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Have you been charged with attempted murder in Georgia and do not know why?

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Georgia law provides that a person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart. Implied malice is a term which has been defined to mean conduct exhibiting a reckless disregard for human life. Specifically, the Supreme Court of Georgia has held that extremely negligent conduct, which creates what a reasonable man would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another or to others – though unaccompanied by any intent to kill or do serious bodily injury – and which actually causes the death of another, may constitute murder. Reckless disregard for human life may be the equivalent of a specific intent to kill. Evidence that the defendant acted in reckless disregard for human life is, for purposes of demonstrating his guilt of the crime of malice murder, as equally probative as evidence that he acted with a specific intent to kill. So, when does the charge become attempt? A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime. Intentionally shooting someone can be a substantial step toward the commission of the crime of murder.

For attempted murder, the court will look to your prior intentional acts of violence against the alleged victim. Similarly, if you do not have prior difficulties with the alleged victim, this lack of evidence may support a claim the act was not intentional.

In a Georgia case of Mills v. State, the Supreme Court held in 2010 the evidence supported a finding of both express and implied malice. The defendant had threatened to kill the victim in the past if he caught her cheating on him and had cut her while holding a knife to her throat. The defendant again threatened to kill the victim just hours before the shooting. Later, while high and drunk, the defendant complained that the victim had another man coming to their residence too frequently, and, to show he was serious, the defendant climbed into bed with the victim holding a loaded 9mm handgun with his finger on the trigger, pointed the gun at her, and shot her in the head while her two-year-old son was on the bed next to her. He then failed to seek medical aid and instead sought to dispose of the murder weapon. This evidence was sufficient to show from the external circumstances that the defendant caused the victim’s death with deliberate intention, thereby establishing express malice. In addition, there was no “considerable provocation” for the shooting even under the defendant’s own version of events, and a rational jury could find that the circumstances surrounding the killing showed that the defendant had an abandoned and malignant heart, thereby establishing implied malice.

Have you been charged with attempted murder in Georgia please call our office 24/7 at 404-581-0999. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.

Initial (First) Appearance in Georgia Criminal Cases

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An “initial appearance” is an accused’s first face-to-face encounter with a judge after arrest. The purpose of an initial appearance is to inform the accused of the nature of the charges and advise him/her of their basic rights.

The initial appearance may also serve as a probable cause hearing if the person was arrested without a warrant and no arrest warrant is secured prior to the initial appearance. However, getting an arrest warrant within 48 hours after a warrantless arrest satisfies this probable cause requirement.

Police making an arrest without a warrant shall bring the arrested person in front of a judge within 48 hours after the arrest. O.C.G.A. § 17-4-62.

Police making an arrest with a warrant shall bring the arrested person in front of a judge within 72 hours after the arrest. O.C.G.A. § 17-4-26. These time limitations include weekends and holidays.

Failure to meet these time requirements may result in the release of the arrested person through a writ of habeus corpus under O.C.G.A. § 17-4-62. The failure to provide a timely first appearance, however, will not prevent the State from prosecuting the case.

At the initial appearance the judge shall:

  • Inform the accused of the charges
  • Inform the accused of their Miranda rights
  • Determine whether the accused wants a court appointed attorney and how to obtain one
  • Inform the accused of their right to a committal (probable cause) hearing, unless waived by getting bond
  • In the case of a warrantless arrest, make a probable cause determination
  • Inform accused of right to grand jury indictment or accusation
  • Inform accused of when grand jury will next convene
  • Inform accused of right to jury trial
  • Inform accused of right to waive rights and plead guilty
  • Set bail unless offense is only bailable by superior court judge

Importantly, a defendant’s volunteered statements at the initial appearance may be admissible against the accused at trial. The accused person is NOT entitled to an attorney at the initial appearance because the initial appearance is not considered a “critical stage” in the criminal justice process. Gerstein v. Pugh, 420 U.S. 103 (1975).

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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.

 

 

Sexsomnia – A Legal Defense to Sex Crimes?

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What is Sexsomnia?

