Search and seizures on someone who is walking down on the street: When are they legal?

Anyone who has been stopped by the police has had the same questions. What are the police allowed to do? Can they stop me for no reason? When they stop me, are they allowed to just search me however they want? Do I have any legal protections against illegal search and seizure?

There are, in fact, strict limits as to what the police are allowed to do regarding street side stops, searches and seizures. If you have been stopped by the police while walking down the street, you need to know your rights and understand what the police can and can’t do.

What is a search and seizure?

As Americans, we have a right to be free from unreasonable search and seizure, as guaranteed by the Fourth Amendment to the Constitution.

In general, for the police to stop someone and search them, or search someone’s property, etc., they need to have a search warrant. With a warrant, they can conduct a search that is limited to the scope of the warrant.

But, of course, in most cases involving police stops and searches on pedestrians, the police are proceeding without warrants.

Proceeding without a warrant: The reasonable suspicion requirement

Although the police are supposed to have a warrant, there are situations in which it is legal for them to stop a search someone without a warrant.

However, the police cannot stop you and search you for no reason. They need to have “reasonable suspicion” to justify the stop.

The case that has dictated the police’s reasonable suspicion requirement is Terry v. Ohio, 392 U.S. 1 (1968). In this case, the court determined that a police officer is justified in a warrantless stop and search is the officer has a reasonable belief that he or she, or the people around them, could be in danger from the person being stopped. In this circumstance, the police can conduct a reasonable stop and search to discover any weapons on the pedestrian’s person.

Once the stop is made, the police officer cannot hold you indefinitely. The stop must be limited to a reasonable time to conduct the search that warranted the stop. This means that the police cannot search you for a minute, then hold you there for no reason for two hours after the search.

Complications and exceptions

There are numerous complications and exceptions when it comes to the legality of stops, searches and seizures. All these nuances will depend on the specific facts of your case. If you have been stopped and searched, an experienced lawyer can help you determine whether the police action was legal, and what remedies you have available.

Why does this matter?

The reason these limitations on police action are so important is this: A violation of these rules could destroy their case against you in court.

The exclusionary rule

The exclusionary rule is simple. If an officer obtains evidence as part of a search that violates the rights of the person searched, that evidence is excluded in court. Without adequate evidence, the prosecuting attorney cannot win the case, so, in most cases, the charges are dropped.

Here’s a hypothetical example

A pedestrian is walking down the street alone. She is not making any sudden movements or acting suspiciously in any way. An officer stops her, and he pats her down. In the pat down, the officer discovers a bag of marijuana.

In the ensuing court case, the evidence of the marijuana in the pedestrian’s possession is excluded from the prosecutor’s evidence. Without this critical evidence, the prosecutor has nothing on which to base her case, and the defendant can go free.

What you should do

This is a simple example to illustrate how the exclusionary rule works in practice.

If you have been stopped and searched and are facing charges, and you are facing criminal charges as a result, you need to get help to defend your rights. A good lawyer will be able to break down all the facts of the stop and the search to determine whether there is any evidence of a violation of your rights which could result in the charges against you being dropped.

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When a serious accident arises, it is the first time for most people, so they don’t know what to expect in the process. Many questions arise. An experienced personal injury lawyer can answer your questions and help you understand your rights and options.

1. How long will the process take?

Every case is unique, so there is no way to accurately guess how long your case will take. Even the simplest settlement cases generally take at least a month or two.

A more complicated case, or a case involving a difficult defendant, could take a year or more.

The best thing to do is talk with a lawyer to determine how long your case might take.

2. Will I have to go to court?

Not necessarily. We settle most personal injury claims outside of court, so most of our clients do not have to see the inside of a courtroom.

3. How much does it cost for lawyer fees and expenses?

We take our cases on a contingency-fee basis. This means that our fee is based on a percentage of what we win for you at trial or in a settlement. Therefore, if we do not win, you do not have to pay any attorney fees.

4. Do I have to pay up front?

No. Again, since we work on contingency, you will only have to pay at the end of your case, and only if we win.

5. Do I have to sue a family member or friend if they caused the accident?

This is a little more complicated. Although technically, yes, the lawsuit would name your relative or friend if they are the liable party, the money will not come out of their pockets. In almost every personal injury claim, we are not seeking compensation from the liable party but from that party’s insurance company.

