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Seizures; The Three Tiers of Police-Citizen Encounters under Georgia Law

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In assessing Fourth Amendment issues in a given case, lawyers should be cognizant of the three tiers of police-citizen encounters. These different levels of police encounters are meant to balance a person’s reasonable expectation of privacy against society’s legitimate interest in enforcing criminal laws. These tiers are designed to establish when, where, and how police should interact with members of the public in accordance with constitutional law. This article will explain the three tiers and the legal rules surrounding them.

 

1st Tier Encounters

 

In a 1st tier encounter, or “mere encounter,” between a person and a police officer, a person is not considered to be “seized” for 4th Amendment purposes. U.S. v. Mendenhall, 446 U.S. 544 (1980). This is because 1st tier encounters are when citizens and police come into voluntary contact with each other.  A “seizure” of a person only occurs when a reasonable person in the citizen’s situation would not feel free to “disregard the police and go about his business.” Florida v. Bostick, 501 U.S. 429 (1991). To determine whether a seizure has occurred, a judge will analyze the encounter to determine if there was a show of authority or an application of physical force. California v. Hodari D., 499 U.S. 621 (1991).

 

2nd Tier Encounters

 

A 2nd tier encounter is referred to as an “investigative detention.” The most common situation is when a police officer pulls you over in your car. This is also referred to as a “stop.” Under this tier, a police officer may seize a person for investigative purposes if the officer has reasonable suspicion to believe a crime has been or is about to be committed AND the officer may conduct a limited pat down or frisk of a lawfully seized person if there is a reasonable belief the person is armed and dangerous. Terry v. Ohio, 392 U.S. 1 (1968).

 

“Reasonable Suspicion” is more than an unparticularized hunch, but less than probable cause. These investigative detentions must be temporary, lasting no longer than necessary to effectuate their purpose and terminate once the suspicion has been dispelled.

 

3rd Tier Encounters

 

The 3rd tier contemplates the arrest of a person. A person is under arrest if he is not free to leave and a reasonable person in his situation would not think the detention was temporary. Williams v. State, 293 Ga. App. 842 (2008). Because an arrest is more intrusive than a stop, this tier requires more legal justification. Here, the standard of proof is “probable cause.” Probable cause to arrest exists when facts and circumstances based on reasonably trustworthy information would lead a prudent person in believing that a suspect is committing, has committed, or is about to commit a crime. Beck v. Ohio, 379 U.S. 89 (1964). Probable cause is a “fair probability,” less than a preponderance of evidence, but greater than reasonable suspicion. Illinois v. Gates, 462 U.S. 213 (1983).

 

If law enforcement officers violate the above rules, certain evidence in the case may be suppressed (ruled inadmissible) by a judge upon a motion to suppress.

 

Contact Us

 

If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.

 

 

 

 

 

Possession of THC Oil under Georgia Law

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Generally, possession of a personal amount of marijuana is considered a misdemeanor, pursuant to O.C.G.A. § 16-13-2(b). However, possession of other forms of THC, such as oil, resin, or wax, which are extracted from the plant, can be charged as a Schedule I felony in accordance with the Georgia Controlled Substances Act.

THE OFFENSE

V.G.C.S.A. offenses, which stands for “Violations of the Georgia Controlled Substances Act,” include criminal charges relating to the possession of THC oil. According to O.C.G.A. § 16-13-25 of the Georgia Controlled Substances Act, THC oil is considered a Schedule I controlled substance. A Schedule I controlled substance is defined as:

  1. A drug or other substance that has a high potential for abuse;
  2. The drug or other substance does not currently have any accepted medical use in treatment in the United States; and
  3. There is a lack of accepted safety for use of the drug or other substance under medical supervision.

According to O.C.G.A § 16-13-30, it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance, this includes non-medicinal THC oil, which is categorized as a Schedule I felony in the State of Georgia.

LOW THC OIL

However, an experienced criminal defense attorney could negotiate for a felony charge to be reduced down to a misdemeanor under O.C.G.A. § 16-12-191. This statute governs the possession of “low THC oil.” Pursuant to this statute, it is unlawful for any person to possess, purchase, or have under his control, 20 fluid ounces or less of low THC oil. If convicted under this statute, the accused will be sentenced to misdemeanor punishment.

