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Statutory Rape

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Statutory Rape is a serious crime in Georgia. O.C.G.A. § 16-6-3 defines Statutory Rape as engaging in sexual intercourse with any person under the age of 16 years old who is not your  spouse.

Statutory Rape requires corroboration and cannot stand solely on the unsupported testimony of the victim.

In Georgia, it is not a defense to Statutory Rape that the accused believed the victim was of the age of consent.

Many people have the idea that if they have consensual sex, then they did not break the law. That is not true.  Individuals who commit statutory rape in Georgia can face serious felony charges. In addition to a prison sentence, a person faces being put on the Sex Offender Registry and has limits on housing and job opportunities and loses their right to vote and own a firearm.

To be convicted of Statutory Rape, it is not necessary to fully penetrate the vagina or to rupture the hymen. Only slight penetration of the vulva or labia is sufficient. Proof of force is unnecessary for statutory rape.

The punishment for Statutory Rape is very serious. O.C.G.A. § 16-6-3 mandates that the sentence be from 1 to 20 years in prison. If the defendant is 21 years or older, then the mandatory sentence is 10 years up to 20 years in prison with at least one year on probation. If the victim is at least 14 years old but less than 16 years old and the person convicted is 18 years old and is no more than 4 years older than the victim, then it is a misdemeanor and a maximum of 12 months in custody.

If the defendant is over 21 and convicted of statutory rape, he or she cannot plead under the First Offender Act.

If you face charges in Georgia for Statutory Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Sex Offenses. You must protect your rights and take this matter very seriously.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

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

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

Restitution for Criminal Offenses under Georgia Law

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What is Restitution?

Simply put, restitution is money paid by an offender to compensate a victim for harm caused by the offender’s unlawful acts. Restitution is a primary concern of the criminal justice system. O.C.G.A. § 17-14-1. Restitution includes all damages recoverable in a civil action except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium. O.C.G.A. § 17-14-2(2).

The Restitution Hearing

Under O.C.G.A. § 17-14-3 and O.C.G.A. § 17-14-7, a sentencing judge may order a defendant to pay restitution to the victim of his crime following a negotiated plea or restitution hearing.

At the restitution hearing the State has the burden of proving the specific amount of the victim’s loss by a preponderance of the evidence. The defendant bears the burden of proving their ability to pay (defendant’s financial resources). O.C.G.A. § 17-14-7(b).

Specifically, the Court looks to 8 factors when analyzing the defendant’s ability to pay restitution:

  • The financial resources and other assets of the offender or person ordered to pay restitution including whether any of the assets are jointly controlled;
  • The earnings and other income of the offender or person ordered to pay restitution;
  • Any financial obligations of the offender or person ordered to pay restitution, including obligations to dependents;
  • The amount of damages;
  • The goal of restitution to the victim and the goal of rehabilitation of the offender;
  • Any restitution previously made;
  • The period of time during which the restitution order will be in effect; and
  • Other factors which the ordering authority deems to be appropriate.

O.C.G.A. § 17-14-10.

If more than one offender has contributed to the loss of a victim, the court may make each offender liable for payment of the full amount of restitution or apportion liability amongst offenders. O.C.G.A. § 17-14-7(c).

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.

 

 

 

DUI Refusal Reaches the Supreme Court

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SUPREME COURT UPDATE:  Can they charge me with a crime for refusing the breath test?

On April 20, 2016, the Supreme Court heard argument on Birchfield v. North Dakota.  The case addressed the question of whether a State can criminalize the refusal to submit to a chemical test of blood, breath, or urine without a warrant.   In both Minnesota and North Dakota, it is a separate crime to refuse to take the State chemical test.   Prosecutors for both the State of Minnesota and the State of North Dakota argued that an officer’s request for a breath sample without a warrant protects against evidence spoiling (BAC dropping over a period of time).  Interestingly, the Supreme Court Justice’s peppered both lawyers with factual scenarios about the reality that, with today’s technological capabilities, it is fairly easy for a police officer to contact a magistrate judge to obtain a warrant.   Interestingly, the Justices did not focus all of their tough questions towards the State.  It appears that the Justices had significant feelings about the minimally invasive nature of a breath test in comparison with a blood test.  There also seemed to be some confusion about the use of a roadside portable breath test versus a State administered breath test at the jail.

