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Roswell Georgia DUI Attorney

Roswell, Georgia is home to the Roswell Municipal Court where Judge Brian Hansford presides over DUI, Traffic, Marijuana, and other City Violation cases brought by Roswell Police Department. The Roswell Municipal Court is located at 38 Hill Street in Roswell, Georgia.

 

One of the most common cases we see in the Roswell Municipal Court are DUI cases. In Georgia, DUI can be charged in either two ways under O.C.G.A. § 40-6-391.  Driving under the Influence Per Se means the State is charging the individual with being over the .08 legal limit for drivers over 21 years old. It is a .02 legal limit for DUI cases involving drivers under 21. DUI Per Se is charged where there is a breath, blood, or urine test. The second way a DUI can be charged in Georgia is DUI Less Safe. Under Georgia law, DUI Less Safe means the person is accused of driving under the influence to the extent they were a less safe driver. We typically see DUI Less Safe cases where there is no chemical test, or where there is a chemical test but it is below the legal limit.

 

There are numerous defenses to DUI to be explored and raised. A skilled DUI defense attorney must fiercely evaluate and raise issues starting at the purpose of the stop and ultimately the probable cause in making the arrest. Factors to be assessed are the performance of field sobriety tests if any were conducted, the lack of odor or admissions, and the driving that was observed. Additionally, the Implied Consent portion of the DUI case is highly relevant in DUI defense because in order for the chemical test to be admissible in Court, the proper Implied Consent must be read after arrest, and there must be true knowing and voluntary consent to submit to the chemical test. Under Georgia law, mere acquiescence to authority is not voluntary consent. It should be noted that any refusal to submit to breath testing following an arrest is deemed inadmissible evidence given the Georgia Constitution gives the right to decline incriminatory acts. This law was clarified and confirmed in Elliott v. State, 305 Ga. 179 (2019).

 

In all first DUI cases, the mandatory minimum sentence is 24 hours in jail, 12 months on probation, a $300.00 fine plus court costs (nearly doubles it), 40 hours of community service, a Risk Reduction course, and an alcohol and drug evaluation and treatment if deemed necessary. The maximum sentence is 12 months in jail on each charge. On a second, or third DUI in 10 years, the jail time is increased, as well as the fines and the community service.

 

Remember that DUI is a misdemeanor crime that goes onto your criminal history. In Georgia, DUI can never be expunged or restricted, and thus a DUI conviction will remain on your history forever.

 

A DUI charge also has intense license repercussions.  If there is a refusal on the chemical test, the Officer can suspend your license for at least a year. This must be challenged within 30 days of your arrest, so time is of the essence in DUI cases. Depending on what else the individual is charged with, and how many prior DUIs he or she has, it is possible a DUI conviction could lead to a 5-year habitual violator suspension.

 

The options in Roswell Municipal Court are to enter into pretrial negotiations with the goal of avoiding the harsh consequences of a DUI, or to enter a Not Guilty plea and send the case to the Fulton County State Court where motions and a trial can occur. As experienced DUI lawyers practicing in Roswell regularly, we have the skill and knowledge to accomplish your goals both in Roswell and in Fulton County. We are trial lawyers constantly staying on top of DUI law. If you or a loved one has been charged with DUI in Roswell Municipal Court, call us now for a FREE CONSULTATION at 404-581-0999.

 

 

 

The Georgia First Offender Act

The First Offender Act is a progressive statute implemented by the State of Georgia where a person who has never been convicted of a prior felony offense can be sentenced on a pending charge, but subsequently, have those charges sealed by the court if he/she successfully completes their First Offender sentence.