 

Sexsomnia, also referred to as “sleep sex,” is a particular form of parasomnia. Parasomnias are various categories of sleep disorders that involve abnormal behaviors, emotions, body movements, and dreams that occur while falling asleep, during sleep, between sleep phases, or during arousal from sleep. Sexsomnia involves a person engaging in sexual acts while in non-rapid eye movement (NREM) sleep. Certain sexual behaviors are normal during sleep such as, nocturnal emissions, nocturnal erections, and sleep orgasms.

 

People who suffer from sexsomnia often have no memory of their sexual behaviors during sleep although they may appear to be fully awake. This sleep disorder has been recognized as a criminal defense in sexual assault cases.

 

The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), the taxonomic and diagnostic tool published by the American Psychiatric Association (APA) has classified 11 groups of sleep-wake disorders. These include insomnia disorders, hypersomnolence disorders, narcolepsy, obstructive sleep apnea hypopnea, central sleep apnea, sleep-related hypoventilation, circadian rhythm sleep-wake disorders, non–rapid eye movement (NREM) sleep arousal disorders, nightmare disorders, rapid eye movement (REM) sleep behavior disorders, restless legs syndrome (RLS), and substance-medication-induced sleep disorders. Sexsomnia is classified under NREM arousal parasomnia.

 

Symptoms

 

Symptoms include but are not limited to: masturbation, fondling, intercourse with climax, sexual assault or rape. Someone witnessing an individual experiencing an episode of sexsomnia will note the appearance that their eyes are open. The eyes are typically described as being “vacant” and “glassy”,  and give the appearance of the individual being awake and conscious, even though the individual is completely unconscious and unaware of their actions.

 

Causes and Risk Factors

 

Possible causes can include: traumatic brain injury, stress, sleep deprivation, use of alcohol or drugs, and other pre-existing sleep disorders. Risk factors include sleep disruption or sleep apnea, sleep related epilepsy, and certain prescription medications.

 

Legal Cases

 

People v. Ellington

In People v. Ellington, Joseph Ellington was charged with six counts of lewd acts on a child under age 14. Mr. Ellington’s family history was notable for sleepwalking in his daughter. He had no prior criminal history and used marijuana chronically.

 

The first victim (A.), a nine-year-old friend of Mr. Ellington’s daughter, testified that he put his hand inside her (A.’s) clothing on several occasions. A second victim (K.), another nine-year-old friend of Mr. Ellington’s daughter, testified that he pulled down her (K.’s) tights and panties and put his finger on her “privacy”. K. testified that Mr. Ellington had touched her in the same two places on another occasion when she stayed overnight with his daughter.

 

Mr. Ellington testified that he sat next to K. and subsequently fell asleep. He stated that he did not recollect what happened. Mr. Ellington’s wife described him as a restless sleeper who would wake up violently if startled. She testified he would sometimes make sexual advances in his sleep. She reported that he did not respond when spoken to during these episodes and that he occasionally would sit up and bark out an order that she could not understand.

 

Defense expert, Clete Kushida, MD, was retained the day before he testified and did not conduct any interviews or clinical examinations. He presented literature and general information regarding sleep disorders. The jury found Mr. Ellington guilty of one count of oral copulation for the alleged offenses against both victims, but was unable to reach a verdict on the other counts and enhancement charges. Subsequently, the court declared a mistrial as to those counts and the enhancement allegations were stricken.

 

Before sentencing, Dr. Kushida performed a sleep study on Mr. Ellington, who motioned for a new trial. The defense presented Dr. Kushida’s report from polysomnography, which demonstrated “nonspecific subtle indications” that required further interview and evaluation. The court denied Mr. Ellington’s motion for new trial as they determined that the meager evidence of “nonspecific subtle indications” would not have any impact on the result of the trial. The appellate court affirmed the judgment. Mr. Ellington was sentenced to six years.

