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Can My Criminal Record be Expunged? Record Restriction and Sealed Records in Georgia

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by Mary Agramonte

We know how hard it is to rebuild your life when you have a criminal history following you. In Georgia, your complete criminal history is released for employment and licensing purposes, no matter how long ago you were arrested, unless your record is restricted or sealed. If you have recently been arrested and just want a second chance, Georgia has several options available. These options allow certain individuals who have been arrested to avoid having potential employers see their criminal record. Even if you were arrested in the past, you may be eligible to have your record restricted or sealed from people being able to access it.

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

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

Under Georgia’s Record Restriction law, O.C.G.A. §  35-3-37, you may be qualified to hide your arrest record from potential employers. This is available for you if your case was dismissed, not presented to a grand jury, twice no-billed by the grand jury, or if you had a trial and were found not guilty on each and every charge. If you were arrested after July 1, 2013, your record is automatically restricted, meaning your official Georgia criminal history report (GCIC)  will not be released to any employers or licensing boards. If you were arrested prior to July 1, 2013, and your case was dismissed or you were found not guilty on every charge, then you will need to apply to have your record restricted on your official criminal history report.

However, even if your record is restricted, your court records will remain in the clerk’s office as public records. Unfortunately, many employers do not use official background checks through GCIC. Instead, they use private companies. If your record is restricted, there is an additional step that is not automatic that can protect you and your criminal history from finding its way onto the internet and into the hands of potential employers. This process is known as petitioning the court to seal your records and can also be found under O.C.G.A. §  35-3-37(m).

There is another new and exciting law in place that truly helps individuals who have struggled with getting jobs over the years based on a conviction in their past. This is known as the Retroactive First Offender statute. To qualify, you must have been eligible for First Offender treatment, yet were not informed of it, and the prosecuting attorney must consent. If you were convicted of the crime or pled guilty to it in the past, Georgia only allows for record restriction if you are eligible under the Retroactive First Offender Statute.

We are experienced lawyers here to help. We know how hard it is to move on with your life when you have an arrest record or conviction holding you back. There are laws in place that help past offenders clean up their record and move on once and for all. If this is a new arrest, there are also several avenues to take if you are concerned about your criminal history and how it’s going to affect your career and your future. Call us today at 404-581-0999 for a FREE CONSULTATION to see how we can help with your criminal record.

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.

Miranda Rights

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MIRANDA RIGHTS

By Andrew Powell Esq.

Almost everyone has seen a crime television show and heard the infamous phrase “you have the right to remain silent, anything you say can and will be used against you in the court of law, you have the right to an attorney, and if you cannot afford one an attorney would be appointed to you.” However, most people do not know when or why this phrase is so commonly used by police. In 1966, the United States Supreme Court decided to require law enforcement officials to read this list of rights to someone who has been taken into custody. These rights are known commonly as your “Miranda Rights.”

Purpose Of Reading The Miranda Rights

The United States Constitution and specifically the Fifth Amendment guarantees anyone who has been arrested the right not to incriminate themselves. Plainly put, an individual does not have to talk to police when they have been arrested. The Constitution and our form of justice requires that the government carry their burden and prove to a judge or jury that someone charged with a crime is guilty beyond a reasonable doubt.georgia-juvenile-defense

Too often law enforcement officials become overzealous with their search for the truth and overstep the Constitutional bounds in their pursuit. It may not surprise you that police use coercive tactics or even lie to someone to get them to confess to a crime. Miranda warnings are a safeguard to protect against those who may cross that Constitutional boundary. The government must show the court that you were read your Miranda rights and that you waived your rights guaranteed by the Constitution.

When Does Miranda Apply To Me?

Confessions are the leading source of Miranda violations. When someone has been accused of a crime, big or small, they are often questioned in connection with that crime. Miranda rights must be read to someone after they are under arrest and before any law enforcement official asks any questions to the suspect.  Law enforcement officials have a tough job and they investigate crimes every day. Many officers are trying to make quick decisions based on little information. However, this does not allow them to just simply force people to talk to them and answer their questions.

Many times law enforcement officials will arrest someone and take them back to the police station for an interview. Generally, they will quickly go over your rights with you and ask you if you want to talk to them. If you have been charged with a crime this is where you want to stop and tell the law enforcement official that you would like to speak to your attorney.