According to O.C.G.A. § 42-8-60, the accused may be eligible under the First Offender Act if the following statements are true:

  • The accused has never been convicted of a felony;
  • The accused have never been previously sentenced under the First Offender Act;
  • The offense charged is not a serious crime committed against a law enforcement officer engaged in his/her duties;
  • The offense charged is not Driving Under the Influence (O.C.G.A. § 40-6-391);
  • The offense charged is not a serious violent felony (O.C.G.A. § 17-10-6.1);
  • The offense charged is not a serious sexual offense (O.C.G.A. § 17-10-6.2);
  • The offense charged is not related to child pornography (O.C.G.A. § 17-10-100.2);
  • The offense charged is not related to electronic sexual exploitation of a minor, computer pornography (O.C.G.A. § 17-10-100);
  • The offense charged is not trafficking of persons for labor or sexual servitude (O.C.G.A. § 16-5-46); and
  • The offense charged is not neglecting disabled adults or elderly people (O.C.G.A. § 16-5-101).

HOW IT WORKS

Trial counsel for the accused must ask the judge to sentence him/her under the First Offender Act. Then, the judge will consider whether to sentence the accused to First Offender after he/she hears arguments from both the prosecution and the defense. If the judge sentences the accused under First Offender, his/her official criminal history will describe the disposition of the crime charged as “First Offender” until the sentencing term is successfully completed. If the accused violates any conditions placed on him/her during their term of sentence, including committing another crime, the judge has the discretion to revoke the First Offender status. This means that the accused will be sentenced and convicted, which will be shown on his/her official criminal history. In revoking one’s status, the judge does have discretion to sentence the accused to the maximum penalty for the crime charged. However, if the term of sentence is successfully completed, the clerk of court will seal the offense charged from his/her official criminal history.

CONTACT US

At the Law Offices of W. Scott Smith, our attorneys are knowledgeable about the consequences of a criminal conviction on one’s record, as well as all possible options for our clients dealing with pending allegations. Therefore, if you have been recently arrested on a criminal charge or your case is currently pending, please call our office today at 404-581-0999 for a free consultation.

Theft by Receiving Arrest in Georgia

Georgia law has two different statutes that address the crime of theft by receiving. The first section defines the offense of receiving stolen property while the second Georgia statute describes receiving property that was stolen from another state.

The first statute describing the crime of theft by receiving is transcribed in O.C.G.A. § 16-8-7. In this section, theft by receiving occurs when a person receives, disposes of, or retains stolen property, which he/she knows or should have known was stolen unless the property is received, disposed of, or retained with the intent to restore it to the rightful owner.

In order for the prosecution to convict a person of theft by receiving, it must prove beyond a reasonable doubt the following four elements. These elements include:

  • The accused bought or received the goods in question;
  • The goods in question have been stolen by some person other than the accused;
  • At the time of the transaction, the accused knew or should have known that the goods in question were stolen; and
  • The accused acted with criminal intent.

Therefore, if the direct and uncontested evidence proves that the accused is the original thief of the goods in question then the accused cannot be convicted of theft by receiving. Furthermore, even if the accused is not certain, but has reason to believe that the goods in question are stolen, the accused may have committed theft by receiving according to Georgia law.

The second section regarding the crime of theft by receiving is described in O.C.G.A. § 16-8-8. This statute is read in the same manner as O.C.G.A. § 16-8-7, except for the fact that the property in question was received, disposed of, or retained in another state other than the state of Georgia.

Value of Goods

In determining whether the theft by receiving charge will be characterized as a misdemeanor or a felony depends on the value of the goods/property, which were allegedly stolen, and then received by the accused. For misdemeanor theft by receiving convictions, usually the value of the goods in question must be estimated at a value less than $1,500. For a felony conviction, the goods in question must at least be valued at $1,500 or more. However, if the value of the goods is estimated at more than $1,500, but less than $5,000, the judge has discretion in sentencing the accused to either a misdemeanor or a felony. This is also true for theft by receiving offenses in which the value of the goods is at least $5,000, but less than $25,000.

Contact Us

Due to the severity of the punishment for a theft by receiving conviction, it is vitally important to hire a seasoned criminal defense attorney to defend you against such allegations. At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of theft by receiving, as well as all possible options for an accused dealing with such a serious charge. We are experienced and skilled at defending such allegations and we work tirelessly to advocate for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for theft by receiving, please call our office today at 404-581-0999 for a free consultation.

