Posts

Aggravated Child Molestation

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Aggravated Child Molestation is a serious crime in the State of Georgia. In fact, it is the worst crime that one can be accused of committing. It is imperative that you retain a qualified attorney immediately if you are being accused of aggravated child molestation. Many allegations of aggravated child molestation are false. Even if you know the allegation of aggravated child molestation against you is made up, you still must take it very seriously and aggressively defend yourself.

What’s the Law?

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

A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which physically injures the child or involves an act of sodomy.

If the alleged victim was physically injured then it is not necessary for the state to prove sodomy.

It must be shown that the alleged victim was under 16 at the time of the act in order to be charged with aggravated child molestation.

Penetration or force is not a requirement of aggravated child molestation. The victim’s testimony that it was painful is sufficient to prove physical injury and no medical evidence is required to corroborate.

Sentencing

If you are convicted of aggravated child molestation, then the sentence will either be life imprisonment or a split sentence of a mandatory minimum of 25 years imprisonment and probation for life. The defendant will also have to be placed on the sex offender registry for life.

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

Do not wait until the State actually returns an indictment against you before seeking an attorney. Child Molestation cases can be proven solely on the victim’s own testimony. Therefore, it is vital that you immediately retain an attorney and get to work in defending yourself of these 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.

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.

Creating Fake Checks

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Beyond the crimes of Deposit Account Fraud and Forgery in Georgia, it is also unlawful to create fake checks or other negotiable instruments that appear as they are the real checks of any financial institution.

What’s the Law on Fake Checks?

The statute, O.C.G.A. 16-9-21 reads:

It shall be unlawful for any person to print or cause to be printed checks, drafts, orders, or debit card sales drafts, drawn upon any financial institution or to execute or negotiate any check, draft, order, or debit card sales draft knowing that the account number, routing number, or other information printed on such check, draft, order, or debit card sales draft is in error, fictitious, or assigned to another account holder or financial institution.

Any person who is found to have broken the law as it relates to the above statute would be guilty of a felony with a prison sentence ranging from one to five years and a fine of up to $5,000.

What Should I Do?

If you are being investigated for creating fake or fraudulent checks in Georgia, call our office today for a free consultation. Our staff is experienced in defending these white-collar cases and can discuss potential defenses with you at your free consultation. Call us today at 404-581-0999.

by Ryan Walsh

Field Sobriety Tests Introduction

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What are Field Sobriety Tests?

            In virtually every situation where a person has been pulled over for an alleged traffic violation and the officer “detects an odor of alcohol,” the officer will routinely ask the driver to perform Field Sobriety Tests (“FSTs”). These FSTs are used by the officer as tools used to assist them in determining whether probable cause exists to arrest a driver for the offense of DUI.

A Little About the Tests

            After many years of research and in an attempt to standardize Field Sobriety Testing, the National Highway Traffic and Safety Administration (“NHTSA”) adopted three field sobriety evaluations for use by police officers nationwide: the One Leg Stand, the Walk & Turn, and the Horizontal Gaze Nystagmus. NHTSA has issued strict standards by which the evaluations must be administered in order to ensure the tests’ results are consistently reliable and valid. These standards are published in a manual given to every NHTSA trained officer. The manual provides the precise procedures police officers are to use when administering the NHTSA-approved FSTs to DUI suspects.

FSTs to our Advantage

As a result, lawyers are able to question officers about their administration and interpretation of these FSTs under the NHTSA standards. In Georgia, every police officer is required to be trained under the standards provided by the Peace Officer Standards and Training Council (P.O.S.T.). As of October 1, 1995, P.O.S.T. adopted the three NHTSA-approved FSTs.

            This FST blog series will explore each of the three NHTSA FSTs in detail. We will discuss the tests themselves, how these tests are administered, how officers score the tests, and common mistakes officers make in giving these tests.  

by Casey Cleaver

Financial Transaction Card Forgery

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In Georgia it is against the law to make a fake financial transaction card in the name of another person or to alter any credit or debit card’s encoded information.

What is Financial Transaction Card Forgery?

A person commits the offense of financial transaction card forgery when:

(1)  With intent to defraud a purported issuer; a person or organization providing money, goods, services, or anything else of value; or any other person, he falsely makes or falsely embosses a purported financial transaction card;

(2)  With intent to defraud a purported issuer; a person or organization providing money, goods, services, or anything else of value; or any other person, he falsely encodes, duplicates, or alters existing encoded information on a financial transaction card or utters such a financial transaction card; or

(3)  He, not being the cardholder or a person authorized by him, with intent to defraud the issuer; a person or organization providing money, goods, services, or anything else of value; or any other person, signs a financial transaction card.