In order for it to be considered “low THC,” the prosecution must prove that the oil was less than a 5% concentration of THC. Thus, the GBI crime lab must provide to the State, as well as to the defense, an analysis of THC concentration, which does not always happen in every case. If this is not provided, the prosecution will have difficulty proving that the oil is above a 5% concentration of THC, and therefore, an experienced criminal defense attorney could negotiate for a felony possession of THC oil charge to be reduced down to a misdemeanor.

CONTACT US

Due to the complexity of the charge of possession of THC oil, as well as the severity of the punishment, it is of vital importance to hire an experienced criminal defense attorney to defend you against such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained to know the possible options of an accused arrested and charged with possession of THC oil, we are experienced and skilled at defending such allegations, and we work tirelessly at advocating for our client’s rights. Therefore, if you or a loved one has been arrested for possession of THC oil, please call our office today at 404-581-0999 for a free consultation.

What to Do if you are Arrested for Child Molestation in Bibb County, Georgia

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If you or a loved one is arrested for child molestation in Macon, Georgia (Bibb County), it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence.

The Bibb County District Attorney is the Honorable Anita Howard. Her office has a dedicated division called the Crimes Against Women and Children Unit. The Bibb County DA’s will vigorously prosecute you if you are charged with child molestation.

Your case will be presided over by one of the four elected Superior Court judges.

  1. Judge Philip T. Raymond, III
  2. Judge Connie L. Williford
  3. Judge David L. Mincey
  4. Chief Judge Howard Z. Simms

Do not think that just because you are innocent that the charges will be dismissed. Child molestation charges are aggressively prosecuted in Bibb County and the police believe children who make the accusations.

Make sure your attorney has had jury trials in child molestation cases and has won these cases. Do not let an attorney handle your case who does not specifically handle child molestation cases.

The law may say you are presumed innocent but in child molestation cases, you have to prove your innocence.

Here is what you should do if arrested for child molestation in Bibb County.

  1. Hire an attorney – Make sure that attorney actually handles and tries child molestation cases. Most criminal defense attorneys do not handle child molestation cases. Make sure the attorney you talk to does regularly handles child molestation cases in Georgia.
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for child molestation, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    1. Gather and preserve any physical evidence in your possession that might relate to the child making the accusation. This includes clothing, photos, video or any other tangible object.
    2. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    3. Witnesses – Immediately make a list of any person who you think might have information about this child molestation accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

Here is what you should never do if arrested for child molestation in Bibb County.

  1. Never talk to the alleged victim or the family.
  2. Never have any contact with the alleged victim through a 3rd party or through social media.
  3. Never talk to law enforcement without an attorney present.
  4. Never talk to a child welfare agency or any other governmental agency without an attorney present.

If you are arrested for child molestation or any sex offense in Bibb County, please call our office 24/7 at 404-581-0999 or send us an email at mike@peachstatelawyer.com. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.

Child Molestation Charges in Fulton County, Georgia

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Child Molestation is a serious crime in the State of Georgia. If you are arrested in Fulton County or the City of Atlanta for child molestation, please do not make any statements to the police. It is imperative that you retain a qualified attorney immediately if you are being accused of child molestation. The Fulton County Crimes Against Women and Children Unit zealously prosecutes these cases and they are very prepared. Many allegations of child molestation are false. Even if you know the allegation of child molestation against you is made up, you still must take it very seriously and aggressively defend yourself.

If you are arrested, you will be on the 11am calendar the following morning for First Appearance. At this hearing, the Fulton County Magistrate Judge will read the warrants to you. They then might consider bond depending on the allegations but will likely deny bond in a child molestation. You will then need to file a motion for a formal bond hearing and a preliminary hearing. These hearings take place at the Fulton County Courthouse. It is crucial to get an attorney retained to be at the First Appearance hearing at the Fulton County jail.

O.C.G.A. § 16-6-4 defines child molestation as follows:

A person commits the offense of child molestation when such person: Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the accused OR by means of electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.

Child Molestation is a specific intent crime. Whether the accused has the requisite intent when he committed the act of child molestation is up to a jury. The jury can infer the requisite intent of “arousing or satisfying sexual desires” from the commission of the act. However, proof of the accused’s actual arousal is not required. Intent can be inferred from the testimony of the victim or from the actions of the accused.

No penetration is required for child molestation. All that is required is the touching of the child’s body along with the requisite intent. It does not matter whether the child was clothed or unclothed in determining whether the act was immoral or indecent.

The indictment does not have to allege the specific details of the child molestation. It can use general language of the statute.