 

State v. Scott

Adrian Scott was charged with three counts of sexual battery by an authority figure and two counts of rape of his stepdaughter. Mr. Scott’s stepdaughter reported that he fondled her groin while the family was sleeping in close quarters. On other occasions, she reported similar behavior when he had fallen asleep in her room. Mr. Scott reported no recollection of this behavior. The victim was between 13 and 18 years of age during the alleged incidents.

 

Sleep medicine expert, J. Brevard Haynes, MD, conducted a forensic evaluation of Mr. Scott. Dr. Haynes interviewed Mr. Scott’s spouse, who reported that he had fondled her vagina while asleep on several occasions without recollection. Dr. Haynes performed polysomnography and a mean sleep latency test, which failed to show aberrant sexual behaviors during sleep. Dr. Haynes opined, “[S]exual behavior in sleep parasomnia is the explanation for [Mr. Scott’s] touching of his stepdaughter”. He testified that the basis of his opinion was due to the following (1) [Mr. Scott’s] history of night terrors and sleep walking, (2) he has exhibited similar behavior with his wife, (3) his behavior is in keeping with that reported in other individuals with this parasomnia, (4) there is no history of vaginal foundling [sic] during wakefulness, (5) this behavior is not in keeping with his character.”

 

The state filed a pretrial motion in the criminal court for Davidson County, Tennessee, to exclude expert testimony. The trial court determined that the expert testimony was not sufficiently trustworthy and reliable to be presented to the jury. A Davidson County grand jury found Mr. Scott guilty on all five counts. This case reached the Supreme Court of Tennessee. The court determined that the trial court erred by excluding Dr. Haynes’ testimony regarding sexsomnia, and the judgment was reversed and remanded.

 

Swedish man acquitted of rape with sexsomnia defense

Mikael Halvarsson was acquitted of rape in Sweden using to the sexsomnia defense. Charges were brought against Halvarsson after reports of sexual assault were filed by his girlfriend at the time. Upon investigation, Halvarsson was found still asleep in the alleged victim’s bed when police arrived.

 

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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.

 

 

Interference with the Custody of a Minor in Georgia Criminal Law

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An “interference with custody” criminal charge in Georgia usually arises in the context of a family law dispute where one parent retains custody of a child longer than they are allowed to under a custody agreement. The purpose of statute criminalizing interference with custody is to protect custody interests of child’s lawful custodian from interference by another person. Thompson v. State, 245 Ga.App. 396 (2000). This article will explore the nature of the offense, case law interpretation of the charge, and the possible punishment if convicted.

The Offense

Under O.C.G.A. § 16-5-45: a person commits the offense of interference with custody when without lawful authority to do so, the person:

  • Knowingly or recklessly takes or entices any child or committed person away from the individual who has lawful custody of such child or committed person;
  • Knowingly harbors any child or committed person who has absconded; provided, however, that this subparagraph shall not apply to a service provider that notifies the child’s parent, guardian, or legal custodian of the child’s location and general state of well being as soon as possible but not later than 72 hours after the child’s acceptance of services; provided, further, that such notification shall not be required if:
    • The service provider has reasonable cause to believe that the minor has been abused or neglected and makes a child abuse report pursuant to Code Section 19-7-5;
    • The child will not disclose the name of the child’s parent, guardian, or legal custodian, and the Division of Family and Children Services within the Department of Human Services is notified within 72 hours of the child’s acceptance of services; or
    • The child’s parent, guardian, or legal custodian cannot be reached, and the Division of Family and Children Services within the Department of Human Services is notified within 72 hours of the child’s acceptance of services; or
  • Intentionally and willfully retains possession within this state of the child or committed person upon the expiration of a lawful period of visitation with the child or committed person.

A person commits the offense of interstate interference with custody when without lawful authority to do so the person knowingly or recklessly takes or entices any minor or committed person away from the individual who has lawful custody of such minor or committed person and in so doing brings such minor or committed person into this state or removes such minor or committed person from this state.

Case Law

Defendant could not be convicted of interference with custody of a minor based on his conduct in picking up the victim and her friend after they left school in the middle of the school day, or for his conduct in having the victim at his house when she was supposed to be in school; the plain language of the statute required defendant to entice the child away from an individual having custody, and the school was not the lawful custodian of the victim or her friend. Owens v. State, 353 Ga.App. 848 (2020).

