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Georgia Analysis of Utah vs. Strieff Decision

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by Ryan Walsh

The Fourth amendment of the United States Constitution protects citizens from unreasonable searches and seizures. Traditionally, evidence found after a 4th amendment violation is excluded under what is known as the “fruit of the poisonous tree” doctrine. That is, any evidence recovered after a fourth amendment violation occurs is suppressed by the court and cannot be used against the defendant in his case. However, in the last ten years the United States Supreme Court has limited this exclusionary “fruit of the poisonous tree” doctrine to situations where exclusion is the last resort by highlighting a number of exceptions. ryan-walsh

Exceptions to the exclusionary rule under federal law include when an officer acts in good faith in what he believes is a legal search, when evidence is acquired through an independent source, when evidence would inevitably been discovered without the unconstitutional source, and the attenuation doctrine. The attenuation doctrine states that evidence is admissible when the connection between the 4th amendment violation and the evidence found is distant or the connection between the 4th amendment violation has been interrupted by a change in circumstances. The recent United States Supreme Court opinion, Utah vs. Strieff directly addresses the attenuation doctrine, creating situations where intervening circumstances cause Georgia citizens to be subject to searches and seizures that would otherwise be unreasonable under the Fourth amendment of the United States Constitution. Utah vs. Strieff, 579 U.S. ___ (2016).

In Utah, Edward Strieff left a home on foot that had been tied to drug activity and walked to a gas station. Officer Fackrell, who had been surveilling the home, approached Strieff, identified himself, asked Strieff for identification, detained him, and then questioned him regarding what he was doing at the residence. Officer Fackrell gave Strieff’s information to a police dispatcher, who told Fackrell that Strieff had an outstanding arrest warrant for a traffic violation. Strieff was arrested and a search of his person was performed incident to the arrest, where Officer Fackrell found methamphetamine and drug paraphernalia on Strieff. Strieff then moved to suppress the evidence of methamphetamine and drug paraphernalia. The State of Utah conceded that Officer Fackrell did not have reasonable suspicion for the stop, but argued that because of the arrest warrant, the connection between the unlawful stop and the search had been attenuated and the search incident to arrest and seizure were valid under the Fourth Amendment.

The United States Supreme Court agreed with the State of Utah. Despite the fact that the stop of Strieff was unlawful, the Court held that the valid arrest warrant created a change in circumstances that “attenuated” the illegal stop from the valid search and seizure. In looking towards whether there was a sufficient change in circumstances between the conduct that violated the fourth amendment and the discovery of methamphetamine and drug paraphernalia on Strieff, the Court looked to three factors. The three factors are (1) “the temporal proximity between the unconstitutional conduct and the discovery of the evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 603-604 (1975). The Court found that factor one favored Strieff in that the time between the unconstitutional conduct and the discovery of evidence was very brief. But the Court found that factors two and three favored the State. The existence of a valid arrest warrant was a significant intervening circumstance, and that Officer Fackrell was at most negligent in his stopping of Strieff outside the gas station. In discussing Officer Fackrell’s negligence, the Court addresses what they call his “good-faith mistakes.” Therefore, the evidence seized by Officer Fackrell was admissible at trial against Strieff. Now that we’ve analyzed the law applied by the United States Supreme Court, is the holding in Utah v. Strieff applicable to Georgia citizens?

Georgia’s restrictions on searches and seizures are greater than the protections provided by the United States Government. Georgia codified their exclusionary rule in O.C.G.A. §17-5-30. The language in that statute provides no good-faith exception to the exclusionary rule. Further, Georgia courts don’t officially recognize any specific exceptions to the exclusionary rule, but they do offer their rationale in determining whether evidence that could be excluded as “fruit of the poisonous tree” will be excluded. That rationale is most clearly articulated in Vergara v. State. Vergara v. State, 283 Ga 175 (2008). In Vergara, the Supreme Court of Georgia says, “Under the fruits doctrine as

explicated by the (United States) Supreme Court and adopted by this Court, we need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. … The more apt question … is ‘whether… the evidence … has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged by the primary taint.’” Vergara, at 182-183.