The punishment for child molestation is a mandatory of 5 years to 20 years in prison. If it a second conviction for child molestation then it can be life in prison or a mandatory 10 years up to 30 years in prison.

If someone is making an allegation of child molestation against you in Fulton County or the City of Atlanta, it is imperative that you do not talk to the police, do not talk to the person who is accusing you of child molestation and call us. Time is of the essence to properly investigate the allegations.

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. Our office is in Fulton County.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Forsyth County Family Violence Battery – Cumming Criminal Defense Lawyer

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A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors.   The State of Georgia, as a whole, has taken a stand against domestic violence.  There are domestic violence task forces across the State, and specialized prosecuting units. Every day we see the impact that family violence arrests have on Georgia’s criminal justice system. Police are told across the State to make arrests for Family Violence Battery if there is any evidence it occurred. Evidence, unfortunately, can be one-sided and be the result of a false allegation.

For those who have been arrested for family violence, there may be feelings of anxiety and stress as it relates to the potential impact the case will have. Jail time, a criminal history, and forfeiture of firearms for life are all very real concerns when facing Family Violence Battery charges in Georgia. An arrest is not a conviction, and there are options in the criminal process for your Family Violence case.

In order to be prosecuted for Family Violence Battery, the State must prove that the alleged victim falls within the statutory definition for “Household Members or Family.”

Under O.C.G.A. § 16-5-23.1, this includes past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.

 

The State must also prove that there was either “substantial physical harm” OR “visible bodily harm” in a Family Violence Battery case in order to get convicted of the crime.

 

What happens after a Family Violence Arrest in Forsyth County?

First, the person arrested for Family Violence Battery will have their booking photo and finger prints taken and then will be ordered into the Forsyth County Detention Center. The booking process, through fingerprints, creates the official criminal history that is then made public. After the booking process, the person arrested for Family Violence will see a Judge in their First Appearance hearing. This is where Bond will be addressed.

In order to get out on bond in a Family Violence case, the Judge must find several factors to be true. The Judge must find that the person accused of Family Violence Battery:

(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;

(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;

(3) Poses no significant risk of committing any felony pending trial; and

(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

These are referred to in Georgia as the ‘Ayala Factors’ based on the criminal case that first laid out what must be proven in order to get out on bond in a criminal case. Ayala v. State, 62 Ga. 704 (1993).  Retaining an attorney immediately at arrest means having representation at what many people view as the most important step: getting out of jail as soon as possible. A skilled attorney will do an investigation into the case  and allegations and put forth the best possible argument to have their client released on pretrial bond in their Family Violence case.

 

In a Family Violence case, the Judge may order certain requirements in order to be allowed out on bond. For example, the Judge can order domestic violence classes, or for the accused to not have any weapons while out on bond. We see in most domestic violence cases, if the person is not represented at First Appearance, that the Judge will issue a No Contact provision and Stay Away Order. This means that once the person is released, they are not allowed in many cases return to their home, or speak to the parent of their child or their husband or wife. This is something that in most cases can be avoided through proper investigation and preparation for a bond hearing.

 

What is the potential punishment for Family Violence Case in Forsyth County?

The punishment for a family violence case is codified at O.C.G.A. § 16-5-23.1 and the maximum penalty is the same across the State of Georgia. On a first conviction for Family Violence Battery, there is a maximum penalty of 12 months in custody and a $1,000 fine. Keep in mind, that the maximum penalty can be greatly increased based on what the State charges via the Accusation. For example, if there is one count of Family Violence Battery, one count of Simple Assault, and one count of Disorderly Conduct, and the charges all based on different conduct, the maximum penalty in that case would be three years to serve. A second or subsequent conviction with the same family member (as classified above) or another family member results in a felony conviction with a maximum penalty of five years in prison.

While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several collateral consequences that do always appear at first glance.  For instance, under Federal law, any person convicted of a crime of domestic violence can no longer lawfully possess a firearm.   Georgia’s classification of Family Violence Battery falls within the Federal definition of “domestic violence.”  Thus, a Georgia citizen who has a conviction of Family Violence Battery can no longer possess a firearm without the possibility of facing criminal charges in Federal court. This is a permanent forfeiture of your ability to carry a weapon.

In addition, while the maximum includes 12 months in custody and a $1,000 fine, many Judges throughout the State will require individuals convicted of Family Violence Battery to serve time on probation in lieu of jail time, with the conditions of completing a domestic violence program.  These programs go by several different names, but they generally include 24 weeks of classes, counseling, and program fees that are no included in the fine levied by the Judge.  In addition, Judges can add community service, counseling requirements, fines, and alcohol and drug evaluations.  It is important to know that all of these things can be negotiated by your attorney.

