Being arrested is extremely stressful. When combined with misinformation, it is even more stressful. There is an abundance of information available in today's digital age. However, much of it is either wrong or out of context to your individual situation.
The purpose of the below-listed Frequently Asked Questions About Georgia Criminal Law is to provide the reader with straightforward and unbiased answers to the concerns a person would understandably have after they have been arrested. We suggest that you read these FAQs about Georgia Criminal Law before calling our office.
The criminal laws in Georgia can be complicated and difficult to understand. There are hundreds of different Georgia Criminal Laws, and for every law, many different interpretations thereof. The Georgia Criminal Defense Attorneys at Lawson and Berry are here to help.
Do not panic. Become informed, and then make the best judgment as to whom you need to hire to handle your case. The first step is to get answers about Georgia's Criminal Laws. We hope the below-listed summary helps provide our readers information about Georgia's criminal laws and procedures.
The Arrest Process
What is Reasonable Articulable Suspicion and how does it apply to my Georgia criminal case?
Reasonable articulable suspicion, or what is commonly referred to as “articulable suspicion” is the minimum standard of evidence that allows a police officer to start an investigation. When the police have a legitimate reason the suspect that someone may have committed a crime, then they have sufficient reason to interact with that person. The police must be able to “articulate” their reasons to continue their interaction.
Generally, the interaction must be brief and limited in scope to what is reasonably suspected. However, if another crime is witnessed in “plain view,” that crime can also be investigated.
Additionally, the police can only temporarily detain someone on mere articulable suspicion. They must have probable cause before making an arrest.
What is Probable Cause and how does it apply to my Georgia criminal case?
Probable cause is specifically mentioned in the 4th Amendment to the United States Constitution. It is the minimum amount of evidence necessary to make and arrest, conduct a search, seize property, or issue a search warrant.
To establish probable cause to make an arrest, the police must have specific facts that would lead a reasonable person to believe that a crime has occurred. An arrest cannot be made on a hunch or suspicion.
To establish probable cause to conduct a search, the police must establish sufficient facts and evidence that a crime has occurred in a specific place. Search warrants must designate a particular place to be searched and the reason as to why the search is appropriate. Our Founders wrote the 4th Amendment to avoid “general warrants” that allowed searches without a particularized description.
To establish probable cause to seize property, a police officer must be able to establish a sufficient belief that a particular piece of property is in fact contraband.
To establish probable cause to issue a search warrant, a police officer must convince a judge or magistrate that a crime has occurred at a specific location or that evidence about a crime can be found at that location. The warrant must state the place to be searched and the items that may be seized.
As with any search, the police cannot act of mere suspicion. They may only act if a reasonable person would believe, based on the facts at hand, that a crime has occurred.
Do the police need a warrant to arrest me for a misdemeanor in Georgia?
The police may arrest someone for a misdemeanor committed in their presence without a warrant. The perfect example is the offense of driving under the influence. In a DUI case, the police do not need a warrant to make an arrest. They are allowed to make an arrest if there is probable cause to believe that a person was under the influence of alcohol or drugs, to the extent that they were less safe to drive.
For misdemeanors that occur outside the presence of a police officer, generally the “victim” of the crime must apply for a warrant through the warrant application process. The alleged perpetrator of the crime has a right to a hearing where a judge will decide whether there is probable cause to issue a warrant. Both sides of the dispute are permitted to testify and offer other evidence.
Do the police need a warrant to arrest me for a felony in Georgia?
The police may arrest someone for a felony committed in their presence without a warrant. A perfect example is when the police arrive during the commission of a violent felony. The police are legally allowed to render aid and stop a violent felony by making an arrest. The police are also allowed to pursue the alleged perpetrator of a felony and make an arrest. The key fact in both circumstances is that the criminal acts are occurring or have just occurred at the time of the police interaction.
When the police make a planned felony arrest, usually after an investigation, they must seek an arrest warrant from a judge or magistrate. They must convince the judge or magistrate that there is sufficient probable cause to make the felony arrest.
Can a private citizen make an arrest in Georgia?
A citizen's arrest is not exactly an arrest in the way the police make an arrest. Private citizens may detain a person who has committed a crime until such time as the police arrive.
Private citizens must be careful before detaining another person. An unlawful restriction of the movement of another can be viewed as a potential kidnapping. To avoid unlawfully detaining someone, a private citizen must first witness the alleged crime, the crime witnessed must be a felony, and only limited force may be used to detain the suspect.
It is our advice to avoid making a “citizen's arrest” because of the potential criminal and civil exposure related thereto. It is a better practice to wait for the police to arrive, while gathering as much evidence as possible that may help the authorities.
One exception to the advice against citizen arrests is in shoplifting situations that involve store security. Georgia courts seem to allow such detentions, even though many such detentions do not meet the minimum requirements for a non-police arrest.
What is a Warrant Application Hearing?
When a private person wants to have someone else arrested, they must apply for a warrant application hearing. When the police apply for a warrant they must prove to a magistrate that there is probable cause to make an arrest. After such evidence is proven, the warrant is then issued.
When a non-police officer applies for a warrant, the accused is entitled to a hearing before such warrant is issued. Upon application for the warrant, the alleged offender is notified of their right to a hearing. At the hearing, both sides are allowed to testify and offer other evidence. Additional witnesses may also be called on both sides of the dispute. After the hearing, if the the judge finds there is probable cause that a crime has occurred, then an arrest warrant will be issued.
From a practical point of view, Georgia Criminal Attorneys use these hearings as an attempt to settle a dispute before a warrant is issued. The entire point is to not have a client arrested. In fact, many courts provide mediation services to the parties in an effort to settle the dispute before it has to be resolved in court. Sometimes a payment of restitution can settle the matter. Sometimes a simple apology is all that is needed. Sometimes people need to just agree to stay away from one another.
What is the proper police procedure to arrest someone with a warrant?
The police must witness the criminal offense or be in pursuit of a potential criminal to allow for an arrest. Otherwise, to make an arrest for a crime that has already happened, the police must get an arrest warrant after showing sufficient probable cause to an independent judge or magistrate.
When executing a warrant or making an arrest for a crime that is ongoing, the police must use only sufficient force to safely take the suspect into custody. The police must allow a person to surrender peacefully before engaging in physical violence. The police must identify themselves and explain their lawful authority to make the arrest.
What is a “No Knock Warrant?”
A "no-knock warrant” is used when the police are able to prove to a magistrate that without surprise evidence will be destroyed, suspects will flee, or police officers will be in unreasonable danger if they are so identified.
As with all exceptions to ordinary police procedure, no knock warrants are often abused through their over-use. The mantra of “officer safety” is often used to abuse the rights of suspects. When the police barge into a home, often there are most instances of violence. Also, there are many examples where the police have entered the wrong home, resulting in the unlawful killing of innocent people, destruction of property, and the killing of pets.
The “war on drugs” has led to many such instances where innocent people have been hurt for no reason. Who can forget the young baby burned in Habersham County Georgia when the police threw a smoke grenade into a home where it turned out that there was no criminal activity.
What is the procedure when a police officer applies for a warrant?
A police officer must either physically appear before the magistrate or seek the warrant via telephone. However, when a warrant is issued by phone (or by other electronic means) it must be reduced to paper and filed appropriately.
A police officer must prove to a judge that there is probable cause to make an arrest, search a property, or to seize property. A warrant cannot be issued based on a hunch or a vague belief. There must be actual evidence.
Can a person resist an unlawful arrest?
Technically, a person is legally allowed to resist an unlawful arrest, even if such resistance causes harm to the police officer. However, our advice is to not resist the police because they have a monopoly on the use of force in civil society. As a result, when you resist an unlawful arrest you are placing yourself at great risk to be physically harmed or killed.
Also, you may have misinterpreted the “illegality” of the arrest, thereby committing the offense of obstruction. The fact that a person is 100% innocent of a crime does not make their arrest illegal. The police may have a proper warrant and may have simply been wrong in their belief of a person's guilt.
The best practice is to go with the police officer peacefully and without any resistance. Out in the public square, a police officer has the advantage of lawful force. However, in a courtroom a police officer is merely a witness with no more authority than any other witness. It is in court that a Georgia Criminal Lawyer will help you exercise your rights and prove that your arrest was unlawful.
Does a person have the right to walk away from a police officer?
“Yes.” A person does not have to engage in a conversation with a police officer. In fact, we specifically advise everyone to never speak to a police officer for any reason, no matter what. There is one exception to this advice. The police have the right to a brief detention of a person, called a “Terry Stop."
Terry was a case that created an exception to the general rule that a person is allowed to avoid a police encounter. The police are allowed to briefly detain someone, even in the absence of probable cause. Terry v. Ohio 302 U.S. 1 (1968).
During a “Terry Stop” the police may also do a brief search of a person's outer garments if there is reasonable articulable suspicion that the person being detained may have a weapon and may thereby pose a danger to the police.
When can a police officer charge someone with Obstruction during an arrest?
When a person knowingly hinders a police officer in the lawful pursuit of his duties, they can be charged with obstruction in Georgia. Depending on the severity of a person's actions, obstruction can be charged as either a misdemeanor or felony.
Misdemeanor obstruction in Georgia is defined by hindering a police officer without making a violent act. Examples include providing false information to a police officer, running from a police officer, disobeying a lawful order of a police officer, interfering in the investigation of someone else, and concealing evidence.
Felony obstruction obstruction in Georgia may be charged when a person engages in a violent encounter with a police officer or offers to do violence to a police officer.
What is the difference between a misdemeanor and a felony in Georgia?
A misdemeanor crime versus a felony crime is a matter of classification of offense and a matter of the potential loss of liberty therein. In Georgia, misdemeanor offenses carry a sentence of up to 12 months in jail and up to a $1000 fine. High and aggravated misdemeanor offenses carry up to 12 months in jail and and a fine of up to $5000. Additionally, a person must serve every day of their sentence on a high and aggravated misdemeanor. Unlike in most states where traffic offenses are considered to be civil infractions, most Georgia traffic offenses are classified as misdemeanors.
A felony offense in Georgia carries at least one (1) year in prison and may include up to life in prison or even the death penalty. There are fines associated with felony offenses of more than a million dollars. Although most prison sentences can be served, at least partially, on probation, some offenses carry mandatory time in prison.
Additionally, those convicted of a felony in Georgia will lose certain civil rights, including their 4th Amendment right against unreasonable search and seizure, their right to vote, and their right to own a firearm.
Do the police have to read me my Miranda Rights before arresting me?
Miranda v. Arizona, 384 U.S. 436 (1966), is a case that helped define when a police officer can question a suspect and what the police must tell a suspect before such questioning.
Unlike on television and in the movies, police officers do not have to always inform someone of their Miranda rights after they make an arrest. A suspect must be read their rights when they are both in custody and they are being interrogated for the purpose of eliciting a confession.
There are many instances when a person makes statements against their own interest and where they are not protected by Miranda. For example, any statement made voluntarily during the course of an arrest or during detention can be used against someone.
Also, when the police make an arrest for a crime they have witnessed, there will likely be no need for questioning a suspect. For example, in a DUI case, the entire crime is usually witnessed by the police officers. As a result, no confession about a person's impairment is needed. Therefore, police officers almost never need to read a person their “rights” when arrested.
However, in the same example of a DUI arrest, if a police officer suspects an additional crime and wants to question a person they have detained about said crime, then Miranda must be read to the person they already have in custody. An example is when the police find drugs in the automobile of a person they have just arrested for a DUI.
Can a police officer make an arrest outside of his or her jurisdiction?
Oh, the Good Old “Dukes of Hazzard question. “Jurisdiction" is very often misunderstood by people who call our office. To begin with, unlike in the the classic television show, reaching the county line will not protect a person from arrest. All police officers can make an arrest outside their jurisdiction while in hot pursuit.
Secondly, since a sheriff is a constitutional officer in Georgia, all sheriffs and deputy sheriffs have state-wide arrest powers in Georgia.
Thirdly, since any private citizen can detain someone and make a “citizen's arrest,” police officers routinely detain people suspected of crimes and hold them until the local authorities arrive.
Finally, many police officers in municipalities are actually deputized by the Sheriff of their county to receive their police powers. As a result, like any other deputy sheriff in Georgia, they would have state-wide arrest powers.
The moral of the story is that arguing in court for a dismissal of a case because the arresting officer was outside his or her jurisdiction is not likely to work. The exception to that general rule about jurisdiction is when the officer is given police powers in the charter of a private University, such as Emory University. Those police officers do not have arrest powers after a certain distance from campus.
Do I have to tell my employer I have been arrested?
Generally, a person does not have an obligation to tell their employer about an arrest. There are, however, certain jobs that the law mandates that someone tell their employer. One example would be an airline pilot. If a pilot fails to inform both the FAA and their employer about an arrest, it could result in the violation of Federal law.
Even though electing to withhold information about an arrest from an employer will not likely subject someone to another arrest, there are both legal and practical reasons why it may be advisable to still inform your employer.
For instance, if a person's employer is likely to find out about an arrest (because of publicity or because they routinely run background checks on their employees), then it is more practical to tell your employer up front.
Also, if an arrest may cause an interruption in someone's employment, it may also be worth while informing your employer before said disruption.
Finally, some people are contractually obligated to tell their employer about an arrest. Although there is no criminal exposure in such situations, failure to tell the employer or an arrest may result in the termination of someone's employment.
