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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.

Marijuana Blog Series Part 2: Federal Government’s War on Weed

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by Ryan Walsh

Federal Focus on Marijuana

Remember, regardless of whether you reside in Georgia, or are visiting one of the states that allows recreational or medicinal marijuana use, that marijuana cultivation, possession, or distribution in any manner is still federally regulated. Marijuana is a Schedule 1 substance under the Controlled Substances Act (21 U.S.C. §812) and all Schedule 1 substances under the CSA are considered to have a high potential for abuse and have no currently accepted medical use. Read more

Peach State Lawyer’s Marijuana Blog Series Part 1: Don’t Smoke and Drive

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When you google: “legal marijuana in Georgia” the results seem endless.  That’s probably because the legalization of marijuana has become one of today’s hottest political and social issues.  Everywhere you turn, the “marijuana” debate is front and center. In fact, CNN, Fox News, and other major news sources have been exploring the topic on a daily basis–presenting opinions about and predicting the effects of marijuana legalization.

Georgians have also joined the debate.   Supporters of marijuana legalization in Georgia have been vocal about the drug’s medicinal benefits and the industry’s potential profitability. Additionally, supporters have been calling for an end to the criminalization of marijuana possession, comparing it “Prohibition,” which ended in 1920. Those who are against the legalization of marijuana argue that marijuana is a gateway drug that will lead to widespread drug abuse and make our communities less safe.

What makes this debate so fascinating is the fact that there is bipartisan interest in legalization. Just recently, Georgia House Speaker, David Ralston, a conservative Republican, announced that even he would be interested in learning more about the medical benefits to marijuana and how Georgia can incorporate the legalization of marijuana into its own law.

Since we are still a few years away from legalization of marijuana in Georgia, it is important to understand how Georgia handles DUI-marijuana cases in the meantime.

CURRENT GEORGIA LAW AND DUI-MARIJUANA CASES

Georgia has already addressed driving under the influence of marijuana to some extent. Currently, the crime falls under Georgia’s broad DUI-drug statute. This statute allows a police officer to place a driver under arrest for DUI if the police officer believes a driver is under the influence of ANY drug (prescription or not) and that the drug is causing the driver to be a “less safe” driver.

There are a few different ways the officer can try to establish a case for DUI drugs and more specifically driving under the influence of marijuana.

First, the officer is trained to look for all the tell-tale signs that someone is high on marijuana.   Think about the people you knew growing up that liked to smoke marijuana. They often would have slower speech, blood shot eyes and a carefree attitude. Sometimes, marijuana smokers cannot control their laughter either. In addition to personal characteristics, police officers often include the smell of burnt marijuana as evidence of DUI-marijuana. Throughout any given investigation, police officers are looking for each and all of these signs.

Often times, police officers do not see all of the above-mentioned characteristics and therefore struggle to find probable cause to arrest a driver for DUI-Drugs.

In these situations, police officers are trained to establish a DUI-drugs case using the National Highway and Traffic Safety Administration’s (NHTSA) marijuana field sobriety test.  NHTSA, as you may know, is the federal agency tasked with designing field sobriety tests and training police officers to administer those tests in the most objective and scientifically accurate manner possible. Even though NHTSA has that responsibility, NHTSA is known for launching aggressive anti-DUI ad campaigns. In one ad, there is a car filled to the brim with beer and liquor. In another ad, there is an invisible police officer who stalks bar patrons as they head to their cars in an inebriated condition and drive recklessly on public roads. Georgia, like many other states, uses NHTSA’s manual to train its police officers on DUI investigation.

When a Georgia police officer believes a driver is impaired but cannot immediately determine what substance is causing the impairment, the officer is trained to conduct the DUI-Alcohol field sobriety tests.  If it appears that alcohol is not the reason why someone seems to be impaired, then the officer is trained to go into additional field sobriety tests to narrow down the potential causes of the impairment.  With these results, police officers can then make a determination as to whether there is probable cause (more likely than not) that the driver is under the influence of marijuana.