Applying the absence of a good-faith exception along with the guidance provided in Vergara, it’s unclear what Georgia courts would do if presented with the facts of Strieff. Edward Strieff was approached by Officer Fackrell and asked for his identification, which he provided. Fackrell ran his identification and saw the outstanding warrant, arrested, Strieff, and found the contraband. Because there is no good-faith exception to unreasonable searches and seizures under Georgia law, Officer Fackrell cannot be said to be merely negligent in his stop of Strieff. The evidence was clearly found as a direct result of the bad stop. And the evidence is of the sort that may not have been found independently or inevitably. There are strong arguments that this sort of evidence is still fruit of the poisonous tree under Georgia’s application of the Fourth Amendment.

However, until Georgia addresses this issue, it is unclear whether a valid arrest warrant can trigger a search incident to arrest for an otherwise unlawful stop. If you’ve been arrested and feel your Georgia rights have been violated, call the Peach State Lawyer today for a free consultation at 404-581-0999.

VIDEO – Your Right to Remain Silent!

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by  Scott Smith and Ryan Walsh

What do you do when the police begin to ask you questioning in relation to a criminal investigation? We are all familiar with those magic words we hear so often in television and film. You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney.
That’s the beginning of the Miranda warning, a warning that must be given in any situation where a government agent or police officer has placed you in custody, is questioning you, and seeks to admit those responses into evidence against you at trial. What most of us don’t realize is that warning doesn’t have to be given in every situation where you are being questioned. For the Miranda warning to apply, the Georgia government agent or police office must be questioning you while you are in custody. Custody is a legal term that doesn’t have an exact meaning. It is determined by looking at a totality of the circumstances surrounding the questioning.
Circumstances that impact whether you are deemed to be in custody to trigger a Miranda warning include:
  • Who asked the questions?
  • How many officers were present?
  • Were any non-law enforcement officials or government agents present?
  • Did the officer tell the suspect the interview was voluntary?
  • Where did the questioning take place?
  • Did the officer use any physical restraints, like handcuffs?
  • How long was the conversation?
  • Was the suspect free to leave at the end of the conversation?
These factors, along with others, are things the court looks at when determining if it was necessary for a Miranda warning to be read. Failure of the investigative official or government agent to read your Miranda rights does not necessarily mean the charges against you will be dropped. It just means your responses to those questions that violated your rights will not be admissible in court.
You don’t have to wait to hear those words that begin a Miranda warning to exercise your right not to talk to the police or any other investigative authority. Any person who is being stopped, detained, or investigated for the commission of a crime has no duty to answer any questions asked of them by any law enforcement or investigative official of Georgia or any state in the United States. And at W. Scott Smith, PC, the Peach State Lawyer, we advise all our current and potential clients to politely decline to answer any questions until after speaking with an attorney about the facts and circumstances surrounding the questioning.
We see the scenario play out in consultations every day. A Georgia officer walks up to the driver’s side of our potential client’s vehicle and asks “Do you know how fast you were going?” Or “How much have you had to drink tonight?” Our immediate instinct is to think we’re caught; let’s embellish the truth a bit. And instead of telling the officer ‘I politely refuse to answer any questions or exactly seventy-four miles per hour, Officer’, you make up a number 5-10 miles per hour over the speed limit, or respond with the ever-popular ‘two drinks.’ At this point the speeding case is over. You’ve admitted to violating at least one Georgia speeding statute. And in regards to the investigation into Driving under the Influence of Alcohol, we’ve given the officer an admission of alcohol consumption that may give them probable cause to arrest you for DUI in conjunction with any traffic infractions.
The reason we advise our clients to politely refuse to answer questions is because these officers are not on your side. They aren’t trying to find a reason not to cite you, not to arrest you, not to take warrants out against you. Their job is to gather evidence of criminal activity and to determine who most likely committed the crime. Georgia law enforcement officers are trained to ask specific, pointed, leading questions to get you to make admissions that could lead to you being charged with a crime. Those questions are designed for only one reason, and that is to gather information that can ultimately be used against you. DO NOT help them with their job. Even if you know you are one hundred percent innocent in the circumstances surrounding the Georgia law enforcement officer’s questions, politely decline their questions, tell them you want a lawyer, and let them release or arrest you.
Answering police officers questions without an attorney present will not help your case. Telling an officer you only had two drinks, or telling an officer you don’t have any marijuana on you but you smoked earlier, does not let them know that you were safe to drive or that you aren’t guilty of possession of marijuana. It tells them that you’re willing to voluntarily provide them with evidence they are going to use against you in their DUI or Drug investigation.
If you have any questions about your rights, if you’ve been contacted by law enforcement and asked to give a statement, or you’ve been arrested and questioned, you must contact us immediately. It is imperative that an experienced criminal defense attorney assess your situation, prevent further statements, and see if your rights have been violated in prior questioning. Call The Peach State Lawyer today at 404-581-0999 for a free consultation.