What is the difference between a State Crime and a Federal Crime?
A crime occurs when someone violates a statute, and there is a a joint operation of the act of violating the statute and the intention to violate it.
A state criminal offense is when a person violates the laws of a particular state or municipality therein. Examples of such violates begin with simple traffic offenses, all the way to murder.
A Federal offense is when a person violates the laws of the United States. Such offenses can include anything to violating the tax laws, to anything that occurs through the internet and telecommunication, and to any crime that takes place over state lines.
The Federal government has exclusive jurisdiction over some offenses, as well as state governments. However, many offenses meet the criteria to be prosecuted by both the Federal Government and state governments.
One such example can be when a hate crime occurs. Hate crimes are usually handed exclusively by state prosecutors. However, the Federal government can prosecute anyone who violates the civil rights of another person. This general “loophole” can make almost any offense a Federal crime. This is how the “Feds” were able to prosecute the police officers who beat Rodney King when their were acquitted in California. The Federal Government re-prosecuted those officers for violating Mr. King's civil rights, and it was not a violation of the double jeopardy clause of the Constitution because the Federal system was a separate jurisdiction.
What should you do if you are suspected of a crime?
The first thing you should do is exercise both your 5th Amendment right to remain silent and your 6th Amendment right to an Attonrey. Never speak to the police for any reason, even if you are 100% innocent of the crime.
If the police want to bring you in for questions, decline and direct them to speak to your Georgia Criminal Attorney.
If there is an active warrant for your arrest, call your lawyer and then have him or or make arrangements to turn you in. While being arrested and processed only cooperate to the extent of providing your name and other vital information. Never make a statement of any kind, even protesting your innocent. Remain 100% silent, and if questions, invoke both your right to remain silent and your right to an attorney.
What is an Illegal Search and Seizure?
If a police officer neither has a warrant nor has probable cause to search, then their actions violate the 4th Amendment to the United States Constitution.
In such circumstances, whatever contraband is found cannot be used against its owner or anyone for which their is standing to assert that they had control over such contraband.
The proper legal mechanism to challenge the admission of such evidence is called a “motion to suppress.”
Your Criminal Lawyer in Georgia will ask the court to restrict the prosecution from using illegally seized evidence, or as courts have called it, the “fruit of the poisonous tree."
Can the police lie to me to induce a confession?
Unfortunately, the police can lie to induce a confession. The police may even lie to the extent of telling someone that they are not the subject of an investigation.
The police often lie to people to elicit incriminating statements or to cause people to turn over evidence that may tend to make someone look guilty of a crime.
If it has been said once or a thousand times, here is another reason to never speak to the police and to always invoke your rights to counsel if the police try to question you.
Can a person be arrested after a Grand Jury Indictment, even though they were never arrested by the police prior to the Grand Jury Presentment?
“Yes,” a person can be investigated by a grand jury and subsequently arrested if the grand jury returns a bill of indictment.
Once a grand jury indicts someone, the prosecutor publishes the indictment in superior court. At that time, a superior court judge can issue a bench warrant for that person's arrest. However, a warrant after a grand jury indictment, without first starting as an arrest warrant, must be bondable. That means the suspect must be issued a bond, even for offenses that generally do not carry bond.
Also a grand jury can indict someone whose case was earlier dismissed at a preliminary hearing. In that situation, any bench warrant issued thereafter must also allow for bond.
Since the grand jury can indict someone, even after their case was dismissed at a preliminary hearing, we often warn clients that their case may not be over after an early dismissal.
Also, from a practical point of view, the fact that someone can still be prosecuted after a magistrate has dismissed a case, means that the District Attorney is far more powerful than a magistrate judge, and his or her assistant district attorneys are also far more powerful than any magistrate.
Are the police obligated to record a statement made to them?
“No;” which is another reason to never speak to a police officer. The police do not have to record their conversations with suspects, and as a result often either misinterpret what they are told, or simply incorrectly memorize it.
Furthermore, without a recording, things that are said are often taken out of context, and rest assured anything taken out of context will surely make a person look guilty.
Even where there is a recording, you cannot trust that the recording equipment will be used the entire time. You have no control over it, and you often have no control as to what parts of a recording are played in court.
As a result, the best advise is to invoke your right to remain silent and your right to an attorney if contacted by the police.
Do I have a right to an attorney while being arrested?
“No," you do not have a right to an attorney while being arrested. You have a right to remain silent and a right to an attorney if and when you are being interrogated by the police.
Bond and Bail
What are Bail and Bond?
When a person has been arrested, most offenses are “bailable.” That means that a person can be released and their release is secured by a financial guarantee that the person will attend court. In the event that someone fails to attend court, the amount of the bail is forfeited to the court. Since professional bondsman post the majority of the bonds, there is a financial incentive for the bondsman to make sure that his customers attend court.
Bail is usually the total amount of the money required to be released from custody. Bond refers to the percentage a professional bondsman requires so that they can post the remainder of the money required for someone to be released.
Bail should not be considered to be punishment or punitive. Accordingly, unless a person is considered to be dangerous or a flight risk, they should be released on a reasonable bond. Other factors that are considered in setting a person's bail are their ties the community, whether a person has family in the community, the length of time someone has lived in the community, a person's employment status, a person's criminal history, the severity of the crime accused, the accused's ability to pay, and whether there are any other factors that tend to show a person will or will not attend court.
What is a Cash Bond?
A cash bond means exactly what it implies, the total amount of the bail is posted by the accused or by someone else (usually a loved one). When a cash bond is posted, the court will return the entire amount of the bond to whomever provided it, when the case is completed.
Providing the full amount of the bail in cash is the quickest way to get a person out of jail. However, it can lead to a large amount of money being tied up for months or even years. The money will not be returned until the case is completed.
Cash bonds are used mainly in misdemeanor offenses where the amount of the bond is usually less than a few thousand dollars. There are also online “Cash bonding companies” that will take credit cards, after paying a nominal fee.
In either instance, the bond can be signed over to the accused to be used for the payment of fines. We find parents often sign over the bond for fine payment, since many times they end up helping with fine payments anyway.
Finally, the outcome of the case has no bearing on whether the money is returned. Remember, the purpose of bond and bail is to secure the appearance of the accused in court.
What is a Surety Bond?
A surety bond is a three-party contract. It is also the most common type of bond in criminal law. It is a contract between a bonding company, (the surety), the principal (the person arrested), and the court system (the entity that desires for an accused person to attend court). The surety ensures the attendance in court of the accused. The accused pays the surety a percentage of the total bail as the non-refundable fee to the surety. The court system receives the full amount of the bond from the surety in the event the principal fails to attend court.
The normal fee paid to a surety is between 10-15% of the total amount of the bond. Some bonding companies also require a refundable deposit on top of the their fee. In the case of out-of-state defendants, requiring a deposit is reasonable. For local defendants, there is no basis to require a deposit. In fact, if a person can provide a full deposit to the surety, they should instead post a cash bond.
What is a Property Bond?
A property bond is when someone pledges that in exchange for a person's release they will encumber their property. In the event the accused does not attend court, the county can file a foreclosure procedure against the property.
Clearly, there are several disadvantages to a property bond. The first disadvantage is that criminal cases can take many years to complete. As a result, the pledged property will remain encumbered until such time that the case is completed. That means it cannot be sold, divided or refinanced.
The second major disadvantage is that the risk to the property owner very often exceeds the benefit of securing the release of a person arrested. As a result, we never recommend a property bond when a person is only facing misdemeanor charges or felony charges where the total bond is less than $20,000. The risk of someone losing a valuable piece of real property is too great.
The only time we recommend a property bond is when the amount of the bond is too high for a family member to post. Secondly the key word here is “family member.” Only pledge your property for a close family and for someone you are 100% sure is reliable.
When posting a property bond you will be required to provide a warrant deed, a current (paid) tax bill showing the fair market value of the property, and proof of ownership. If there is a mortgage on the property, you will need to provide a current mortgage statement to make sure there is sufficient equity to post the bond. Equity is determined by comparing the mortgage balance with the fair market value established by the tax statement. All taxes and mortgage payments must also be current.
What is a Bonding Company?
A bonding company and a professional bondsman are synonymous. A bonding company has an agreement with the Sheriff of the county in which they are licensed to secure the release of people accused of crimes.
The bonding company does not post the full bail amount of the bail for each person they “bond out.” Instead, they post a bond with the county for approximately ten percent of total amount of bonds they will be allowed to post. For example to bond out one thousand people with a $1,000,000 bond (one million dollars), the bonding company must post a $100,000 bond with the county.
Then, if someone does not attend court, that money can be either paid by the professional bondsman, or in the event of insolvency, taken from the bond they posted with the county.
When someone does not attend court, the bonding company has a certain amount of time to find the person before they must pay the full amount of the bond to the county.
Also, a bonding company may employee a bounty hunter (at their cost) to find someone who has missed court.
How does someone bond out in Georgia?
There are many options available to the family and friends of people arrested in Georgia. Loved ones may post a cash bond, seek the help of a professional bondsman, or post a property bind (generally not recommended).
Generally, to post a bond your family remember must appear in person at the jail or at the bonding company. However, when available, an online cash bond can also be posted. Our office can let people know which online bonding companies are reliable and which ones should be avoided.
Why does my lawyer tell me to waive my Committal Hearing in exchange for a bond?
For many serious offenses, the magistrate does not immediately set bond. As a result, the court will set the case for a preliminary hearing. A preliminary hearing and a committal hearing are synonymous in Georgia.
At a person's committal hearing, the state must show that there is probable cause that a crime has occurred, or the person who is accused must be released.
Since probable cause is a low standard, most people arrested can be held until trial. As a result most Georgia Criminal Defense Attorneys strategically offer to the prosecution that in exchange for waiving their client's right to a committal hearing that the prosecution will agree to a set amount of bond.
Of course one disadvantage of such an agreement is that Georgia Criminal Defense Lawyers use preliminary hearings as part of the discovery process in their client's cases. Additionally, when an attorney has the opportunity to question a witness early on in a case, those witnesses are prevented from changing their testimony later on (once coached by opposing counsel).
What is a Consent Bond?
When a person is arrested for a crime that does not automatically have bond, many times he or she has to wait for a bond hearing. That can take several days. Your Georgia Criminal Defense Lawyer can move the process along by contacting the prosecutor and negotiating a bond. A negotiated bond is called a consent bond.
As mentioned, in exchange for a consent bond, the accused will generally have to waive their right to a preliminary hearing.
How does a court determine whether it will grant a bond?
In situations where the parties cannot agree to a consent bond, your Georgia Criminal Defense Attorney will file a motion for a bond hearing.
At the bond hearing, the defense must prove the following (bond factors in Georgia):
- The crime accused is bondable
- The accused is not a flight risk
- The accused is not a danger to people or property in the community
- The accused does not pose a risk of committing a felony while on bond
- The accused does not pose a risk of intimidating witnesses or obstructing the administration of justice.
What is the 90-Day Rule insofar as bond is concerned?
If a person has not been indicted by the Grand within 90 days and is still in custody, they are entitled to bond.
Any person who is arrested for a crime and who is refused bail shall, within 90 days after the date of confinement, be entitled to have the charge against him or her heard by a grand jury having jurisdiction over the accused person; provided, however, that if the person is arrested for a crime for which the death penalty is being sought, the superior court may, upon motion of the district attorney for an extension and after a hearing and good cause shown, grant one extension to the 90 day period not to exceed 90 additional days; and, provided, further, that if such extension is granted by the court, the person shall not be entitled to have the charge against him or her heard by the grand jury until the expiration of such extended period. In the event no grand jury considers the charges against the accused person within the 90 day period of confinement or within the extended period of confinement where such an extension is granted by the court, the accused shall have bail set upon application to the court.
Being entitled to a bond does not mean you are promised a bond you can afford. When someone is a flight risk, or poses a danger to the community, or is a risk or committing other crimes, or is a risk of intimidating witnesses, the court may set the bond amount so high that the accused would not be able to afford it.
What is a Superior Court only bond?
In most circumstances, bond is set by a magistrate. However, there are certain offenses that are considered to be so serious that require that bond can only be set by a superior court judge.
Your Criminal Attorney in Georgia will have to file a motion for a superior court only bond in the the county in which the charges are pending.
The following offenses require a superior court only bond; O.C.G.A §17-6-1:
- Aggravated sodomy
- Armed robbery
- Home invasion in the first degree
- Aircraft hijacking and hijacking a motor vehicle
- Aggravated child molestation
- Aggravated sexual battery
- Manufacturing, distributing, delivering, dispensing, administering, or selling any controlled substance classified under Code Section 16-13-25 as Schedule I or under Code Section 16-13-26 as Schedule II
- Violating Code Section 16-13-31 or Code Section 16-13-31.1 (sale of some drugs)
- Kidnapping, arson, aggravated assault, or burglary in any degree if the person, at the time of the alleged kidnapping, arson, aggravated assault, or burglary in any degree, had previously been convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary in any degree, or one or more of the offenses listed in paragraphs (1) through (10) of this subsection
- Aggravated stalking
- Gang activity
Can the court deny bond in my case?
“Yes,” the court can deny a person bond. There are many factors a judge must consider when deciding to grant bond. When a person is a flight risk, or he or she does not have ties to the community, or is a risk of harming others if released, or may interact with witnesses, or may damage public or private property, a judge may deny bond.