WHAT ABOUT MY LICENSE?

The post-arrest process for DUI drugs is very similar to a DUI alcohol arrest.   If an officer wants the driver to undergo additional chemical testing (which they almost always do), the officer MUST read the Georgia Implied Consent warning to the driver immediately after he is arrested. Basically, the Georgia Implied Consent warning tells the driver that his license is going to be suspended if he refuses to provide a sample of his blood, breath or urine.  In DUI-Alcohol cases, a breath test is the most popular form of chemical testing because it provides the officer with a quick, but not always accurate, printout of the drivers blood alcohol concentration. However, in DUI drug cases, a blood test is usually preferred because it can detect a variety of intoxicants–not just alcohol. Urine tests are rarely used in DUI investigations because the results have been found to be less accurate.

In Georgia, if a driver agrees to take a blood test, the driver will be taken to a nurse or phlebotomist who will then administer the blood draw.  If the driver agrees to the test then the blood will be packaged and sent to the Georgia Bureau of Investigations (GBI) crime lab, where it is tested for the presence of marijuana and other intoxicants. When looking for marijuana in a blood sample, GBI looks for the mere presence of THC, the active chemical in marijuana that causes a person to feel high. GBI does not, however, examine or ascertain the level of THC in a person’s blood. So, if a driver smoked marijuana a week prior to getting behind the wheel and still had THC in their system, then that drivers GBI report would read the same as the driver who smoked while driving.

Peach State Lawyers Practice in Avondale Estates Municipal Court

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Avondale Estates. That small town center that looks like it’s taken straight out of the European countryside is home to Avondale Estates Municipal Court. If you’ve been pulled over by an Avondale Estates officer for a traffic misdemeanor or city ordinance, they’re going to want to see you in Avondale Estates Municipal Court.

 

Avondale Estates Municipal Court is located at 21 North Avondale Plaza, Avondale Estates, Georgia 30002. Court starts promptly at 8am on the date you have been told to attend. Like many other municipal courts, the calendars are crowded, and the Avondale Estates solicitor takes private attorney cases first, so be prepared to spend your entire morning in court.

 

If you’ve been charged with a traffic misdemeanor or city ordinance in the city of Avondale Estates, call the Peach State Lawyers today at 404-581-0999 for a free consultation.

Peach State Lawyers Practice in DeKalb Recorders Court

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If you’ve been pulled over or cited by a DeKalb County Police Officer, Sheriff, or Georgia State Patrol Trooper for any traffic violation including DUI; or have been cited for a DeKalb County code violation, you are due to appear in DeKalb County Recorders Court. Recorders Court is another name for traffic court. There is a solicitor. There is a judge. But cases in Recorders Court are not tried in front of a jury. DeKalb County Recorders Court is located at 3630 Camp Circle, Decatur, Georgia 30032. DeKalb County Recorders Court is not located in the same building as State and Superior Court. There is a fee to park around DeKalb County Recorders Court. It is at least $3, and must be paid in cash.

 

Court starts promptly at 8:30am, and you need to be there early to find out which courtroom you are assigned to. After you get through security, courtrooms are assigned by the first letter of your last name. You then enter your assigned courtroom and have a seat in the pews. Recorders courtrooms are extremely busy and it is not uncommon to see 150-250 people in each courtroom on any given day.

 

Like many municipal and traffic courts in the State of Georgia, solicitors handle private attorney cases first. Guilty pleas are handled after private attorney cases. The last cases handled in DeKalb County Recorders Court are unrepresented citizens looking to fight your case. There are no electronic devices allowed in DeKalb County Recorders Court.

 

Peach State Lawyers can go to DeKalb County Recorders Court on your behalf. We can negotiate with the solicitors to get your best possible options before asking you to waste your time in court to enter a plea. Then when you do decide how you want to handle your case, we can get you in and out of Court quickly and on with your day. If you are scheduled to appear in DeKalb County Recorders Court, please call us today at 404-581-0999 for a free consultation.