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Possession of Drug Related Objects

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What’s a drug related object?

It is not uncommon for an officer to search your car or home and not only arrest you for the marijuana or drugs they found, but also for Possession of Drug Related Objects. In Georgia, under O.C.G.A. § 16-13-32.2, it is illegal to possess objects used to smoke, store, ingest, manufacture, and conceal drugs with. The most common drug related object we defend against are the use of pipes, but other examples are syringes, grinders, and scales. Possession of a drug related object is a misdemeanor charge in Georgia, and can carry up to 12 months in jail and a $1,000 fine. Even if the pipe or other item does not have any residue in it, you can still be arrested. Even if there were no drugs found in the car, police officers will routinely arrest you nonetheless for any drug related object that comes up in the search.

What will my case look like?

The defense in these cases vary, but if the officer finds the paraphernalia or drug related object as a result of an unlawful search, then the drugs and the drug objects can be suppressed as what is referred to as fruit of the poisonous tree. Examples of unlawful searches include those without a warrant in some circumstances, or those with faulty search warrants. An experienced and aggressive criminal defense attorney can attack the search and seizure of the drug paraphernalia or drugs found during a search by police officers. If you or a loved one has been charged with possession of drugs or possession of drug related objects in Georgia, call us today for a FREE CONSULTATION at 404-581-0999.

by Mary Agramonte

Probation Revocation and Parole

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Can a judge revoke my probation when I have allegedly violated probation after being sentenced but I have not yet started my probation?  Can a judge revoke my probation where it goes non-report or suspended upon completion of doing an act (classes, drug screens or evaluation).

The question requires some explanation as to situations as to where this scenario may rear its ugly head.  Defendant is sentenced in one county to a sentence of 10 years to serve 2, balanced probated.  While client is in prison or on parole he commits a new crime; ie he gets charged with possession of drugs in prison.  Even though he has not started probation as he is under the department of corrections supervision he can still be revoked on the county level by the judge.  Here are a couple of additional scenarios where the judge has the ability to revoke probation even though you are not technically on probation:

Judge sentences you in Cobb County to probation to run Consecutive to your sentence in Paulding County.  You are currently serving time in Paulding County and have not yet started serving your probation in Cobb.  Nonetheless, you can be revoked in Paulding and Cobb for committing a new crime.

Similarly, where a judge suspends a sentence.  For example you get 5 year sentence suspended upon completion of an alcohol evaluation.  You violate your probation shortly after being placed on the suspended sentence – in this scenario you can be revoked for the five years less any time that has elapsed since your sentence started even if you have already completed the evaluation – where the court has not signed an order allowing suspension to commence.

OCGA 17-10-1 (a) provides: that the trial court has the power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, including the authority to revoke the  [*630]  suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court, even before the probationary period has beg

un.

Here are the reasons the court of appeals found persuasive on why  you can still be revoked even though you are not technically on reporting probation:

While probation may be considered a mild form of ambulatory punishment imposing meaningful restraints, its true nature is an act of judicial grace. The Legislature has granted to the judiciary discretionary power to grant probation as a means of testing a convicted defendant’s integrity and future good behavior. Unlike parole, granted by an administrative agency, probation is granted by the court when the sentencing judge deems the protection of society does not demand immediate incarceration. In cases where a convicted defendant’s “future good behavior” has already been compromised by the commission of another criminal act even before the formal probationary period begins, a trial court should not be required to allow such  defendant to serve a previously imposed probated sentence when the court deems the protection of society demands revocation.

by Scott Smith

 

Rape Shield

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If you are charged with Rape in Georgia, it is imperative that you retain a sex crimes defense attorney immediately. There are rules in Georgia that protect the alleged victim from having her character attacked.

O.C.G.A. 24-4-412 prohibits certain evidence from being introduced at trial. This is known as the Rape Shield Statute. The evidence that is excluded from trial include, but not limited to, evidence of the alleged victim’s marital history, mode of dress, and general reputation for promiscuity, nonchastity, or sexual mores contrary to the community standards.

The Rape Shield Statute contains an exception to its exclusionary rule. The past sexual behavior of the complaining witness is not admissible unless the trial court found that the past sexual behavior directly involved the participation of the defendant and found that the evidence expected to be introduced supported an inference that the defendant could have reasonably believed that the complaining witness consented to the conduct complained in the prosecution.

