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Civil Forfeiture – What does it mean?

Unfortunately you got stopped by the police while driving and you had something in your car that was illegal that resulted in your arrest – maybe your stash of THC cartridges, some loose leaf marijuana, and the cash you had been saving up.  Your main concern is of course the pending criminal case against you, but did you know the state can also seize the drugs, cash and even your vehicle?

It’s called civil forfeiture, and it’s legal in Georgia under the Uniform Civil Forfeiture Procedure Act.  The State can seize any assets it claims were used in furtherance of the illegal activity.  So what do you do?  You need to protect yourself in the criminal case and also in the civil forfeiture case.  You’ll know your property has been seized because you’ll be given a Notice of Seizure either by the police at the time of your arrest, or recently after.  Timing is important here, because you have only 30 days to notify the prosecutor’s office that you are asserting a claim on the property.  During this time you’ll want to gather all the documentation you have to show that your seized property was not used in furtherance of the illegal activity.  This could be proof of purchase of the vehicle, pay stubs from your employer, etc.  A knowledgeable attorney can file the notice of your claim with the proper documentation, ensuring that it gets to the right people.

From there the State will serve an official document on you called a Complaint.  They must do so within 30 days of receiving the notice of your claim.  Once you have been served with the Complaint, you then have only 30 days to respond by filing what is called an Answer.  Once all the paperwork is submitted, the court will hold a bench trial, usually within 60 days, to determine if your property should be returned to you.

This is a multi-step, technical process, and our law firm can help you navigate it to get your property back.  If you’re facing a criminal case with civil forfeiture of your property, call the Law Offices of W. Scott Smith at 404-581-0999 for a free consultation.

Possession of Marijuana with Intent to Distribute, How a Misdemeanor becomes a Felony

I had a misdemeanor amount of weed (less than one ounce) but I am being charged with a felony, what gives?

The Offense

Pursuant to O.C.G.A. §16-13-30(j)(1), “it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute marijuana.” Even though the police and prosecutor may not be able to prove an actual sale occurred, they will try to discover and introduce circumstantial evidence that the person intended to distribute marijuana.

Circumstantial evidence of intent to distribute can include: scales, empty Ziploc bags, drug paraphernalia, large amounts of cash in different denominations, firearms, division of drugs into individual packages, cell phone data, or a prior conviction of possession with intent to distribute.

Possible Punishment

O.C.G.A. §16-13-30(j)(2) states that anyone violating O.C.G.A. §16-13-30(j)(1) “shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years.” This charge is eligible for probation, but a felony conviction can create issues in obtaining employment, housing, and schooling.

If no defenses are available, certain sentencing options such as conditional discharge or first offender treatment may be available which ultimately result in the case getting dismissed.

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.

Georgia Criminal Law – Drug Schedules for Controlled Substances

Georgia and Federal law provide for the “scheduling” of different controlled substances. Controlled substances are divided into different categories based on potential for abuse and medicinal use, if any. Violating state or federal controlled substances laws can result in misdemeanor or felony punishment depending on the type of substance and quantity involved.

Schedule I: These substances have a high potential for abuse and no accepted medical use. Schedule I drugs include Heroin, LSD, Psilocybin (mushrooms), and MDMA (Ecstacy). Although marijuana is considered Schedule I under federal law, Georgia treats marijuana possession differently. In Georgia, simple possession of less than one ounce of marijuana is punishable as a misdemeanor. However, if marijuana is chemically altered to another state (thc oil or wax), it can be charged as a felony.

Schedule II: These substances have a high potential for abuse but have at least some accepted medical use. Schedule II drugs include Cocaine, Amphetamine, Opium, Morphine, Codeine, Hydrocodone, Oxycodone, Ketamine, and Fentanyl.

Schedule III: These substances have less potential for abuse than Schedule I and II as they have some accepted medical use but may lead to moderate or low physical dependence if abused. Schedule III drugs include Central Nervous System (CNS) depressants, CNS stimulants, anabolic steroids, certain barbiturates, and substances or mixtures containing limited amounts of narcotics.