Additionally, when people have failed to attend court on previous cases, a judge may consider that when denying bond.
Also, a judge may set a bond that is too expensive for the accused to post. High bonds are often used as a tool to prevent a person from getting out, rather than the actual purpose of bond, which is to assure that someone attends court.
In misdemeanor cases, a person is entitled to bond as a matter of right. However, if a person does not appear in court and is arrested on a bench warrant, he or she is not entitled to a second bond on a misdemeanor case.
What is a Bondable Bench Warrant?
A bench warrant is when a judge issues a warrant after either a person fails to attend court or when the District Attorney makes a “special presentment" to the Grand Jury that returns an indictment.
When a person misses court, the judge will usually issue a warrant for their arrest. Most “bench warrants” do not include bond. In that case, once found and arrested, the person with the warrant must remain in jail until their court date.
In minor offenses, usually traffic-related, when someone misses court the judge (in his or her discretion) may include a bond amount in the warrant for their arrest. In that situation, once arrested the person with the warrant may make bond and remain out of jail until their new court date.
In relation to a special presentment to the Grand Jury, anyone charged with a crime by the Grand Jury alone is entitled to a bondable bench warrant.
A special presentment happens when a person is charged with a crime but was never either arrested for the offense or had their case dismissed at a preliminary hearing. In both situations, the Grand Jury can still indict the person for whatever crime they feel has happened. Then, once the indictment is returned in open court, the superior court judge overseeing the Grand Jury will issue a bondable bench warrant (an arrest warrant with a bond pre-set for the accused)
What is the Sheriff's Schedule of Bond?
Bond is determined by the judiciary, not the sheriff. The sheriff cannot set or lower a person's bond.
The sheriff's schedule of bond is actually a pre-set bond amount set by the magistrate for certain minor offenses, most often misdemeanors.
The bond amounts for these minor offenses are pre-set by the court so that people can make bond without first having to appear before a judge.
If someone cannot afford to make bond, they can ask a magistrate for a bond reduction or to be released on their own recognizance (their personal promise to appear in court).
What is the difference between bail and bond?
They are often used interchangeably. However, bond is usually a percentage of the total bail. In Georgia, most professional bondsman charge between 10-15% of the total bail amount in order to help get a person released.
What is an Accusation?
An Accusation is the formal charging document that outlines the a person's criminal charges. All Uniform Traffic Citations (UTCs) in Georgia are accusations. When a case is pending in a municipal court, a recorders court, or in probate court, the UTC is all that is needed to formally charge someone with a crime.
However, if the case is transferred to State Court or to Superior Court, the prosecutor must file a formal accusation to move forward with the charges.
All misdemeanor cases in Georgia can move forward after a prosecutor files an accusation. However, several felony charges require a Grand Jury Indictment, unless the defendant agrees to move forward on an accusation and thereby waives their right to a have the Grand Jury review the evidence. Such waivers occur usually when the accused agrees to a plea bargain.
In recent years, the Georgia General Assembly has changed our laws to allow for more than 130 felony case to be charged without being reviewed by the Grand Jury. See O.C.G.A §17-7-70 and O.C.G.A §17-7-70.1.
What is an Indictment?
An Indictment is returned by the Grand Jury when they vote, by majority, for a “true bill.” Our Grand Juries consist of 23 citizens of the county, and a “true bill of indictment” requires that at least 12 vote in the affirmative.
An indictment means that a person has been formally charged with a crime. Although a Grand Jury can return an indictment for misdemeanor offenses, most of the time a Grand Jury is used to investigate and charge persons with serious felony offenses.
If a person has perviously been arrest and is awaiting trial while on bond, that bond continues after they have been indicted. However, if the Grand Jury adds charges or changes the charges, they may have to bond out again on those new charges.
What is the Grand Jury and how does it apply to criminal cases in Georgia?
The Grand Jury consists of 23 citizens of a county and meets for a “term of court.” Most counties have at least two terms of court, and some have as many as six. As a result, Grand Jury Duty can last for as much as six months; however, usually people are only required to come in a few times a month.
The Grand Jury in Georgia has many responsibilities, including but not limited to:
- Deciding on whether to formally charge someone with a crime
- Investigating criminal activity
- Inspection of public property, such as the courthouse and the county jail
- Examination of inmate records
- Inspection of public records and any county offices
- Review of public accounts
- Review of the activities of the county board of eduction
- Review of a peace officer's use of force
- Review of elections and voting
- Setting the compensation of jurors, up to $50 a day
- Setting the compensation of bailiff's, up to $70 a day
- Review of the county treasurer and any receipts or disbursements
- Investigation of all county public officials
When a Grand Jury Issues an indictment, a person is formally charged with a crime. This is called a “true bill of indictment,” If a Grand Jury fails to charge someone, it is called a “no bill."
The District attorney guides the Grand Jury and makes presentments thereto. As a result, the District Attorney in Georgia has many civil responsibilities, as outlines above. He or she is truly the “district's” attorney when considering all of the above-listed duties of the Grand Jury.
Can I testify before the Grand Jury?
The Grand Jury meets in secret and ordinary citizens have no right to testify or even be informed that they are being investigated. Also, ordinary citizens have no right to have a defense attorney present or to provide any evidence to the Grand Jury
Although the accused has no right to a defense before the Grand Jury, Georgia affords special rights to police officers (the classic double standard) to defend themselves when an alleged offense occurred during the scope of their official duties. Police officers must be notified in advance of any investigation and may testify under oath before the Grand Jury, after the District Attorney makes his or her presentment.
If a police officer elects to testify, he or she can be questioned by the Grand Jury, as with any other witness. The officer is entitled to confer with his Georgia Criminal Defense Lawyer, however the Attonrey cannot directly participate in the proceeding.
What is a special presentment to the Grand Jury?
A special presentment is essentially the same as any other indictment. In modern times, the main difference is that no person is named as the prosecutor in the case because the charges are as a result of the Grand Jury's own knowledge or investigation.
Special presentments are also used when a person has not been arrested for the offense in which they are ultimately charged. When a person is charged after an a Grand Jury Investigation, there is a special presentment made thereto. Then, since the person was not been previously arrested, the superior court judge supervising the Grand Jury issues an arrest warrant for the accused. Since there was a special presentment, the accused is generally entitled to a reasonable bond.
Why are my charges different on the accusation or indictment than original charges for which I was arrested?
The prosecutor makes the final determination insofar as to whether a person is charged with any crime. In misdemeanor cases, the Solicitor General in municipal court, some probate courts, and in counties that have a state court, determines the misdemeanor offenses for which a person is charged. In felony cases, the District Attorney determines what offenses are prosecuted in superior court.
When a police officer makes an arrest, the prosecutor may determine that there was insufficient evidence to proceed on some or all of the charges. In that case, some or all of a case may be dismissed. In the alternative, the prosecutor may determine that additional crimes occurred. In that case, when a person comes to their arraignment, they may find that they have had additional offenses charged against them.
What is a Fast Track Plea?
A fast track plea is usually when someone elects to settle their case with a plea bargain before the prosecutor has completed his or her investigation of the case.
There are several strategic reasons to enter into a plea bargain early on in the process. When a client knows he or she has no defense, it may be best to contact the prosecutor before he or she has spent much time on the matter. Many prosecutors are willing to offer better terms in a plea bargain when they do not have to devote time and resources into someone's prosecution.
Also, many times a person decides to testify against their co-defendant (turn state's evidence) in exchange for less punishment. In those situations, they would enter their plea of guilty and then later testify against a co-defendant.
Another reason to close a case quickly may have to do with trying to get their sentence to run concurrently with another case or with a revocation of probation. When a person is already serving a sentence, your defense counsel may be able to negotiate that the punishment on other charges run concurrently (meaning at the same time).
What is an Arraignment?
An arraignment is the start of the formal prosecution of someone's case. At arraignment the accused must enter his or her initial plea.
All motions (the legal basis of someone's defense) must be filed at or before arraignment. In most jurisdictions, defense counsel has up to ten days after arraignment to file additional motions.
Most courts allow Georgia Criminal Defense Lawyers to file a “waiver of arraignment.” A waiver of arraignment means that your attorney has enter your plea on paper, instead of in person. When you hire an Attonrey, he or she is usually allowed to enter your initial plea in writing.
The waiver of your appearance at arraignment does not prejudice the case in any way whatsoever. it serves as a convenience to people who have proactively retain an attorney prior to arraignment.
Who represents the state in a criminal case in Georgia?
Who is the prosecutor in a Georgia criminal case depends on the jurisdiction:
- In municipal court, the city hires a prosecutor called a Solicitor General.
- in probate court, the court may hire a solicitor or may request that the District Attorney handle the prosecution of the case.
- In recorders court, the county hires a solicitor or the elected Solicitor General may also handle the prosecutions
- In state court, the elected Solicitor General handles the prosecution of all misdemeanor cases
- In superior court, the District Attorney handles the prosecution of all felony cases and also has concurrent jurisdiction over any misdemeanor case.
Do I need to hire a lawyer before my arraignment?
It is surely a good idea to hire defense counsel before your arraignment. For one thing, your attorney will be able to begin the investigation of your case, while there is still time to influence the prosecution as to what you may or may not be charged.
Secondly, your Georgia Criminal Defense Attorney will prepare your motions and file them at or before you arraignment. Motions form the basis for almost all successful criminal defenses.
Thirdly, your attorney may be able to successfully negotiate a plea bargain before your arraignment.
Finally, your attorney will be able to make sure that you do not incriminate yourself or make matters worse by saying the wrong thing in court while representing yourself.
What is the burden of proof in a criminal case?
The burden of proof is the standard of evidence sufficient to prove a fact. In a criminal case, the state carries the burden of proof and must thereby prove each element of the criminal offense charged. The state must also prove intent, which is an essential element of any criminal offense. The state must probe the accused intended to violate the law.
However, there are affirmative defenses where the burden of proof rests with the accused. An example is in cases where someone claims self-defense. Where a defense is an affirmative defense, the accused would then carry the burden of proof.
What is a Calendar Call?
Calendar Call is an important court date in the criminal court process. At calendar call both the state and the defense are required to tell the trial judge the status of the case, the number of witnesses that may be called, the length of the trial, and whether settlement discussions are still on-going.
In some jurisdictions, the calendar call is the last opportunity to enter into a negotiated plea bargain with the state. Additionally, some judges hold a Lafler Frye hearing where the defendant is informed of any plea offers and must decide to accept or reject them. See Lafler v. Cooper 566 U.S. and Missouri v. Frye. 566 U.S. 134.
How can I apply for a continuance?
A continuance can be applied for any point in the proceedings. However, most judges will usually grant a continuance at a person's first court appearance, the arraignment. All other resets are usually only granted for good cause.
Good cause may include when a witness is unavailable, when an attorney is on trial on another case, or when a continuance is used to further plea negotiations.
However, when a criminal defendant fails to timely hire counsel, that may determined to not be good cause for a continuance. Many judges will force a person to represent themselves in court when there has been sufficient time to hire a Georgia Criminal Lawyer.
What is a Bench Warrant and what can I do if there is a bench warrant for my arrest?
A bench warrant is issued by a judge when someone misses their court appearance. When someone misses court, the court will usually issue a warrant for their arrest, forfeit their bond, and in traffic cases, suspend their driver's license.
In some instances, the court will pre-set a bond for the accused. This allows a defendant to post a new bond. In most cases a bench warrant will not have a pre-set bond.
Appearing in court without an attorney, while having an warrant for your arrest, will not usually resolve the warrant. However, when you hire an attorney from our office, we may be able to either negotiate a new bond or get a court to lift the warrant in exchange for the accused appearing in court.
What is a bond forfeiture?
When a person is released from jail, they usually do so after posting bond. Bond is an amount of money used to assure that a person attends court and resolves his or her case. The theory is that a person is not willing to lose their money in the event they choose to miss court.
In theory, in the event someone misses court, a warrant will be issued for their arrest. In addition, the court will then forfeit their bond. This means that the government collects the money to further penalize the accused.
In real practice, most people use a bonding company to procure pre-trial release. As a result, when someone misses court a bonding company is at risk for losing their money. They are then given time to produce the accused before losing any money.
What are Motions and how do they apply to my Georgia criminal case?
Motions are requests by one side in a litigation for a court to make a favorable ruling. Some motions are procedural in nature and are usually granted automatically. Examples of a procedural motions include when an attorney files his or her entry of appearance in a case, files for discovery to get the police reports and other evidence, demands a trial by judge or jury, and requests a continuance of the proceedings.
Other motions are substantive in nature. Substantive motions include when an attorney argues that evidence must be suppressed (excluded from a case) because the police violated someone's rights. Other substantive motions are used when someone wants to present an affirmative defense, such as alibi or self-defense.
Motions in Georgia must be filed at or before arraignment. Most courts will give leave to file motions up to ten days after arraignment. When motions are not timely filed, they are deemed to be waived. Losing the right to file motions can result in an unfavorable result in court because most technical defenses are argued through the motion process.
What is a Plea Bargain?
A plea bargain is a settlement between the parties in a criminal case. In a civil case when the parties to a dispute settle their dispute, we call that a pre-trial settlement.
In a criminal case the parties to the litigation are the state's attorney and the defense attorney. The State of Georgia is represented by a prosecutor called the District Attorney (in felony cases) or the Solicitor General (in misdemeanor cases).