Do not think that if you are charged with Rape in Georgia that you can attack the alleged victim for her past sexual behavior or think that just because she was dressed a certain way that you can argue that to the jury. The laws in Georgia protect rape victims from a character assassination in Georgia.

If you want to bring in evidence that fits the exception to the Rape Shield Statute, then the defendant shall notify the court of such intent, whereupon the court shall conduct an in camera hearing to examine the accused’s evidence. At the conclusion of this hearing, if the court finds that any of the evidence introduced at the hearing is admissible or is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence, the court shall by order state what evidence may be introduced by the defense at the trial of the case and in what manner the evidence may be introduced.

So, if you are accused of Rape, it is important to write out a log of every interaction you have had with the alleged victim, exactly what you remember talking about with the alleged victim and any evidence or witnesses that may help you establish that you believe consent was given.

In a Rape case, your life is literally hanging in the balance. Do not think that just because you believe you had consent and just because you know it did not happen, that the case will just go away or the judge and jury will just understand your side. Once you are accused of Rape, you need to go on offense in your preparation and show that either 1) you were misidentified as the person accused of rape or 2) you had consent of the alleged victim.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

If you face charges in Georgia for 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 Rape cases in Georgia. You must protect your rights and take this matter very seriously. The statute of limitation for a prosecution of rape is 15 years. 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.

by Mike Jacobs

 

Child Abuse Registry in Georgia

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If you are charged with a crime involving child abuse or sexual abuse of a child then you will likely be receiving notice of your inclusion on the Child Protective Services Information System (Child Abuse Registry).

It is important that you contact an attorney immediately upon receiving this notice. You only have 10 days to challenge your name being on the Child Abuse Registry. If you respond within 10 days by requesting a hearing challenging your name being on the Child Abuse Registry then you will receive a court date. This written request must contain your current address and telephone number so that you may be notified of the date of your hearing.

This court date is in front of an Administrative Law Judge. At this hearing, you may present evidence as to why you do not think your name should be included on the Child Abuse Registry.When a DFACS office receives a report that you are alleged to have committed child abuse or sexual abuse of a child, then your name will be entered on the Child Abuse Registry.

Child Abuse means:

Physical injury or death inflicted upon a child by a parent or caretaker thereof by ot

her than accidental means, and this shall be deemed to be physical abuse for purposes of the classification required by paragraph (4) of subsection (b) of Code Section 49-5-183; provided, however, physical forms of discipline may be used as long as there is no physical injury to the child; Neglect or exploitation of a child by a parent or caretaker thereof if said neglect or exploitation consists of a lack of supervision, abandonment, or intentional or unintentional disregard by a parent or caretaker of a child’s basic needs for food, shelter, medical care, or education as evidenced by repeated incidents or a single incident which places the child at substantial risk of harm, and this shall be deemed to be child neglect for purposes of the classification required by paragraph (4) of subsection (b) of Code Section 49-5-183

 

Sexual Abuse of a Child means:

Sexual abuse” means a person’s employing, using, persuading, inducing, enticing, or coercing any minor who is not that person’s spouse to engage in any act which involves:

(A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(B) Bestiality;

(C) Masturbation;

(D) Lewd exhibition of the genitals or pubic area of any person;

(E) Flagellation or torture by or upon a person who is nude;

(F) Condition of being fettered, bound, or otherwise physically restrained on the part of a person who is nude;

(G) Physical contact in an act of apparent sexual stimulation or gratification with any person’s clothed or unclothed genitals, pubic area, or buttocks or with a female’s clothed or unclothed breasts;

(H) Defecation or urination for the purpose of sexual stimulation;

(I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure; or

This law was established on July 1, 2016 and is listed under O.C.G.A. 49-5-182.

If you face charges of either sexual abuse or child abuse, then it is imperative that you speak to a qualified attorney immediately. Do not speak to anyone about the allegations except with your attorney. You are facing criminal charges in Superior Court and a hearing on your inclusion with the Child Protective Services Information System (Child Abuse Registry) in front of the Office of State Administrative Hearings.

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.

 

by Mike Jacobs

 

Marijuana Possession in Georgia

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by Mary Agramonte

Even as the nationwide trend moves to legalization and decriminalization, possession of marijuana remains illegal in the State of Georgia. In most jurisdictions across the state, a possession of marijuana charge in Georgia will land you in jail, forcing you to dish out hundreds or thousands of dollars in bond money to be released. If you later plead or are found guilty, you can expect high fines, at least 12 months of probation, community service, drug evaluations, costly classes, and depending on your record, even more jail time.  An experienced criminal defense attorney has the ability to alleviate this by evaluating your defenses and advocating on your behalf.

