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Sodomy

Sodomy is a serious crime in Georgia. O.C.G.A. § 16-6-2 established two separate criminal offenses. O.C.G.A.  §16-6-2(a)(1) defines sodomy as the performance of or submission to a sexual act involving the sex organs of one person and the mouth or anus of another. O.C.G.A. § 16-6-2(a)(2) defines aggravated sodomy  as the commission of sodomy with force and against the will of the other person involved or with a person who is less than ten years of age.

The offense of aggravated sodomy protects individuals from violent acts where the offense of sodomy punishes consensual sexual behavior.

For sodomy, all that is required is contact between the sex organs of one person and the mouth or anus of another person. Proof of penetration is not required in a sodomy case unless is specifically listed in the indictment. Whether there was prohibited contact between the defendant and alleged victim is solely a question for a jury.

No corroboration is required in a sodomy case.

Aggravated Sodomy is different than Sodomy. In order to make out a case for Aggravated Sodomy, the State must show that the contact was made both with force and against the will or without the consent of the alleged victim. The standard of proof is the same as required for a rape case. Both the words and actions of the accused can be used to determine if the alleged victim was in reasonable apprehension of bodily harm.

O.C.G.A. § 16-6-15 prohibits the solicitation of sodomy. Solicitation of sodomy is defined as soliciting another individual to perform to a sexual act involving the sex organs of one and the mouth or anus of another and such act is to be performed in public in exchange for money or anything of value or by force or by or with an individual who is incapable of giving legal consent to sexual activity. In order to be convicted of solicitation of sodomy, the State must be present sufficient evidence of all three elements of the crime.

If you are convicted of sodomy, it is a felony punishable by not less than one nor more than twenty years in prison and is subject to the sentencing provisions of § 17-10-6.2 which requires the sexual offender to receive a split sentence including the minimum sentence of imprisonment.

Aggravated Sodomy is also a felony and is punishable by either life imprisonment or by a split sentence of imprisonment for not less than 25 years and probation for life.

Solicitation of sodomy is a misdemeanor. However if the solicitation is of someone under 18 years of age or the solicitation is for money then it is felony punishable of not less than 5 nor more than 20 years in prison.

If the victim is at least 13 years old but less than 16 years of age and the person convicted of sodomy is 18 years of age or younger and is no more than 4 years older than the victim, then the accused would be guilty of a misdemeanor and would not be subject to the sentencing provision of O.C.G.A. §17-10-6.2.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

I was arrested with a warrant, and they did not bring me to court in Cobb County, what do I do?

If you have been arrested, booked into the County Jail, and there is a warrant, you must be brought before a Judge within 72 hours. If you are not brought before a judge within 72 hours, you must be released from custody. Having an experienced attorney file the correct motion and argue before the court can make that happen.

Under O.C.G.A. § 17-4-26, it requires the law enforcement officer to “exercise reasonable diligence in bringing the person arrested before the judicial officer authorized to examine, commit, or receive bail and in any event to present the person arrested before a committing judicial office within 72 hours of arrest.” Further, “[a]n arrested person who is not notified before the hearing of the time and place of commitment hearing, shall be released.” Chisholm v. State, 231 Ga. App. 835, 840 (1998)

If you or someone you know has been arrested for a charge with a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

I was arrested with a warrant, and they did not bring me to court, what do I do?

If you have been arrested, booked into the County Jail, and there is a warrant, you must be brought before a Judge within 72 hours. If you are not brought before a judge within 72 hours, you must be released from custody.

Under O.C.G.A. § 17-4-26, it requires the law enforcement officer to “exercise reasonable diligence in bringing the person arrested before the judicial officer authorized to examine, commit, or receive bail and in any event to present the person arrested before a committing judicial office within 72 hours of arrest.” Further, “[a]n arrested person who is not notified before the hearing of the time and place of commitment hearing, shall be released.” Chisholm v. State, 231 Ga. App. 835, 840 (1998)

If you or someone you know has been arrested for a charge with a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

I have an FTA in Municipal Court of Atlanta. What do I do?

