Georgia Criminal Defense Attorney Archives | Page 2 of 9

How the Fourth Amendment Could Protect You in Drug Cases

September 1, 2023/in 4th Amendment, Blog, Cobb County, Criminal History, Criminal Law, DeKalb County, Drug Law, Drug Possession, Evidence, Felony, Fulton County, Georgia, Georgia Criminal Law, Georgia Drug Law, Georgia Law, Gwinnett County, Henry County /by lawyer

The Fourth Amendment provides safeguards for individuals during their interactions with law enforcement. If evidence is discovered during an interaction that violates an individual’s Fourth Amendment rights, that evidence cannot be used against the individual in court.

This issue commonly arises in cases where an individual is pulled over for a traffic violation and is subsequently charged with possessing drugs. For example, if an officer pulls you over for crossing the solid line, they are not allowed to search your car for drugs if you do not consent to the search. While there are certain exceptions in place to ensure officer safety and to prevent the destruction of evidence (such as patting down an individual on the outside of their clothing to search for weapons, for example), the officer cannot freely look through your pockets or inside your vehicle.

Understanding Fourth Amendment protections is complex, and it is important that you hire an experienced attorney if you are charged with a serious offense like possession of drugs, possession of drugs with intent to distribute, or trafficking drugs. The lawyers at W. Scott Smith, PC will work diligently to discover any Fourth Amendment violations in your case and to keep the harmful evidence out of court. If you are charged with one of these serious offenses in Clayton, Cobb, Dekalb, Fulton, Gwinnett, or Fayette Counties, call our office at 404-581-0999 today for a free consultation.

Statutory Rape

August 21, 2023/in Blog, Cobb County, Consent, Criminal Law, DeKalb County, Felony, Fulton County, Georgia, Georgia Criminal Law, Georgia Law, Georgia Sex Crimes, Gwinnett County, Henry County, Rape, Sex Crimes, Statutory Rape /by lawyer

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.

Child Molestation in Henry County

August 10, 2023/in Blog, Child Molestation, Criminal Law, Felony, Georgia, Georgia Criminal Law, Georgia Law, Georgia Sex Crimes, Henry County, Sex Crimes /by lawyer

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

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

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

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

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

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

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

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

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

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

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.

Enticing A Child for Indecent Purposes in Paulding County

May 24, 2023/in Blog, Criminal Law, Enticing a Child, Federal Law, Felony, Georgia, Georgia Criminal Law, Georgia Law, Georgia Sex Crimes, Sex Crimes /by lawyer

Enticing a child for indecent purposes is a serious crime in Paulding County. It is imperative that you retain a qualified attorney immediately if you are being accused of Enticing a child for an indecent act. Many allegations of enticing a child are false. Even if you know the allegation of enticing a child against you is made up, you still must take it very seriously and aggressively defend yourself. The Paulding County District Attorney’s office has a unit dedicated to prosecuting sex crimes.

O.C.G.A. § 16-6-5 defines Enticing a Child for indecent purposes as follows:

A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.

The Paulding County District Attorney must prove a joint operation of (1) the act of enticing a child and (2) the intention to commit acts of indecency or child molestation.

Enticing a Child for Indecent Purposes is different than Child Molestation because of the extra element of asportation. The asportation element is satisfied with the taking involving physical force, enticement or persuasion. The evidence must show some movement of the child. It can be slight movement.

Indecent Acts means illicit sexual conduct. Because the statute refers to both indecent acts and child molestation, it is reasonable to assume that indecent acts are different than acts punished by the child molestation statute.

Neither consent nor lack of knowledge of the child’s age is a defense to prosecution under the Enticing a Child statute.

The statute is intended to protect children from sexual predators. It is unlawful to entice any child under the age of 16.

The punishment for Enticing A Child is a mandatory of 10 years imprisonment up to 30 years and at least 1 year of probation.

The Paulding County District Attorney’s office vigorously prosecutes these cases.