If you have been arrested or cited for possession of marijuana less than an ounce, call the leading defense firm W. Scott Smith to protect your rights, your wallet, and your criminal history. A nolo contendere charge will not keep the charge off your record, and will not eliminate punishment. There are defenses beginning with the reason the officer stopped you, how the search was conducted, even down to the testing of the marijuana found. Being convicted of any crime can be detrimental to your future. Call us today for a free case evaluation at 404-581-0999.

 

 

Forgery Laws in Georgia

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by Ryan Walsh

There are four degrees to the offense of Forgery in the State of Georgia.

Forgery in the first and second degree involves the making, possession or alteration of a writing other than a check in a fake name or in a manner that alleges the document was made by another person at another time without the authority of that other person. It is forgery in the first degree if that writing is used, presented , or delivered; and forgery in the second degree if it is never used, presented or delivered.

To be found guilty of forgery in the first or second degree you have to have knowledge that the writing is forged and that you have made, possessed or altered the document with the intent to defraud another party.

Forgery in the third and fourth degrees involve the same elements of forgery discussed above but the writing involved is a check.  If the check is for $1,500 or more or you have ten or more checks in your possession then you will be charged with forgery in the third degree. If the check is for less than $1,500 or you have less than ten checks in your possession then you will be charged with forgery in the fourth degree.

Forgery in the first through third degrees is a felony offense in the State of Georgia. Forgery in the fourth degree is a misdemeanor offense.

If you’ve been contacted by a law enforcement official about a potential issue at a bank it is important that you exercise your right to remain silent and call a lawyer immediately to discuss your case, your options, and potential outcomes.

Being convicted of a forgery charge can impact your ability to gain future employment or obtain professional certifications in the State of Georgia.

Our office of Georgia criminal defense attorneys have experience in defending forgery and fraud crimes. Call us today at 404-581-0999 for a free consultation.

Georgia’s First Offender Act

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by Casey Cleaver

What is it?

Under Georgia Code § 42-8-60, the First Offender Act is a sentencing option which allows a person with no prior felony convictions to dispose of their criminal case without a conviction. The law can be paraphrased as follows:

Where a defendant has not been previously convicted of a felony, the court may, upon a verdict or plea of guilty or nolo contendere, and before adjudication of guilt, without entering a judgment of guilty and with the consent of the defendant, defer future proceedings and place the defendant on probation or sentence the defendant to a term of confinement.

O.C.G.A. § 42-8-60(a). Essentially, this means that if a guilty verdict or plea of guilty or nolo contendere is entered against a first-time offender, the State will delay entering a judgment and place the first-time offender on probation or in confinement (or a hybrid of both). The First Offender Act is not a substitute for punishment, but rather an alternative to a conviction.

Although the first-time offender is “sentenced” to probation or confinement, if the person successfully completes their sentence (along with any accompanying terms, fines, and/or programs) then the case is discharged by the court without a conviction and disappears from their criminal history for most employment purposes.

However, if a person fails to complete all the applicable terms of their sentence or commits a new crime, the judge can revoke that person’s First Offender status, and they will be automatically convicted because of the previously entered guilty verdict or plea.  Additionally, the judge could re-sentence you.[1]

Retroactive Application

Initially, a first-time offender could only receive First Offender treatment at the time of sentencing. This limitation ignored a large population of individuals who were eligible for First Offender treatment in the past, but, for various reasons, were not sentenced under the Act; the Act also did not originally include those who were not represented by an attorney and who were not informed of the First Offender sentencing option by the court at their sentencing.

In 2015, the Georgia legislature passed reform allowing for the retroactive application of First Offender sentencing. The law was further clarified in 2017 to make the retroactive provisions applicable to any case sentenced on or after March 18, 1968. The law governing retroactive application of the First Offender Act can be paraphrased as follows:

An individual who qualified for sentencing pursuant to this article but who was not informed of his or her eligibility for first offender treatment or an individual who was sentenced between March 18, 1968, and October 31, 1982, to a period of incarceration not exceeding one year but who would otherwise have qualified for sentencing pursuant to this article may, with the consent of the prosecuting attorney, petition the court in which he or she was convicted for exoneration of guilt and discharge pursuant to this article.

