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First Offender Sentencing in Georgia

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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

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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.

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.

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.

Bench Warrant

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Bench Warrant

Being arrested and having to show up for court can be stressful enough.  What’s even more stressful is missing a court date and knowing that there is a bench warrant out for your arrest.  Clearing a bench warrant is different in every jurisdiction, but there are a few common aspects of the law that can help in clearing a bench warrant.

First, it’s important to understand how a bench warrant is issued.  When a Georgia citizen is arrested and released from custody they are either given a court date at the jail or the person is told that a court date will be sent to them by mail.

Some cases, especially felony cases, are not immediately docketed with the court and it can take time before the courts add your case to the calendar.  In some jurisdictions that can mean months and even years before a court date is set up for your case.   Unfortunately, those court dates don’t always make it into your hand and if you missed your court date, then the Judge can issue a bench warrant for your arrest.   A bench warrant is warrant issued directly by the Judge for missing court.  A bench warrant instructs all law enforcement authorities to immediately arrest the person listed on the bench warrant and return them to court.Marietta-Office-Courtroom

So what do you do if you if you have a bench warrant?  Well, if you’re aware of a warrant it’s important to realize that it is unlikely that the warrant is going to go away on its own.  In fact, the warrant will remain until the Judge addresses the issue of why you missed court.   Because of that, it’s important to contact a lawyer immediately to address possible options.  Some jurisdictions will allow the attorney to discuss the case with the prosecutor and potentially resolve the warrant without you having to go back to jail.  In other jurisdictions, it will be on you to turn yourself in and allow your lawyer to work diligently on getting you in front of the Judge as soon as possible.

In some circumstances it can be shown that you did not in fact receive notice.  If the evidence shows that to be the case then the Judge would have the ability to lift the bench warrant and give you a new court date.  Or you may have been in custody in another jurisdiction and you were not able to make court because you were not transported to the courthouse. In those situations a lawyer can obtain a proof of incarceration and ask the Judge to lift the bench warrant immediately.   In any event, a lawyer can assist in helping lift a bench warrant and get you back to your loved ones as soon as possible.

Every courthouse is different.  It’s important to have a lawyer who knows how to effectively represent individuals with bench warrants.  At W. Scott Smith P.C., our lawyers have handled cases all over the State of Georgia and know the quickest ways to lift a bench warrant.  If you have an active bench warrant and need assistance, please call 404-581-0999 for a free consultation.

FTA (Failure To Appear) Status

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FTA (Failure to Appear) Status: What Can Happen and What to Do About It

As a rule of thumb, when you are summoned to court for ANY felony, misdemeanor or traffic charge, you MUST appear in court.

This is because, at your court date, the judge will go through the calendar (the list of people who are scheduled to appear before the court) like attendance at school. If your name is called and you (or your attorney) are not there to make an announcement to the court, the prosecutor will ask the judge to issue a bench warrant and an order forfeiting your bond. Most times, the judge will do just that—issue the bench warrant and sign a bond forfeiture order.

A bench warrant is a warrant for your arrest. While it won’t get you on America’s Most Wanted List, it will mean that your name will be entered into a nationwide police database and available to law enforcement until it is resolved.

So, if you interact with police thereafter and they run your name through their database, they will see the warrant for your arrest and you will be taken into custody (and transported to the jurisdiction where the warrant was issued).200274144-001

A bond forfeiture order is only issued when a person was released from jail on bail and has failed to appear at a subsequent court date. In this situation, the bondsmen are ordered to put up the outstanding bond amount and all of that money is forfeited to the property of the jurisdiction overseeing the case.

If that isn’t bad enough… when you miss a court date and the judge issues a bench warrant for you, DDS will IMMEDIATELY suspend your license and notify you at the address listed on your license. So, make sure you update your address with DDS!

If you are living on the wild side and driving on your suspended license, you run the risk of being stopped by police for a new traffic offense. If that happens, you will be arrested on the bench warrant, cited for the new traffic offense, and also charged with Driving with a Suspended License. Driving with a suspended license is a charge that is punishable by a maximum of 12 months in custody, $1000 fine, and an additional license suspension.

Because bench warrants can cause a variety of unanticipated legal trouble, it is wise to consult with one of our attorneys to understand your options.

But, in the meantime, here is my advice to you:

1. If you know you missed a court date and have not been arrested yet…

I suggest you immediately call the clerk of court in the jurisdiction where you missed court and ask them how you can lift the bench warrant. Some courts will allow you to pay a fee to lift the bench warrant and get a new court date.  Other courts will require you to appear before judge on a special “failure to appear” calendar, at which time you will either have to 1) Plead guilty to charges and take whatever deal the State is offering or 2) Get taken into custody on the bench warrant be booked in (mugshot again) and have to bail out again, and then fight the charges later on.

2. If you are worried that your license may be suspended…

Check the status online at: https://online.dds.ga.gov/dlstatus/default.aspx

3. If you have changed your address since your case was bound over from a municipality like Sandy Springs or City of Atlanta, YOU MUST UPDATE YOUR ADDRESS WITH THE FULTON COUNTY STATE COURT CLERK!!!

If you do not update your address, they will send notice to the address provided at the time the case was in the municipality. The State Court Clerk is located in Room J-150 of the 160 Pryor Building of the Fulton County Courthouse.

Finally, if you are unable to get the warrant lifted then it is important to turn yourself in as soon as possible.  Outstanding warrants can only be resolved by the Judge withdrawing the warrant OR by execution of the warrant (turning yourself in).

Our lawyers are trained to handle difficult criminal procedure questions.  At WSSPC our goal is to zealously represent each and every one of our clients.  If you have found yourself with a bench warrant please contact our office immediately at 404-581-0999 or visit our website at www.peachstatelawyer.com for more information.