A plea bargain many include, but is not limited to, when the prosecutor agrees to reduce a person's charge to a less serious offense, or when a prosecutor agrees to less punishment. The defense then agrees to forgo a trial on the matter and admit guilt.
What is a sentence or disposition after a plea agreement?
A sentence or disposition is the written court-order after a plea bargain. Once the parties agree with the outcome of the case, a judge must also agree with the outcome. When the judge issues his or her sentence in the case, the outcome is then finalized.
A judge cannot be forced to accept an plea agreement and may in fact reject it or alter it. If a judge rejects a plea agreement, the parties must start their discussions over. However, if a judge makes an alteration to a plea agreement, the accused by decide to either accept the alteration or withdraw their plea and go to trial.
In practice, most judges accept the majority of plea agreements.
What is the Georgia First Offender Act and when can it be used?
O.C.G.A. §40-8-60: The Georgia First Offender Act allows people charged with some crimes to avoid having a permanent criminal record.
To qualify for sentencing under the the Georgia First Offender Act, a person must have never been convicted of another felony, the charge must not be a serious crime against a law enforcement officer, the charge must not be a serous violent felony, and the charge must not be a serious sexual offense.
When a person enters a guilty plea and the judge allows him or her to serve their sentence as a "first offender," the accused is given a one-time opportunity to avoid having a permanent criminal record. If he or she completes their probation without any violations, the court will "discharge" the case and enter an "acquittal" on the person's criminal record.
In the event a person violates their probation, while serving their probation as a first offender, they will face a probation violation. However, the violation of probation is more serious than an ordinary violation because the defendant will be adjudicated guilty of the offense for which they were accused. Additionally, the judge can then re-sentence the accused to more punishment than what was in the original sentence (giving credit for any time already served).
What is a Conditional Discharge plea and when can it be used?
The Georgia Conditional Discharge Plea option allows a person convicted of a crime to have that conviction dismissed after completion of his or her probation. The key words here are “coniditional” and “discharge.”
Essentially, when a person is sentenced under the Georgia Conditional Discharge Law and then thereafter meet all of the conditions of their sentence, the case will then be discharged. The result is that a person can honestly hold themselves out as if they had never been charged or convicted of a crime. Additionally, their criminal record will re restricted from public view once their case has been dismissed and discharged.
What is a Diversion Program and when can it be used?
A Diversion Program is an alternative to prosecution. Whether someone may enter into such a program is 100% in the prosecutor's discretion.
Since diversion is an alternative to prosecution, the program is run by the prosecutor. In Georgia. the District Attonrey (in felony cases) and Solicitor General (in misdemeanor cases) makes the decision as to what a person is or is not prosecuted.
Diversion is usually made available to persons who are charged with minor offenses or minor drug offenses. The goal of the program is to rehabilitate the accused while not creating a permanent criminal record.
Upon completion of the the program a person's charges are dismissed, and in the event the accused was arrested, they will have their criminal record restricted from public view.
What is a Nolo Contendere Plea (no contest plea) and when can it be used In Georgia?
A Nolo Contendere Plea (a Nolo) is when a person accept the consequences of a conviction without admitted or denying the charges.
The words "no contest" plea are synonymous with a "nolo" plea. In essence, a person is saying there may be sufficient evidence to cause a conviction; as a result, they are not contesting the charges. A rational person may elect to suffer the consequences of a plea to avoid the potential consequences of a conviction after a trial.
A no contest plea cannot be used in a civil proceeding as an admission of guilt.
In Georgia a person can enter a nolo plea once every five (5) years. Technically, a person can use a nolo contendere plea for almost any criminal offense in Georgia. However, most judges will not accept a contest plea for a serious offense. Most nolo pleas are used for minor traffic offenses, shoplifting, and minor drug offenses.
Whether a nolo contendere plea is accepted is solely within the discretion of the judge.
What is Probation?
Probation is an alternative to incarceration. When a person is deemed to be a candidate to serve their sentence (or part of their sentence) outside of jail or prison, they are placed on probation.
While a person is on probation, he or she must report to a probation officer on a set schedule (usually monthly but as much as weekly).
The purpose of probation is to both assure that a person follows their court order (sentence and disposition) while not committing any new offenses.
While on probation a person is given both general conditions of probation and special conditions of probation. The general conditions of probation include not violating the criminal laws of any governmental unit, avoiding injurious and vicious habits such as alcohol or drug use, maintaining employment, and staying away form persons or places of disreputable character. Of course a person cannot travel or move outside the jurisdiction of the court without permission.
The special conditions of probation include the terms of a person's sentence, such as the amount of their fine, the length of the sentence, community service hours, and counseling requirements.
Intensive probation is a more rigid program that closely supervises convicted felons who would otherwise be sent to prison.
What is Parole?
When a person is released early from a prison sentence, they are placed on parole for the remainder of the incarceration portion of their sentence.
When a person is released early from prison, their release is conditioned upon their good behavior. They will be assigned a parole officer who will make sure that the parole reports on a regular basis and does not commit any new offenses.
In the event a person on parole violates the law, they will potential face a parole violation.
What is a Parole Violation?
A Parole Violation is where a person serving a conditional release violates the conditions of their release. Some violations are minor in nature, such as missing a curfew or failing to timely report to a parole officer. In those situations the parolee may face an administrative consequence such as an increase in supervision.
When a person commits a new crime while on parole, he or she will likely be returned to prison to serve the remainder of their sentence.
What is a Probation Violation?
When a person is placed on probation, they are given both general and special conditions of probation. When a person violates those conditions, they will be given a probation violation.
In a probation violation hearing the government must prove the allegation by a preponderance of the evidence. To be clear, this is a low standard of proof ordinarily used in civil cases. The probationer is not entitled to appointed counsel nor afforded a trial by jury. The judge decides where there is as violation.
There are two types of probation violations, technical violations of probation, and substantive. A technical violation of probation is where a person violates and general or special conditions of their sentence, such as reporting to their probation officer or doing community service.
A substantive violation is where a person is accused of committing a new crime while on probation. Substantive violations of probation are usually considered (for obvious reasons) to be more serious.
What is the difference between jail and prison?
Every county in Georgia has a county jail supervised by the Sheriff of the county. Many large municipalities also have jails, run by their police departments.
A jail is used to process newly arrested persons before those arrestees make bond. A jail is also used to house dangerous persons whose are not given bond during the pendency of their cases. Finally, a jail is used to house people sentenced to less than twelve (12) month of incarceration.
Prison is where a person is sent when they are required to spend more than twelve (12) months of incarceration.
What is Magistrate Court?
In Georgia the Magistrate is an elected judge in each county. Most counties have deputy magistrates appointed by the elected magistrate.
The magistrate judge is responsible for issuing arrest warrants requested by police officer, handling probable cause hearings for people who are incarcerated without bond, setting bond on most cases, conducting bond hearings, distress warrants, deposit account fraud (bad check), county ordinance violations, and search warrants.
Most magistrate judges are licensed attorneys. However, in smaller county (by population) Georgia has many non-attorney magistrate judges.
What is State Court?
A State Court is a county-wide court of limited jurisdiction. State Courts generally exist in larger counties (by population) and have jurisdiction over misdemeanor cases, county ordinance violations, traffic tickets, and most civil claims.
Georgia's State Courts offer jury trials with six (6) jurors. All State Court judges are attorneys and must have at least seven (7) years experience before running for office and most have resided in Georgia for at least three (3) years.
A State Court judge can be both a part-time and a full-time position. State Court Judges are elected to a four (4) term, and all candidates must be at least 25 years old
In counties that have a state court, the court takes away traffic law jurisdiction from the probate court.
What is Superior Court?
A Georgia Superior Court is a court of general jurisdiction, meaning that any case can be heard in Superior Court. However, Superior Court has exclusive jurisdiction over felony cases.
All Georgia Superior Court Judges are elected throughout the 49 judicial circuits in Georgia. All Georgia Superior Court Judges are full-time positions funded by the State of Georgia. Some are also given a salary supplement in from the counties they serve.
Superior Court judges are elected for a four (4) year term, must have practiced law for at least seven (7) years, be at least 30 years old and have resided in Georgia for at least three (3) years.
What is Probate Court?
Probate Courts have traffic, misdemeanor, and game and wildlife jurisdiction in counties without a State Court.
In small counties (with less than 96,000 residents), a probate judge does not have to be an attorney. He or she must be at least 25 years old, a highs school graduate, and have resided in Georgia at least two (2) years.
In counties of more than 96,000 residents, the Probate Court Judge must be at least 30 years old and have practiced law fo rat least seven (7) years.
For purposes of discussion, in smaller counties DUI cases will be heard in Probate Court, unless a person requests a trial by jury. Once a jury trial is requested, the case will be transferred to Superior Court.
What is Municipal Court?
Municipal Courts are courts of limited jurisdictions and are created by a city to hear minor traffic cases, probable cause hearings, bond hearings, city ordinance violations, issue warrants, handle shoplifting cases, and marijuana cases.
Most Municipal Court Judges are appointed by city government. Some, however, are elected. Since 2011, all Municpal Court Judges must be an attorney; however, judges already serving, who are not lawyers, are grandfathered in and may maintain their position.
To have jurisdiction, the crime or ordinance violation must occur within the city limits in which the court exists. More than 1,200,000 cases are heard annually in Georgia's Municipal Courts. There are more than 380 municipal court judges in Georgia.
If a person requests a jury trial, the case will be sent to State Court, in counties that have a. state court and if the case is a misdemeanor. Or, If the case is a felony, it will be sent to Superior Court.
What is Recorders Court?
Recorders Courts are courts of limited jurisdiction, usually located in counties of more than 100,000 residents. They replace the role of probate courts and act as the court of original jurisdiction for traffic offenses, some misdemeanor offenses, and county ordinance violations.
No jury trials are held in a Georgia Recorders Court, and if a jury trial is requested, the case would be sent to either State Court or Superior Court.
Created by the county in which the court exists, county government sets the qualifications to be a Recorders Court Judge; however, all Recorders Court Judges are attorneys.
What is the Statute of Limitations in Georgia Misdemeanor Cases?
The Statute of Limitations in Georgia misdemeanor case is two (2) years. However, that does not mean the case must be prosecuted within two (2) years. The prosecutor must only file an formal accusation within two (2) years to avoid the statute of limitations.
What is the Statute of Limitations in Georgia Felony Cases?
Most Georgia Felony cases have a four (4) years statute of limitations. However, if the alleged victim of the crime is under the age of 18, then the prosecution must begin within seven (7) years.
The prosecution for forcible Rape, must begin within fifteen (15) years of the date of the alleged occurrence.
Are there Crimes without a Statute of Limitations in Georgia?
A prosecution for murder may take place at any time.
A prosecution for any of the below-listed offenses may take place at any time when there is the presence of DNA Evidence identifying a suspect:
- Armed robbery, as defined in Code Section §16-8-41;
- Kidnapping, as defined in Code Section §16-5-40;
- Rape, as defined in Code Section §16-6-1;
- Aggravated child molestation, as defined in Code §Section 16-6-4;
- Aggravated sodomy, as defined in Code Section §16-6-2; or
- Aggravated sexual battery, as defined in Code Section §16-6-22.2;
What is a Statutory Speedy Trial Demand?
§17-7-170 outlines a criminal defendant's statutory right to a speedy trial. Once a formal motion is filed, the case must be tried within the current term of court or the subsequent term.
All Georgia courts must have at least two terms of court per year. Most metro-Atlanta Courts have at least four and as many as six terms of court. As a result, once a statutory demand for a speedy trial is filed, and a case is not heard within two terms of court, the case must be dismissed.
However, if jurors are not present during the term of court, then that term of court does not apply towards the time limitations to resolve the case.
Also, the defendant or defense counsel must not be the cause of any delay to successfully argue that a case must be dismissed due to a statutory demand for a speedy trial.
What is a Constitutional Speedy Trial Demand?
A person's Constitutional Right to a speedy trial is violated when he or she is substantially harmed by the delay in having the case resolved, and the accused is not responsible for the delay.
The trial judge weighs the harm caused to the accused by the delay, considering the following formula:
- the Length of the delay;
- the Reason for the delay;
- the time and matter in which the defendant has asserted his or her right, and;
- the degree of prejudice to the defender which the delay has caused.
If a judge finds that the delay has substantially harmed the accused, the case will be dismissed. Baker v. Wingo 407 U.S. 514.
What is an Alford Plea?
An Alford Plea is a guilty plea where the defendant chooses to plead guilty, not through an admission of guilt to the crime, but because the prosecution appears to have sufficient evidence to prosecute and convict the accused.
In North Carolina v Alford 400 U.S. 25 (1970), Justice Byron White wrote for the majority that a defendant can enter a plea when "when he concludes that his interests require a guilty plea and the record strongly indicates guilt."
The plea was allowed when the evidence supported a conviction, while at the same time the accused maintained his or her innocence.
The practical use of an Alford plea is to allow someone to make a rational judgment to plead guilty while at the same time disagree with the State's version of the events. The trial judge has the discretion to accept an Alford plea.
What is Drug Court?
A Drug Court is an “accountability court” offering alternative punishments for drug offenders. When someone enters into a drug court program they are committing to 18-24 months of court-supervised treatment.