Schedule IV: These substances have low potential for abuse compared to Schedule III, having some accepted medical use, but may lead to limited physical and psychological dependence if abused. Schedule IV drugs include Alprazolam (Xanax), Clonazapam (Klonopin), Diazepam (Valium), and Zolpidem (Ambien).

Schedule V: These substances have low potential for abuse compared to Schedule IV, having some accepted medical use, but can also lead to limited physical and psychological dependence if abused. Schedule V drugs include substances or mixtures containing limited amounts of narcotics and must be lawfully prescribed.

A person accused of unlawful possession or the sale/distribution of any of the above controlled substances is facing serious criminal charges. A skilled and experienced attorney is necessary to navigate the law and successfully defend criminal charges.

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 Schedule 1 Controlled Substances – VGCSA – Georgia

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.

Possession of Marijuana is Still a Crime in Georgia

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

The Offense

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

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

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

Punishment

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

DUI: Drugs

DUI drugs charges can be a source of confusion for defendants and lawyers alike. This article will explore these laws and explain their meaning, what must be proven, how they are proven, and how to defend against them.

There are three ways to charge DUI Drugs cases: (1) DUI Drugs – Less Safe; (2) DUI Drugs – Per Se; and (3) DUI Drugs – Combined Effect.

DUI Drugs – Less Safe

Georgia law prohibits a person from driving a vehicle while under the influence of any drug to the extent that it is less safe for the person to drive. O.C.G.A. 40-6-391(a)(2). This “less safe” statute requires proof (beyond a reasonable doubt) that the quantity or amount of the prescribed, illicit, or even over-the-counter drug in the person’s system caused impairment or rendered the person to be a “less safe driver.” Therefore, a person can be prosecuted even though the drugs were legally prescribed or were provided over-the-counter, so long as consuming those drugs caused you to be a less safe driver.

The “less safe” provision is the most common way DUI drugs charges are prosecuted. The State is not required to prove the accused had a particular level of drugs in their system. As a result, the State may prosecute even though no chemical test exists. The arresting officer will look for the following indications of impairment:

  • Admitting to using drugs
  • Bloodshot or watery eyes
  • Slurred or slow speech
  • Presence of drugs in vehicle or on person
  • Bad driving
  • Poor performance on Standardized Field Sobriety Tests

The key to defending these “less safe” drugs cases is raising doubt as to whether the drugs taken were the actual cause of the bad driving complained of. This causation element is something the State is required to prove. There are many reasons for bad driving unrelated to the consumption of drugs. In addition, defense counsel should raise challenges to the arresting officer’s training and experience in detecting and investigating DUI Drugs cases. In many instances, the arresting officer does not have the degree of training required to properly investigate these cases such as an officer who is qualified as a Drug Recognition Expert (DRE). Furthermore, defense counsel should raise a Harper challenge to the scientific validity of the Romberg Field Sobriety test if that test was performed by the accused. [1]

DUI Drugs – Per Se

Georgia law makes it illegal for a person to operate a vehicle while there is any amount of marijuana or a controlled substance, as defined in O.C.G.A. § 16-13-21, present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether any alcohol is present in the person’s breath or blood. O.C.G.A. 40-6-391(a)(6).

Given the language of the law, the mere presence of a drug (prescribed or not) will constitute a violation of this code section. The question becomes how an arresting officer would know whether the accused had a valid prescription or not? Without an admission, this would be difficult for a prosecutor to prove.

Issues of proof aside, Love v. State, 271 Ga. 398 (1999), has essentially wiped out the “DUI Drugs – Per Se” law entirely. The Love case held that O.C.G.A. § 40-6-391(a)(6), was too broadly drawn, as it incriminates both legal and non-legal users of marijuana, constituting a violation of the Equal Protection clause of both the Georgia and United States Constitutions. This is the primary reason most DUI Drugs cases are prosecuted as “Less Safe” cases.