O.C.G.A. § 42-8-66(a) (emphasis added). The process for retroactively applying First Offender status is relatively simple and can be broken down into three steps. The first step is to determine whether the individual is eligible to receive First Offender status retroactively. To be eligible, the person must have been able to receive First Offender treatment at the time he was originally sentenced. There are some offenses under Georgia that disqualify First Offender treatment (such as certain violent felony offenses and sex offenses listed in O.C.G.A. § 17-10-6.1). Most offenses, however, qualify for First Offender treatment so long as the person does not have a prior felony conviction and has not previously been sentenced under the First Offender Act.

If the individual was sentenced between March 18, 1968, and October 31, 1982, to a period of incarceration not exceeding one year then the individual is not required to have been unaware they qualified before they were sentenced. Conversely, to obtain retroactive First Offender treatment for sentences imposed after October, 31 1982, the person must have been unaware that he qualified before he was sentenced. For instance, if an individual requested First Offender at the time of sentencing but was denied First Offender treatment by the judge, he would most likely not be eligible to receive First Offender treatment retroactively.

The second step in the process is to file a petition in the court where the person was convicted. A petition will request that the court hold an evidentiary hearing to determine whether First Offender treatment should be retroactively granted. In order to file a petition, the prosecuting attorney that handled the original case must consent to the filing of the petition.

Lastly, the court will hold a hearing to determine whether to grant the petition. At the hearing, the judge will consider evidence introduced by the petitioner, evidence introduced by the prosecutor, and other relevant evidence. After all the evidence has been presented:

[t]he court may issue an order retroactively granting first offender treatment and discharge the defendant pursuant to this article if the court finds by a preponderance of the evidence[2] that the defendant was eligible for sentencing under the terms of this article at the time he or she was originally sentenced or that he or she qualifies for sentencing under paragraph (2) of subsection (a) of this Code section and the ends of justice and the welfare of society are served by granting such petition.

O.C.G.A. § 42-8-66(d) (emphasis added). Typically, petitioners have character witnesses testify at the hearing to demonstrate to the judge the petitioner is an upstanding member of society. The judge also considers whether the individual has been arrested or convicted of any offenses since the time of their first conviction. Subsequent arrests or convictions are disfavored by the judge and are likely to decrease the probability the petition will be granted.

If the petition is granted, “[t]he court shall send a copy of any order issued pursuant to this Code section to the petitioner, the prosecuting attorney, the Georgia Crime Information Center, and the Department of Driver Services. The Georgia Crime Information Center and the Department of Driver Services shall modify their records accordingly.” Once granted, this procedure allows for the prior conviction to be retroactively discharged without an adjudication of guilt and sealed from a person’s criminal history for most employment purposes.[3]

Every case is different. If you or someone you know may benefit from this type of sentencing modification, contact our office today. We have extensive experience in this process and have successfully handled cases of this nature. We will be able to assist you in investigating your eligibility, navigating the complicated legal process, and fighting for the Georgia First Offender Act to be retroactively applied to your conviction.

 

[1] For example, if you were sentenced to serve three years on probation under the First Offender Act, and you successfully completed two years and 364 days of probation but committed a new crime on the last day of your probation, the judge could re-sentence you to three years probation.

[2] Preponderance of the evidence simply means, ‘more likely than not.’ (Mathematically similar to 51%)

[3] Keep in mind lawyers, law enforcement, judges, police, and certain third party vendors and employers will be able to see the charge. Furthermore, although the law clearly prohibits employers from using a discharge under the First Offenders Act to disqualify a person for employment (under O.C.G.A. § 42-8-63.1), Georgia is an employment-at-will state, so employers may choose not to hire or appoint any person at any time for any reason, or no reason at all, subject, of course, to constitutional requirements.  O.C.G.A. § 42-8-63.

Search Warrants and Social Media in Georgia Criminal Cases

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by Mary Agramonte

Social media has become, for many of us, a central part of our lives. We use Facebook to share and view photos of friends and family, and even to catch up on daily news. We use Snapchat to send live photos or short clips and videos to those in our circle. Instagram exists to view photos of friends and strangers, and even to gain inspiration for food, travel, and lifestyle.