Do not wait until the Paulding County District Attorney actually returns an indictment against you for Enticing a Child before seeking an attorney. It is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

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

Sodomy in Fulton County

April 21, 2023/in Blog, Criminal Law, Felony, Fulton County, Fulton County Jail, Georgia, Georgia Criminal Law, Georgia Law, Georgia Sex Crimes, Sex Crimes, Sodomy /by lawyer

Sodomy is a serious crime in Fulton County. O.C.G.A. § 16-6-2 established two separate criminal offenses. O.C.G.A. §16-6-2(a)(1) defines sodomy as the performance of or submission to a sexual act involving the sex organs of one person and the mouth or anus of another. O.C.G.A. § 16-6-2(a)(2) defines aggravated sodomy as the commission of sodomy with force and against the will of the other person involved or with a person who is less than ten years of age.

The offense of aggravated sodomy protects individuals from violent acts where the offense of sodomy punishes consensual sexual behavior.

For sodomy, all that is required is contact between the sex organs of one person and the mouth or anus of another person. Proof of penetration is not required in a sodomy case unless is specifically listed in the indictment. Whether there was prohibited contact between the defendant and alleged victim is solely a question for a jury.

No corroboration is required in a sodomy case.

Aggravated Sodomy is different than Sodomy. In order to make out a case for Aggravated Sodomy, the State must show that the contact was made both with force and against the will or without the consent of the alleged victim. The standard of proof is the same as required for a rape case. Both the words and actions of the accused can be used to determine if the alleged victim was in reasonable apprehension of bodily harm.

O.C.G.A. § 16-6-15 prohibits the solicitation of sodomy. Solicitation of sodomy is defined as soliciting another individual to perform to a sexual act involving the sex organs of one and the mouth or anus of another and such act is to be performed in public in exchange for money or anything of value or by force or by or with an individual who is incapable of giving legal consent to sexual activity. In order to be convicted of solicitation of sodomy, the State must be present sufficient evidence of all three elements of the crime.

If you are convicted of sodomy, it is a felony punishable by not less than one nor more than twenty years in prison and is subject to the sentencing provisions of § 17-10-6.2 which requires the sexual offender to receive a split sentence including the minimum sentence of imprisonment.

Aggravated Sodomy is also a felony and is punishable by either life imprisonment or by a split sentence of imprisonment for not less than 25 years and probation for life.

Solicitation of sodomy is a misdemeanor. However if the solicitation is of someone under 18 years of age or the solicitation is for money then it is felony punishable of not less than 5 nor more than 20 years in prison.

If the victim is at least 13 years old but less than 16 years of age and the person convicted of sodomy is 18 years of age or younger and is no more than 4 years older than the victim, then the accused would be guilty of a misdemeanor and would not be subject to the sentencing provision of O.C.G.A. §17-10-6.2.

If you are arrested in Fulton County for sodomy or aggravated sodomy, you will be in the Fulton County jail at 901 Rice Street. You will be on the first appearance calendar the next morning at the Fulton County jail at 11:30am. After that date, you will be a preliminary hearing in Fulton County Magistrate Court.

Once your case is indicted, it will be transferred to Fulton County Superior Court for trial.

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.

Enticing A Child for Indecent Purposes in Fulton County

January 12, 2023/in Blog, Criminal Law, Enticing a Child, Federal Criminal Law, Federal Law, Felony, Fulton County, Fulton County Jail, Georgia Criminal Law, Georgia Law, Georgia Sex Crimes, Sex Crimes, Sex Offender Registry /by lawyer

Enticing a child for indecent purposes is a serious crime in Fulton County. It is imperative that you retain a qualified attorney immediately if you are being accused of Enticing a child for an indecent act. Many allegations of enticing a child are false. Even if you know the allegation of enticing a child against you is made up, you still must take it very seriously and aggressively defend yourself. The Fulton County District Attorney’s office has a unit dedicated to prosecuting sex crimes.

O.C.G.A. § 16-6-5 defines Enticing a Child for indecent purposes as follows:

A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.

The Fulton County District Attorney must prove a joint operation of (1) the act of enticing a child and (2) the intention to commit acts of indecency or child molestation.

Enticing a Child for Indecent Purposes is different than Child Molestation because of the extra element of asportation. The asportation element is satisfied with the taking involving physical force, enticement or persuasion. The evidence must show some movement of the child. It can be slight movement.