If you missed your Court date, you may be concerned about whether or not there are warrants out against you. What you may not know is that an FTA in Municipal Court of Atlanta (hereafter, “MCOA”,) can also result in a license suspension. If you have missed a Court date, you should act swiftly to clear up the FTA. Failing to take action could result in your arrest. So what should you do?

To clear up an FTA in MCOA, you can go to the Courthouse and request a new Court date. The clerk will lift the warrant and place you on an “FTA Calendar.” Note that the license suspension will not be lifted until the Judge approves it at the FTA Calendar. Keep in mind that, until the warrant is lifted, if any officer finds that you have an active warrant, they would have the authority to arrest you. Although you probably do not have to worry about being arrested inside the Courthouse when you go to address your FTA, it is wise to enlist the help of an attorney to go with you or to ask the Court to lift the warrant on your behalf.

Once the warrant is lifted, you are no longer at risk of being arrested for the FTA. However, your license will remain suspended until the Judge releases the suspension. This will not happen until your Court date. In the meantime, continuing to drive on your suspended license puts you at risk. If you are stopped for a traffic offense (speeding, for example,) and the officer determines your license is suspended, not only will you get a speeding ticket, but you will also be charged with Driving on a Suspended License, a misdemeanor which can result in fines, additional jail time, and can suspend your license for six months.

Of course, it can be difficult to go about your daily life with a suspended license. We can help expedite things to get you an earlier Court date so you can get your license back and address the underlying charges. Missing a Court date can be serious, but you don’t have to address it alone. Give us a call. We are within walking distance of Municipal Court of Atlanta and we can walk down to get your FTA lifted same-day. For a free consultation with one of our attorneys, call 404581-0999. Written by Attorney Katherine A. Edmonds.

Police Vehicle Searches in Georgia

You are driving down the highway and the blue lights come on behind you. You pull over and the officer says to step out of the car so he can search your car and the bag you have in the backseat. What are your rights? What is the law relating to a search of your car?

The Fourth Amendment to the United States Constitution states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This blog will focus on the law relating to the search of a car in Georgia.

A police officer is allowed to stop any car if the officer observes the car is violating any traffic law. This includes equipment violations, such as a taillight that is out. The police do not even have to see an actual violation of a traffic law if they see a sign that the driver may be impaired.

An investigatory stop of a car must be based on some objective manifestations that the person stopped is, or is about to be, engaged in criminal activity. Even if it is shown that no actual traffic violation occurred, the stop of the car can still be upheld if it was based on a reasonable mistake of fact or a reasonable mistake of law.

Once the trial court determines that the initial stop of the car was allowed, the issue then turns to whether the search of the vehicle was permitted.

If the driver gives consent to the search, this the search of the car is allowed.

But if the driver does not give consent? Does the officer have probable cause to believe that a crime has occurred. Often probable cause will develop during the initial questioning of the driver or other occupants of the car.

But what is the law for prolonging a traffic stop unnecessarily? In Rodriguez v. United States, the Supreme Court said that the duration of a traffic stop is determined by the legitimate mission of the stop and a traffic stop may not be prolonged, even for a few minutes, in order to engage in criminal investigation unrelated to the traffic stop. So the focus is on whether the officer is prolonging the traffic stop for a general criminal investigation.

If the duration of the stop is not excessive, the police may search the contents of the car and its occupant if one of the exceptions to the search warrant is applicable.

  1. The car may be searched if there is probable cause to believe that there is contraband or evidence of a crime in the vehicle.
  2. The car may be searched if the driver or another occupant is arrested and the search qualifies as a search incident to arrest;
  3. The car is impounded and the contents inventoried.
  4. The driver or owner consents to the search.

If you were pulled over for a minor traffic ticket and your car was searched and you were arrested, please call our law office. You have a very limited time period to file a motion to suppress to challenge the search of your car.  Our law firm is W. Scott Smith, P.C. and our number is 404-581-0999.

Forgery Laws in Georgia

by Ryan Walsh

There are four degrees to the offense of Forgery in the State of Georgia.

Forgery in the first and second degree involves the making, possession or alteration of a writing other than a check in a fake name or in a manner that alleges the document was made by another person at another time without the authority of that other person. It is forgery in the first degree if that writing is used, presented , or delivered; and forgery in the second degree if it is never used, presented or delivered.