Making A Murderer: Pointing the Finger in Georgia

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MAKING A MURDERER: Pointing the Finger in Georgia

The Netflix documentary Making a Murderer brought to light several issues with our justice system. Two of the most important issues a defense attorney has to overcome is the “presumption of guilt” presented by the media, and the loss of exculpatory evidence caused by poor police investigations.

“Presumption of Guilt”

“All due respect to counsel, the state is supposed to start every criminal trial swimming upstream. And the strong current against which the state is swimming is the presumption of innocence.” – Dean Strang, co-defense counsel for Steven Avery.

Many times, the media will broadcast inflammatory stories regarding pending investigations. Regardless of the truth of the stories, they tend to irreparably tamper with the minds of the prospective jurors months or even years before the trial begins.

The law requires jurors to give the defendant the presumption of innocence, but many jurors are already biased against the defendant because he has been charged with a crime and is seated at the defense table. High-profile cases present an additional hurdle because the jurors have already heard many untrue facts about the case from the media.

We rarely encourage clients to make statements to police or media since those statements can be used against them at trial. In fact, the best way to truly prove one’s innocence to the public is to have a jury find you NOT GUILTY. However, every case is unique, and we use our experience with high-profile cases to develop a plan to counteract this media bias. Recently, our firm counseled Marcus Lewis, the Uber driver who was wrongly accused, and advised him to speak with the police with our support. He was exonerated in less than 24 hours, and no charges were ever filed from the police. Learn more about that case here: http://www.11alive.com/story/news/crime/2015/12/29/uber-driver-defends-reputation-after-social-media-allegations/78031302/

It Was the Other Guy

In Making a Murderer, Steven Avery’s attorneys were unable to accuse any specific person of committing the murder. Instead, they had to focus on the poor investigation conducted by the police in general. The Judge limited Steven’s defense due to Wisconsin law. There, a defendant cannot point their finger and allege that a third party committed the crime unless he can present evidence of the third party’s motif, opportunity, and a direct connection between the third person and the crime charged.

In Georgia, the standard is much lower than that in Wisconsin. The defense here only has to present evidence that “renders the desired inference that [the other guy] committed the crimes . . . more probable than would be that inference without the evidence.” Henderson v. State, 255 Ga. 687, 689 (Ga. 1986). All the defense needs is enough evidence “to raise a reasonable doubt of defendant’s guilt in the mind of a juror.” Essentially, the defense needs to present the jury with an alternative that makes a single juror question whether it is possible the defendant did not commit the crime, and that someone else did.

Even though Georgia has a lower standard than Wisconsin, it can still be tough to gather evidence that someone else committed the crime when the police have conducted a careless investigation. In these situations, it is imperative that we get involved as early as possible to ensure that we are able to do our own investigation and gather our own evidence before it is too late. If you have been charged with a crime, please contact our office today at 404-581-0999 for a FREE CONSULTATION in our office so that we can begin working on your case immediately.

Miranda Rights

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MIRANDA RIGHTS

By Andrew Powell Esq.

Almost everyone has seen a crime television show and heard the infamous phrase “you have the right to remain silent, anything you say can and will be used against you in the court of law, you have the right to an attorney, and if you cannot afford one an attorney would be appointed to you.” However, most people do not know when or why this phrase is so commonly used by police. In 1966, the United States Supreme Court decided to require law enforcement officials to read this list of rights to someone who has been taken into custody. These rights are known commonly as your “Miranda Rights.”

Purpose Of Reading The Miranda Rights

The United States Constitution and specifically the Fifth Amendment guarantees anyone who has been arrested the right not to incriminate themselves. Plainly put, an individual does not have to talk to police when they have been arrested. The Constitution and our form of justice requires that the government carry their burden and prove to a judge or jury that someone charged with a crime is guilty beyond a reasonable doubt.georgia-juvenile-defense

Too often law enforcement officials become overzealous with their search for the truth and overstep the Constitutional bounds in their pursuit. It may not surprise you that police use coercive tactics or even lie to someone to get them to confess to a crime. Miranda warnings are a safeguard to protect against those who may cross that Constitutional boundary. The government must show the court that you were read your Miranda rights and that you waived your rights guaranteed by the Constitution.