Georgia currently does not have a criminal penalty for refusing to take the State administered breath test.  Instead, Georgia law allows officers to request a civil penalty (loss of your license for 12 months) for refusing to take the State administered blood/breath/urine test.   However, the decision of the Supreme Court will almost certainly impact Georgia DUI cases going forward.   If the court were to side with the defendants in this case, we certainly can expect the opinion to express strong 4th amendment language that could impact other types of DUI cases.   On the other hand, if the court were to side with the State of Minnesota and North Dakota, we can expect other States, Georgia included, to introduce legislation that would criminalize the refusal of a State administered test.

Our lawyers will be watching closely when the Supreme Court releases their opinion this fall.  For more information about the case, check out the oral arguments at:

http://www.supremecourt.gov/oral_arguments/audio/2015/14-1468   and

http://www.scotusblog.com/2016/04/argument-analysis-criminal-penalties-for-refusal-to-take-a-breathalyzer-test-in-jeopardy/

We will certainly provide an update when the Supreme Court releases their final ruling.

Making A Murderer: Pointing the Finger in Georgia

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MAKING A MURDERER: Pointing the Finger in Georgia

The Netflix documentary Making a Murderer brought to light several issues with our justice system. Two of the most important issues a defense attorney has to overcome is the “presumption of guilt” presented by the media, and the loss of exculpatory evidence caused by poor police investigations.

“Presumption of Guilt”

“All due respect to counsel, the state is supposed to start every criminal trial swimming upstream. And the strong current against which the state is swimming is the presumption of innocence.” – Dean Strang, co-defense counsel for Steven Avery.

Many times, the media will broadcast inflammatory stories regarding pending investigations. Regardless of the truth of the stories, they tend to irreparably tamper with the minds of the prospective jurors months or even years before the trial begins.

The law requires jurors to give the defendant the presumption of innocence, but many jurors are already biased against the defendant because he has been charged with a crime and is seated at the defense table. High-profile cases present an additional hurdle because the jurors have already heard many untrue facts about the case from the media.

We rarely encourage clients to make statements to police or media since those statements can be used against them at trial. In fact, the best way to truly prove one’s innocence to the public is to have a jury find you NOT GUILTY. However, every case is unique, and we use our experience with high-profile cases to develop a plan to counteract this media bias. Recently, our firm counseled Marcus Lewis, the Uber driver who was wrongly accused, and advised him to speak with the police with our support. He was exonerated in less than 24 hours, and no charges were ever filed from the police. Learn more about that case here: http://www.11alive.com/story/news/crime/2015/12/29/uber-driver-defends-reputation-after-social-media-allegations/78031302/

It Was the Other Guy

In Making a Murderer, Steven Avery’s attorneys were unable to accuse any specific person of committing the murder. Instead, they had to focus on the poor investigation conducted by the police in general. The Judge limited Steven’s defense due to Wisconsin law. There, a defendant cannot point their finger and allege that a third party committed the crime unless he can present evidence of the third party’s motif, opportunity, and a direct connection between the third person and the crime charged.

In Georgia, the standard is much lower than that in Wisconsin. The defense here only has to present evidence that “renders the desired inference that [the other guy] committed the crimes . . . more probable than would be that inference without the evidence.” Henderson v. State, 255 Ga. 687, 689 (Ga. 1986). All the defense needs is enough evidence “to raise a reasonable doubt of defendant’s guilt in the mind of a juror.” Essentially, the defense needs to present the jury with an alternative that makes a single juror question whether it is possible the defendant did not commit the crime, and that someone else did.

Even though Georgia has a lower standard than Wisconsin, it can still be tough to gather evidence that someone else committed the crime when the police have conducted a careless investigation. In these situations, it is imperative that we get involved as early as possible to ensure that we are able to do our own investigation and gather our own evidence before it is too late. If you have been charged with a crime, please contact our office today at 404-581-0999 for a FREE CONSULTATION in our office so that we can begin working on your case immediately.