The supervision includes bi-weekly court appearances, random drug testing, weekly counseling sessions, and other counseling. When a person successfully completes the program, their case is dismissed.
However, when a person violates the rules of the program or tests positive for drug usage, they are sanctioned. The sanctions include additional community service, more counseling, and even time in jail. A diluted screen is considered to be a positive screen.
Agreeing to be sentenced into a drug court program is a huge commitment. It has potential benefits but also has several potential downsides.
Will I go to jail if charged with a felony in Georgia?
Most felony cases do not require time in prison. When a statute says “imprisonment not less than ... years,” that does not mean the actual prison time is required. Most criminal offenses allow for probation to be a substitution for time in jail.
There are certain offenses that carry mandatory time in prison in the event of a conviction. For example, Armed Robbery calls for a mandatory ten (10) years in prison, in the event of a conviction.
This all being said, no one is guilty of any criminal offense just because they are accused. We never assume you are guilty, and we will investigate your case for potential legal and factual defenses.
What is Restitution?
Restitution is ordered by the judge to make a victim whole after being harmed by a criminal defendant. If a victim of crime suffers provable losses as a result of being a victim of crime, the court may order restitution to recover those losses.
Usually, restitution is ordered as a condition of someone's probation, and a probation officer enforces the order of the court. In the event a defendant does not pay his or her restitution, he or she is subject to a probation violation hearing and the potential to be sent to jail or prison.
What is the proper role of a prosecutor?
A prosecutor and a Georgia Criminal Defense Attorney have completely different ethical obligations. A defense attorney has the ethical obligation to get the best possible outcome for his or her client. That does not mean a defense attorney can help a client perjure him or herself in court. However a Georgia Criminal Defense Lawyer has no obligation to help a prosecutor ascertain the facts of a case or help provide information that would tend to show guilt. A criminal lawyer must zealously advocate for his or her client.
A prosecutor has a obligation to seek justice, not to win cases. That means that if there is evidence that tends to show innocence or less culpability, the prosecutor must stare such evidence with defense counsel. Additionally, if there is reasonable doubt as to a person's guilt, the prosecutor should dismiss the case.
A prosecutor must not act zealously. A prosecutor should act honorably and seek a fair outcome. A prosecutor should also not treat a criminal defendant unfairly when he or she does not like defense counsel.
What is a Split Sentence?
A split sentence means the part of the sentence is served in custody and part of the sentence is served on probation. A typical split sentence would have an amount of months or years in custody, followed by a certain amount of months or years on probation.
Unless a sentence is entirely served on probation, a split sentence is the most common disposition in a Georgia criminal case.
Can an affidavit be used by the prosecutor or defense in a criminal case?
Generally an affidavit cannot be used in a criminal case, unless both side agree to its admissibility in court. The rule is that both sides in a criminal case have the right to cross-examine a witness, and an affidavit is not subject to challenge by opposing counsel.
There are some self-auitheicating documents that can be used in court. Usually, those documents are kept in the regular course of a private business or by a governmental agency.
Does Georgia allow depositions in criminal cases?
“Yes;” however depositions are not commonly used in Georgia Criminal cases. A typical reason to allow for a deposition is when it is necessary to preserve the testimony of a witness who may potentially become unavailable.
A judge may order a deposition if one side of a case requests it and shows just cause. However, if both parties agree to it, then no court order is needed.
What is the 30-Day Letter in Georgia?
When a person is arrested for a DUI in Georgia, they have 30 days to decide whether to install an ignition interlock device or file an appeal of their license suspension. The appeal is called a 30-day letter by Georgia DUI Lawyers.
If the is made to file the appeal, the State of Georgia charges a $150 filing fee. The letter must be sent via certified mail and postmarked no later than 30 days after a person's arrest.
If the letter is not filed, a suspected DUI driver may suffer up to a 12-month license suspension, without a permit to drive.
What is an ALS hearings?
After your Georgia DUI Attorney files a 30-day letter, there will be an ALS Hearing. An administrative license hearing is where defense counsel challenges to automatic suspension of a person's driver's license, after a DUI arrest.
The hearing can be settled with an agreement between the arresting officer and defense counsel, or there can be a hearing before an administrative law judge (A.L.J.).
The hearing are held once or twice a month, depending on the number of DUI arrests in a particular geographic area.
The purpose of the going through the administrative process is to make sure our clients continue to have their privilege to drive, one way or another.
Are the DUI laws different for people under the age of 21?
“Yes,” Georgia DUI Laws are different for people under the age of 21. The sentencing for drivers under the age of 21 is different. Additionally, the “legal limit” for drivers under the age of 21 is 0.02 grams versus 0.08 grams for drivers over the age of 21.
Neither a person over or under the age of 21 can be a less safe driver due to the consumption of alcohol or drugs. DUI Less Safe is the same for all drivers.
How long is a refusal suspension in Georgia?
When a person does not appeal their license suspension within 30 days of their arrest, or if they do not install and ignition interlock device within 30 days of their arrest, they will face a 12-month hard license suspension.
A “hard suspension” means that there is no limited or restricted driving privilege. It means no driving whatsoever.
Are the consequences for DUI different when the case Involves drugs?
“Yes,” the consequences for a Georgia DUI are different when the case involves drugs. The most important difference is that if a person is convicted of DUI Drugs in Georgia, they cannot get a limited permit or restricted license.
Also, for those convicted of DUI Prescription Drugs in Georgia, there is no limited permit or restricted license.
What are the consequences when a CDL driver gets a DUI?
When a CDL driver gets a DUI they face additional Georgia DUI Penalties. The criminal law consequences are the same as with any other DUI case.
However the drivers license consequences are far more severe. A first DUI conviction for a CDL driver results in a 12-month suspension of the commercial driver's license. A second DUI conviction for a CDL driver results in a lifetime suspension of the commercial driver's license.
What is Implied Consent?
The Georgia implied consent warning attempts to instruct people insofar as their rights and obligations if someone is suspected of driving under the influence. The warning has been challenged as being confusing and coercive. Police officers are required to read the warning at the time of a person's DUI arrest.
There are three Georgia Implied Consent Warnings:
Implied Consent Notice for Suspects 21 or Over:
Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?
Implied Consent Notice for Suspects Under Age 21:
Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.02 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?
Implied Consent Notice for Drivers of Commercial Motor Vehicles:
Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate the presence of any alcohol, you will be issued an out-of-service order and will be prohibited from operating a motor vehicle for 24 hours. If the results indicate an alcohol concentration of 0.04 grams or more, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?
What are Field Sobriety Tests?
Field sobriety test, or what are commonly called Standardized Field Sobriety Test (SFST's) are physical tests that divide a person's attention so that a trained police officer may observe signs of impairment.
The standardized tests include the HGN Test (horizontal gaze nystagmus test), the walk and turn test, and the one leg stand.
There are other tests that have not been validated by scientific studies. These test include the finger dexterity test, the finger to nose test, and the Romberg test.
Police officers often also ask suspected DUI drivers to estimate the passage of time, count backwards from 100, and recite the alphabet.
How are breath tests administered in Georgia?
There are two breath tests used in Georgia, the roadside alco-sensor, and the Intoxilyzer 9000.
The roadside PBT (preliminary breath test) is used to determine if a person is positive or negative for the presence of alcohol. The testing device displays a numeric result, but that result cannot be used in court.
The Intoxilyzer 9000 is the State-adminstered test. It is the official breath testing device in Georgia. It is generally administered at the police station. Georgia also allows the device to be used in the field, as part of a breath testing mobile.
How does blood testing work in Georgia?
Blood testing in Georgia occurs when a sample is taken from a suspected DUI and sent to the GBI Crime Lab for testing.
Blood may be drawn at a hospital, in the field by an EMT, or by the nurse a the jail. However, all testing is done at the crime lab.
After the Georgia Implied Consent warning is read, a person can voluntarily submit to testing, or a police officer can ask a judge to issue a search warrant for a person's blood.
How does urine testing work in Georgia?
Urine testing is rare in DUI cases because it only shows the presence of a controlled substance. A urine test cannot quantify the amount of alcohol or drugs in someone's system. As a result, urine testing is ineffective for DUI enforement.
However, urine testing is commonly used in probation violations. The reason urine testing is more common in relation to violations of probation is that quality or impairment is irrelevant when a person is barred from using certain substances.
Can I get an independent blood test in Georgia?
When a person is read the Georgia Implied Consent Warning, they are asked if they will submit to the State-administered test. If a suspected DUI driver agrees to take the State's test, they will then have the opportunity to have their own independent test by qualified persons of their own choosing and at their own expense.
Do the police have to read me my Miranda Rights in a DUI case?
Most of the time, the police do not have to read someone their Miranda Rights when they are arrested for a DUI.
However, if a reasonable person would believe they were under arrest, at any point in during the DUI investigation, then the police must inform someone of their Miranda Rights.
An example where Miranda must be read include when the police determine that some other crime has occurred. So, when the police find that someone's license is suspended, that person would reasonably believe that they will arrested, regardless of the outcome of the DUI investigation.
Another example of where someone must be informed of their right against self-incrimination is when their level of impairment is so extreme that anyone would know they are going to be arrested.
What is the difference between DUI and DWI?
In some state, DUI, OWI, and DWI have different meanings. Some states equate OWI, and DWI as less serious offenses.
In Georgia, we do not have different gradations of driving under the influence. We have DUI, nothing else. The issue comes into play when someone gets what would be considered a less serious DUI in another state while having a Georgia Driver's license. In that situation, Georgia will interpret their conviction as a DUI, not some less serious offense.
Also, when a person gets a DUI and has had prior DUI-related offenses in another state. Regardless of whether he or she was convicted of a less serous DUI offense in that other state, Georgia will interpret that conviction as a DUI conviction.
What is a Habitual Violator?
When a person is convicted of three (3) DUIs in a five (5) year period, they will be declared a habitual violator. Once declared a habitual violator, the license holder will be suspended for five (5) years.
After two (2) years, the license-holder can get a restricted license after installing an ignition interlock device.
If a person who has been declared “HV” as is caught driving, they will be charged with a felony. The offense of driver after being declared a habitual violator, they face up to five (5) years in prison.
If a person is caught driving after more than five (5) has past, they will be charged with the offense of misdemeanor habitual violator, and face up to 12-months in jail.
What is a felony DUI?
In Georgia, a fourth DUI in a 10-year period is a felony offense. The minimum jail sentence is one (1) year, of which all but 90 days must be in served in custody. The penalty can carry up to five (5) years in prison.
In addition, when someone is caught driving after being declared a habitual violator, that is also a felony offense that carries up to five (5) years in prison.
Also, both Serious Injury by Vehicle and Vehicular Homicide are felony DUI cases in Georgia.
What Constitutes Serious Injury by Vehicle in Georgia?
The felony of Serious Injury by Vehicle is defined as the unintentional injuring of another person as a result of driving under the influence or driving in reckless disregard for the safety of others.
To be convicted of Serious Injury by Vehicle a defendant must not only be driving under the influence or reckless driving, he or she must also be the proximate cause of the injuries to the victim. In essence, the accused must be at fault in the accident.
What is Misdemeanor Vehicular Homicide?
A person is charged with Misdemeanor Vehicular Homicide when they unintentionally cause the death of another person through a violation of a minor traffic offense.
Essentially what makes it a misdemeanor is that there is both no intent to cause another person harm, no reckless driving, and no impaired driving.
Misdemeanor Vehicular Homicide is the result of a person who is responsible for an ordinary traffic accident that goes horribly wrong.
What is Felony Vehicular Homicide?
A person is charged with Felony Vehicular Homicide whiner they unintelloinally cause the death of another as a result of violating the DUI laws, Reckless Driving, fleeing or eluding the police, illegally passing a school bus, or leaving the scene of an accident.
The maximum penalty for Felony Vehicular Homicide is 15 years in prison. There is no minimum punishment.
As with misdemeanor Vehicular Homicide, not only must the driver have violated the traffic laws, the accused must also be responsible for the accident that caused the death. The defendant must be the “at fault” driver.
What is Reckless Driving?
Reckless driving is defined as driving a vehicle in reckless disregard for the safety of persons or property.
Although thought of a a traffic offense, reckless driving is a misdemeanor offense where a police officer has the discretion to make an arrest or release someone on a traffic ticket.
Also, insofar as DUI is concerned, many times our office can get a DUI reduced to reckless driving, even though Reckless Driving is not technically a lesser included offense of DUI.
What are the elements of a Hit and Run charge?
Hit and Run (or commonly referred to as leaving the scene of an accident) is defined as failing to stop sand render aid after an accident.
To be convicted of hit and run, the driver does not have to be responsible for causing the accident. Whether a person is at fault in a accident, they still must stop and render aid.
If you are in an accident, you must stop and provide your name, address, insurance information, license information, and car registration to the other driver.
You must also render aid to any injured person, including helping to insure transportation of an injured party to a hospital.
If you have struck an unattended vehicle, you must take any necessary step to inform that owner of that vehicle.
Finally, you have a duty to notify the police of any accident resulting in injury, death, or property damage.
What is a Super-Speeder violation in Georgia?
When a driver on Georgia's roadways is seemed to be driving at an excessive rate of speed, their speeding ticket is considered to be a "Super Speeder" violation.
Excessive speed is defined by Georgia Statute to be traveling at 75 mph on a two or more lane road or at 85 mph on any other road or highway.