When Does Miranda Apply To Me?

Confessions are the leading source of Miranda violations. When someone has been accused of a crime, big or small, they are often questioned in connection with that crime. Miranda rights must be read to someone after they are under arrest and before any law enforcement official asks any questions to the suspect.  Law enforcement officials have a tough job and they investigate crimes every day. Many officers are trying to make quick decisions based on little information. However, this does not allow them to just simply force people to talk to them and answer their questions.

Many times law enforcement officials will arrest someone and take them back to the police station for an interview. Generally, they will quickly go over your rights with you and ask you if you want to talk to them. If you have been charged with a crime this is where you want to stop and tell the law enforcement official that you would like to speak to your attorney.

When Does Miranda Not Apply To Me?

People sometimes think that any encounter with law enforcement requires them to read you your Miranda rights. This is untrue. Most encounters between people and law enforcement do not require the reading of your Miranda rights. As discussed above, the Miranda warnings are only required when you have been placed under arrest and the police are asking you questions regarding the crime.

Traffic stops are a common place to have an encounter with law enforcement where Miranda warnings are not required to be read to someone. In this circumstance, generally you are not under arrest and law enforcement is just going to ask you some general questions and write you a ticket.

In terms of a DUI, the police officer is not required to read the Miranda warnings. The officer may ask you to take a series of tests, known as Field Sobriety Tests or request you to blow into a machine that registers your blood alcohol content. Even though the officer does not have to read your Miranda rights to you, you have the ability to refuse these tests and refuse giving a breath sample.

Another common scenario is when law enforcement asks you to come to the station and make a statement. In this circumstance, Miranda warnings are not necessary because you have voluntarily come to the police station and are not under arrest. Remember, law enforcement is only required to give you the Miranda warnings once you have been arrested and before they initiate any questioning of you.

What Does A Miranda Violation Mean For Me?

Confessions or statements made to law enforcement will not be allowed at trial if law enforcement has not, first, read you the warnings required in Miranda. If you were forced into making a statement or the police did not read your rights to you and you then confess to a crime, whether it is a DUI or murder, that confession cannot be used against you at your trial. With your statement or confession tossed out it can help strengthen your case and possibly force the prosecutor’s office to drop the charges because they do not have enough evidence to prosecute you.

If you have been charged with crime and feel your rights were violated during the process, call our office and we can help you navigate the system. Our office has extensive experience in misdemeanors and felonies. Fighting charges with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future charges lowered or dismissed. At the W. Scott Smith law firm we can identify where the police have violated your rights and ensure evidence will be kept out. Our firm can handle your misdemeanor or felony case with the expertise you need to save your record. Give us a call for a free consultation at 404-581-0999.

SELF DEFENSE

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Self Defense

Defense of Persons and Property in Georgia and the Effect of the “Stand Your Ground” Law

As discussed previously, [Murph’s blog- http://www.peachstatelawyer.com/self-defense/] self-defense is a justification defense where an individual is admitting that he or she committed the crime but claiming that his or her use of force was justified.

Self-defense is part of a broader set of statutes that define the situations in which a person is justified in using force. In Georgia, an individual is typically justified in using force to defend both persons and property. See O.C.G.A. § 16-3-21; O.C.G.A. § 16-3-23; O.C.G.A. § 16-3-24.

Determining whether an individual was justified in using force requires a multi-factor analysis which varies greatly depending on the specific facts of the encounter. Some of the factors include: who was the aggressor, whether the harm was imminent, whether the force was proportional, and whether the individual’s belief was reasonable.

The individual claiming justification cannot be the aggressor.

An altercation can progress in stages, and the initial aggressor can become the innocent party if the other party escalates the altercation to a more violent level. Therefore, an individual who pulls out a knife during a fist fight can be deemed the aggressor even though the other individual initiated the fist fight. In this example, the individual wielding the knife can also withdraw from the confrontation by taking affirmative steps to indicate that he does not wish to fight any more. Such indications might include verbally communicating a desire to end the fight and walking away.

The individual must believe that he or she is defending against the imminent use of unlawful force.