Defendant could not be convicted of interference with custody based on his act of taking a truant 15-year-old female to his apartment, in absence of evidence that female’s mother desired to exercise custody over female at that time but, because of defendant’s actions, was unable to do so. Thompson v. State, 245 Ga.App. 396 (2000).

Penalty if Convicted

On conviction of for a first offense, the defendant shall be guilty of a misdemeanor and shall be fined not less than $200.00 and no more than $500.00 or shall be imprisoned for not less than one month nor more than five months, or both. A second conviction is punished as a misdemeanor and shall be fined not less than $400.00 and no more than $1,000.00 or shall be imprisoned for not less than three months nor more than 12 months, or both. Upon a third or subsequent conviction, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one and no more than five years.

A person convicted of the offense of interstate interference with custody shall be guilty of a felony and shall be imprisoned for not less than one year and no more than five years.

Contact Us

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

 

 

Georgia Criminal Law: Stalking and Aggravated Stalking

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Statutory Law

O.C.G.A. § 16-5-90(a) provides that “[a] person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.”

“Contact,” has been broadly defined as, “any communication including without being limited to communication in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device; and the place or places that contact by telephone, mail, broadcast, computer, computer network, or any other electronic device is deemed to occur shall be the place or places where such communication is received.”  

Furthermore, “harassing and intimidating,” is defined as, “a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose. 

A person who commits the offense of stalking is guilty of a misdemeanor (up to 12 months in jail and $1,000 fine or both). If convicted of stalking a second time (or any subsequent conviction) the person will be punished as a felony and can be sentenced to at least one year in jail and no more than ten years in jail.

A person who commits the offense of stalking (as defined above) in violation of a bond to keep the peace posted pursuant to Code Section 17-6-110, temporary restraining order, temporary protective order, permanent restraining order, permanent protective order, preliminary injunction, good behavior bond, or permanent injunction or condition of pretrial release, condition of probation, or condition of parole in effect prohibiting the behavior described in this subsection is guilty of aggravated stalking.

Aggravated stalking is a felony punishable by imprisonment no less than one year, but no more than ten years and a fine not greater than $10,000.

Case Examples

In, Wright v. State, 292 Ga. App. 673, 665 S.E.2d 374. (2008), the evidence in this case was insufficient to support an aggravated stalking conviction. The defendant and the “victim” had a lengthy on-and-off relationship. The incident in question did not involve “a pattern of intimidating and harassing behavior that placed the woman in reasonable fear for her safety.” OCGA § 16-5-90(a)(1).

Similarly, in Autry v. State, 306 Ga. App. 125, 701 S.E.2d 596 (2010), the defendant was charged with stalking. The evidence showed that he was parked in a parking lot and watched a woman enter and then exit a store. He then followed her to another store, where she entered and exited. He then followed her briefly, but drove in a different direction eventually. This evidence did not suffice to sustain a stalking prosecution. The conduct did not amount to a pattern of harassing and intimidating behavior.

In a juvenile case, a police officer and the juvenile had a previous run-in. The juvenile, a passenger in a pick-up, was seen pulling into the officer’s driveway, waiting a few minutes and then leaving. This evidence did not support a stalking conviction. In re C.C., 280 Ga. App. 590, 634 S.E.2d 532 (2006).

In, Bradley v. State, 252 Ga. App. 293, 556 S.E.2d 201(2001), the defendant threatened the victim and was arrested. A restraining order was entered barring him from contacting the victim again. Subsequently, the defendant and the victim ignored the restraining order and contacted each other. Later, the victim called the police and complained that the defendant was at the apartment and threatened her. The defendant’s conviction for aggravated stalking was affirmed. The fact that the parties ignored the restraining order for a period of time did not vitiate the order or immunize the defendant from prosecution for violating the order. The violation of the restraining order was a “public wrong” that may not be condoned by the victim.