If convicted, the violator must pay his or her fine in court, along with a $200 fee accessed by the State. The $200 additional fine is billed by the State, and cannot be ignored. In the event the $200 is not paid, the driver's license or privilege to drive in Georgia will be suspended.
Can you rent a car after a DUI arrest?
Renting a vehicle is a private contractural transaction between a rental car agency and the person who desires to rent a vehicle.
As long as a driver is legally allowed to operate a vehicle, there is no legal impediment that prevents a person from renting a car.
However, nothing forces a rental car agency to rent someone a car. As a result, many people are prevented from renting a car after a DUI arrest. This can cause substantial hardship to drives who have had car accidents and need to find transportation.
What is DUI Court?
DUI Court is an accountability court program that is designed to help rehabilitate persons who have had more than one DUI.
Unlike in Drug Court, a person who completes DUI Court does not have their case dismissed. The DUI will go on their record, and the driver will suffer the driver's license consequences associated with a conviction.
The main benefit of DUI Court is that a person is sentenced to less jail-time in exchange for participation in the program.
The risks associated with the program include being sanctioned for disobeying the program's rules being arrested for some other offense, or testing positive for alcohol or illegal drugs.
Because the rules of the program are inflexible, it is difficult to complete the program without being sanctioned.
As a result, many people end up serving more time in custody, as a result of sanctions, than had the just suffered the punishment up front.
The added complication, unlike in drug court, is that participants usually start the program, which lasts 18-24 months, without their driving privileges. As a result it can be hard to make all of the appointments, meetings, and court appearances.
As with Drug Court, participants are required to attend court b-weekly, be tested randomly for alcohol and drug use, attend A.A., and regular counseling sessions.
Can my criminal record be restricted in Georgia?
“Yes;” depending on the nature of the offense and the outcome of the case in you may qualify for record restriction.
Georgia does not have “expungement.” Georgia allows for record restriction for people who have had their cases dismissed or for those who were found “not guilty” in court.
Record Restriction does not prevent a police officer, a judge, or a prosecutor from seeing that a person had previously been arrested. That is the main difference between record restriction and the former expungement law.
Can a person apply for a pardon in Georgia?
If you have been convicted of a felony in Georgia, you can apply to the Georgia Pardon and Parole board. Unlike, in most states, the Georgia Governor does not have the power to pardon or commute a sentence. That power rests with the Georgia Pardon and Parole Board.
Also, the Parson and Parole Board will not entertain a request to issue a pardon for a misdemeanor offense.
What is an out of time appeal and when can it be filed?
When an attorney files a motion for an out of time appeal, they are searching for a remedy for a defendant who has exhausted their appellate rights.
The right to file an out of town appeal is usually allowed when a defendant requested that his or her attorney file an appeal, and the appeal was not timely filed (through no fault of the defendant).
The second reason an out of time appeal will be allowed is when an criminal defendant was not properly advised of his or her appellate rights after a conviction.
What is the Georgia Innocence Project?
The Georgia Innocence Project is an organization devoted to providing legal services to innocent people who are incarcerated. The goal is to use DNA and other evidence to help free innocent people, while educating the general public about how the legal system makes mistakes (as in any other human endeavor).
Can a conviction be appealed to a Federal Court?
Generally, a person must appeal a conviction in Georgia court to the Georgia Court of Appeals or the Georgia Supreme Court.
However, if there is a “Federal Question” involved, a person has a limited right to appeal their case to a Federal Court. The fact that there is a “Federal Question” is insufficient to require Federal review. The accused must also prove that there was a lack of the ability to raise that issue in a Georgia court.
That being said, the United States Supreme Court can review any case where a person's Constitutional rights may have been violated.
Can a conviction be appealed to the United States Supreme Court?
The United State Supreme Court makes its own rules as to whether to review a case. It has wide discretion insofar as to what cases are reviewed. Out of the almost 8000 cases submitted each term of court, less than 100 are reviewed.
Generally, the United State Supreme Court will only hear a case if it involves a “Federal Question,” and that there is a dispute in the lower courts as to that issue.
That being said, the United States Constitution says that the Supreme Court has both original and appellate jurisdiction. As a result, it can techically decide to hear any case.
Will a misdemeanor show up on my criminal record?
Some people have a misunderstanding and think that a misdemeanor or a misdemeanor traffic offense will not show on their criminal record. They are incorrect.
Any conviction, for any crime, will show on a person's criminal record, and a person's criminal record will go back to their first adult offense.
What is a private background check and will any arrest appear on it?
When a person submits to a private background check, what appears on it depends on what is sought.
Private background checking services are told why their customers to return specific results. In some cases, they are told to report all offenses. Other customers (usually employers) are only interested in felony offenses or for crimes of moral turpitude (such as theft).
The tricky part for people who have a criminal record is that they have no idea what their perspective employers has told the background checking service. The perspective employee may be asked if they have a had a felony arrest, yet the employer may have asked the service to report all arrests.
Can my record be erased?
In Georgia, we do not have a process for sealing or erasing someone's criminal record. The falsely arrested have the right to have their criminal record restricted from the view of other private citations.
Does Georgia have expungement?
Georgia no longer has expungement. As a result, the falsely arrested cannot have their criminal record erased. Georgia does have record restriction.
Record restriction is unfortunately inferior to expungement, which erased someone's criminal record. With record restriction, other private individuals and companies cannot see that a person has been charged with a crime. However, the government, including police officers, judges, and prosecutors can see that a person has previously been arrested.
What happens when a First Offender sentence is successfully completed?
After a person successfully completes a first offender sentence, they are entitled to a “discharge and acquittal.” Once discharged, they can honestly answer that they have not been convicted of the crime in which they were accused and prosecuted.
They can also request that their arrest and convicted be restricted from the view of the public.
What is Habeas Corpus?
A Writ of Habeas Corpus is a request to a court to review whether a person's detention is legally valid. The court is being requested to order a person's release unless the government can show cause that there is a valid reason to hold the person.
In Latin, the term is defined as to “produce the body.”
A Writ of Habeas Corpus is a a civil lawsuit against the state holding a person in custody.
A person has 180 days to file a Writ of Habeas Corpus after conviction for a traffic misdemeanor such as a DUI.
A person has one year to file a Writ of Habeas Corpus after conviction for a misdemeanor offense.
A person has four years to file a Writ of Habeas Corpus after a vocation for a felony offense.
Can my probation be transferred to another state?
The “interstate compact” controls the transfer of probation to another state. If a person resides in another state, that state will generally be required to accept the transfer of probation.
However, Georgia has the discretion to decide whether it will allow a person's case to be transferred.
Rule 3.101 of the interstate compact state that:
At the discretion of the sending state, an offender shall be eligible for transfer of supervision to a receiving state under the compact, and the receiving state shall accept transfer, if the offender:
has more than 90 calendar days or an indefinite period of supervision remaining at the time the sending state transmits the transfer request; and
has a valid plan of supervision; and
is in substantial compliance with the terms of supervision in the sending state; and
is a resident of the receiving state; or
1. has resident family in the receiving state who have indicated a willingness and ability to assist as specified in the plan of supervision; and
2. can obtain employment in the receiving state or has means of support.
In misdemeanor cases, we generally do not request that probation is transferred. The better option is to negotiate that the probationer serves his or her time reporting to probation by phone, mail, fax or email.
At what age is someone considered to be an adult in Georgia for purpose of criminal prosecution?
In Georgia, if you are 17, you are an adult for purposes of a criminal prosecution. The minimum age for a criminal prosecution in Georgia is 13 years old because a child under the of 13 cannot form the requisite criminal intent to commit a delinquent act.
However, children will be prosecuted as adults when accused of murder, voluntary manslaughter, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, aggravated battery, and armed robbery if committed with a firearm.
Prosecutors can also petition the Superior Court to treat juveniles as an adult when the child is at least 15 years old at the time of the offense, and the crime for which they are accused would be a felony if committed by an adult.
What is an Informal Adjustment
An information adjustment is used when it is in the best interest of a child to not adjudicate them delinquent or unruly.
Essentially, like diversion in the adult legal system, an informal adjustment is an alternative to a formal adjudication in an Georgia juvenile case.
An informal adjustment is an agreement between the child, the parents, the prosecutor, and the court to have a a rehabilitation and educational plan for the child, in lieu of prosecution.
What is an Adjudication of Unruliness
An “Unruly child” in Georgia is a child in need of supervision, treatment, or rehabilitation. A child is adjudicated “unruly” if they meet the following qualifications under Georgia law; the child:
- is habitually truant from school;
is habitually disobedient of the reasonable commands of their parents, gaurdians, or of teachers;
- has committed an offense only applicable to a child;
- wanders or loiters about the streets between 12:00 a.m. and 5:00 a.m.;
- disobeys the terms of a court order regarding a previous adjudication of unruliness;
- attempts to patronize a bar without a parent;
- or has committed a delinquent act and is in need of supervision but not formal treatment or rehabilitation (less serious delinquent acts).
What is an Adjudication of Delinquency
An adjudication of delinquency is the juvenile equivalent of when an adult is convicted of a crime. Since children are not considered to have the criminal intent necessary to commit a crime (in most circumstances), we do not “convict” children.
Instead, we adjudicate a child “delinquent” and the court, the defense attorney, and the prosecution develop a plan of supervision, treatment, and rehabilitation to help restore the child to appropriate behavior.
Unlike in an adult court, a defense attorney in a juvenile case has a duel role to not only look at whether a child has committed an offense, but to also act in the child's best interest.
As a result a defense attorney in a juvenile case must balance his or her duty to zealously defend a client with what would be in the child's best interest.
Does a juvenile criminal record carry over to an adult criminal record?
Unless the juvenile was charged as a designated felony (and prosecuted as an adult) their juvenile criminal record will not carry over to their adult criminal record.
Does a juvenile traffic violation appear on an adult driver's record (MVR)?
“Yes;” a juvenile traffic offense can be seen on their adult MVR (motor vehicle record).
Since Georgia allows for 16-year-old drivers, any misdemeanor traffic offense adjudicated in a Georgia Juvenile Court can be seen on the driver's adult MVR.
The issue as to whether a traffic offense appears on someone's adult MVR is particularly troubling in cased where the child is a charged with a DUI. If the child is charged with a DUI and adjudicated delinquent, that DUI arrest and conviction will appear on the child's adult MVR for life. As a result, in juvenile DUI cases, were are extremely careful in our efforts to try to avoid an adjudication of deliquency.
Can juvenile criminal records be sealed?
A Georgia Juvenile criminal record (unless prosecuted as a designated felony) will not appear on someone's adult criminal history. However, that does not mean the record itself is sealed from the view of others.
For offenses that took place prior to January 1, 2014, the juvenile offender must petition the juvenile court to request that a record is sealed.
For offenses that took place since January 1, 2014, O.C.G.A §15-11-701 applies and provides for automatic sealing of juvenile records in cases that were informally adjudicated with an informal adjustment or for cases that were dismissed.
O.C.G.A §15-11-701 also allows juvenile records to be sealed where it has been two years since the offense, the child has not been convicted of another crime, and he or she has been rehabilitated.
Can a juvenile arrest or conviction be used against someone in adult court?
Generally, a juvenile arrest cannot be used in aggravated of punishment in an adult court. That is the theoretical answer.
However, the there is an old saying that "one cannot unring a bell.” As a result, if a court or a prosecutor is aware of a child's past, it is likely that their past will come into play if they are charged as an adult.
Can the police question my child without a parent being present?
The police are supposed to attempt to contact a parent before interviewing a child. However, the police very often make little effort to find a parent before interrogating a child suspected of a crime or who may be a witness.
Children have the same rights as adults against self-incrimination. It is important to teach children to not speak to the police and to request and attorney if questioned by a police officer. Children need to also be taught to request that their parent or an an Attonrey be present during any police interaction or during police questioning.
Can school officials search my child without a parent being present
The search and seizure rules for juvenile offenders are no different that with adults. The police are supposed to request that a parent be present; however, the police usually do very little to find a parent first.
Children need to be taught to not allow the police to search them without a warrant. Children need to also be taught to ask for their parent or guardian to be present during any police interaction. Children should also be taught to immediately ask that their attorney be present during any questioning.
What are the most commonly prosecuted juvenile offenses?
Children are accused of the same crimes as adults. In our experience (not scientifically surveyed) the following offenses are the most commonly committed by juvenile offenders in Georgia:
- Possession of marijuana
- Juvenile traffic offenses
- Drug offenses
- Possession of alcohol
- Computer crimes such a sexting, social media offenses, and distribution of pornography
- Statutory Rape
- Fighting / Affray
- Gang Violence
When are juveniles prosecuted as adults?
Felonies in Georgia are heard in Superior Court. Ordinarily, juvenile cases are heard in a Georgia Juvenile Court. However, some offenses are considered to be so serious that those Juvenile case are heard in the adult Superior Court.
The Superior Court shall have exclusive jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed any of the following offenses: murder, voluntary manslaughter, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, and armed robbery if committed with a firearm. Any child convicted of one or more of the above-stated offenses shall be sentenced into the custody of the Department of Corrections. Any child 13 to 14 convicted of aggravated battery by a superior court may be sentenced into the custody of the Department of Corrections.
Hiring a Lawyer
What is attorney-client privilege and is everything told to an attorney confidential?