Indecent Acts means illicit sexual conduct. Because the statute refers to both indecent acts and child molestation, it is reasonable to assume that indecent acts are different than acts punished by the child molestation statute.

Neither consent nor lack of knowledge of the child’s age is a defense to prosecution under the Enticing a Child statute.

The statute is intended to protect children from sexual predators. It is unlawful to entice any child under the age of 16.

The punishment for Enticing A Child is a mandatory of 10 years imprisonment up to 30 years and at least 1 year of probation.

The Fulton County District Attorney’s office vigorously prosecutes these cases.

Do not wait until the Fulton County District Attorney actually returns an indictment against you for Enticing a Child before seeking an attorney. It is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

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

Public Indecency in Fulton County

November 18, 2022/in Blog, Criminal History, Criminal Law, Felony, Fulton County, Fulton County Jail, Georgia Criminal Law, Georgia Law, Georgia Sex Crimes, Sex Crimes /by lawyer

Public Indecency is a serious crime in Georgia. It is imperative that you retain a qualified attorney immediately if you have been charged with public indecency.

O.C.G.A. § 16-6-8(a) defines public indecency as follows:

A person commits the offense of public indecency when he or she performs any of the following acts in a public place:

An act of sexual intercourse
A lewd exposure of the sexual organs
A lewd exposure in a state of partial or complete nudity; or
A lewd caress or indecent fondling of the body of another person.

A public place means any place where the conduct involved may be reasonably be expected to be viewed by people other than members of the accused’s family or household.

Under O.C.G.A. 16-1-3(15), a public place is any place where the conduct involved may reasonably be expected to be viewed by someone other than immediately family members. In fact, the residence of the accused may be considered a public place if the person performs the lewd act in front of a window or someplace where he intends the public to see it.

Lewd has been defined as any gross indecency so notorious as to tend to corrupt community morals. The act is one in which it represents a moving away from some form of community morality norms towards amorality, immorality or obscenity which in the final analysis within community standards as to particular acts, as to acceptability or unacceptability, is best left to a jury for determination. The statute does not require that some person be embarrassed, offended or otherwise outraged by the lewd act.

The intent of the accused is relevant in a prosecution for public indecency.

The offense of public indecency is not a crime against the person. The person viewing the lewd act is a witness and not a victim of the crime.

The United States Supreme Court has held that the First Amendment’s guarantee of freedom of expression does not prevent the State of Georgia from enforcing its public indecency laws.

The punishment for public indecency is up to 1 year in prison. If it is a 3^rd or subsequent violation, then the punishment is 1 to 5 years imprisonment. Also, the accused may be required to register as a sex offender under O.C.G.A. §42-1-12.

It is imperative that you do not talk to the police if you are accused of public indecency. Only speak to a qualified attorney so that you can properly defend yourself.

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.

How Hearsay Rules Apply in a Probation Revocation Hearing

November 10, 2022/in Blog, Cobb County, Court Dates, Criminal Law, DeKalb County, Fulton County, Georgia, Georgia Criminal Law, Georgia Law, Gwinnett County, Henry County, probation /by lawyer

If you are on probation for an offense in Georgia, your probation comes with certain conditions. If you are accused of violating your probation, the judge may be able to revoke your probation and sentence you to jail time if the state can show that you violated the conditions of your probation by a preponderance of the evidence. It is important that you have an experienced attorney by your side to protect your rights during your probation revocation hearing.

The rules of evidence still apply in a probation revocation hearing, including how the State may use hearsay statements to prove that you are guilty of violating your probation if a witness is unavailable to testify to the facts that prove the violation.

In a recent Georgia Court of Appeals decision, Grimes v. State, the defendant was accused of violating the conditions of his probation in Henry County when he allegedly made violent contact with individuals he had been ordered to stay away from as a condition of his probation. Rather than calling the alleged victim to testify during the hearing, the State relied on the testimony of a responding police officer and the alleged victim’s 911 call to relay the information needed to prove that the defendant had violated his probation.