A person may commit the offense of aggravated stalking even if the victim is not aware of the defendant’s actions. In this case, in violation of the defendant’s bond order, he went to the victim’s house and looked in the garage. The victim was not aware that he had done so. Nevertheless, this conduct amounted to aggravated stalking. Jagat v. State, 240 Ga. App. 822, 525 S.E.2d 388 (1999).

In, Jerusheba v. State, 226 Ga. App. 696, 487 S.E.2d 465 (1997), the defendant’s conduct was sufficient to convict the defendant of stalking where the defendant sent numerous letters to the victim that were lurid, detailed and graphic descriptions of his sexual aspirations concerning the victim, with whom he had no prior relationship of any substance (they saw each other on the bus, occasionally).

Contact Us

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

Battery – Family Violence in Georgia

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If you or a loved one is arrested for Family Violence Battery in Georgia, it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence. 

Georgia Criminal Code § 16-5-23.1 defines domestic violence as whenever a battery, an intentional physical harm or visible bodily harm, is committed against “past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.”

Punishment

First Conviction: Upon a first conviction of family violence battery, the defendant shall be guilty of and punished for a misdemeanor, a jail sentence can be imposed of up to twelve months and courts will require defendant’s to take a 24 week Family Violence Intervention Program throughout probation. 

Second Conviction: A second or subsequent conviction of family violence battery against the same or another victim, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

There are also immigration concerns if you are not a U.S. Citizen. 

It should be noted, domestic violence is a “deportable” offense, if you are not a U.S. citizen and are convicted it can lead to serious immigration consequence.

Do not think that just because you are innocent that the charges will be dismissed. Family Violence Battery charges are aggressively prosecuted in Georgia. 

Here is what you should do if arrested for Family Violence Battery in Georgia. 

  1. Hire an attorney – Make sure that attorney actually handles and tries Family Violence Battery cases.  Make sure the attorney you talk to does regularly handles Family Violence Battery cases in Georgia. 
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be
    dropped. If you are arrested for Family Violence Battery, you have to start preparing
    for your jury trial. Do not make any statements to anyone except your lawyer. 
  3. Gather and preserve any physical evidence in your possession that might relate to the person making the accusation. This includes clothing, photos, video or any other tangible object.
  4. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred. 
  5. Witnesses – Immediately make a list of any person who you think might have information about this Family Violence Battery accusation.Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them. 

Here is what you should never do if arrested for Family Violence Battery in Georgia

  1. Never talk to the alleged victim or the family.
  2. Never have any contact with the alleged victim
    through a 3rd party or through social media.
  3. Never talk to law enforcement without an
    attorney present.

If you are arrested for Family Violence Battery in Fulton, Gwinnett, Cobb, Dekalb, Clayton or any other county in the metro Atlanta area, please call our office 24/7 at 404-581-0999. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for this consultation. You will only retain us if you feel we are the best law firm to represent you. It is your life so you need to hire the lawyer that you feel gives you the best chance to win your case. 

Georgia Law: Nolo Contendere Plea

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Georgia law allows individuals to enter this special type of plea once every five years. This article serves to explore the meaning of this plea, its effect, who can use it, and when to use it.   

Nolo Contendere Defined

Nolo contendere literally means, “no contest.” By entering this plea, although you acknowledge there may be enough evidence to convict you of the alleged crime, you are technically not admitting guilt. It is important to note the nolo contendere plea (also called “nolo”) acts as a conviction. Additionally, a nolo plea will not reduce punishment ordered by the sentencing judge, you will have the same punishment as if you had plead guilty.

The Benefit of a Nolo Plea

If a nolo plea acts as a conviction, then what separates it from a guilty plea? A nolo plea to certain traffic offenses prevents the conviction from being reported to DDS. As a result, no points will be assessed to your license. But, whether your insurance company raises your insurance rates is uncertain as every insurance company has different terms and conditions.