The attorney-client privilege and relationship is foundational to our legal system. A client, or a potential client, must feel that they an be candid with their lawyer and tell him or her everything about their legal problem.
The client or perspective client “holds” the attorney-client privilege, meaning that only the client can waive it. The privilege extends to anything told to the Attonrey, and the Attonrey has a duty to keep that information confidential.
The attorney must keep what he or she has been told confidential, even if not hired. However, the privilege does not cover plans to commit a new crime. If the attorney knows that someone is going to commit a new crime, and innocent people will be harmed, the attorney may still go to the authorities.
Do you need an attorney if you are innocent?
“Yes;” innocent people need and attorney. In fact, innocent people need the Best Georgia Criminal Attorneys.
For many, it is psychologically and emotionally difficult to seek the assistance of the Best Georgia Criminal Lawyers because it feels wrong to have to pay for help when they are certain of their innocence.
It is understandably upsetting to have to pay for help when someone is wrongly accused. However, unfortunate things happen to nice people. Good people get sick and need doctors. When an innocent person is accused of a crime, they need the even better legal help than the guilty.
Should you ever speak to the police?
“No;” there is never a reason to speak to the police. You can never talk the police out of making an arrest. Once the police have made their decision to arrest, no person can provide an explanation to change their mind. As a result, the only thing that can happen when a person speaks to the police is that they can make their situation worse. As a result, there is never a good reason to speak the police about any issue.
If contacted by the police, call a Georgia Criminal Defense Lawyer immediately.
Can a Georgia Criminal Defense Attorney help if I am guilty?
Whether a person has committed a crime, is suspected of a crime, or is completely innocent of a crime, they need the help of a top-rated Georgia Criminal Defense Attorney.
Having legal help does not always mean fighting a case or having a jury trial. The best lawyers understand that they have a duel role as advocates in court and negotiators with the prosecution.
If a person does not want to contest their case or knows that they are likely to be found guilty at trial, a top-rated Georgia Criminal Defense Lawyer can still negotiate a favorable plea bargain for their client.
Can any lawyer help me, or do I need a criminal lawyer specialist?
Any licensed attorney can handle a criminal case. However, as a person charged with a crime, that person has an obligation to him or herself to seek the best defense.
At our office, we do not believe we are qualified to handle non-criminal cases. It is a surprise to us that civil attorneys often feel qualified to handle criminal cases. Let us say unequivocally, they are not qualified.
Criminal cases have unique prosecutes, deadlines, and constitutional issues. If you are charged with a crime, the outcome of the case will affect the remainder of your entire life. Please seek the assistance of the best qualified criminal lawyer.
What is a Public Defender?
If someone is charged with a crime, they have a right to an attorney. The Sixth Amendment to the United States Constitution provides that:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."
As a result, if someone is charged with a crime and is legally indigent, they government must provide them an attorney at no cost.
In Georgia we have a public defender system where most judicial circuits have a public defender's officer to provide legal services to those who are legally incident and cannot afford a lawyer.
What is a Court Appointed Attorney?
In judicial circuits that do not have a public defender's office, the court will appoint attorneys to criminal defendants who are legally indigent. The same standards apply to court-appointed attorney as that apply to public defenders.
The Sixth Amendment to the United States Constitution provides that people have the right to “assistance of counsel for [their] defense.”
Additionally, in judicial circuits that have a public defender, some defendants have a legal conflict with the attorneys in the public defender's office. In those situations, the court will appoint private counsel to those conflicted parties.
Does Lawson and Berry offer payment plans?
We do offer payment plans on a case-by-case basis. The criteria for offering a payment plan considers the nature of the offense, whether our client is local, whether parents or other people are helping to make payments, the size of the down-payment, and our assessment of the clent's ability to pay.
We always listen to a person's proposed payment plan.
Does Lawson and Berry charge hourly fees or flat fees?
We only charge flat fees at Lawson & Berry. The fee is based on an estimation of of the amount of time necessary to complete the case, the complexity of the case, the seriousness of the offense, the clients expectation of the outcome of the matter, and how much time the case will take away from other clients or future clients.
Do I need a local lawyer?
There can be advantages to having a “local lawyer,” but those advantages are often balanced against the fact that the local attorney may not be a specialist.
It is our opinion that a Georgia Criminal Law Specialist is more qualified to handle a cirminal case than a “local lawyer” that has a general law practice.
What is a Partner?
A partner is an owner of a law firm. Not all partners are equal. Some partners have a greater interest or a controlling interest in the firm, as with any business.
What is an Associate?
An associate is an attorney employed by a law firm. A associate has no ownership interest in the law firm and his or her clients are clients of the law firm.
If an associate leaves the firm's employment, the clients generally remain the clients of the firm. However, any client has the right to the attorney of his or her choice. As a result, the client is allowed to contact the former associate of the firm and seek their continued representation.
What is a Senior Associate?
A senior associate of a law firm is usually an attorney with at least four-years experience with the law firm. The attorney will have demonstrated superior legal skills and may be placed in a supervisory role over junior associates at the firm
Generally, senior associates are on a tract towards a partnership with the firm in which they are employed.
When do you need an Immigration Lawyer?
If you are asking the question as to whether you need an immigration attorney, we suggest you need one.
Any non-citizen arrested for any crime needs an immigration lawyer, period.
Since all Georgia traffic offenses are considered to be misdemeanors, any non-citizen given any traffic offense, other than a minor traffic offense, needs an immigration lawyer.
What does it mean to act Pro Se?
Proceeding “Pro Se” in a case means to represent yourself. At our office, we never recommend that a person handle their own case.
We are often called by people who have unsuccessfully handled their own case. Most of the time, we cannot help the person after their case has
How does a prospective client compare attorneys?
The criteria any person uses to select an attorney and to compare attorneys is entirely their own choice. That being said, we suggest that perspective clients evaluate the background of the attorney, their experience, their reviews, the types of cases they have handled, the number of clients they take on at any one time, what they attorney feels is a successful outcome of a case, and whether the attorney and the client are a good fit insofar as their personalities. No one attorney is the right person for all clients.
Can a civil lawyer handle your criminal case?
Any licensed attorney can handle any legal matter. However, it is arrogant to think that any attorney should take on any case.
We do not handle civil cases at Lawson & Berry. We also strongly feel that attorneys who focus on civil cases are unqualified to handle criminal cases, the outcome is too important to the accused.
What does Pro Bono mean?
A “Pro Bono” Attorney is someone who agrees to handle a case at no charge. “Pro Bono” means “in the public interest.” Most attorney take on legal work for free which they feel it is the right thing to do and the client cannot afford to hire adequate legal help.
Can hiring a lawyer prevent an arrest?
“No;” no person can prevent you from being arrested. If the police are intent on making an arrest, no person can prevent that.
Our job is to provide the best legal assistance once a person has been charged. We can also help someone before they are arrested by protecting their right against self-incrimination.
What is a Preliminary Hearing?
A preliminary hearing is held by a court to make a determination if there is probable cause to send the case to trial.
Georgia Magistrate Judges conduct the vast majority of preliminary hearings; however, municipal court judges also conduct preliminary hearings on cases that originate within a municipality.
Also, judges routinely set a person's bond amount at their preliminary hearing, and in cases where bond was not automatic, defense attorney can have a bond hearing at the preliminary hearing.
What is a Committal Hearing?
A committal hearing is essentially synonymous with a preliminary hearing. The purpose of a committal hearing is to determine if someone can be held in jail either pending bond or without bond in serious cases.
The state must show that there was probable cause to make an arrest. Additionally, the state must also prove why a person must be held without bond.
Many times defense counsel will negotiate with the prosecutor that the client will waive their committal hearing in exchange for an agreed upon amount of bond.
If I bond out, can I still have a Preliminary Hearing?
“No;” generally once a person has bonded out, they cannot also have a preliminary hearing. However, if the state agrees that a hearing may help assist in resolving the case, they may agree to a preliminary hearing for someone already on bond.
What is a Warrant Application Heating?
When one person accuses another person of a crime, in cases without a police investigation, they may apply to the magistrate for a warrant.
After the warrant application is accepted, they accused is entitled to a hearing before a magistrate to determine if there is probable cause that a crime occurred. We call that hearing, a warrant application hearing.
Many times the parties are able to resolve their dispute amicably at the hearing, resulting in a dismissal of the warrant application.
Are some Preliminary Hearings held in Superior Court?
A Georgia Superior Court has concurrent jurisdiction with any lower court and can therefore handle a preliminary hearing.
Usually, a Superior Court will not exercise jurisdiction over a preliminary hearing unless there are special circumstances and the matter is extremely serious.
Are you entitled to a Preliminary Hearing if the Grand Jury has already returned an Indictment?
“No;” if a Grand Jury has found that there is probable cause that you have committed a crime, you are not entered a preliminary hearing on the matter.
You will, however, be entitled to having a bind set if you were indicted by a grand jury in a case where you were not previously arrested.
Preparing for Court
Will attending treatment or counseling help in my case?
Very often, “yes.” There is a dual purpose of attending treatment and counseling. The first purpose to to try to change the behavior that result in the arrest. For example, people charged with a DUI often attend A.A. or get formal alcohol or drug counseling.
The second purpose of treatment and counseling is to show the prosecutor and the judge that you have taken the matter seriously. Before a prosecutor or judge will consider reducing someone's punishment, they must believe that a defendant has taken the necessary steps to insure they will not re-offend. That is why counseling and treatment is so important.
What does it mean to review the evidence in my case?
Before making any decision in a person's case, their attorney should review all of the police reports, supplemental police reports, witness statements, videos, and the statement of their client.
Additionally, an attorney should also review the applicable law and any case-law related to their client's case, in order to look for any angle or defense that may help.
Do I need a private investigator?
In some cases you may need a private investigator. When there are witnesses to be interviewed, it is best to have an investigator take those statements in order to avoid the attorney becoming a witness in the case.
When a witness changes his or her story. the private investigator can testify as to what they were told by the witness.
Additionally, a private investigator can visit crime scenes, take pictures or videos, help come up with plausible defenses, and assist the attorney in trial preparation.
Some private investigators are former police officers and can also help critique the police work done in our client's cases.
How are expert witnesses used in criminal cases?
As in any field, there are experts that can help explain the evidence. Some experts help explain and refute scientific evidence such as DNA and Forensic Evidence. Other experts can address psychological issues, such as criminal intent and sanity. Other experts lend their opinion to the quality of a police investigation.
It is the role of your Georgia Criminal Lawyer to determine if an expert witness may assist in the case.
What is legal research?
In our system of law, we have Constitutional Rights, we have statues, and we have case-law. No one attorney can know everything about the law.
We are experienced Georgia lawyers, yet the law is vast. When we come upon an issue of first impression or where we need more guidance, we do legal research to find the answer.
What does it mean to bind over a case from lower court?
In Georgia, the lower courts do not have jurisdiction to conduct a jury trial. As a result, when someone wants a trial by jury, they must send the case to a higher court. Anyone accused of a crime has a absolute right to a jury trial in Georgia.
Also, after a preliminary hearing in magistrate court, a judge who has found that there is probable cause to have made an arrest may “bind the case over” to the appropriate higher court for a trial.
Can I get a copy of my criminal history?
“Yes;” you can go to almost any local police department any request a copy of your criminal record (your GCIC).
We do not recommend that you try to get your criminal record online. Although there are legitimate online services, it is impossible to discern them from places that may take your information for nefarious purposes, such as identify theft or extortion.
How do I prepare to testify in court?
The most important thing to understand about testifying in court is that you must be 100% truthful. When you are truthful and do not exaggerate, you will come across as sincere to a jury.
It is best to practice your testimony before coming to court, in order to not appear nervous. You must also practice keeping your composure while being interrogated. If you choose to testify in court, you will be subject to cross-examination. You should practice being quested to be prepared.
Your attorney will want to go over the questions he or she may ask as well as any potential cross-examination questions.
How do I decide whether to testify in court?
A criminal defendant not only has the right to testify in his or her own defense, but a criminal defendant must be informed of that right in court and on the record.
That being said, testifying in court has risks. No person should make the decision to testify or to not testify without first having a serous discussion with their lawyer.
When will my attorney discuss a plea offer in my case?
Your attorney has a duty to bring all plea offers to your attention. After any discussion of settlement, any plea offer will be brought to your attention.
That being said, some initial plea offers are unreasonable because they are made before the parties have even discussed the case. If an initial plea offer is made and a conversation shortly thereafter results in a better offer, the attorney is only obligated to inform his or her client of the better offer.
What is a Lafler-Frye Hearing?
A Lafler-Frye hearing is conducted to make sure a person accused of a crime is informed of any plea offer made in their case. See Lafler v. Cooper 566 U.S. and Missouri v. Frye. 566 U.S. 134.
Even when a client tells his or her lawyer that they will not accept any plea offer, any offer still needs to be brought to them for their decision.
What is an Appeal?
An appeal is a challenge to the outcome in a lower court to a higher court. In Georgia, must appeals are heard by the Georgia Court of Appeals. However, in cases that involve a constitutional question, those appeals are heard by the Supreme Court of Georgia.
Im limited case, Georgia Superior Courts handle appeals from lower courts such as the Probate Court and decisions made by Administrative Law Judges.
The United States Supreme Court can hear any appeal from the Georgia Supreme Court, provided the case involved a “Federal Question,” that was inadequately determined by Georgia's legal system.
