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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.

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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.

Self-Defense

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Self-Defense

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

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

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

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

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

Overcharged

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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.

SB-440

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Being Charged as an Adult in Georgia

Part 1: SB-440: Automatic Transfers to Superior Court

 In 1994, Georgia enacted State Bill 440 (more commonly referred to as SB-440) to “provide that certain juvenile offenders who commit certain violent felonies shall be tried as adults in the superior court. This SB-440 law granted adult courts exclusive jurisdiction over criminal cases involving juveniles (ages 13-17) who are charged with one or more of the following “Seven Deadly Sins”:

  1. Murder
  2. Armed Robbery with Firearm
  3. Rape
  4. Voluntary Manslaughter
  5. Aggravated Sexual Battery
  6. Aggravated Sodomy
  7. Aggravated Child Molestation

 

O.C.G.A. 15-11-560(b)

In essence, juveniles (age 13-17) charged with one of the above-mentioned crimes in Georgia will automatically have his or her case  transferred from juvenile court to superior court, where he or she will be charged, tried, and punished as an adult. If convicted and sentenced to prison, the juvenile will not be sent to a Youth Detention Facility through Georgia’s Department of Juvenile Justice. Instead, the juvenile will be housed with other juvenile inmates in the custody of Georgia’s Department of Corrections until he or she reaches the age of 17 and is thrown into the general prison population.

Occasionally, at the discretion of the prosecutor, a SB-440 case may be transferred back to juvenile court after “after investigation and for cause” if the case has not been indicted yet. By contrast, after indictment, a SB-440 case can only be transferred to juvenile court for “extraordinary cause.” O.C.G.A 15-11-560(d), O.C.G.A. 15-11-560(e). Therefore, time is of the essence when it comes to advocating for the case to be transferred back to juvenile court.

If you know someone charged as an adult with an SB-440 crime, PLEASE contact us at the Law Offices of W. Scott Smith. We would be happy to help you with your case and answer any and all of your questions about juveniles charged as adults.

Do I Have A Criminal History?

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

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

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

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

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

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

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

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

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

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

CURRENT GEORGIA LAW AND DUI-MARIJUANA CASES

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

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

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

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

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

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

WHAT ABOUT MY LICENSE?

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

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

I Got Arrested for DUI, But They Never Read Me My Rights

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One of the most common DUI questions we get at W. Scott Smith, P.C. is: “Why didn’t the Officer have to read me my Miranda rights?”  What a great question!  Let me see if I can explain.

The Miranda warning stems from a famous United Supreme Court case, Miranda vs. the State of Arizona.   In that case, the Supreme Court of the United States said that IF you are placed into custody and then the Officer attempts to interrogate you, he/she has to warn you of a few rights.  We know these rights as the Miranda Rights and they go like this:

You have the right to remain silent.

Anything you say or do may be used against you in a court of law.

You have the right to consult with an attorney before speaking to the police and to have an attorney present during questioning now or in the future.

If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.

If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.

Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney?

If the officer chooses not to read you the warning while you are in custody and still proceeds with questioning, then any statements you make may be suppressed by the court at a later date and ultimately result in your case being much stronger.

 

So Why Didn’t the Officer Read Those to Me When He Placed Me Under Arrest for DUI?

In most DUI cases, not all, the Officer is NOT required to read you the Miranda Warning.  Most Officers will wait to place a driver they suspect to be under the influence of alcohol or drugs under arrest (or in custody) to avoid having to read the Miranda Warning.  Which makes sense, right?  The Officer is trying to get you to answer questions about your consumption of alcohol and have you submit to testing that he/she plans to use against you at trial.  If he starts telling you that you have the right to have a “pesky” lawyer like me present, you’re probably not going to do anything.   In Georgia, our appellate courts have determined that when you are asked to exit the vehicle and perform field sobriety testing or answer questions about where you were or where you are going, you are NOT deemed to be in custody, and thus, not entitled to have the Miranda Warning read to you.

BUT, the question of whether or not you are in custody CAN be a sticky issue.  We encourage anyone who has been arrested for DUI in the State of Georgia to contact our office immediately for a FREE consultation (404-581-0999).   Our lawyers can use their knowledge and experience to determine whether or not the Miranda Warning should have been read in your case, which sometimes can mean the difference between your case being dismissed and a conviction for DUI.