The Court of Appeals held that this testimony was hearsay and should not have been admitted during the hearing because it violated the defendant’s constitutional right to due process. The Court of Appeals instructed that the trial court should have, at a minimum, looked into the reasons for the alleged victim’s absence. Additionally, the Court of Appeals held that the hearsay testimony was not reliable because it did not fit into any of the exceptions to the hearsay rule.

If you are on probation and are being accused of violating the conditions of your probation, it is important to have an attorney by your side who understands the rules of the process. At W. Scott Smith, our attorneys specialize in protecting the constitutional rights of our clients. If you are facing a probation revocation hearing, call our office at 404-581-0999 for a free consultation.

Prostitution, Pimping and Pandering in Fulton County

November 10, 2022/in Blog, Criminal Law, Felony, Fulton County, Fulton County Jail, Georgia, Georgia Criminal Law, Georgia Law, Georgia Sex Crimes, Pandering, Pimping, Prostitution, Sex Crimes /by lawyer

Prostitution is when a person performs or offers or consents to perform a sexual act for money or other items of value. O.C.G.A. §16-6-9.

The statute is not about sexual activity per se but is solely concerned with commercial transactions involving sexual activity. The harm is done to society and not to the individual. Therefore, the State is not required to name the person solicited for prostitution.

Both males and females are prohibited from selling sexual acts. Prostitution is only concerned with the seller. The buyer’s activities are not prostitution.

Prostitution is a misdemeanor and is punished up to 1 year imprisonment. In addition, a person may be fined up to $ 2,500 for prostitution if the offense was committed within 1,000 feet of any school building, school grounds, public place of worship, or playground or recreation center which is primarily used of people under the age of 17.

Pimping is when a person performs any of the following acts:

Offers or agrees to procure a prostitute for another;
Offers or agrees to arrange a meeting of persons for the purposes of prostitution
Directs or transports another person to a place when he or she knows or should know that the direction or transportation is for the purpose of prostitution;
Receives money or other thing of value from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution; or
Aids or abets, counsels, or commands another in the commission of prostitution or aids of assists in prostitutions where the proceeds or profits derived therefrom are to be divided on a pro rata basis.

An indictment for pimping does not need to name the prostitute or the person solicited because the focus is on the harm done to society.

Pimping in Fulton County is a misdemeanor of a high and aggravated nature, which is punishable by 12 months imprisonment and up to a $ 5,000 fine. However, when the pimping involves the conduct of a person who is at least 16 but less than 18 years of age, the offense is a felony punishable by imprisonment of or a period of not less than 5 years nor more than 20 years.

Pandering in Fulton County is when a person solicits another person to perform an act of prostitution in his or her own behalf of on behalf of a third person or when he or she knowingly assembles persons at a fixed place for the purpose of being solicited by others to perform an act of prostitution.

Pandering in Fulton County is a misdemeanor of a high and aggravated nature, which is punishable by 12 months imprisonment and up to a $ 5,000 fine. However, when the pandering involves the conduct of a person who is at least 16 but less than 18 years of age, the offense is a felony punishable by imprisonment of or a period of not less than 5 years nor more than 20 years.

The Fulton County clerk of court must cause to be published a notice of conviction for that person in the legal organ of the county in which the person resides or, if a nonresident, in the legal organ of the county in which the person was convicted of pandering.

It is imperative that you do not talk to the police if you are accused of prostitution, pimping or pandering in Fulton County. Only speak to a qualified attorney so that you can properly defend yourself.

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.

Sodomy

September 22, 2022/in Blog, Criminal Law, DeKalb County, Felony, Fulton County, Fulton County Jail, Georgia, Georgia Criminal Law, Georgia Law, Georgia Sex Crimes, Gwinnett County, Henry County, Sodomy /by lawyer

Sodomy is a serious crime in Georgia. O.C.G.A. § 16-6-2 established two separate criminal offenses. O.C.G.A. §16-6-2(a)(1) defines sodomy as the performance of or submission to a sexual act involving the sex organs of one person and the mouth or anus of another. O.C.G.A. § 16-6-2(a)(2) defines aggravated sodomy as the commission of sodomy with force and against the will of the other person involved or with a person who is less than ten years of age.