The individual must believe that he or she is in imminent danger which means that the aggressor must appear to be capable of immediately carrying through with the threatened use of force. The individual can even be mistaken in their belief that he or she was threatened by imminent harm so long as the mistake is reasonable. If there has been a pause in the altercation (ie. the aggressor walks away) or additional steps must be taken before the aggressor can carry through with his or her threats then the danger is no longer imminent.

The individual’s use of force must be proportional to the threatened harm.

Generally, force can be divided into two main categories, deadly and non-deadly. An individual’s use of force must be no greater than necessary to defend against the threatened harm. A citizen is typically justified in using any means of non-deadly force to defend persons or property, but deadly force is only justified in response to a threat of imminent deadly force. The use of a deadly weapon is almost always considered deadly force, but even someone’s fists could be considered deadly force when considering the difference in size between the two individuals and relative strength.

The individual’s belief that force was necessary must be reasonable.

The standard by which reasonableness is measured is both subjective and objective. To satisfy the subjective standard, the individual must actually believe that force was necessary. This is where the individual’s prior dealings and experience with the aggressor can come into play. The objective standard looks at whether a reasonable person would have believed that force was necessary to defend against the threatened harm.

No Duty to Retreat – “Stand Your Ground” Law

In some states, an individual has a duty to retreat. However, Georgia has removed this requirement by passing a so-called “Stand Your Ground” law. O.C.G.A. § 16-3-23.1. Under this law, a citizen is not required to retreat from a violent confrontation. The key here is that an individual is not required to retreat, but the decision not to retreat can still factor into the previous considerations such as the reasonableness of the belief that force was necessary. Thus, this law does not give an individual unfettered discretion to use force.

Although Georgia has enacted statutory protections to allow an individual to stand his ground, one should not accept this protection as a license to kill. Any time deadly force is used, police will be involved and the decision to use deadly force will be scrutinized. It is always best to attempt to de-escalate a situation and avoid any loss of life. However, we recognize that these decisions can take place in a matter of seconds, and our firm has a history of success with self-defense cases. [Scott’s case – http://www.ajc.com/news/news/crime-law/woman-found-not-guilty-of-murder-in-killing-at-eas/nmyM4/] If you believe you had every right to defend yourself, others, or property, then contact our office today at 404-581-0999.

The “Slow Poke” Law

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The “Slow Poke” Law

Traffic Ticket for Driving The Speed Limit? Can you really get a ticket for driving the speed limit?

In Georgia, the answer is YES you can!

Although Georgia’s “slow poke” law has been in effect since July 1, 2014, many people are still unaware of the law and its impact. States across the country have begun cracking down on drivers that impede the flow of traffic by lingering in the left lane. As part of this effort to combat traffic congestion and road rage incidents, the Georgia legislature amended O.C.G.A. § 40-6-184 to criminalize the act of driving in the left lane regardless if the driver is driving the speed limit. Specifically, it is illegal to “impede the normal and reasonable movement of traffic.” Thus, a driver who is driving the speed limit in the left lane with drivers behind them can be ticketed for failure to move over one lane to the right. In areas with more than 2 lanes of traffic, the law only applies to the “most left-hand lane other than a high occupancy vehicle lane” so drivers are not required to move all the way over to the far right.

Most jurisdictions began implementing the law through the issuance of warnings, but officers are not required to give you a warning because ignorance of the law is not a legal defense. Remember to only use the far left-hand lane when passing slower vehicles and always yield to faster traffic by merging back over to the right. If ticketed with a violation of the “slow poke” law, it’s important to remember that while officers have a wide range of discretion in determining whether a driver is impeding traffic, there are also many other factors such as weather conditions, time of day, and the general flow of traffic in the area that can affect your case.

If you are ticketed for impeding the flow of traffic you may receive a fine up to $1,000, 3 points on your license, and a substantial increase in your insurance premiums. If you have been charged with a violation of Georgia’s “slow poke” law, call our office and we can help you deal with the court. Our office has extensive experience in traffic violations and DUI defense. Fighting traffic tickets with an attorney’s help is essential because any conviction on your record will greatly reduce the possibility of having future citations lowered or dismissed.  If you have received a traffic ticket give us a call for a free consultation at 404-581-0999.

Statutory Rape

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Statutory Rape

By Andrew Powell J.D.