Georgia Ignition Interlock Device Limited Permit after DUI Arrest

Following a DUI arrest, the State of Georgia has authority to suspend the driver’s license of the accused in a civil proceeding, which is separate from the criminal case, if one of the following occurs:

  1. After the accused has been arrested, the officer on the scene read the accused the correct “Implied Consent” notice and he/she refused to comply with either a breath, blood, or urine test in order to determine his/her blood alcohol content; OR
  2. The accused consented to a breath, blood, or urine test and the results showed that the blood alcohol content of the accused was above the legal limit.

At this time, the accused has a few options. He/she can either appeal the license suspension or install an interlock device in his/her vehicle for the duration of the suspension. However, in this blog we will solely discuss the latter.

INTERLOCK DEVICE

If the DUI arrest mirrored the situation described above in subsection (1), the accused has 30 days from the arrest to install an interlock device in their vehicle AND apply for an interlock device permit with the Georgia Department of Driver Services. The installation of the interlock device must be installed PRIOR to applying for the permit and it must be installed for a period of 12 months. In Georgia, this has become a viable alternative to a license suspension if the accused after a DUI arrest has refused to comply with a breath, blood, or urine sample.

However, not everyone who is arrested with a DUI will be eligible to install an interlock device in their vehicle as an alternative to a license suspension. The following must pertain to the accused in order for the accused to be eligible to install an interlock device in their vehicle:

  • Must have a Georgia driver’s license;
  • Be 21 years or older;
  • Have no other active license revocations or suspensions; and
  • No previous DUI convictions in the last five years.

Additionally, if the accused meets any of the following criteria, he/she is not eligible for an interlock device:

  • Drivers with out-of-state licenses;
  • Drivers with an ALS suspension in the previous five years;
  • Drivers whose DUI case involved an accident with serious injury or death;
  • CDL drivers, unless the license is downgraded to non-commercial during the suspension.

At the Law Offices of W. Scott Smith, we understand that there are grave consequences following a DUI arrest, including the possibility of a license suspension. Therefore, our attorneys are knowledgeable about all possible options for our clients and we work tirelessly to advocate for them. Therefore, if you have been arrested for a DUI and are potentially facing a license suspension, please call our office today at 404-581-0999 for a free consultation.

Theft by Conversion Arrest in Georgia

In Georgia, like other theft offenses, a theft by conversion charge can be prosecuted as a misdemeanor or a felony, depending on the value of the property converted. According to § O.C.G.A. 16-8-4, theft by conversion occurs when a person lawfully obtains another individual’s funds or property and then unlawfully converts such property to his/her own use.

In order to convict an accused for theft by conversion, the elements of the offense must be proven by the prosecution beyond a reasonable doubt:

  • The accused lawfully obtained funds or property of another;
  • The funds or property were obtained by an agreement between the accused and the owner;
  • The agreement required that the accused used the funds/property for a particular purpose;
  • However, instead, the accused knowingly converted the property for his/her own use.

Value of Property

In determining whether the theft by conversion charge will be characterized as a misdemeanor or a felony depends on the value of the property converted. In Georgia, funds or property valued at less than $500 are generally charged as misdemeanors. Alternatively, if the property in question is valued at a price greater than $500, the prosecution may file felony charges against the accused.

In these types of cases, the value of the property is determined by properly measuring the fair cash market value either at the time and place of the alleged theft or any stage during the receipt or concealment of the property in question.

Defenses

An experienced criminal defense attorney can assert affirmative defenses to either request a reduction in the penalties of a theft by conversion conviction or receive a dismissal of all charges. Thus, it is vitally important to hire a seasoned criminal defense attorney to defend you against such allegations.

Such affirmative defenses include, but are not limited to:

  • Lack of intent;
  • Consent;
  • Accused used the property as intended;
  • Innocence;
  • Intoxication, if it negates intent;
  • Charges should be reduced, because the property value was less than the prosecution alleged.

Contact Us

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of theft by conversion, as well as all possible options for an accused dealing with such a serious offense. We are experienced and skilled at defending such allegations and we work tirelessly to advocate for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for theft by conversion, please call our office today at 404-581-0999 for a free consultation.