Examples

Falsely making a financial transaction card in Georgia occurs when someone makes or draws a card that is in someone else’s name but is not their actual card because they did not authorize the making or drawing of the card which was issued by the credit or debit card company.

Falsely embossing a financial transaction card in Georgia occurs when someone adds a name, card number, expiration date or security code to a card that already exists.

Falsely encoding a financial transaction card in Georgia occurs when someone erases or alters, electronically, magnetically, or electromagnetically information on the card that will permit acceptance of that card by an ATM.

If you are found in Georgia with two falsely made, embossed, or encoded financial transaction cards it is evidence under the statute that a crime has been committed.

Sentencing

If you are found guilty of violating this statute, you will be convicted of a felony and sentenced one to three years in custody.

Please call us today for a free consultation regarding financial transaction card forgery in Georgia at 404-581-0999.

Probation Revocation in Georgia

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Understanding Probation and Revocation

Most sentences in criminal cases involve a period on probation. Probation, while timely and expensive, allows you to serve your sentence in the outside world and not behind bars. The downside of this is if your probation officer alleges you violated a term of probation, he or she can petition for a probation revocation, which can land you in jail for a period of time, even up to the full amount left on your sentence.

A Word on Probation 

             Probation can come with a myriad of requirements that you must adhere to in order to steer clear from trouble in the courts. For example, the judge may order you to complete classes, fines, or pay restitution while on probation. The judge will also likely require you to stay away from alcohol and drugs.Another important term of probation is that you not commit any new crimes while on probation. 

What happens when probation is revoked?

             If the probation officer believes you have violated a term of your probation, they will draft a petition for probation revocation and issue a warrant for your arrest. A hearing is later held where the person accused will have the opportunity to essentially admit to the allegation for the purpose of the hearing, or to deny what the probation officer is alleging and have a hearing.In a hearing with this much on the line, it is imperative to have an attorney represent your interests.

Am I going back to jail?

             A probation revocation does not necessarily mean you are going back to jail, although it certainly can end that way. An experienced criminal defense attorney can potentially negotiate other options that do not involve jail. An attorney can also have a contested hearing when the allegations within the petition are denied. The standard of proof is lower in probation revocation hearings than in criminal trials. In a trial, the judge or jury has to find beyond a reasonable doubt that you are guilty. In a probation revocation, it is a preponderance of the evidence, which essentially means the judge has to find you ‘more likely than not’ violated your probation in the ways the officer is saying.

Find the right Attorney

             Having an attorney who is familiar with the playing field is key in these cases as it is imperative to be familiar with the judge, prosecutor, and probation officers involved. Having a pending probation revocation can be a frightening experience to go through, because of the time in jail that may be over your head going into it. A failed drug screen can land you in jail for months. Committing a new crime can land you back in jail for years. There is a lot on the line, but not all hope is lost. If you or a loved one is facing a probation revocation in Georgia, give us a call today at 404-581-0999 for a free consultation.

by Mary Agramonte

Cobb County Misdemeanor Pretrial Diversion

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Am I eligible?

If you are arrested for the following offenses, you may be eligible to participate in a diversion program.

The eligible offenses are:

  1. Minor in Possession of Alcohol
  2. Possession of a Fake ID
  3. Possession of Marijuana (VGCSA)
  4. Theft by Shoplifting
  5. Theft by Taking

So if you are arrested on any of these charges, do not walk in to court and plead guilty. You definitely will want to consider the diversion program. If you are accepted and complete the diversion program, then the case will be dismissed and your record will be sealed.

What do I do?

In Cobb County, the prosecutor, otherwise known as the Solicitor General, will require you to have an attorney. They will not let anyone enter into the diversion program if they are not represented by an attorney. We will work with you on a payment plan that fits your budget.

There is a $ 350 fee for any person that would like to participate in the diversion program.

There are several requirements that must be completed within 12 weeks once you enter the program. You can complete the requirements earlier than 12 weeks.