Keep in mind: an arrest is NOT a conviction. Just because you have been arrested for Family Violence in Gwinnett County or any county in the State, does NOT mean you will be ultimately convicted, and have to face the criminal history implications and criminal punishment. As in all criminal cases, there are numerous defenses and options to resolve cases short of a guilty plea!

Being charged with Family Violence Battery can be a stressful event in anyone’s life.  At the Law Offices of W. Scott Smith, our lawyers are trained to explore the legal issues with every Family Violence Battery case.  We are aware of all the possible options available to avoid jail time and to protect your criminal history and ultimately your privacy.  If you or a loved one has been charged with Family Violence Battery, please contact our office today at 404-581-0999 for a free consultation.

Possession of Schedule 1 Controlled Substances – VGCSA – Georgia

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Possession of Schedule 1 drugs are classified as felonies in the State of Georgia. According to the laws of our state, criminal charges associated with the possession of these drugs are in accordance with the Georgia Controlled Substances Act. The following controlled substances are examples of drugs classified as Schedule 1:

  • Heroin
  • LSD
  • Morphine
  • Ecstasy

THE OFFENSE

V.G.C.S.A. offenses, which stands for “Violations of the Georgia Controlled Substances Act, include the charge of possessing Schedule I drugs. The Georgia Controlled Substances Act is laid out in the following statutes: O.C.G.A. § 16-13-20 through § 16-13-30. A list of all of the controlled substances considered to be Schedule I are referenced in O.C.G.A. § 16-13-25 of the Georgia Controlled Substances Act. A Schedule I controlled substance is defined as:

  1. A drug or other substance that has a high potential for abuse;
  2. The drug or other substance does not currently have any accepted medical use in treatment in the United States; and
  3. There is a lack of accepted safety for use of the drug or other substance under medical supervision.

According to O.C.G.A § 16-13-30, it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance, which does encompass any Schedule I drug.

SENTENCING

If an accused is prosecuted under the Georgia Controlled Substances Act for possessing a Schedule I controlled substance, the charge will be classified as a felony. If the accused is later convicted of these charges, the following punishments may occur:

  1. If the aggregate weight is less than one gram of a solid substance or less than one milliliter of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-3 years;
  2. If the aggregate weight is at least one gram but less than four grams of a solid substance or at least one milliliter but less than four milliliters of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-8 years;
  3. If the aggregate weight is at least four grams but less than 28 grams of a solid substance or at least four milliliters but less than 28 milliliters of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-15 years.

Because of the severity of the punishment for possessing a Schedule I controlled substance, it is of vital importance to hire an experienced criminal defense attorney to defend you against such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained to know all possible options of an accused arrested and charged with V.G.C.S.A., we understand and assert all potential defenses for such a charge, and we work tirelessly at advocating for our client’s rights. Therefore, if you or a loved one has been arrested for possession of a Schedule I controlled substance, please call our office today at 404-581-0999 for a free consultation.

Family Violence Battery Charges in Georgia

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In Georgia, a family violence battery is the identical charge of battery except that the alleged victim in the case has some sort of familial connection to the accused. The State of Georgia also takes family violence offenses very seriously and they can prosecute the accused of family violence, even if the victim does not want to press charges.

According to O.C.G.A. § 16-5-23.1, a person commits a battery when he/she intentionally causes substantial physical or visible bodily harm to another. However, in order for a person to be charged with family violence battery, the crime must have occurred between the following people:

  • Spouses or former spouses;
  • Individuals who have a child together;
  • Parents and children;
  • Step-parents and step-children;
  • Foster-parents and foster-children; and
  • Individuals living or formerly living in the same household.

Penalties

A family violence battery can either be characterized as a felony or a misdemeanor, depending on the past criminal history of the accused. A major consequence of a family violence battery conviction is that any future convictions of the same crime is an automatic felony. The first conviction of a family violence battery is sentenced as a misdemeanor, however, the second and subsequent convictions have a maximum penalty of 5 years in prison. This rule, however, does not apply to simple battery- family violence. According to O.C.G.A. § 16-5-23, simple battery occurs either when:

  • A person makes physical contact of an insulting or provoking manner with the person of another; or
  • Intentionally causes physical harm to another.

Simple battery-family violence is identical to the crime of simple battery, except the alleged crime occurred between the following people listed above, which constitutes a familial tie.