When Does Miranda Not Apply To Me?

People sometimes think that any encounter with law enforcement requires them to read you your Miranda rights. This is untrue. Most encounters between people and law enforcement do not require the reading of your Miranda rights. As discussed above, the Miranda warnings are only required when you have been placed under arrest and the police are asking you questions regarding the crime.

Traffic stops are a common place to have an encounter with law enforcement where Miranda warnings are not required to be read to someone. In this circumstance, generally you are not under arrest and law enforcement is just going to ask you some general questions and write you a ticket.

In terms of a DUI, the police officer is not required to read the Miranda warnings. The officer may ask you to take a series of tests, known as Field Sobriety Tests or request you to blow into a machine that registers your blood alcohol content. Even though the officer does not have to read your Miranda rights to you, you have the ability to refuse these tests and refuse giving a breath sample.

Another common scenario is when law enforcement asks you to come to the station and make a statement. In this circumstance, Miranda warnings are not necessary because you have voluntarily come to the police station and are not under arrest. Remember, law enforcement is only required to give you the Miranda warnings once you have been arrested and before they initiate any questioning of you.

What Does A Miranda Violation Mean For Me?

Confessions or statements made to law enforcement will not be allowed at trial if law enforcement has not, first, read you the warnings required in Miranda. If you were forced into making a statement or the police did not read your rights to you and you then confess to a crime, whether it is a DUI or murder, that confession cannot be used against you at your trial. With your statement or confession tossed out it can help strengthen your case and possibly force the prosecutor’s office to drop the charges because they do not have enough evidence to prosecute you.

If you have been charged with crime and feel your rights were violated during the process, 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. At the W. Scott Smith law firm we can identify where the police have violated your rights and ensure evidence will be kept out. 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.

SELF DEFENSE

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Self Defense

Defense of Persons and Property in Georgia and the Effect of the “Stand Your Ground” Law

As discussed previously, [Murph’s blog- http://www.peachstatelawyer.com/self-defense/] self-defense is a justification defense where an individual is admitting that he or she committed the crime but claiming that his or her use of force was justified.

Self-defense is part of a broader set of statutes that define the situations in which a person is justified in using force. In Georgia, an individual is typically justified in using force to defend both persons and property. See O.C.G.A. § 16-3-21; O.C.G.A. § 16-3-23; O.C.G.A. § 16-3-24.

Determining whether an individual was justified in using force requires a multi-factor analysis which varies greatly depending on the specific facts of the encounter. Some of the factors include: who was the aggressor, whether the harm was imminent, whether the force was proportional, and whether the individual’s belief was reasonable.

The individual claiming justification cannot be the aggressor.

An altercation can progress in stages, and the initial aggressor can become the innocent party if the other party escalates the altercation to a more violent level. Therefore, an individual who pulls out a knife during a fist fight can be deemed the aggressor even though the other individual initiated the fist fight. In this example, the individual wielding the knife can also withdraw from the confrontation by taking affirmative steps to indicate that he does not wish to fight any more. Such indications might include verbally communicating a desire to end the fight and walking away.

The individual must believe that he or she is defending against the imminent use of unlawful force.

The individual must believe that he or she is in imminent danger which means that the aggressor must appear to be capable of immediately carrying through with the threatened use of force. The individual can even be mistaken in their belief that he or she was threatened by imminent harm so long as the mistake is reasonable. If there has been a pause in the altercation (ie. the aggressor walks away) or additional steps must be taken before the aggressor can carry through with his or her threats then the danger is no longer imminent.

The individual’s use of force must be proportional to the threatened harm.

Generally, force can be divided into two main categories, deadly and non-deadly. An individual’s use of force must be no greater than necessary to defend against the threatened harm. A citizen is typically justified in using any means of non-deadly force to defend persons or property, but deadly force is only justified in response to a threat of imminent deadly force. The use of a deadly weapon is almost always considered deadly force, but even someone’s fists could be considered deadly force when considering the difference in size between the two individuals and relative strength.

The individual’s belief that force was necessary must be reasonable.

