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Understanding Computer Trespass Crimes in Georgia

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By Mary Agramonte

 

In response to a growing number of computer-related crimes in both the government and private sectors, the State of Georgia enacted the Georgia Computer Systems Protection Act, O.C.G.A. §16-9-90 et. seq. The Act establishes four criminal offenses, all felonies, for violations of the Act: Computer Theft, Computer Trespass, Computer Invasion of Privacy, and Computer Forgery.

 

Computer Trespass is defined at O.C.G.A. § 16-9-93 as when any person who uses a computer or network with knowledge that such use is without authority and with the intention of (1) deleting or removing any program or data; (2) obstructing or interfering with the use of a computer program or data; or (3) altering, damaging, or causing the malfunction of a computer, computer network, or program.

 

The State of Georgia can still prosecute the felony case even if the removing of data is temporary, or if the damage to the computer is minimal or eventually restored. However, Georgia Courts have required that data must actually be hindered or interfered with. For example, in Kinslow v. State, an employee altered a network to get his supervisor’s e-mail rerouted to his own personal e-mail. The supervisor continued receiving his e-mails normally. The Supreme Court of Georgia in June of 2021 held that this was insufficient evidence of Criminal Trespass as the action never blocked or hindered the flow of data. Instead, the e-mails were going to the correct supervisor e-mail as well as being copying to the suspect’s private e-mail and thus he could not be found guilty of the felony crime of Criminal Trespass.

 

The State of Georgia will continue to vigorously prosecute computer crimes. If someone is found guilty of Computer Trespass, the maximum penalty is a $50,000 fine or 15 years in prison, or both. In some situations, if someone is charged with Computer Trespass, there may be enough facts to also charge them with the other computer crimes like computer theft and computer forgery, which can increase the sentencing if convicted. There is also a civil component to the Act, which allows for monetary damages for those who claim they have been victim to a computer crime in Georgia.

 

If you or a loved one has been charged with a computer crime in Georgia, call the Law Office of W. Scott Smith for a free consultation at 404-581-0999. An aggressive criminal defense team can investigate and raise numerous defenses in Computer Crime and Computer Trespass cases, and can protect you through the criminal justice system.

Understanding Computer Theft Crime in Georgia

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In response to a growing number of computer-related crimes in both the government and private sectors, the State of Georgia enacted the Georgia Computer Systems Protection Act (Act), O.C.G.A. §16-9-90 et. seq. The Act establishes four criminal offenses, all major felonies, for violations of the Act: Computer Theft, Computer Trespass, Computer Invasion of Privacy, and Computer Forgery.

 

Computer Theft is defined as when any person who uses a computer or network with knowledge that such use is without authority and with the intention of either taking property of another; obtaining property by any deceitful means or artful practice; or converting property to such person’s use in violation of an agreement to make a specified application or disposition of such property.

 

Courts have held that there is sufficient evidence of computer theft when the defendant used a computer, owned by her employer, with knowledge that such use was without authority, and with intention of removing programs or data from that computer and appropriating them for her own use.

 

However, courts have held there was no criminal theft where an employee got on his employer-owned computer, printed out e-mails, and used the e-mails for a competing business while still employed. The Court held that the use of the computer was not without authority and so he cannot be guilty of the computer theft crime. See Sitton v. Print Direction, Inc., 312 Ga. App. 365 (2011).

 

The State of Georgia vigorously prosecutes these types of cases. If someone is found guilty of computer theft, the maximum penalty is a $50,000 fine or 15 years in prison, or both. In most situations, if someone is charged with computer theft, there may be enough facts to also charge them with the other computer crimes like computer trespass and computer forgery, which can increase the sentencing if convicted.

 

If you or a loved one has been charged with a computer crime in Georgia, call the Law Office of W. Scott Smith for a free consultation at 404-581-0999. An aggressive criminal defense team can investigate and raise numerous defenses in Computer Crime and Computer Theft cases, and can protect you through the criminal justice system.

Cruelty to Animals Charges under Georgia Law

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Animals and pets are held close to our hearts in America. The idea of them being abused is upsetting. As a result, the Georgia legislature set out certain laws protecting animals.