How long do I have to file a motion for a new trial or appeal in Georgia?
An appeal must be filed within 30 days of an adverse judgement.
What cases are appealed to the Georgia Court of Appeals?
Almost all appeals are first heard by the Georgia Court of Appeals. The Georgia Court of Appeals has original jurisdiction of all appeals not first heard in a Superior Court or by the Georgia Supreme Court,
What cases are appealed to the Georgia Supreme Court?
Any appeal that involves a constitutional issues (whether the Georgia Constitution or the United State Constitution) will be heard by the Georgia Supreme Court.
Also, any case that involves a sentence of death will be heard by the Supreme Court of Georgia (capital cases).
What cases are appealed to a Georgia Superior Court?
Decisions of certain lower courts, such as a Probate court or an administrative court, can be appealed to a Superior Court, where the judges sits as an appellate judge, not as a trial judge.
The appeal of the case is a “de novo” review, meaning whether the lower court committed legal error. The appeal is not a trial on the merits of the case.
What is a Motion for a New Trial?
A motion for new trial is the first step (usually) in the appellate process. Before send a case to an appellate court, it is best to have the trial judge consider first whether the case was properly decided in their court.
The trial judge must consider in a motion for new trial the following factors:
- whether the verdict was contrary to the law;
- whether the verdict was contrary to the evidence; and,
- whether the verdict is strongly against the weight of the evidence;
If the motion for a new trial is denied, the defendant has 30 days to file his direct appeal.
What is a Motion to Terminate Probation?
After a person has successfully completed a good portion of their probation, many judges will entertain a motion to terminate the remainder of someone's probation.
To successfully present a motion to terminate probation, the defendant must prove that they have competed the conditions of their sentence, without having any violations fo their probation along the way.
The being said, some offenses do not allow for probation to be terminated early. In those situations, your attorney may instead request that someone be allowed to go on “non-reporting probation."
What is a Motion to Amend a Sentence?
In cases where a sentence is unfair or unjust, your Georgia Criminal Defense Attorney may file a motion to amend (to change) the sentence.
Also, in cases where the sentence may have been reasonable, at the time of someone's prosecution, but for some reason it is no longer reasonable, a motion to amend a sentence may also be filed. This happens when someone has been rehabilitated or where laws and community values have been changed after someone's prosecution.
What is a Direct Appeal?
A direct appeal to a higher court is an appeal after a conviction. The state has no appellate rights after a person is acquitted of a crime.
On appeal, a person can appeal the decision of a lower court, the rulings made by the trial judge, the sufficiency of the evidence in the case, and whether their rights were violated by the police or at any time during the trial.
In Georgia, a criminal defendant has an automatic right to one direct appeal. The state has no right to appeal a case when a person is found “not guilty."
What is a Motion for an Interlocutory Appeal?
A motion for an interlocutory appeal is when a party seeks permission of a trial judge to appeal a ruling during the pendency of the case.
Almost all appeals are filed after a case was decided and as a result of potentially incorrect legal rulings during the case.
An interlocutory appeal is a request for a higher court to make a ruling on a case while the case is still being litigated. Such an appeal will only be allowed where the legal principal is essential to the determination in the case.
What is a Motion in Arrest of Judgement?
This is a motion made in court where a defendant request that the charge be “adjusted” because of a legal defect, such as the charging document (the indictment or accusation) failed charge an actual crime; or when, a court did not have proper jurisdiction over a case.
What is a Bench Trial?
A bench trial is where a judge exclusively hears the case. The judge makes both the decisions as to what evidence is admissible in case, and he or she makes the final finding of guilt or innocence.
In Georgia both the prosecutor and the defendant have a right to a trial by jury. As a result, if either side of the litigation wants a jury trial, then there can be no bench trial.
What is a Jury Trial?
A jury trial is where a criminal defendant has his or her case decided by a jury of six or twelve jurors. In Georgia all felony defendants are entitled to a trial by twelve jurors. All misdemeanor defendants are entitled to a trial by six jurors.
A juror must be a citizen of the United States, a citizen of Georgia, and a resident of the county in which the offense allegedly occurred.
In a jury trial, the trial judge males all rulings of law; while. the jury assertions the facts and renders a verdict therein.
In Georgia, when there is a a conviction (in a non-death penalty case), the judge will sentence the convicted without recommendation of the jury.
Are you always entitled to a jury trial in Georgia?
“No;” however in the vast majority of criminal cases the accused is entitled to a jury trial.
The rule is that if a person is facing the potential to be sentenced to jail, they are entitled to a jury trial. As a result, a person is entitled to a jury trial when he or she is accused of any Georgia misdemeanor or felony case, including almost all traffic offenses.
However, a person is not entitled to a jury trial when facings a local ordinance violation, such as a violation of a city ordinance or county ordinance,
How does jury selection proceed?
Judges in Georgia have leeway in the manner in which they conduct jury selection. In general, the prosecutor starts with general questions for the panel. Then, defense counsel gets to conduct general questioning.
After general questioning, both sides are allowed to ask individual questions to perspective jurors. Individual questions can take place in open court. However, if the nature of the question would tend to embarrass someone, individual questions can happen in private.
Once all questioning is completed, both sides may seek to “strike” particular jurors for “cause.” When the defense or prosecution seeks to strike someone for cause, it means that they are arguing that the juror is unfit to serve on the case. Fitness can be for legal reasons, such as when someone is not a citizen of the United States or a resident of the county in which the alleged offense occurred. Additionally. a person may be unfit to serve on a jury if they have already formed or expressed an opinion about the case.
Additionally, each side is allowed to strike potential jurors for virtually no reason at all. These “strikes” are called peremptory challenges or strikes. In Georgia, each side gets a certain number of free strikes, where each side can simply choose to exclude a juror for almost any reason.
However, a juror can not be excluded for racial reasons or because a person is a man or woman. If the defense believes a juror was improperly excluded, defense counsel can file a Batson challenge. Batson v Kentucky 476 U.S. 79 (1986).
What are Opening Statements?
Once a jury has been selected both sides have an opportunity to make an opening statement. An opening statement is not evidence. It is a summary of what each attorney expects the evidence will show. Since the state has the burden of proof, the prosecutor makes the first opening statement.
The defense may elect to make an opening statement thereafter, or the defense may elect to reserve their opening statement for their case-in-chief.
What is a Direct Examination?
Direct Examination is when an attorney asks his or her own witness “direct questions.” The attorney cannot ask leading question of witnesses he or she calls to testify.
A direct examination question is the type fo question that is used to elicit a particular fact. It cannot suggest the answer. The answer must completely come from the person being questioned.
What is a Cross-examination?
Cross-examination is the process of where on side of a litigation challenges the testimony of the witnesses called by opposing counsel. Essentially cross-examination is where an attorney integrates a witnesses in an attempt to disprove or call into question their testimony during direct examination.
The attorney may asking leading or suggestive questions during cross-examination. The attorney may also ask questions that suggest their answer.
In some jurisdictions, cross-examination questions are limited in scope to areas covered during a witness's direct examination. However, in Georgia, attorneys have more leeway to ask cross-examination questions outside the scope of the direct examination of the witness.
What are Objections?
An objection is raised when one side in a case has attempted to introduce improper evidence or commentary into a case
The objection itself is a formal protect by one side in a case to the admissibility of evidence or testimony. The objection is usually accompanied with a recitation of the rule of evidence violated by the other side in the litigation.
The judge's role in a trial is to rule on all objections and move the case forward a verdict.
What is a Motions in Limine?
A Motion in Limine means essentially what it sounds like. It is a motion where one side of a litigation attempts to prevent the other side from using certain evidence or testifying to certain facts.
A Motion in Limine can be used when one side in a case had violated the other side's statutory rights, such as implied consent rights in a DUI case. It can also be used when one side in a case successfully argues that evidence or testimony may be too prejudicial when compared to its probative value.
What is a Constitutional Motion?
A Constitutional Motion is when your Georgia Criminal Defense Lawyer argues that the police or agents of the state have violated someone's rights; and as a result, evidence obtained through the violation of those rights must be suppressed (excluded from the trial).
The violation of rights can be a violation of the Georgia Constitution or the United States Constitution. However, most arguments are presented as violates of the Georgia Constitution because the Georgia Constitution afford people more rights than recognized under the United States Constitution.
What is a Motion for Directed Verdict?
Georgia defense attorneys request a directed verdict when the evidence is insufficient to prove that someone has committed a crime. The motion essentially argues that no reasonable jury could legally find the accused guilty due to insufficient evidence.
The judge is asked by defense counsel to direct a verdict of acquittal for the defense because the the government has not proven its case.
The judge may rule against the defense, direct a verdict of acquittal on some charges, or direct a verdict of acquittal on all charges.
What is the Burden of Proof?
The burden of proof is the amount of evidence needed for one side of a litigation to prove their case. It is the minimum amount of evidence necessary for one side, in a litigation, to prove a fact or disputed claim.
In Georgia, the State has the burden to prove every essential element of a crime beyond a reasonable doubt. The defense has no burden to prove anything or the burden to show that their client is innocent.
However, when a criminal defendant in Georgia uses an affirmative defense, such as self-defense, then he or she must prove the facts of the defense used in court. This is the only time a cirminal defendant as any burden to prove anything in a Georgia case.
What are Closing Arguments?
At the end of a trial, both sides present their best arguments to the trier of fact (the judge or jury). Closing, or final arguments, are used by the parties to the litigation to argue what the evidence proved, or did not prove. Counsel for each side may also argue on what law the jury should apply.
In Georgia, the prosecutor gets the last opportunity to present his or her case to the jury. This final argument is a huge advantage because it is the last thing a jury hears.
What is a Charge Conference?
A charge conference is where the parties to a litigation discuss with the judge on what law is applicable in the case. After hearing form the defense and the prosecution, the judge then determines the law or laws the apply in the case. After closing arguments, the judge will then instruct the jury as to what law or laws should be applied to the case at hand.
What are Jury Instructions?
At the end of a jury trial, the judge must inform a jury as to the law or laws that apply in the case being heard. The judge “instructs” the jury on how to apply to law to the facts proven during the trial. These instructions are referred to as “Jury Instructions."
An example of a jury instruction is when a judge instructs a jury a to the burden of proof in a case or when an judge explains the concept of proof beyond a reasonable doubt.
In Georgia a jury is the “finder of fact,” meaning the body the determines what facts were proven of disproven and what witnesses should or should not be believed.
The judge, in Georgia, ascertains the applicable law and then instructs the jury there.
What is a Verdict?
A verdict is the decision by the judge or jury after a trial. In Georgia, a jury must reach a unanimous verdict for each offense for which a person has been charged.
What is an Acquittal?
An acquittal is when a judge or jury finds a person "not guilty" for what he or she was formally charged. A judge or jury may acquit a person for some or all of the offenses for which they have been charged.
A judge may also direct a verdict of acquittal on some charges while allowing the jury to decide any remaining charges.
What is a Sentence or Disposition after a trial?
Unlike in a plea bargain, once a jury or judge reaches a guilty verdict, the opportunity to settle a case is over. After a guilty verdict, the judge will sentence the convicted defendant. In Georgia, unless the case is a death penalty case, the trial judge has the exclusive authority to issue a sentence.
A jury (or judge in a bench trial) makes the determination of a person's guilty of innocence. Once there is a guilty verdict, the trial judge will pass sentence. The sentence is limited only to what is allowed under Georgia law. Otherwise, the trial judge has wide discretion to enter whatever sentence he or she feels is appropriate in the matter at hand.
The disposition is the written court-order memorizing the sentence of the judge.
What is an Allen Charge?
An Allen Charge is a special jury instruction used when a jury is deadlocked and unable to reach a verdict. The Allen Charge is usually more advantageous to the government's case because a "hung jury" is considered a victory for the defense. As a result, some Georgia Criminal Defense Lawyers call the instruction the "hammer charge" or "dynamite charge."
The jury instruction is used as an attempt to convince a juror or jurors that they should consider changing their mind and agreeing to reach a verdict. The jury is essentially told that they are in as good a position to resolve the matter as opposed to some other future jury. That being said, since failure to reach a verdict is a win for the defense, trying to convince a jury to reach a verdict is in this attorney's opinion unfair.
The United States Supreme Court has approved the following language to be read to a hung jury:
"Members of the Jury:
I'm going to ask that you continue your deliberations in an effort to reach agreement upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.
This is an important case. The trial has been expensive in time, effort, money and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.
Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or clearer evidence could be produced.
If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.
Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so.
You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the Defendant should have your unanimous verdict of Not Guilty.
You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary.
I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you."
Allen v. United States, 164 U.S. 492 (1986)
In what kinds of cases do we have 6 person juries in Georgia?
All misdemeanor cases in Georgia are tried before a jury of six people in either state court or in superior court.
In what kinds of cases do we have 12 person juries in Georgia?
All felony cases in Georgia are tried in Superior Court before a jury of 12 people
Does Georgia require a unanimous verdict in criminal cases?
“Yes,” Georgia requires an unanimous verdict in all criminal case. In misdemeanor cases, the jury consists of six (6) jurors who must determine a case unanimously. In felony cases the jury consists of twelve (12) jurors who must determine a case unanimously.
In rare situations, a judge can accept a verdict on some of a person's charges while declaring a mis-trial on others.