To be found guilty of forgery in the first or second degree you have to have knowledge that the writing is forged and that you have made, possessed or altered the document with the intent to defraud another party.

Forgery in the third and fourth degrees involve the same elements of forgery discussed above but the writing involved is a check.  If the check is for $1,500 or more or you have ten or more checks in your possession then you will be charged with forgery in the third degree. If the check is for less than $1,500 or you have less than ten checks in your possession then you will be charged with forgery in the fourth degree.

Forgery in the first through third degrees is a felony offense in the State of Georgia. Forgery in the fourth degree is a misdemeanor offense.

If you’ve been contacted by a law enforcement official about a potential issue at a bank it is important that you exercise your right to remain silent and call a lawyer immediately to discuss your case, your options, and potential outcomes.

Being convicted of a forgery charge can impact your ability to gain future employment or obtain professional certifications in the State of Georgia.

Our office of Georgia criminal defense attorneys have experience in defending forgery and fraud crimes. Call us today at 404-581-0999 for a free consultation.

Privacy Rights- Carpenter vs. United States

by John Lovell

Last month, the United States Supreme Court ruled in favor of the privacy rights of individuals. The Government, without a warrant or a showing of probable cause, issued an order to a cell phone company to provide Timothy Carpenter’s cell site data. The Government sought to gather the extensive records, including the location of Carpenter’s phones. The Supreme Court, in a 5-4 decision, found that Mr. Carpenter had a privacy right in his phone records. For the Government to seize these records, the Government needed to present to a magistrate a warrant based on sworn testimony establishing probable cause. The Court noted that a significant factor causing the War for Independence was Britain’s use of warrantless searches … Americans have never been fond of warrantless searches!

Do not be quick to conclude that this ruling makes it necessary for the police to obtain a warrant for all types of stored records. Your privacy could still be affected. Previously, the Court has held that a warrant is not necessary to obtain records of the numbers called by a cell phone-not the content of the calls but just the fact that the “target” phone called particular numbers at particular times. The Court has also held that other stored records such as bank records may be obtained without a warrant. A couple of years ago, the Court ruled that a warrant is required to place a GPS tracking device on a vehicle. The critical distinction that the Court has made is in information that reveals the location of the subject. We have a greater expectation of privacy in where we are than is more typical records such as numbers called and even bank records. Protect your privacy rights today and call Peachstate Lawyer for your FREE consultation!

Sodomy Crimes in Georgia

by Mike Jacobs

Sodomy is a serious crime in Georgia. O.C.G.A. § 16-6-2 established two separate criminal offenses. O.C.G.A.  §16-6-2(a)(1) defines sodomy as the performance of or submission to a sexual act involving the sex organs of one person and the mouth or anus of another. O.C.G.A. § 16-6-2(a)(2) defines aggravated sodomy  as the commission of sodomy with force and against the will of the other person involved or with a person who is less than ten years of age.

The offense of aggravated sodomy protects individuals from violent acts where the offense of sodomy punishes consensual sexual behavior.

For sodomy, all that is required is contact between the sex organs of one person and the mouth or anus of another person. Proof of penetration is not required in a sodomy case unless is specifically listed in the indictment. Whether there was prohibited contact between the defendant and alleged victim is solely a question for a jury.

No corroboration is required in a sodomy case.

Aggravated Sodomy is different than Sodomy. In order to make out a case for Aggravated Sodomy, the State must show that the contact was made both with force and against the will or without the consent of the alleged victim. The standard of proof is the same as required for a rape case. Both the words and actions of the accused can be used to determine if the alleged victim was in reasonable apprehension of bodily harm.

O.C.G.A. § 16-6-15 prohibits the solicitation of sodomy. Solicitation of sodomy is defined as soliciting another individual to perform to a sexual act involving the sex organs of one and the mouth or anus of another and such act is to be performed in public in exchange for money or anything of value or by force or by or with an individual who is incapable of giving legal consent to sexual activity. In order to be convicted of solicitation of sodomy, the State must be present sufficient evidence of all three elements of the crime.