Georgia’s statutory rape law is often times misunderstood.  Many people believe that statutory rape is a crime that only a male can commit. Some also believe that if the two people consent to the sexual act then there can be no crime, regardless of the age. However, these misconceptions can get you into a lot of trouble.

Georgia does not distinguish between male and female genders when it comes to charging someone with statutory rape. Simply put, statutory rape is when any individual has sex with someone else who is not at the age of consent. In Georgia, the age of consent is 16. If both individuals are under 16 years old, then both individuals can be charged with misdemeanor statutory rape.

Interestingly, you can still be charged with statutory rape even if the alleged victim lies about their age.  If you are a young person and find yourself in a situation where you are about to have sex, it is critical that you are certain that the person you are about to have sex with is at least 16 years old. Never take someone’s word in a matter as serious as statutory rape.georgia-juvenile-defense

Several of our clients find themselves in these situations far too often.  In several situations, the parents of the alleged victim find out that their child is having sex and file charges with law enforcement.  The same happens at a school where teachers know of students having sex and report it to law enforcement. In any scenario it is important to stay ahead of the charges and seek legal counsel to help navigate you through the legal process.

There are few circumstances where a person charged with statutory rape may face a misdemeanor instead of a felony charge.  In Georgia, it is a misdemeanor if you are 18 years old or younger and the alleged victim is between 14 and 16 years old.  In any other circumstance, statutory rape is a felony with a penalty of one to twenty years in prison. However, if you are over the age of 21, then you will face a minimum of ten years in prison and a maximum of twenty years. In addition, if you are convicted of felony statutory rape you must register as a sex offender for the rest of your life.

If you have been charged with a violation of Georgia’s statutory rape law, call our office and we can help you navigate the system. Our office has extensive experience in misdemeanors and felonies. Fighting charges with an attorney’s help is important because any conviction on your record will greatly reduce the possibility of having future charges lowered or dismissed. Our firm can handle your misdemeanor or felony case with the expertise you need to save your record. Give us a call for a free consultation at 404-581-0999.

Family Violence Battery

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FAMILY VIOLENCE BATTERY

A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors.   Frequently, I meet with individuals who come to our office with citations from a police officer charging our client with battery or simple battery.  The stories range in complexity, but often I learn from our initial consultation that the alleged victim in the case is someone who can elevate the charges from Battery to Family Violence Battery.  Many times the Officers do not include the Family Violence component on the citation and clients are surprised to learn that their case can be modified by the State prosecutor to include even more consequences.  For some clients, this is their first interaction with law enforcement and their concerns include: jail time, criminal history reports, and trial options.   All of these concerns are very real when facing Family Violence Battery charges.

Before we get started with the impacts of a Family Violence Battery conviction, it’s important to note that not all charges for Battery and Simple Battery have a Family Violence Battery component.  In order to be charged with Family Violence Battery the alleged victim must be:

  • A spouse
  • Persons who are parents of the same child
  • Children
  • Step-Children
  • Foster Children
  • Other persons living in the same household (roommates)

State prosecutors will often include multiple counts of Battery, Simple Battery, and Family Violence Battery within one formal charging document, called an accusation.  Unfortunately, many people go to court on their first court date, without exploring the consequences of a Family Violence Battery conviction, and enter a plea.   Whether the person committed the acts alleged or they simply just want to put this chapter of their life behind them, even though they’re innocent, it’s vital to consult with an attorney.  At the very least, an attorney can discuss the implications of being convicted of Family Violence Battery.

So how does it work?  Every citizen who has been arrested for a crime is fingerprinted and has criminal history created that includes the arrest, the charging document (accusation or indictment), and the ultimate outcome of the case.  A first conviction for Family Violence Battery is a misdemeanor that carries a maximum penalty of 12 months in custody and a $1000 fine.  A second or subsequent conviction with the same family member (as classified above) or another family member results in a felony conviction with a maximum penalty of five years in prison.   O.C.G.A. 16-5-23.1.

While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several ancillary consequences that do always appear at first glance.  For instance, under Federal law, any person convicted of a crime of domestic violence can no longer lawfully possess a firearm.   Georgia’s classification of Family Violence Battery falls within the Federal definition of “domestic violence.”  Thus, a Georgia citizen who has a conviction of Family Violence Battery can no longer possess a firearm without the possibility of facing criminal charges in Federal court.