Definition of “Animal”

The definition of “animal” shall not include any fish nor shall such term include any pest that might be exterminated or removed from a business, residence, or other structure.

Felony Offense

Under O.C.G.A. § 16-12-4(d)(1) a person commits the offense of aggravated cruelty to animals when he or she:

(1) Maliciously causes the death of an animal;

(2) Maliciously causes physical harm to an animal by depriving it of a member of its body, by rendering a part of such animal’s body useless, or by seriously disfiguring such animal’s body or a member thereof;

(3) Maliciously tortures an animal by the infliction of or subjection to severe or prolonged physical pain;

(4) Maliciously administers poison to an animal, or exposes an animal to any poisonous substance, with the intent that the substance be taken or swallowed by the animal; or

(5) Having intentionally exercised custody, control, possession, or ownership of an animal, maliciously fails to provide to such animal adequate food, water, sanitary conditions, or ventilation that is consistent with what a reasonable person of ordinary knowledge would believe is the normal requirement and feeding habit for such animal’s size, species, breed, age, and physical condition to the extent that the death of such animal results or a member of its body is rendered useless or is seriously disfigured.

Any person convicted of the offense of aggravated cruelty to animals shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years, a fine not to exceed $15,000.00, or both.

Misdemeanor Offense

The lesser crime of cruelty to animals is provided under subsection (b), when a person:

(1) Causes physical pain, suffering, or death to an animal by any unjustifiable act or omission; or

(2) Having intentionally exercised custody, control, possession, or ownership of an animal, fails to provide to such animal adequate food, water, sanitary conditions, or ventilation that is consistent with what a reasonable person of ordinary knowledge would believe is the normal requirement and feeding habit for such animal’s size, species, breed, age, and physical condition.

Any person convicted of the offense of cruelty to animals shall be guilty of a misdemeanor (unless they have been previously convicted).

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If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.

 

Possession of THC Oil under Georgia Law

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Generally, possession of a personal amount of marijuana is considered a misdemeanor, pursuant to O.C.G.A. § 16-13-2(b). However, possession of other forms of THC, such as oil, resin, or wax, which are extracted from the plant, can be charged as a Schedule I felony in accordance with the Georgia Controlled Substances Act.

THE OFFENSE

V.G.C.S.A. offenses, which stands for “Violations of the Georgia Controlled Substances Act,” include criminal charges relating to the possession of THC oil. According to O.C.G.A. § 16-13-25 of the Georgia Controlled Substances Act, THC oil is considered a Schedule I controlled substance. A Schedule I controlled substance is defined as:

  1. A drug or other substance that has a high potential for abuse;
  2. The drug or other substance does not currently have any accepted medical use in treatment in the United States; and
  3. There is a lack of accepted safety for use of the drug or other substance under medical supervision.

According to O.C.G.A § 16-13-30, it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance, this includes non-medicinal THC oil, which is categorized as a Schedule I felony in the State of Georgia.

LOW THC OIL

However, an experienced criminal defense attorney could negotiate for a felony charge to be reduced down to a misdemeanor under O.C.G.A. § 16-12-191. This statute governs the possession of “low THC oil.” Pursuant to this statute, it is unlawful for any person to possess, purchase, or have under his control, 20 fluid ounces or less of low THC oil. If convicted under this statute, the accused will be sentenced to misdemeanor punishment.

In order for it to be considered “low THC,” the prosecution must prove that the oil was less than a 5% concentration of THC. Thus, the GBI crime lab must provide to the State, as well as to the defense, an analysis of THC concentration, which does not always happen in every case. If this is not provided, the prosecution will have difficulty proving that the oil is above a 5% concentration of THC, and therefore, an experienced criminal defense attorney could negotiate for a felony possession of THC oil charge to be reduced down to a misdemeanor.

CONTACT US

Due to the complexity of the charge of possession of THC oil, as well as the severity of the punishment, it is of vital importance to hire an experienced criminal defense attorney to defend you against such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained to know the possible options of an accused arrested and charged with possession of THC oil, we are experienced and skilled at defending such allegations, and we work tirelessly at advocating for our client’s rights. Therefore, if you or a loved one has been arrested for possession of THC oil, please call our office today at 404-581-0999 for a free consultation.