After the first conviction of simple battery-family violence, unlike family violence battery, the second conviction is still merely characterized as a misdemeanor. A person convicted of simple battery- family violence or misdemeanor family violence battery may be sentenced to a maximum penalty of 12 months in jail and/or a $1,000 fine.

Due to the severity of the penalties for a family violence charge, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such a serious charge. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such allegations. Therefore, if you or a loved one has been arrested for family violence battery or simple battery-family violence, please call our office today at 404-581-0999 for a free consultation.

Theft by Receiving Arrest in Georgia

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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.

Theft by Conversion Arrest in Georgia

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In Georgia, like other theft offenses, a theft by conversion charge can be prosecuted as a misdemeanor or a felony, depending on the value of the property converted. According to § O.C.G.A. 16-8-4, theft by conversion occurs when a person lawfully obtains another individual’s funds or property and then unlawfully converts such property to his/her own use.

In order to convict an accused for theft by conversion, the elements of the offense must be proven by the prosecution beyond a reasonable doubt:

  • The accused lawfully obtained funds or property of another;
  • The funds or property were obtained by an agreement between the accused and the owner;
  • The agreement required that the accused used the funds/property for a particular purpose;
  • However, instead, the accused knowingly converted the property for his/her own use.

Value of Property

In determining whether the theft by conversion charge will be characterized as a misdemeanor or a felony depends on the value of the property converted. In Georgia, funds or property valued at less than $500 are generally charged as misdemeanors. Alternatively, if the property in question is valued at a price greater than $500, the prosecution may file felony charges against the accused.

In these types of cases, the value of the property is determined by properly measuring the fair cash market value either at the time and place of the alleged theft or any stage during the receipt or concealment of the property in question.

Defenses

An experienced criminal defense attorney can assert affirmative defenses to either request a reduction in the penalties of a theft by conversion conviction or receive a dismissal of all charges. Thus, it is vitally important to hire a seasoned criminal defense attorney to defend you against such allegations.

Such affirmative defenses include, but are not limited to:

  • Lack of intent;
  • Consent;
  • Accused used the property as intended;
  • Innocence;
  • Intoxication, if it negates intent;
  • Charges should be reduced, because the property value was less than the prosecution alleged.

Contact Us

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of theft by conversion, as well as all possible options for an accused dealing with such a serious offense. 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 conversion, please call our office today at 404-581-0999 for a free consultation.

Theft by Deception Arrest in Georgia

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According to § O.C.G.A. 16-8-3, theft by deception occurs when a person obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property. However, deceitful means does not include statements of exaggeration that are unlikely to deceive the rightful owner or false statements as to matters that have little to no financial significance.

Some examples of theft by deception include, but are not limited to:

  • Billing someone for a job that an accused did not complete;
  • Making false statements to persuade the rightful owner to let the accused take their property;
  • Selling property when the accused knew that there was a lien/ some other loan attached to it.

Value of Property

In determining whether the theft by deception charge will be characterized as a misdemeanor or a felony depends on the value of the property stolen. In Georgia, goods or property valued at less than $500 are generally charged as misdemeanors. Alternatively, if the property or goods in question are valued at a price greater than $500, the prosecution may file felony charges against the accused.

Defenses

An experienced criminal defense attorney can assert affirmative defenses to either request a reduction in the penalties of a theft by deception conviction or receive a dismissal of all charges. Thus, it is vitally important to hire a seasoned criminal defense attorney to defend you against such allegations.

Some affirmative defenses to theft by deception include, but are not limited to:

  • Actual innocence;
  • Lack of intent;
  • Future payment: In Elliott v. State, 149 Ga. App. 579 (1979), the court found that the accused could not be convicted for theft by deception when he arranged to pay for the goods in question by making a promise to the rightful owner of future payment. The court found that there was no theft by deception, because there was no false representation made, the accused made a good faith promise of future payment;
  • Charges should be reduced, because the property value was less than the prosecution alleged;
  • Continuous criminal act: if the prosecution alleges that multiple items were stolen; an experienced criminal defense attorney could instead argue that the string of thefts constituted only one continuous crime. This would reduce the number of counts of theft that the State of Georgia has brought forward against the accused, and likely, will reduce the sentencing of such a charge.

Contact Us

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of theft by deception, as well as all possible options for an accused dealing with such a serious offense. 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 deception, please call our office today at 404-581-0999 for a free consultation.