  1. Community Service:
    1. For Marijuana possession, theft by shoplifting and theft by taking, you must complete 40 hours of community service.
    2. For possession of a fake ID, you must complete 60 hours of community service.
    3. For minor in possession of alcohol, the community service varies:
      1. 40 hours – if you blow below a .08 or are not offered an opportunity to blow into a portable breath device
      2. 60 hours – if you possess a fake ID and blow below a .08
  • 80 hours – if you blow between a .08 and .15
  1. 120 hours – if you blow above a .15 or refuse.
  1. All Cobb County Police Officers are trained to request a breath test if you are caught with an alcohol and are not 21 years of age.
  1. Admissions
    1. For possession of a Fake ID and Minor in Possession of Alcohol, the defendant must admit, in writing, from whom and where they obtained the alcohol and fake ID
  2. Clean Screens
    1. You must pass 3 drug/alcohol screens during the 12 weeks. These drugs screens must be done through the Cobb County Superior Court Drug Lab unless previous permission is granted to do it elsewhere.
    2. These drug screens are for Minor in Possession of Alcohol, Fake ID and Marijuana Possession cases only.
  3. Alcohol and Drug Evaluation
    1. If you are charged with Minor in Possession of Alcohol, Fake ID or Marijuana Possession then you must complete an evaluation from a state certified evaluator. If this evaluation requires treatment, then you must complete the treatment within the allotted time.
  4. Theft Seminar
    1. If charged with theft by shoplifting or theft by taking, you must complete an approved theft seminar.
  5. Essay
    1. If you are under 21 years old, then you must handwrite a 2 page essay about why you should be admitted into the diversion program.
  6. Additional Classes
    1. For Minor in Possession of Alcohol, Possession of a Fake ID and Possession of Marijuana (VGCSA) you must complete one of the following:
      1. MADD Victim Impact Panel
      2. Teen Drug and Alcohol Impact Program (only if under 25 years old)
  • S.M.A.R.T. Program

So if you are arrested for any of the above, do not panic. Please call us so we can discuss your case, your defenses to your case and see if you are eligible to participate in the diversion program. It is a great way to make sure you do not have a criminal record.

Give us a call 24/7 at 404-581-0999 or email mike@peachstatelawyer.com

Can I Vote if I am a Felon in Georgia?

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Can I Vote? Good News!

If you are finished with your felony sentence, then yes, you are able to vote in the State of Georgia. Many people incorrectly believe that once they are convicted of a felony, their voting rights are gone forever.  The good news is that Georgia will allow you to regain your voting rights back! As soon as you are finished with your felony sentence,  your right to vote is automatically restored even if you have a felony on your record. You may vote so long as you are not in prison for a felony sentence, nor on probation or parole for a felony sentence. Once you are done with your probation or parole sentence, your ability to vote is automatically restored. There is no separate application process.

But what if I am in jail pending my trial date?

 If you are in jail awaiting your trial in a felony case, then you are eligible to vote.

What if I am currently on First Offender felony probation?

You should be able to vote given you are not serving time for a felony conviction. A first offender case is not a conviction unless the judge chooses to revoke your first offender status for a violation of terms.

General Information

To register to vote, you must be a United States citizen, be 18 years old, not be serving a sentence for a felony conviction, and have not been found mentally incompetent by a judge. For more information and to download a voter registration application, visit the Secretary of State’s website here: http://sos.ga.gov/index.php/Elections/register_to_vote

Prostitution, Pimping and Pandering in Georgia

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What is prostitution?

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.

Is prostitution a misdemeanor or felony?

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.

 

What is pimping?

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

  1. Offers or agrees to procure a prostitute for another;
  2. Offers or agrees to arrange a meeting of persons for the purposes of prostitution
  3. 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;
  4. 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
  5. 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.

Misdemeanor or felony?

Pimping 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.

What is pandering?

Pandering is when a person solicits another person to perform an act of prostitution in his or her own behalf or 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 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 clerk of court in which a person is convicted of pandering 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.

What do I do?

It is imperative that you do not talk to the police if you are accused of prostitution, pimping or pandering. 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.

Shoplifting in Georgia Part III

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Welcome to the third entry in a multi-part blog series about misdemeanor shoplifting in Georgia. We discussed what constitutes shoplifting under Georgia law, what to expect in court after you’ve been arrested for shoplifting, and what sentence you may receive if you either plead guilty or are found guilty of shoplifting (fingers crossed for a Diversion offer from the State).

Civil Demand Letters

Today I want to talk about Civil Demand Letters. Let’s say you have been accused of shoplifting from Wal Mart. You bonded out of jail and hired the Law Office of Scott Smith to defend you, so you’re feeling relieved and hopeful about resolving your case.

Then one day, soon after your arrest, you receive a letter in the mail from Wal Mart’s Corporate Loss Prevention Office. The letter is about the shoplifting accusation. In strongly-worded terms, it says Wal Mart is prepared to seek civil judgement against you in the monetary amount of the item (or items) you’re accused of stealing.

Scared and confused, you call your attorney at Scott Smith’s Office. After all, your attorney is taking care of the shoplifting so why is Wal Mart even contacting you? This is a scenario I handle frequently with clients accused of shoplifting. And it’s a confusing one. That’s because shoplifting charges exist in the worlds of both criminal and civil law.

What Does This Mean?