6. Do we have any connections with health care providers?

Yes. Our firm regularly helps clients find the best medical care for the injuries that have suffered.

7. Should I accept the settlement offer from the insurance agent?

No, you should not. Once you are sure your medical condition is stabilized, you should call a personal injury lawyer right away. Without legal representation, many injured people have accepted insurance settlement offers only to discover that the offer was inadequate to cover the true extent of damages and medical expenses. An experienced personal injury lawyer can protect your interests and make sure you get the maximum compensation award available.

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There are several factors a judge considers when determining if a jail sentence is appropriate. Take a closer look at a few of the specific variables that might come into play in your case.

How serious is the crime?

If you are convicted of a violent felony, you are likely to serve a prison sentence. Many violent felonies such as murder or armed robbery have mandatory minimum sentences that must be served in prison.

Do you have a criminal record?

It’s important to keep in mind that pleading guilty to a crime with a plea offer in place is the same as being convicted of a crime. Even if a plea deal in each case seems like a good offer, it may have other serious consequences that need to be considered. A criminal law attorney can provide insight into whether accepting a particular plea deal is in your best interest.

Were there aggravating factors in your case?

Being charged with misdemeanor DUI may result in a plea agreement that will keep you out of jail. However, if you crashed your car, injured another person, or drove with a dangerously high blood alcohol level, the charge might be upgraded to a felony. Those factors will likely increase your chances of going to jail if convicted of the crime.

If you are facing criminal charges in Augusta, GA, and would like to find out what defenses you have available, we encourage you to contact us for a confidential consultation. To speak with one of our criminal defense lawyers as soon as possible, call 706-200-1578 or inquire online now.

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The holiday season is one of the busiest times of the year for police and prosecutors in Georgia when it comes to arresting and prosecuting individuals accused of driving under the influence (DUI). National statistics show that drunk driving-related accidents and deaths spike during the holiday season; and, as a result, law enforcement agencies in Georgia and across the country ramp up their enforcement efforts from Thanksgiving through the New Year.

So, what do you need to know if you have been arrested for DUI during the holidays in Georgia? First and foremost, the fact that DUI cases are more common this time of year does not mean that you can expect your case to be handled any differently than it otherwise would. The prosecutor’s office will fight for a conviction; and, if you are found guilty, the judge will not go easy on you in the holiday spirit. You need to hire an attorney who can defend you to the fullest extent possible; and, if you choose not to, then you need to be prepared to live with the consequences for years to come.

What Do You Need to Know if You Have Been Arrested for DUI in Georgia?

It happened. You got pulled over, and you got charged with a DUI. What do you need to know in order to defend yourself and avoid increasing your chances of getting convicted in Richmond County court?

1. In Georgia, a DUI is a Criminal Offense.

In some states, driving under the influence is prosecuted as a traffic offense. But, this is not the case in Georgia. Under Georgia law, DUI is minimally a misdemeanor. However, there are various circumstances under which a DUI can be a felony charge. For example, if you are being accused of causing an accident while driving under the influence, you could be facing felony penalties.

2. Your Breathalyzer and Field Sobriety Test Results Will Be Used Against You – Unless You Challenge Them Effectively.

When you got pulled over, did the officer who stopped you take a breath sample? Did he or she ask you to perform the field sobriety tests (FSTs)? If so, the prosecutor’s office will almost certainly use your test results against you – unless you find a way to challenge the accuracy or admissibility of your test results in court. While there will not be viable options for challenging breathalyzer and FST results in every case, there are several potential ways to argue that the prosecution’s evidence cannot be used to prove your guilt beyond a reasonable doubt.

3. Challenging Breathalyzer and FST Results is Not the Only Way to Fight a DUI Charge.

Challenging a breathalyzer and FST results is not the only way to fight a DUI charge in Georgia. In fact, there are several defenses that can be asserted even if your test results appear to clearly indicate that you were impaired at the time of your traffic stop. For more information on the defenses, you may have available, you can read:

• 10 Constitutional Protections that Apply in Georgia Criminal Cases
• 20 Potential Legal Defenses to Criminal Charges in Georgia

4. The Judge and the Prosecutor’s Office Will Not Raise Your Defenses for You.

As a defendant in Georgia’s criminal justice system, it is up to you to defend yourself. Neither the judge nor the prosecutor who has been assigned to your case is in a position to provide you with legal advice or to help you assert the various defenses you may have available. In short, it is up to you to defend yourself, and the most-effective way to do this is to hire an experienced DUI defense attorney to represent you.