The standard by which reasonableness is measured is both subjective and objective. To satisfy the subjective standard, the individual must actually believe that force was necessary. This is where the individual’s prior dealings and experience with the aggressor can come into play. The objective standard looks at whether a reasonable person would have believed that force was necessary to defend against the threatened harm.

No Duty to Retreat – “Stand Your Ground” Law

In some states, an individual has a duty to retreat. However, Georgia has removed this requirement by passing a so-called “Stand Your Ground” law. O.C.G.A. § 16-3-23.1. Under this law, a citizen is not required to retreat from a violent confrontation. The key here is that an individual is not required to retreat, but the decision not to retreat can still factor into the previous considerations such as the reasonableness of the belief that force was necessary. Thus, this law does not give an individual unfettered discretion to use force.

Although Georgia has enacted statutory protections to allow an individual to stand his ground, one should not accept this protection as a license to kill. Any time deadly force is used, police will be involved and the decision to use deadly force will be scrutinized. It is always best to attempt to de-escalate a situation and avoid any loss of life. However, we recognize that these decisions can take place in a matter of seconds, and our firm has a history of success with self-defense cases. [Scott’s case – http://www.ajc.com/news/news/crime-law/woman-found-not-guilty-of-murder-in-killing-at-eas/nmyM4/] If you believe you had every right to defend yourself, others, or property, then contact our office today at 404-581-0999.

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.

Move Over Law

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MOVE OVER LAW

By Mary Agramonte J.D.

Georgia’s “move over” law is designed to keep officers, emergency workers, and first responders safe when they are stopped on the side of the road with their emergency lights flashing. The law was passed in 2003 to reduce the number of police officer and HERO fatalities that were occurring due to traffic crash responses. The “move over” law saves lives and makes sense, but unfortunately, too many Georgia motorists are unaware that it exists until they are slapped with a $500 fine.

Under O.C.G.A. § 40-6-16, Georgia law requires drivers to move over to the next lane if safely possible when passing a stationary emergency vehicle, towing vehicle, or recovery vehicle when their lights are flashing. If moving over is absolutely impossible, the law requires you to slow down to below the speed limit and be prepared to stop your car if necessary. Violations can result in a fine of $500 for the first offense. Once you factor in the court costs, however, this can put you well above $500, even if this was your first offense, and even if you had never heard of the law. Paying the fine on your citation means you are admitting you are guilty to the offense which raises a number of consequences.

MaryPic2

Mary Agramonte has her Juris Doctorate from Georgia State University.

A violation of this statute could cost you much more than the fine itself. A conviction for this traffic offense will also add 3 points to your driving record, and it will stay on your record forever. A driver who is over the age of 21 is allotted 15 points in a 24 month period before the Department of Driver Services will suspend a driver’s license. Points on your record also subject you to higher car insurance rates because your insurer believes you are more likely to file a claim than someone with lower points on their record. Getting just one traffic ticket can boost an average person’s auto insurance premiums by as much as 22 percent.

Additionally, violating Georgia’s move over law can be a basis for an officer to stop your vehicle which can lead to even more serious charges. Under both the Georgia and the United States Constitutions, an officer needs “reasonable articuable suspicion” to justify pulling your vehicle over for an investigative stop. Violating this statute gives the officers that power to stop you and investigate you, which ultimately can lead to a DUI arrest or the investigation of other potential and more serious crimes.

To avoid these repercussions of violating Georgia’s move over law, always drive attentively and don’t risk being pulled over or injuring the emergency workers on the side of road. If you see lights ahead, do all that you can to safely move over. If moving over safely is impossible, remember to slow down below the speed limit when passing emergency lights, and be prepared to stop. It can save lives, and it can save you money and the hassle.

If you have been charged with a violation of Georgia’s move over law, call our office and we can help you navigate the system. Our office has extensive experience in traffic violations and DUI defense. Fighting traffic tickets with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future citations lowered or dismissed. Our firm can handle your traffic ticket case with the experience you need to save your record. Give us a call for a free consultation at 404-581-0999.

Bench Warrant

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Bench Warrant

Being arrested and having to show up for court can be stressful enough.  What’s even more stressful is missing a court date and knowing that there is a bench warrant out for your arrest.  Clearing a bench warrant is different in every jurisdiction, but there are a few common aspects of the law that can help in clearing a bench warrant.