The State of Georgia can pursue criminal charges against you for (allegedly) shoplifting from Wal Mart. Criminal charges contemplate the deprivation of your freedom, meaning the worst-case scenario would be going to jail.  At the same time, Wal Mart, as a civil plaintiff, can sue you for damages (the idea being they suffered a financial loss from you stealing their merchandise). Unlike criminal charges, civil damages are for money. So Wal Mart would sue you for the cost of the item(s) you’re accused of stealing. Even more confusing, Wal Mart can sue you for the cost of the item(s) you allegedly stole even if they got the item back, or even if the item never left the store.

Often, these strongly-worded, bullying letters make a scary situation for my clients even scarier. But I’m here to tell you not to worry.

Do Not Worry

In a shoplifting case, your main concern is the criminal charge. With Scott Smith’s Office representing you, your criminal charge will easily be resolved. Wal Mart can, indeed, take action to sue you for monetary damages in the amount of the item you allegedly stole. But in the 18 years this office has existed (and in my two years of practicing criminal law), we have never seen a big store like Wal Mart actually sue for civil damages. That’s partially because the filing fee alone (to file suit in court) is more than the amount of money they’d win at trial.

Essentially, stores like Wal Mart send these letters in an effort to intimate people into paying them money. Moreover, some of my clients have responded to the letters by sending money thinking that doing so will resolve their case, not realizing the criminal charge has nothing to do with the civil demand letter.

What Do I Do?

In these situations I advise my clients that I will call the corporate loss prevention office to tell them my client is represented by counsel. That way all letters are sent to me rather than my client (which eases a lot of stress). I also advise my client not to pay the money demanded in the letters. This is important to defending your case, as the State could use that payment as an admission of guilt against you at trial. Finally, note that stores like Wal Mart only have two years to file suit against you for civil damages suffered as a result of your alleged shoplifting.

If you or someone you know has received a civil demand letter contact our office today for a free consultation.

by Sarah Armstrong 

Online Solicitation in Georgia

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What is online solicitation?

Local law enforcement agencies are conducting more and more online child predator stings. Online solicitation of a child for purposes of engaging in a sexual act is a felony in Georgia. It carries a possible punishment of up to 20 years in prison and a $ 25,000 fine.

The Georgia Internet Crimes Against Children (ICAC) Task Force, The Georgia Bureau of Investigation’s Child Exploitation and Computer Crimes (CEACC) Unit and local law enforcement agencies are conducting operations all over the State of Georgia to catch individuals who are using the internet to solicit underage children for sex.

What should you do?

If you are arrested in one of these stings, do not talk to the police without a lawyer. Do not attempt to tell your side of the story without a lawyer. If the police tell you that they will cut you a break if you speak to them about the case, please tell them that you want a lawyer before making a statement. Nothing you say to law enforcement when you are arrested is going to benefit your case. Do not make any statements such as you thought the person was an adult or that you did not intend to actually go through with the sexual act. Do not talk to law enforcement without a lawyer present.

You have an absolute right to speak to a lawyer before making any statements. If you have already made a statement to the police, then please do not make any further statements without calling a lawyer. The stakes in these cases are too high to not retain a lawyer and fight these allegations. Your freedom is literally at stake in these cases. The State of Georgia and its local law enforcement agencies are aggressively prosecuting these cases.

What qualifies as solicitation?

Online solicitation is when you intentionally or willfully utilize the internet, local bulletin board, chat room, e-mail, instant messaging service, or any other electronic device, to solicit, seduce, lure, or entice a child, another person believed by such person to be a child, any person having custody or control of a child, or another person believed by such person to have custody or control of a child to commit any illegal act, by, with, or against a child as described in O.C.G.A. 16-6-3, sodomy or aggravated sodomy; O.C.G.A. 16-6-4, child molestation or aggravated child molestation; O.C.G.A. 16-6-5, enticing a child for indecent purposes; or O.C.G.A 16-6-8 public indecency, or to engage in any conduct that by its nature is an unlawful sexual offense against a child.

So, if you are talking to someone that you believe is underage and it turns out that you are actually speaking to law enforcement, you can still be charged and convicted of online solicitation. Do not think that just because the person you were chatting with turned out to not be a child, then you have nothing to worry about. It is still against the law, even if the child turns out to be law enforcement.

Direct communication with a minor is not required for a conviction. There is no requirement that you actually perform any type of sexual act to be convicted. All that is required is that you believed that the person you were speaking to was underage and your purpose in talking to them was for a sexual act.

If you have been charged with online solicitation and exploitation, child pornography and/or human trafficking, then it is very important to hire a lawyer who handles these types of cases. Please call my office 24/7 at 404-581-0999. We will meet with you for a free consultation to discuss the facts of your case and explain the procedure that will take place in court.

 

by Mike Jacobs