What remains of the DUI Drugs – Per Se statute is to punish those cases where someone is driving with drugs in their system which offer no lawful use (cocaine, heroin, etc.).

DUI Drugs – Combined Influence

Under O.C.G.A. § 40-6-391(a)(4), a person is prohibited from driving a vehicle while under the influence of any two or more of the substances provided in the DUI code section (alcohol, drugs, or toxic vapors) to the extent it is less safe for the person to drive.

Again, we see the State being required to prove the accused was a less safe driver because of the combined effects of two or more intoxicants (alcohol and drugs – prescribed or not). Although these cases present greater challenges, a skilled attorney can raise doubt as to whether the combined effect of intoxicants actually caused less safe driving.  

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


[1] The Romberg test consists of the subject tilting their head back, closing their eyes, and counting in their head until the subject believes thirty seconds has elapsed and then telling the officer when they believe those thirty seconds had elapsed.

Drug Defense

Here are the most common defenses in Georgia to drug charges:

Unlawful Search and Seizure

The Fourth Amendment to the U.S. Constitution and Paragraphs One and Eight of the Georgia Constitution guarantees the right to due process of law, including lawful search and seizure procedures prior to an arrest. Search and seizure issues are very common in drug possession cases.   The vast majority of our wins have come from our extensive knowledge of Georgia Law and the limitations law enforcement are required to follow.

Mischarged Drug Case

We commonly see someone charged with offenses they didn’t commit.  Examples include Possession with Intent to Distribute where the drugs seized were for personal use.  Other examples can include where the drugs are misidentified.  The drug analyst then must testify at trial in order for the prosecution to make its case.

Drugs Belong to Someone Else

A common defense to any crime charge is to simply say you didn’t possess it or the drugs were not yours. In Georgia, possession can be constructive but that still requires the State to prove you intended to possess the drugs.

Entrapment

While law enforcement is free to set up drug buys, entrapment occurs when officers or informants induce a suspect to commit a crime he or she otherwise may not have committed. If an informant pressures a suspect into passing drugs to a third party then this may be considered entrapment.

Call us today

Our goals are to meet your goals.  Some clients want to avoid prison.  Other clients want to protect their criminal history and the collateral consequences that can be so harmful as a result of a drug conviction.  Whatever the goal, we will do everything in our power to meet your goals. 

by Scott Smith

VIDEO: DUI Courthouse Procedure in Municipal Court of Atlanta

Peachstate’s own W. Scott Smith discusses procedure in the Municipal Court of Atlanta for people arrested for DUI in the City of Atlanta.

http://www.youtube.com/watch?v=8EYTmmB0KDc&feature=youtu.be

For those arrested for DUI in the city of Atlanta, you are generally pulled over by a city of Atlanta police officer or a Georgia Department of Public Safety state trooper. They will give you a citation to appear in court at 150 Garnett Street, Atlanta, GA 30303 generally within 72 hours of the time of arrest. The Municipal Court of Atlanta generally has between 800 and 1500 people on its calendar daily. The courtroom that handles DUI in the Municipal Court of Atlanta is Courtroom 5A and the Judge is Christopher E. Ward. He takes the bench promptly around 8:10 every morning. He handles all cases for citizens who have retained private counsel first before handling unrepresented persons or persons who have hired the public defender. No electronic devices are allowed in his courtroom and he requires everyone pay attention to all proceedings (no reading of books, newspapers, or magazines, either).

If you’ve been arrested, we can handle that first court appearance for you. If you hire our law firm we will file an entry of appearance on your behalf and show up at that first court date. We will also show up at all subsequent court dates on your behalf which will hopefully ease the burden of arrest. Don’t go into the City of Atlanta unrepresented. Call 404-581-0999 today for a FREE CONSULTATION. We will meet with you on the weekend if necessary to discuss your case and representing you in this pending DUI charge.