5. Mistakes Can Be Costly.

Regardless of whether you are being charged as a first-time offender with a blood alcohol concentration (BAC) of 0.08 percent or you caused an accident and already have multiple DUI convictions on your record, making mistakes while your DUI case is pending can be extremely costly. For information about some important mistakes you need to avoid, we encourage you to read:

• 10 Mistakes to Avoid When Facing Criminal Charges (Including DUI) in Georgia

6. If You Cannot Avoid a Conviction Entirely, You May have Alternative Options Available.

Let’s say you were driving with a BAC above the legal limit, and your arresting officer carefully followed the letter of the law. The prosecution’s evidence is irrefutable, and it appears that there is a very strong chance you will be convicted at trial. If this is the case (which is not something you should ever assume on your own), then you may be able to participate in the Richmond County State Court DUI Court Program(or another similar program) in order to mitigate the consequences of your arrest.

7. Your Defense Needs to Take Precedence Over Holiday Planning and Travel.

It’s the holiday season. You want to spend time with your loved ones, and you might be thinking about traveling. While your DUI case does not need to consume your entire life, you do need to give it the time and attention it deserves. Among other considerations, if you have a court date scheduled for when you are planning to be out of town, you should be prepared to adjust your plans unless and until your attorney advises you otherwise.

While dealing with a DUI charge is a hassle, dealing with the consequences of a DUI conviction can negatively impact your life for years to come. To make sure that the impacts of your DUI arrest are no greater than necessary, contact Davis, Chapman, & Wilder, LLC to discuss your case today.

Speak with an Augusta, GA DUI Defense Lawyer at Davis, Chapman, & Wilder, LLC

For more information about protecting yourself after a DUI arrest in Richmond County, contact the Augusta, GA law offices of Davis, Chapman, & Wilder, LLC for a confidential consultation. To speak with one of our experienced DUI defense lawyers as soon as possible, call us at 706-200-1578 or inquire online now.

Tags: DUI Defense Lawyers
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You’ve been charged with a crime in Georgia. Are you facing jail time? Are you off the hook if the police violated your constitutional rights? If you get convicted, can you apply to have your criminal record expunged? Do you have less to worry about if you are facing a misdemeanor charge?

Defending yourself during a criminal case requires a clear understanding of the law as it applies to your factual circumstances. Unfortunately, while there is a lot of reliable information available on the Internet, many common myths and misconceptions also get perpetuated online. If you need to fight for your freedom, how can you distinguish fact from fiction? Here is the truth behind seven common myths about facing criminal charges in Georgia:

Myth #1: If You are Convicted, You Will Serve Time in Jail.

Reality: While jail time is a potential sentence for all misdemeanors and felonies in Georgia, it may be possible to serve probation and a suspended sentence in lieu of jail time.

Under Georgia law, all crimes carry the potential for incarceration. However, this does not necessarily mean that you will serve time in jail if you are convicted. Depending on the severity of the offense and the circumstances involved in your case, it may be possible to avoid jail time – potentially by seeking probation and a suspended sentence. If you meet all of the terms of your probation, you will not have to serve time in jail. However, if you violate the terms of your probation, you can be sent to jail to serve the time that was “suspended” during your probationary period.

Myth #2: If the Police Violated Your Rights, You Can’t Be Convicted.

Reality: A violation of your rights can provide a defense under some circumstances if you know how to assert it effectively.

As a criminal suspect or defendant in Georgia, you have certain fundamental rights. However, if the police violate your rights, this does not automatically serve as a “get out of jail free” card. Rather, in order to use the violation as a defense, you (or your attorney) must raise the issue in court and successfully argue that the violation was substantial enough to entitle you to a legal remedy. Even then, raising the issue may only result in certain evidence being excluded from your case – but prosecutors could still have enough other evidence to convict you.

Myth #3: If You Get Convicted, You Can Apply to Have Your Record Expunged.

Reality: Expungement isn’t an option in Georgia, but some convictions are eligible for “record restriction.”

You read that correctly. In Georgia, state-level criminal offenses are not eligible for expungement. The concept of expungement simply does not exist under Georgia law.