Commercial Driver’s License (CDL) Holders and Nolo Pleas

Unfortunately, a nolo plea does not prevent a commercial driver’s license from being suspended or disqualified. CDL holders are held to a higher standard than the general public because commercial vehicles pose a greater risk to the public (they are much larger and more difficult to operate) than non-commercial vehicles. As a result, a nolo plea has no value to a CDL holder; the CDL holder should contact an experienced attorney to get the case dismissed or reduced to a non-reportable offense.  

Drivers Under 18 and 21 Years Old

Drivers under the age of 18 are unable to use a nolo plea. The law seeks to hold young drivers accountable for traffic violations to deter them from future offenses. Those under 18 should also consider hiring a lawyer to get their case dismissed or reduced to a non-reportable offense. Drivers under the age of 21 can use a nolo plea, but it rarely helps. For the following offenses provided under O.C.G.A. § 40-5-57, a nolo plea will not avoid a license suspension for drivers under the age of 21:

  • Reckless Driving;
  • Aggressive Driving;
  • Escaping or Fleeing Using a Motor Vehicle;
  • Racing;
  • Improper Passing on Hill or Curve;
  • Unlawful Passing of a School Bus;
  • Hit and Run / Leaving the Scene of an Accident; and
  • Exceeding the Speed Limit by 24 mph or greater

When to Use a Nolo Plea

For those drivers above the age of 21, a nolo plea can be very useful in many different circumstances. Nolo pleas are generally useful in driving without insurance, driving with a suspended license, and hit and run cases. That being said, it is still generally good practice to consult an attorney to determine whether you should use a nolo plea or try to get the case dismissed or reduced to a non-reporting offense, thereby saving your nolo plea (remember, you can use it only once every 5 years).

You do not want to use a nolo plea for minor traffic offenses where the case could be dismissed or reduced to a non-reporting offense. Examples include but are not limited to: failure to yield, speeding (over 14mph the limit but not super speeder), improper turn, following too closely, failure to maintain lane. A lot of times, prosecutors will dismiss the case if you successfully complete a driving course or something similar. You also do not want to use a nolo plea where other alternative sentencing options are available, such as: pre-trial diversion, conditional discharge pleas, or some type of informal agreement to dismiss. These are common in marijuana possession cases, minor in possession cases, and shoplifting cases if you have no prior criminal history. Lastly, you should not use a nolo plea on a traffic charge that would not show up on a Motor Vehicle Report because it would not be reported to DDS. Examples include but are not limited to: too fast for conditions, basic rules violations, speeding (14 mph or less above speed limit), expired registration, and parking tickets.

Contact Us

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.

Did I get arrested? A discussion of what constitutes an arrest and how it impacts your Georgia Criminal History

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In Georgia, many offenses that are not crimes in every state, like traffic offenses, are considered criminal offenses. Because so many offenses that aren’t treated like crimes in every state are crimes, it’s important to know if your interaction with law enforcement constitutes an arrest in the State of Georgia.

Not every arrest will go on your criminal history. For an arrest to go on your Georgia criminal history or GCIC you must be fingerprinted and it must be reported to the Georgia Bureau of Investigation. If you aren’t fingerprinted, that arrest should not show up on your criminal history. Lets talk about some specific instances and whether they constitute an arrest

Traffic Citations

Traffic citations are considered arrests in Georgia, but not in the traditional sense, and most likely do not have to be reported. If you are given a traffic citation and allowed to drive away, or given a citation by an officer on the street and allowed to leave, that is technically an arrest. But that arrest will not show up on your criminal history because you were never fingerprinted. A conviction for any traffic offense will show up on your driving history.

Traditional Arrest (Handcuffed, Taken to Jail, and Fingerprinted)

If you were handcuffed, taken to jail, and fingerprinted by any Georgia law enforcement officer, you should expect that arrest to show up on your criminal history. Most non-traffic offenses will result in arrest, but occasionally some minor misdemeanor offenses in Georgia like possession of marijuana less than an ounce, theft by shoplifting, minor in possession of alcohol, and disorderly conduct will not result in arrest. You may only be issued a citation. However, in these instances, you may be asked to be fingerprinted when your case is resolved, even if that resolution ends in dismissal.