Theft by Taking Arrest in Georgia

In Georgia, a theft charge can encompass either misdemeanor or felony penalties, depending on the value of the goods or property in question. If you have been arrested for theft, you could be charged with any of the following: theft by taking, theft by deception, theft by conversion, theft by shoplifting, and so on. However, the most commonly charged theft that appears in Georgia is theft by taking. According to O.C.G.A. § 16-8-2, theft by taking occurs when a person unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which property is taken or appropriated. Typically, this occurs when the property is taken without the knowledge of the victim at the time of the alleged offense.

Value of Goods

In determining whether the theft by taking charge will be characterized as a misdemeanor or a felony depends on the value of the goods/property, which were allegedly stolen, taken, and/or appropriated. Property or goods valued at less than $500 are generally charged as misdemeanors. Alternatively, if the goods in question are valued at a price greater than $500, the State of Georgia could charge you with a felony offense.

Penalties

In misdemeanor theft by taking cases, a conviction could result in no more than a year in jail and a $1,000 fine. However, following a felony theft by taking conviction, a judge could sentence you between 1-10 years in prison.

Due to the severity of the punishment for a theft by taking conviction, it is vitally important to hire a seasoned criminal defense attorney to defend you against such allegations. An experienced criminal defense attorney can defend these allegations by either getting the charges dismissed by bringing forth defenses to such allegations or requesting a reduction in the penalty of such charges.

Defenses

Here are some common defenses for theft by taking cases in Georgia:

  • There was no theft;
  • Acted under an honest claim of right or ownership of property;
  • Charge should be reduced depending on the value of the goods and amount taken;
  • There was no intent to steal;
  • The accused was unaware that the property was of another;
  • The intention was to borrow the item, not to steal it;
  • Intoxication, if it negates the intent element.

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of theft by taking, as well as all possible options for an accused dealing with such a serious charge. We are experienced and skilled at defending such allegations and we work tirelessly to advocate for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for theft by taking, please call our office today at 404-581-0999 for a free consultation.

Possession of Marijuana is Still a Crime in Georgia

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

The Offense

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

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

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

Punishment

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

Handling Your Misdemeanor Case in Georgia during the COVID-19 Pandemic

The court system in Georgia has changed drastically over the past nine months. Judges have adopted virtual court appearances. Prosecutors and defense attorneys are working their cases from home. Clerks offices and entire courthouses throughout Georgia have been shut down due to positive COVID cases.

The handling of misdemeanor cases in Georgia has become a completely different process from arrest through closure. Police officers are issuing citations instead of arrest in many situations. Cases that would normally require fingerprints at the time of police interaction like theft by shoplifting, driving on a suspended license, misdemeanor possession of marijuana, and even DUI are ending with our potential client being released instead of taken to jail.

Court appearances are being postponed, sometimes to months later. It took the Municipal Court of Atlanta almost eight months to re-open after the beginning on the pandemic. They are still catching up on cases at this time. Delays in resolution means cases are outstanding for longer periods, and in some cases able to be seen by persons running background checks for a longer period of time. Also, just because you weren’t arrested doesn’t mean fingerprints will not be required before your case is resolved.

Having a Georgia attorney experienced with misdemeanors during this time is essential in trying to get closure as quick as possible on your case. An attorney can reach out to the prosecutor’s office and try and fast track your case to get it resolved as quickly as possible.

Our office is available 24 hours a day, 7 days a week for a free consultation. Call us today at 404-581-0999.

Georgia DUI Law: DUI Arrests on Super Bowl Weekend

Super Bowl Sunday is almost here. On February 2, 2020, the Kansas City Chiefs will be competing against the San Francisco Forty-Niners in Super Bowl LIV at the Hard Rock Stadium in Miami Gardens, Florida. Alongside holidays such as New Year’s Eve, Independence Day, and St. Patrick’s Day, Super Bowl Sunday has one of the highest rates of DUI arrests across the United States.

