court looks at when determining if it was necessary for a Miranda warning to be read. Failure of the investigative official or government agent to read your Miranda rights does not necessarily mean the charges against you will be dropped. It just means your responses to those questions that violated your rights will not be admissible in court.
You don’t have to wait to hear those words that begin a Miranda warning to exercise your right not to talk to the police or any other investigative authority. Any person who is being stopped, detained, or investigated for the commission of a crime has no duty to answer any questions asked of them by any law enforcement or investigative official of Georgia or any state in the United States. And at W. Scott Smith, PC, the Peach State Lawyer, we advise all our current and potential clients to politely decline to answer any questions until after speaking with an attorney about the facts and circumstances surrounding the questioning.
We see the scenario play out in consultations every day. A Georgia officer walks up to the driver’s side of our potential client’s vehicle and asks “Do you know how fast you were going?” Or “How much have you had to drink tonight?” Our immediate instinct is to think we’re caught; let’s embellish the truth a bit. And instead of telling the officer ‘I politely refuse to answer any questions or exactly seventy-four miles per hour, Officer’, you make up a number 5-10 miles per hour over the speed limit, or respond with the ever-popular ‘two drinks.’ At this point the speeding case is over. You’ve admitted to violating at least one Georgia speeding statute. And in regards to the investigation into Driving under the Influence of Alcohol, we’ve given the officer an admission of alcohol consumption that may give them probable cause to arrest you for DUI in conjunction with any traffic infractions.
The reason we advise our clients to politely refuse to answer questions is because these officers are not on your side. They aren’t trying to find a reason not to cite you, not to arrest you, not to take warrants out against you. Their job is to gather evidence of criminal activity and to determine who most likely committed the crime. Georgia law enforcement officers are trained to ask specific, pointed, leading questions to get you to make admissions that could lead to you being charged with a crime. Those questions are designed for only one reason, and that is to gather information that can ultimately be used against you. DO NOT help them with their job. Even if you know you are one hundred percent innocent in the circumstances surrounding the Georgia law enforcement officer’s questions, politely decline their questions, tell them you want a lawyer, and let them release or arrest you.
Answering police officers questions without an attorney present will not help your case. Telling an officer you only had two drinks, or telling an officer you don’t have any marijuana on you but you smoked earlier, does not let them know that you were safe to drive or that you aren’t guilty of possession of marijuana. It tells them that you’re willing to voluntarily provide them with evidence they are going to use against you in their DUI or Drug investigation.
If you have any questions about your rights, if you’ve been contacted by law enforcement and asked to give a statement, or you’ve been arrested and questioned, you must contact us immediately. It is imperative that an experienced criminal defense attorney assess your situation, prevent further statements, and see if your rights have been violated in prior questioning. Call The Peach State Lawyer today at 404-581-0999 for a free consultation.

Overcharged

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.