Warrant Application Hearings

A warrant application hearing is different than the traditional arrest process. If a citizen believes you have committed a crime against them, they can go to the Magistrate Court in the county which the alleged crime occurred and file a warrant application. You would then be required to appear in front of a judge. The Judge would hear evidence bfrom both parties regarding the alleged criminal conduct and decide if a warrant should be issued. If the Judge grants a warrant, they can either ask you to turn yourself in and post a bond (often times just a signature bond) or ask the Sheriff to take you into custody. That is the Judge’s discretion. A warrant application may or may not go on your Georgia criminal history. Again, it depends on whether or not you are fingerprinted during the process.

We hope this knowledge assists you in understanding the warrant process. Our office is here for all your Georgia criminal law needs. Please call us today at 404-581-0999.

VIDEO – Georgia Fireworks Laws

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by Scott Smith and Ryan Walsh

Beginning on July 1, 2015 it became legal to purchase fireworks in Georgia. What used to be annual trips around the major holidays to the Alabama and South Carolina border has ended and consumer fireworks are now available for purchase in Georgia.

To legally purchase fireworks in Georgia you must be 18 years of age and provide a photo ID at a physical store licensed to sell fireworks. There are no online sales of fireworks in Georgia, so you can’t log in to your Amazon account and order your Fourth of July arsenal.

State law restricts the hours you can set off fireworks. On any day throughout the year, you can light fireworks from 10am until 9pm. Some counties and municipalities may extend these regular hours until 11:59pm depending on local noise ordinances. However, On July 3rd, 4th, December 31st and January 1st, the hours to light fireworks are extended until Midnight or 1am depending on date.

All fireworks must be lit by adults. Fireworks cannot be ignited in a public roadway or within 100 feet of gas stations, airports, jails or prisons.

If you’ve been cited for improper use of fireworks, give us a call at 404-581-0999. Our office of attorneys understands Georgia fireworks law and is ready to defend your citation.

Thank you.

VIDEO – Testifying in Court in Your Georgia Criminal Case

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Testifying in court can make even some of the most seasoned attorneys nervous. But what about people charged with crimes who want to express their innocence and have never testified in court before? Watch this video below and call our office with questions.

Telling your story through testifying in court is about understanding the important pieces of your case. And what does that mean? It means what does the jury need to know about what happened? What does your jury need to know about you? How do you best tell your story to the jury? What does all of that include?

Well first and foremost you must tell the jury the truth. Jury members are smart. They will know if what you are telling them is not true. And as you are telling your story, truthful testimony will help the jury understand you as a person.

Next, listen to the entire question being asked and answer that and only that question.

Often, questions will begin with one of the classic question words like who, what, where, when, why, and how. You answer a where question with a location. Answer a question about time with the time. Jurors will stop caring about your story if you give non-responsive answers.

And if you do not fully understand the question being asked, take a moment and ask for clarification or ask for the question to be asked again.

Take a moment before answering each question to thing about your answer before actually saying it.

Let the pause calm yourself. Calm your nerves. Some questions will be inflammatory. Other questions asked by the state might even be offensive. Use that moment to center yourself to answer each question in a calm and collected manner.

You are allowed to qualify your answers on cross-examination. If the Georgia prosecutor is asking you for a yes or no answer and that’s all, you can explain your answer after responding yes or no. Do so when necessary.

Also, always remember you are telling your story to the jury. You aren’t speaking to the state’s prosecutor when they are asking you questions. Turn and make eye contact with each and every juror. Through eye contact, you will actually connect with the jury.

Putting these pieces together takes practice. It takes time. At our law firm we pride ourselves on discovery our client’s stories and preparing them for trial to connect with the Georgia jury. If you are our client and you want to practice, we are the only law firm that does criminal defense with our own mock courtroom where you can shake off your nerves and practice for testifying in court.

We want to help you tell your story. Call us today at 404-581-0999 for a free legal consultation on your Georgia criminal defense trial.

Thank you.