First, it’s important to understand how a bench warrant is issued.  When a Georgia citizen is arrested and released from custody they are either given a court date at the jail or the person is told that a court date will be sent to them by mail.

Some cases, especially felony cases, are not immediately docketed with the court and it can take time before the courts add your case to the calendar.  In some jurisdictions that can mean months and even years before a court date is set up for your case.   Unfortunately, those court dates don’t always make it into your hand and if you missed your court date, then the Judge can issue a bench warrant for your arrest.   A bench warrant is warrant issued directly by the Judge for missing court.  A bench warrant instructs all law enforcement authorities to immediately arrest the person listed on the bench warrant and return them to court.Marietta-Office-Courtroom

So what do you do if you if you have a bench warrant?  Well, if you’re aware of a warrant it’s important to realize that it is unlikely that the warrant is going to go away on its own.  In fact, the warrant will remain until the Judge addresses the issue of why you missed court.   Because of that, it’s important to contact a lawyer immediately to address possible options.  Some jurisdictions will allow the attorney to discuss the case with the prosecutor and potentially resolve the warrant without you having to go back to jail.  In other jurisdictions, it will be on you to turn yourself in and allow your lawyer to work diligently on getting you in front of the Judge as soon as possible.

In some circumstances it can be shown that you did not in fact receive notice.  If the evidence shows that to be the case then the Judge would have the ability to lift the bench warrant and give you a new court date.  Or you may have been in custody in another jurisdiction and you were not able to make court because you were not transported to the courthouse. In those situations a lawyer can obtain a proof of incarceration and ask the Judge to lift the bench warrant immediately.   In any event, a lawyer can assist in helping lift a bench warrant and get you back to your loved ones as soon as possible.

Every courthouse is different.  It’s important to have a lawyer who knows how to effectively represent individuals with bench warrants.  At W. Scott Smith P.C., our lawyers have handled cases all over the State of Georgia and know the quickest ways to lift a bench warrant.  If you have an active bench warrant and need assistance, please call 404-581-0999 for a free consultation.

Family Violence Battery

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FAMILY VIOLENCE BATTERY

A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors.   Frequently, I meet with individuals who come to our office with citations from a police officer charging our client with battery or simple battery.  The stories range in complexity, but often I learn from our initial consultation that the alleged victim in the case is someone who can elevate the charges from Battery to Family Violence Battery.  Many times the Officers do not include the Family Violence component on the citation and clients are surprised to learn that their case can be modified by the State prosecutor to include even more consequences.  For some clients, this is their first interaction with law enforcement and their concerns include: jail time, criminal history reports, and trial options.   All of these concerns are very real when facing Family Violence Battery charges.

Before we get started with the impacts of a Family Violence Battery conviction, it’s important to note that not all charges for Battery and Simple Battery have a Family Violence Battery component.  In order to be charged with Family Violence Battery the alleged victim must be:

  • A spouse
  • Persons who are parents of the same child
  • Children
  • Step-Children
  • Foster Children
  • Other persons living in the same household (roommates)

State prosecutors will often include multiple counts of Battery, Simple Battery, and Family Violence Battery within one formal charging document, called an accusation.  Unfortunately, many people go to court on their first court date, without exploring the consequences of a Family Violence Battery conviction, and enter a plea.   Whether the person committed the acts alleged or they simply just want to put this chapter of their life behind them, even though they’re innocent, it’s vital to consult with an attorney.  At the very least, an attorney can discuss the implications of being convicted of Family Violence Battery.

So how does it work?  Every citizen who has been arrested for a crime is fingerprinted and has criminal history created that includes the arrest, the charging document (accusation or indictment), and the ultimate outcome of the case.  A first conviction for Family Violence Battery is a misdemeanor that carries a maximum penalty of 12 months in custody and a $1000 fine.  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.   O.C.G.A. 16-5-23.1.

While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several ancillary 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.

In addition, while the maximum includes 12 months in custody and a $1000 fine, many Judges throughout the State will require individuals convicted of Family Violence Battery to serve time on probation in lieu of jail time, but 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.

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.