In addition, while the maximum includes 12 months in custody and a $1000 fine, many Judges throughout the State will require individuals convicted of Family Violence Battery to serve time on probation in lieu of jail time, but with the conditions of completing a domestic violence program.  These programs go by several different names, but they generally include 24 weeks of classes, counseling, and program fees that are no included in the fine levied by the Judge.  In addition, Judges can add community service, counseling requirements, fines, and alcohol and drug evaluations.  It is important to know that all of these things can be negotiated by your attorney.

Being charged with Family Violence Battery can be a stressful event in anyone’s life.  At the Law Offices of W. Scott Smith, our lawyers are trained to explore the legal issues with every Family Violence Battery case.  We are aware of all the possible options available to avoid jail time and to protect your criminal history and ultimately your privacy.   If you or a loved one has been charged with Family Violence Battery, please contact our office today at 404-581-0999 for a free consultation.

Overcharged

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The Prosecution Overcharged My Case!

            I have seen the prosecution overcharge cases on multiple occasions.  The prosecutor’s office will, at times, define your alleged conduct as something much worse than it is.  A misdemeanor will be elevated to a felony, for example, or a felony will be charged as one carrying much more punishment than it should.  That doesn’t sound like truth and justice, does it?

There can be several reasons for a case to be overcharged.  Until defense lawyers get involved, the prosecutors (who are human beings) hear only one side of the story.  The police or the complaining witnesses unload with their side and the prosecutor doesn’t hear a word to the contrary.  And, unfortunately, defense lawyers may not be involved until the case has already been accused or indicted.  (There are exceptions…especially when the lawyer is hired early in the process and there is some form of evidence to support an opposing position).  So, acting only on the word or evidence given by the complainant, the prosecutor files the accusation or indicts the case.  It is extremely important for the lawyer to be thorough when talking to the client and finding out, in detail, what the facts of the case are.

Another reason that cases might be overcharged is that the prosecution is already thinking ahead to plea bargaining.  One prosecutor explicitly told me that he added the biggest charge in the indictment in hopes that he would work a plea to the lesser charges without too much hassle.

Sad?  I think so.  I am convinced that the anxiety people experience leading up to the disposition of the case is twice as bad as whatever punishment may be inflicted.  So many of my clients have suffered long, sleepless nights, loss of their jobs, broken relationships, substance abuse, and many other side effects of being charged with a crime (please note that I did not say convicted of a crime).  That is yet another reason to go early in the process to talk with a lawyer who believes in the presumption of innocence and who treats each client like a unique, special human being.  We take on the burden of your case for you.  We provide you with honest feedback that can give you peace about the situation and, hopefully, enable you to think about everything else going on in your life.  I like to think that my clients are able to dump the burden of the pending case on me and put their time and energy towards their kids, their jobs, their significant other, their hobbies, and everything else going on in their lives.

In my next blog, I will discuss some ways to combat overcharging by the State.

Always feel free to call us with any questions about your case.  You will get to speak with an attorney free of charge.  (404) 581-0999.

Do I Have A Criminal History?

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“I’ve been arrested.  Does that mean I have a criminal history?”

Many of our clients have two primary goals when they come in the office for a free consultation: 1) stay out of jail and 2) keep their record clean.    Often people are amazed to hear that even though they have not yet been convicted of anything, they STILL have a criminal history!  How could this be?

The short answer: in Georgia, your criminal history is tracked by your finger prints.  Your criminal history begins when the Officer placed you under arrest and took you to the jail.  Most jails in Georgia have an electronic fingerprinting system.  The jailer takes your fingerprints and those images are transmitted to the Georgia Crime Information Center (GCIC).  GCIC then creates a profile for each person who has been fingerprinted.  The profile includes your name, your height, weight, eye color, and any distinguishing marks that you may have.   Your profile will list what the police officer charged you with,  what the State’s attorney intends to charge you with in court, and ultimately the final result of your case.

If you are arrested for ANY crime in the State of Georgia and you are fingerprinted, then you have a GCIC profile.   There are several ways a case can be resolved in a way that would restrict your profile so that future employers cannot see that you were arrested.   Our goal in every case is to find a solution that not only keeps you out of jail, but also protects your criminal history.  Your future is our priority.

Please contact our office for a free consultation if you have been arrested and fingerprinted in the State of Georgia.