These social networking sites are used and enjoyed by people in all walks of life. Consequently, as the use by the general population increases, so does use for those engaged in drug dealing, gang activity, and other criminal acts. For this reason, social media and apps once thought to be private are becoming the key pieces of evidence as law enforcement is obtaining this information through search warrants. Search warrant allow police to conduct searches of people and their belongings for evidence of a crime and they are now being used to gain entry into your Facebook, Snapchat, and other sites.

Snapchat has recently come out to say that 350 million Snaps are sent every single day. Before these fleeting photos are opened, they exist on Snapchat’s server awaiting for the person on the other end to open it.  Some unopened Snaps, they’ve admitted, have been handed over to law enforcement through search warrants.

Facebook is no different and law enforcement is using the site regularly to investigate crimes. While a law enforcement agency is free to look at your public site, they are even able to obtain a search warrant even for the private aspects of your account. A recent case in the 11th Circuit, United States v. Blake, involved search warrants for email and Facebook accounts.  Law enforcement in Blake sought essentially every piece of data on the person’s Facebook account. The court stated that the search warrants were overly broad and stated they must still be specific and limited in scope. The data was still fair evidence despite this, as the officers relied on the good faith exception to the exclusionary rule, and the State was allowed to use the evidence from their Facebook account against them.

There tends to be a false sense of privacy for those engaged in sending Snaps, Facebooking, or Instagramming. These ‘private’ sites and photos can and do become to subject of search warrants in law enforcement investigations, and the biggest piece of evidence in a case might just end up being something you posted  or sent with the belief it would remain private.

Atlanta DUI Lawyer

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by Mary Agramonte

If you or a loved one has been charged with an Atlanta DUI, picking the right criminal defense attorney can be challenging. You need to look to the credentials, success rate, and reputation of the attorney in the field. Even if you believe you are guilty of the DUI, it is still important to contact an attorney experienced in complex area of DUI law as having a knowledgeable DUI attorney can be the difference in saving and losing your driver’s license. There are some DUIs that if you plead guilty, your license is suspended without a limited permit. The license repercussions of a DUI conviction are one of many reasons to contact a DUI attorney.

Call our firm to speak with experienced DUI attorneys on how to best defend your case. Experienced Atlanta lawyers in our firm are available any time, including nights and weekends, to provide you with the best possible outcome and advice. We can be contacted 24/7 at 404-581-0999 and provide free consultations.

Our firm consists of six highly trained Atlanta and Fulton County attorneys. We have an office near the Municipal Court of Atlanta – and have successfully defended against hundreds of Atlanta DUIs. W. Scott Smith has 18 years of DUI under his belt. He is active The National College of DUI Defense, Georgia Association for Criminal Defense Lawyers, The Lawyer Club of Atlanta, the Cobb County Bar Association and the Sandy Springs Bar Association.

The address of the Atlanta Municipal Court is 150 Garnett Street. This court handles all cases where defendants are charged with traffic misdemeanors and local ordinances within the City of Atlanta in Fulton County. Atlanta has its own police department, and so if you are arrested for a DUI in Fulton County by an Atlanta Police Officer, your case will begin in the Atlanta Municipal Court. Additionally, if you are pulled over and arrested by a Trooper with the Georgia State Patrol within the City of Atlanta, your case will also begin in the Atlanta Municipal Court. DUI Court is currently held by Judge Bey at 1pm and 3pm daily. If you’ve been arrested and are in custody, Atlanta Muncipal Court Judges hold bond hearings Sunday through Friday, daily. The Atlanta Municipal Court does not always hold bond hearings Saturdays, so if you were arrested late Friday night or early Saturday morning you may not see a Judge until Sunday.

If you have been arrested with a DUI in Atlanta or in Fulton County, our lawyers are ready to fight to avoid a DUI conviction. We are a group of knowledgeable attorneys prepared to defend against your Atlanta DUI in order to best protect your freedom and your license. If you have been charged with Driving under the Influence and your case is in the Atlanta Municipal Court, call a law firm with the experience necessary to achieve the most favorable result for you.  We are available 24/7 to speak with you about your Atlanta DUI at 404-581-0999.

 

Public Indecency Crimes in Georgia

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by Mike Jacobs

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:

  1. An act of sexual intercourse
  2. A lewd exposure of the sexual organs
  3. A lewd exposure in a state of partial or complete nudity; or
  4. 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 3rd 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.