Super Bowl Sundays and DUI Arrests

The Automobile Club of Southern California conducted a 9-year-long study analyzing drunken driving-related crashes resulting in injuries on Super Bowl Sundays as compared to other Sundays. Their research showed that these DUI crashes involving injury were 41% more likely to occur on Super Bowl Sunday than on any other Sundays in January or February. Additionally, the study showed that New Year’s Eve was the only night of the year with a higher rate, with a 44% increase.

Data from Alcohol Monitoring Systems (AMS) – which analyzes the drinking behavior of approximately 530,000 repeat DUI offenders, found that drinking violations by repeat drunk drivers increased an average of 22% nationwide on Super Bowl Sunday, compared to the average Sunday.

Tips for Super Bowl Sunday

Have a plan. Arrange for a designated driver or a ride share service (Uber, Lyft, Via, etc.) if you intend on drinking and traveling on the roadways. Consider sleeping over at a friend’s house if you are watching the game there.

Be aware. Law enforcement will be out in numbers. Police will be actively looking for bad driving in order to facilitate a DUI investigation. As an additional precaution, you should expect potential DUI Roadblocks in certain areas.

If you are stopped and investigated for DUI, you need to know what to do.

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.

Georgia DUI Law: Challenging the Stop, Defective Equipment

Georgia DUI investigations usually begin with a routine traffic stop. At a minimum, in order to stop you and your vehicle, the stopping officer needs to have “reasonable and articulable suspicion” to believe a crime has, or is about to be committed. An officer normally satisfies this requirement by observing a traffic or equipment violation. However, if it is determined the officer did NOT have reasonable and articulable suspicion to stop your vehicle; this could result in the suppression of evidence and the ultimate dismissal of a DUI charge.

Therefore, it is crucial to examine the most common types of traffic violations that result in a DUI investigation. This article serves to inform you of the nature, methods of proof, penalties, and challenges to a defective equipment offense in Georgia.

The Offense

O.C.G.A. §§ 40-8-7(a) and (b) state:

(a) No person shall drive or move on any highway any motor vehicle, trailer, semi trailer, or pole trailer, or any combination thereof, unless the equipment upon any and every such vehicle is in good working order and adjustment as required in this chapter and the vehicle is in such safe mechanical condition as not to endanger the driver or other occupant or any person upon the highway.

(b) It is a misdemeanor for any person to drive or move, or for the owner to cause or knowingly permit to be driven or moved, on any street or highway any vehicle or combination of vehicles:

(1) Which is in such unsafe condition as to endanger any person;

(2) Which does not contain those parts or is not at all times equipped with such lights and other equipment in proper condition and adjustment as required in this chapter; or

(3) Which is equipped in any manner in violation of this chapter.

Even if you are driving perfectly, a police officer may still stop your vehicle if any of its equipment is non-operational. Examples include, but are not limited to, missing taillight, broken tag light, or a low hanging bumper. Although the spirit of this law is to protect other motorists from defective vehicles on the road, this traffic offense is often used as a “pre-textual stop,” meaning the officer stops you for this offense in hopes of discovering another criminal offense, particularly DUI. Although the law used to criticize these types of stops, a line of United States Supreme Court cases has weakened these types of challenges.[1]   

Penalties

Under Georgia law, technically, these equipment violations are misdemeanors and are therefore punishable with up to a maximum fine of $1,000 and up to one year in jail. Although these are the maximum punishments, equipment violations generally do not result in jail time. Normally, if you get the defective equipment fixed, and provide proof of such to the prosecuting attorney, your case will likely be dismissed.

Challenging the Stop

If an officer pulls you over for an equipment violation and ultimately arrests you for DUI, you may lodge a challenge to the stop of your vehicle through a motion to suppress or a motion in limine. These challenges are designed to attack the stop, arrest, or any evidence gathered as a result of an unlawful stop and/or arrest.

If you are facing a DUI-Less Safe case, the State will have to prove “less safe driving.” If you have only been cited for defective equipment, the State will have great difficulty in proving alcohol caused you to be a less safe driver because there is no “less safe” driving act (ie. speeding, failure to maintain lane, improper turn, etc.). This is a major issue a defense attorney should raise during trial.

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.


[1] See, Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536 (2001); Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769  (1996); Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417 (1996); and Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882 (1997).