How Battery-Family Violence becomes a Felony under Georgia Law

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Under O.C.G.A. § 16-5-23.1, the offenses of battery and battery – family violence are punished as misdemeanors. However, the same exact offense, under three sets of circumstances can transform this misdemeanor into a felony.

Battery Against the Same Victim

A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another. A first or second offense against the same victim will result in misdemeanor punishment.

But, upon a third or subsequent conviction for battery against the same victim, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

Battery – Family Violence

If the offense of battery is committed between household members (past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household), it shall constitute the offense of family violence battery and is punished as a misdemeanor.

However, if the defendant has previously been convicted of a forcible felony committed between household members, he or she shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

Or, if a person is convicted of a second or subsequent offense of family violence battery against the same or another victim, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

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If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.

Possession of Schedule 1 Controlled Substances – VGCSA – Georgia

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Possession of Schedule 1 drugs are classified as felonies in the State of Georgia. According to the laws of our state, criminal charges associated with the possession of these drugs are in accordance with the Georgia Controlled Substances Act. The following controlled substances are examples of drugs classified as Schedule 1:

  • Heroin
  • LSD
  • Morphine
  • Ecstasy

THE OFFENSE

V.G.C.S.A. offenses, which stands for “Violations of the Georgia Controlled Substances Act, include the charge of possessing Schedule I drugs. The Georgia Controlled Substances Act is laid out in the following statutes: O.C.G.A. § 16-13-20 through § 16-13-30. A list of all of the controlled substances considered to be Schedule I are referenced in O.C.G.A. § 16-13-25 of the Georgia Controlled Substances Act. A Schedule I controlled substance is defined as:

  1. A drug or other substance that has a high potential for abuse;
  2. The drug or other substance does not currently have any accepted medical use in treatment in the United States; and
  3. There is a lack of accepted safety for use of the drug or other substance under medical supervision.

According to O.C.G.A § 16-13-30, it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance, which does encompass any Schedule I drug.

SENTENCING

If an accused is prosecuted under the Georgia Controlled Substances Act for possessing a Schedule I controlled substance, the charge will be classified as a felony. If the accused is later convicted of these charges, the following punishments may occur:

  1. If the aggregate weight is less than one gram of a solid substance or less than one milliliter of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-3 years;
  2. If the aggregate weight is at least one gram but less than four grams of a solid substance or at least one milliliter but less than four milliliters of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-8 years;
  3. If the aggregate weight is at least four grams but less than 28 grams of a solid substance or at least four milliliters but less than 28 milliliters of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-15 years.

Because of the severity of the punishment for possessing a Schedule I controlled substance, it is of vital importance to hire an experienced criminal defense attorney to defend you against such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained to know all possible options of an accused arrested and charged with V.G.C.S.A., we understand and assert all potential defenses for such a charge, and we work tirelessly at advocating for our client’s rights. Therefore, if you or a loved one has been arrested for possession of a Schedule I controlled substance, please call our office today at 404-581-0999 for a free consultation.

Georgia’s New Street Racing Law

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Street racing and laying drag (https://www.peachstatelawyer.com/laying-drag-arrests-and-citations-in-atlanta-georgia/)  has long been illegal in the State of Georgia. However, in response to increased street racing incidents across the city of Atlanta, Governor Kemp recently signed new legislation creating even more harsh penalties for those who continue to engage in street racing.

 

First, the bill now criminalizes an act, that before, was not against the law: promoting or organizing an exhibiting of illegal drag racing.  The State of Georgia is now cracking down on Instagram and other social media accounts who promote meetups for illegal street racing events. Anyone charged and convicted under this new law, found at O.C.G.A § 16-11-43.1, will be guilty of a high and aggravated misdemeanor.