If you are convicted of sodomy, it is a felony punishable by not less than one nor more than twenty years in prison and is subject to the sentencing provisions of § 17-10-6.2 which requires the sexual offender to receive a split sentence including the minimum sentence of imprisonment.

Aggravated Sodomy is also a felony and is punishable by either life imprisonment or by a split sentence of imprisonment for not less than 25 years and probation for life.

Solicitation of sodomy is a misdemeanor. However if the solicitation is of someone under 18 years of age or the solicitation is for money then it is felony punishable of not less than 5 nor more than 20 years in prison.

If the victim is at least 13 years old but less than 16 years of age and the person convicted of sodomy is 18 years of age or younger and is no more than 4 years older than the victim, then the accused would be guilty of a misdemeanor and would not be subject to the sentencing provision of O.C.G.A. §17-10-6.2.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

First Offender Sentencing in Georgia

First offender treatment is available in Georgia for anyone who has not been previously convicted of a felony and is not charged with a serious violent felony. Serious violent felonies are murder, felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery. Anyone charged with one of those offenses is automatically ineligible for first offender unless the charge is reduced to a lesser offense.

If a defendant receives first offender treatment, it can be both a blessing and a curse. If there are no issues during the period of probation, then no official conviction will ever be reported and the record itself will seal from public view. However, if the defendant commits a new offense while on probation or has any issues at all, then the judge has discretion to revoke the first offender status and re-sentence the defendant up the maximum sentence allowed by law.

While serving the sentence which will undoubtedly involve a period of probation, the defendant is not technically convicted of a crime but still cannot possess a firearm. After successful completion, all gun rights are restored.

Finally, first offender status can be granted retroactively if the defendant was eligible for first offender treatment at the time of the original plea but was not informed of his or her eligibility. Still, there is discretion, and the judge must find by a preponderance of the evidence that the ends of justice and the welfare of society are served by granting retroactive first offender status.

If you are charged with a crime in Georgia, then you should always consult with an attorney as to whether you are a candidate for first offender treatment. If you have already pled guilty, then you should still reach out to discuss whether you can receive retroactive first offender treatment. Give us a call today at 404-581-0999.

DUI Refusal Reaches the Supreme Court

SUPREME COURT UPDATE:  Can they charge me with a crime for refusing the breath test?

On April 20, 2016, the Supreme Court heard argument on Birchfield v. North Dakota.  The case addressed the question of whether a State can criminalize the refusal to submit to a chemical test of blood, breath, or urine without a warrant.   In both Minnesota and North Dakota, it is a separate crime to refuse to take the State chemical test.   Prosecutors for both the State of Minnesota and the State of North Dakota argued that an officer’s request for a breath sample without a warrant protects against evidence spoiling (BAC dropping over a period of time).  Interestingly, the Supreme Court Justice’s peppered both lawyers with factual scenarios about the reality that, with today’s technological capabilities, it is fairly easy for a police officer to contact a magistrate judge to obtain a warrant.   Interestingly, the Justices did not focus all of their tough questions towards the State.  It appears that the Justices had significant feelings about the minimally invasive nature of a breath test in comparison with a blood test.  There also seemed to be some confusion about the use of a roadside portable breath test versus a State administered breath test at the jail.

Georgia currently does not have a criminal penalty for refusing to take the State administered breath test.  Instead, Georgia law allows officers to request a civil penalty (loss of your license for 12 months) for refusing to take the State administered blood/breath/urine test.   However, the decision of the Supreme Court will almost certainly impact Georgia DUI cases going forward.   If the court were to side with the defendants in this case, we certainly can expect the opinion to express strong 4th amendment language that could impact other types of DUI cases.   On the other hand, if the court were to side with the State of Minnesota and North Dakota, we can expect other States, Georgia included, to introduce legislation that would criminalize the refusal of a State administered test.

Our lawyers will be watching closely when the Supreme Court releases their opinion this fall.  For more information about the case, check out the oral arguments at:

http://www.supremecourt.gov/oral_arguments/audio/2015/14-1468   and

http://www.scotusblog.com/2016/04/argument-analysis-criminal-penalties-for-refusal-to-take-a-breathalyzer-test-in-jeopardy/

We will certainly provide an update when the Supreme Court releases their final ruling.