In some cases, it will be possible to have your criminal record “restricted.” However, the grounds to apply for record restriction are very limited, and not all criminal offenses are eligible. Furthermore, record restriction does not afford the same benefits that expungement affords in other states. Record restriction is also charge-specific, meaning that, even if you file a successful petition, your criminal record may not be restricted in its entirety.

Myth #4: A Misdemeanor Isn’t a Serious Crime.

Reality: In Georgia, a misdemeanor conviction can carry up to 12 months of jail time and a fine of up to $5,000.

While misdemeanor offenses are generally considered to be less serious than felony offenses, facing a misdemeanor charge in Georgia is still an extremely serious matter. All misdemeanors carry a maximum potential jail sentence of 12 months (though it will be possible to avoid jail time in some cases, as discussed above), and the maximum fines start at $1,000. If you are convicted of a “misdemeanor of a high and aggravated nature,” you could face fines of up to $5,000.

Myth #5: A DUI a Traffic Offense, Not a Crime.

Reality: A DUI is a traffic offense in some states, but not in Georgia. In Georgia, most DUIs are misdemeanors, but it is possible to be charged with a felony DUI.

In Georgia, driving under the influence (DUI) is a crime. If you are a first-time or second-time offender, you are likely facing a misdemeanor charge, although this is not necessarily the case. A standard third-time DUI offense is a“misdemeanor of a high and aggravated nature.” Four-time offenders, offenders who cause serious accidents, and certain other defendants can be charged with a felony DUI and potentially face years behind bars.

Myth #6: If You Committed a Crime, a Defense Lawyer Can’t Help You.

Reality: Even if you think you committed a crime, there are still numerous reasons to discuss your case with an experienced criminal defense lawyer.

There are several potential defenses to criminal charges under Georgia law. While many of these defenses focus on disproving the factual allegations against you (or at least raising questions in the minds of the jury), there are also defenses that can be used to avoid a conviction even when the evidence is clearly not on your side. For example, if the police conducted an unlawful search or seizure, then the evidence that is available to prove your guilt may be inadmissible at trial.

Myth #7: If You are Innocent, Justice Will Prevail.

Reality: Wrongful convictions are alarmingly common, and making mistakes during your case can increase your chances of an unjust conviction.

Despite its virtues and the fundamental role it serves in our society, the criminal justice system is far from perfect. Defendants are wrongfully convicted at alarming rates, and many convicts are forced to serve sentences that are severely disproportionate to the crimes for which they were convicted. As a result, when facing criminal charges, one of the biggest mistakes you can make is assuming that you are not at risk. You need to protect yourself, and this starts with hiring an experienced criminal defense attorney.

Arrested in Georgia? Contact Our Augusta Criminal Law Offices for a Case Evaluation

Have you been arrested for a misdemeanor or felony in Georgia? If so, we encourage you to contact us promptly to discuss your case. To speak with criminal defense lawyers at our Augusta, GA law offices in confidence, call 706-200-1578 or request an appointment online now.

Tags: Criminal Charges
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If you are facing criminal charges in Georgia, there are many mistakes you need to avoid in order to give yourself the best chance of avoiding a conviction and harsh sentencing at trial. If you make assumptions if you overlook key aspects of the law, or if you fail to approach your case with the seriousness it deserves, you could find yourself facing the consequences for years – if not decades – to come.

Charged with a Crime in Georgia? Don’t Make These Costly Mistakes

Georgia’s criminal justice system is complicated, and there are several laws and constitutional principles that apply during criminal cases in the Georgia state courts. As a result, the single most important thing you can do when facing criminal charges is to discuss your case with an experienced criminal defense attorney. Your attorney will be able to help you avoid mistakes such as:

Mistake #1: Assuming You Will Be Convicted

Regardless of the circumstances leading up to your ticket or arrest, you must not assume that you will be convicted at trial. The prosecutor’s office has the burden of proving your guilt in court; if there isn’t sufficient evidence of your guilt, you cannot be legally convicted even if you committed a crime. In addition, even if you think you committed a crime, (i) the act you committed might not actually be illegal in Georgia, or (ii) you might have defenses that justify or excuse your conduct.