 

Second, the Georgia law adds a completely new code section titled Reckless Stunt Driving, at O.C.G.A. § 40-6-390.1. Under Georgia law, it is now specifically illegal to drag race in reckless disregard for safety of persons. The law includes drag racing both on public roads, as well as on private property. The punishment for Reckless Stunt Driving includes a mandatory ten days in jail, up to 6 months for this charge alone, along with a minimum fine of $300.00.  It is considered a misdemeanor of a high and aggravated nature. A second conviction within ten years increases the jail time to 90 days to 12 months, and a third conviction has a mandatory 120 days to 12 months in jail, and the base fines can go up to $5000.00. A fourth conviction of Reckless Stunt Driving in a ten year period becomes a felony and a mandatory one year in prison.

 

Historically, a conviction for reckless driving did not suspend a Georgia driver’s license. This has now changed, drastically. Under Georgia’s New Street Racing Law, if you are convicted of reckless stunt driving in violation of O.C.G.A. § 40-6-390.1, your license will be suspended for up to 12 months, however you can apply for early reinstatement after 120 days. On a second conviction, it is a mandatory 3 year license suspension, but you may be able to reinstate your license after finishing an 18 months hard license suspension. A third conviction in five years will lead to a Habitual Violator status, whereby the license suspension will be five years, with a potential probationary license after two years.

 

The new law even allows for forfeiture after being declared a habitual violator. This means that the State of Georgia can confiscate your car, forever, if you have been convicted three times of reckless stunt driving in five years.

 

Street racing, laying drag, and reckless stunt driving are being taken more seriously in Georgia than ever before. If you or a loved one has been arrested or charged with street racing in Atlanta, call the Law Office of W. Scott Smith PC at 404-581-0999 for a free consultation. A criminal conviction is forever, so engage an experienced lawyer to assist in avoiding the harsh consequences of jail-time, and license suspension, that come with Georgia’s New Street Racing Law.

Georgia Criminal Law – Drug Paraphernalia and Drug Related Objects

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Not only does Georgia law prohibit the possession of controlled substances, it also makes it unlawful to possess the tools or equipment used in the drug trade or use of drugs. These tools are commonly referred to as paraphernalia. Items such as pipes, needles, grinders, or bongs often come to mind. In and of themselves, these items may be perfectly legal to possess, but when discovered adjacent to a controlled substance, or when the items contain the residue of a controlled substance, that’s when you could be charged with “Drug Related Objects.”

 

The Offense

O.C.G.A. § 16-13-32.2 makes it unlawful to possess or use drug related objects. “It shall be unlawful for any person to use, or possess with the intent to use, any object or materials of any kind for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body marijuana or a controlled substance.”

 

It is important to note that any object or material of any kind can constitute a drug related object. However, Georgia Senate Bill No. 164 would amend and revise the above law by making it inapplicable hypodermic needles or syringes.

 

Defenses

No possession: The State has to prove the person was in knowing possession (actual or constructive) in order to sustain a conviction.

 

In Wright v. State, 355 Ga.App. 417 (2020), the evidence was insufficient to demonstrate that probationer possessed methamphetamine pipe found in truck parked outside residence where probationer was being arrested on unrelated charge, and thus revocation of probation was precluded based on possession of pipe; there was no admissible evidence showing that probationer possessed pipe, and no non-hearsay evidence showed that probationer owned truck.

 

Lawful Purpose / No Intent: The State has to prove the items were possessed with the intent to be used with an illegal purpose. A bong, in and of itself, with no marijuana residue and without any evidence of drug possession or use would not be sufficient to convict for drug related objects.

 

In Holloway v. State, 297 Ga.App. 81 (2009), the evidence was sufficient to show that defendant had joint possession of two crack-pipe filters found in a vehicle that he was driving and in which a passenger was riding, so as to support a conviction for possessing a drug-related object; as the driver, defendant was presumed to have possession of contraband in the vehicle, and the state presented evidence that defendant and the passenger were involved in the crack-cocaine drug trade.

 

Punishment

Possession of a drug related object is a misdemeanor and can carry up to 12 months in jail and/or a $1,000 fine.

 

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If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.