First Offender Act

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First Offender Act: Retroactive Treatment

Many people make mistakes in their youth.   For some of us, those mistakes went without tremendous consequence, but for others their mistakes cost them their freedom and labeled them a criminal for the rest of their lives.  Our firm has met with Georgia residents that have criminal histories that continue to haunt them and their career prospects.   Several people had heard about expunging their records from either the internet or friends.  Unfortunately, not everyone was eligible for expungment and, until recently, there wasn’t much we could do.  But now, with the passing of a new law, there is hope for some non-violent offenses to be removed from someone’s record with the use of the First Offender Act.

Traditionally, the First Offender Act is a tool that can be used in a plea deal for certain non-violent offenses like theft or drug charges.   The First Offender Act gives a probationer the opportunity to complete probation in exchange for having the Judge withhold adjudication and seal the probationer’s record.   The purpose of the act is to allow Georgia citizens the ability to not have one mistake ruin their lives.    Unfortunately, not everyone was aware of the First Offender Act and some individuals may have entered guilty pleas without really understanding the long term consequences of a criminal history.  The Georgia General Assembly recognized the problem and passed a new law that would allow some individuals to retroactively petition the court for treatment under the First Offender Act.

In order to have the First Offender Act apply retroactively the petitioner would have to file a petition with the court and obtain permission from the both the prosecutor and the Judge to apply the First Offender Act retroactively.   The Judge then is required to schedule a hearing where the petitioner can introduce evidence of the progress they have made after their earlier conviction.   If the Judge grants the petition, then the petitioner’s criminal history will be sealed in accordance to the First Offender Act.

We were excited to hear the news of this new provision of the First Offender Act.   If you have been convicted of a crime and feel that you may be eligible to have your record sealed, call our office immediately at 404-581-0999.   Our lawyers can help answer any questions you may have about the First Offender Act.

Statutory Rape

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Statutory Rape

By Andrew Powell J.D.

Georgia’s statutory rape law is often times misunderstood.  Many people believe that statutory rape is a crime that only a male can commit. Some also believe that if the two people consent to the sexual act then there can be no crime, regardless of the age. However, these misconceptions can get you into a lot of trouble.

Georgia does not distinguish between male and female genders when it comes to charging someone with statutory rape. Simply put, statutory rape is when any individual has sex with someone else who is not at the age of consent. In Georgia, the age of consent is 16. If both individuals are under 16 years old, then both individuals can be charged with misdemeanor statutory rape.

Interestingly, you can still be charged with statutory rape even if the alleged victim lies about their age.  If you are a young person and find yourself in a situation where you are about to have sex, it is critical that you are certain that the person you are about to have sex with is at least 16 years old. Never take someone’s word in a matter as serious as statutory rape.georgia-juvenile-defense

Several of our clients find themselves in these situations far too often.  In several situations, the parents of the alleged victim find out that their child is having sex and file charges with law enforcement.  The same happens at a school where teachers know of students having sex and report it to law enforcement. In any scenario it is important to stay ahead of the charges and seek legal counsel to help navigate you through the legal process.

There are few circumstances where a person charged with statutory rape may face a misdemeanor instead of a felony charge.  In Georgia, it is a misdemeanor if you are 18 years old or younger and the alleged victim is between 14 and 16 years old.  In any other circumstance, statutory rape is a felony with a penalty of one to twenty years in prison. However, if you are over the age of 21, then you will face a minimum of ten years in prison and a maximum of twenty years. In addition, if you are convicted of felony statutory rape you must register as a sex offender for the rest of your life.

If you have been charged with a violation of Georgia’s statutory rape law, call our office and we can help you navigate the system. Our office has extensive experience in misdemeanors and felonies. Fighting charges with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future charges lowered or dismissed. Our firm can handle your misdemeanor or felony case with the expertise you need to save your record. Give us a call for a free consultation at 404-581-0999.

Overcharged

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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.

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

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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.