 

 

 

 

 

 

 

 

 

Identity Fraud Arrests and Charges in Georgia

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In Georgia, identity fraud is one of the most common white collar crimes committed. In general, it is a crime where one person uses another person’s personal data, without his/her authorization, with the intent to defraud that person. Such examples include, but are not limited to:

  • Opening a credit card using someone else’s social security number;
  • Presenting stolen checks to a business in order to purchase items;
  • Opening a credit card using a deceased person’s social security number;
  • Purchasing items with a stolen ATM card

More specifically, according to O.C.G.A. § 16-9-121, in Georgia, a person commits the offense of identity fraud when he/she intentionally and without the person’s consent acts in one of the following ways:

  • Uses or possesses identifying information of any of the following people: a minor child that the accused has custodial authority of, any deceased person, or any other person in which the accused has the intent to defraud;
  • Creates, uses, or possesses any counterfeit or fake identifying information of a person who does not exist in order to facilitate the commission of a fraud against a victim;
  • Creates, uses, or possesses any counterfeit or fake identifying information of a person, who does in fact exist, for the purpose of defrauding that person; OR
  • Receiving fraudulent identification information from a third party if the accused knows it to be fraudulent, stolen, or counterfeit.

It is important to note that a person under the age of 21 years old cannot be prosecuted under this code section for using a fraudulent, counterfeit, or otherwise, fake I.D. for the purposes of entering an adult establishment, such as a bar, or by attempting to purchase alcohol.

PENALTIES

In Georgia, identity fraud is classified as a felony offense. According to O.C.G.A. § 16-9-126, if an accused is convicted of identity fraud in Georgia, he/she could be sentenced anywhere from 1-10 years in prison. After a conviction, the court also has the discretion to impose a fine upon the accused of up to $100,000 and could order the accused to also pay restitution to the victim. Such victim could either be a consumer or a business. Furthermore, a subsequent conviction of identity fraud enhances the punishment to 3-15 years in prison and a fine up to $250,000. Similar as to a first conviction of identity fraud, the judge may also order the accused to pay restitution.

CONTACT US

Due to the severity of the punishment for identity fraud convictions, it is of vital importance to hire an experienced 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 identity fraud, as well as all possible options for an accused dealing with such a serious charge.  Therefore, if you or a loved one has been arrested for identity fraud, please call our office today at 404-581-0999 for a free consultation.

Aggravated Assault Charges in Georgia

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In Georgia, there are two types of assault offenses that an accused person may be convicted of: simple assault and aggravated assault. Generally, simple assault is classified as a misdemeanor where aggravated assault is a felony offense. In this blog, we will solely discuss the latter.

According to O.C.G.A. § 16-5-21, a person commits the offense of aggravated assault when he/she commits an assault in one of the following aggravating circumstances:

  • The accused has the intent to murder, rape, or rob;
  • The accused commits the assault with a deadly weapon or object in which could result in serious bodily injury;
  • The accused commits the assault with an object, which is likely or is actually used for strangulation; OR
  • The accused commits the assault without legal justification by discharging a firearm from within a motor vehicle.

When the accused person commits an assault in one of the above-mentioned manners, the accused may be sentenced, if convicted, anywhere between 1-20 years in prison. However, the following offenses, as listed below, have different penalties due to the enhanced circumstances that surround the incident:

  • If the accused commits the aggravated assault upon a police officer while he/she is engaged in his/her official duties, the accused person may be sentenced to at least 10 years, but no more than 20 years in prison if such assault occurs from the discharge of a firearm. However, when the aggravated assault does not involve the discharge of a firearm, the accused person may be sentenced anywhere between 5-20 years in prison;
  • Any person who commits such an assault against the elderly may be sentenced to at least 3 years, but no more than 20 years in prison. The same punishment is true for any person who commits the aggravated assault in a public transit vehicle or station;
  • If the accused commits the aggravated assault upon public school personnel or on school property, he/she may be sentenced anywhere between 5-20 years in prison;
  • If such an assault is committed against a family member, as defined as “family violence” under Georgia law, the accused may be sentenced to at least 3 years, but no more than 20 years in prison; AND
  • Lastly, any person who commits such an assault with the intent to rape a child under the age of 14 years old, may be punished by a prison sentence of anywhere between 25-50 years.

CONTACT US

Due to the severity of the penalties for an aggravated assault conviction, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such charges. Therefore, if you or a loved one has been arrested for aggravated assault, please call our office today at 404-581-0999 for a free consultation.