Mistake #2: Assuming You Won’t Be Convicted

However, while there are many potential defenses to criminal charges in Georgia, you must also avoid assuming that you will walk free if your case goes to trial. Despite carrying a heavy burden of proof, prosecutors secure guilty verdicts all the time, and the rate of wrongful convictions is alarming. Even if you are absolutely certain that you have done nothing wrong, you must still approach your case as if it carries the risk of leading to a conviction – because it absolutely does.

Mistake #3: Assuming the Police Followed the Law

Police officers make mistakes, just like everyone else. While it is possible that your stop and arrest were conducted in strict compliance with the law, it is also entirely possible that the arresting officer or a police investigator who questioned you when you were taken in for booking violated your constitutional rights.

Mistake #4: Assuming Prosecutors Will Follow the Law

Prosecutors make mistakes as well. From relying on inadmissible evidence to withholding key evidence during discovery, various prosecutorial mistakes can jeopardize the state’s case and entitle defendants to “not guilty” verdicts at trial.

Mistake #5: Missing a Court Date

When facing criminal charges in Georgia, you will have to appear in court on multiple occasions (unless your attorney is able to use police or prosecutorial mistakes, or other defenses, to resolve your case early in the process). If you miss a court date, the judge can issue a bench warrant for your arrest and you can be held in jail until your trial.

Mistake #6: Simply Waiting for Your Trial Date to Arrive

In addition to making sure you appear for your court dates on time, there are various other steps you can take to protect yourself and build an effective defense strategy prior to your trial date. Rather than simply waiting for your case to go to court, you (or your attorney) can:

• Request access to the state’s evidence against you (through the process of “discovery”)
• File motions to challenge the admissibility of the state’s evidence in court
• Negotiate for a reduced charge or a reduced sentence
• Seek entry into Georgia’s Pretrial Diversion Program (which will result in your charges being dismissed once you complete the program successfully)
• Take other steps to convince the court that you are remorseful and that you are working on reforming your conduct or seeking treatment for alcohol or drug dependence

Mistake #7: Ignoring or Overlooking Possible Defenses

As we mentioned above, there are numerous possible defenses to criminal charges in Georgia. When your freedom is on the line, you need to explore all options for avoiding sentencing at trial. Even “minor” details can be enough to prevent the prosecutor’s office from meeting its burden of proof, and you want to be absolutely certain that you are fighting your charges by all means available.

Mistake #8: Banking on a Single Defense

Along these same lines, even if you have one defense that seems particularly solid, you do not want to rely solely on this defense to protect you. While throwing the kitchen sink at the judge or jury may lead to confusion and make it appear as though you do not have any individual defense that requires an acquittal, relying on one defense when you have multiple defenses available could leave you unnecessarily exposed.

Mistake #9: Failing to Understand the Consequences of a Conviction

Under Georgia law, all misdemeanors and felonies carry potential fines and jail time. In fact, the maximum penalties for misdemeanors start at up to a $1000 fine and 12 months in jail. In addition, the practical consequences of a conviction can impact all aspects of your work and personal life, from making it extremely difficult to find a job to prevent you from seeing your children. For more information on the consequences of criminal convictions in Georgia, you can read:

• What are the Penalties for Felonies and Misdemeanors in Georgia?
• Georgia Criminal Records are Not Eligible for Expungement

Mistake #10: Trying to Handle Your Criminal Case on Your Own

With these risks in mind, the best way to protect yourself when facing criminal charges in Georgia is to hire an experienced criminal defense attorney to represent you. Presenting a successful defense requires a thorough understanding of the law and intimate familiarity with the procedures involved in Georgia criminal cases. Contact us to learn more.

Contact Our Augusta, GA Criminal Law Offices to Discuss Your Case in Confidence

Our Augusta criminal lawyers provide experienced legal representation for individuals who are facing misdemeanor and felony charges throughout Georgia. For more information about how we can protect you, call 706-200-1578 or contact us online for a confidential initial consultation.

Tags: Criminal Charges in Georgia
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As a Georgia resident, you are entitled to all of the protections afforded by the U.S. Constitution. The 14th Amendment requires the states to uphold individuals’ constitutional rights, and this includes all rights that apply before, during, and after an arrest. If police violate your constitutional rights, then any evidence obtained as a result of the violation may be deemed inadmissible in court. Likewise, if state prosecutors violate your constitutional rights, this could mean that you are entitled to an acquittal without the need to defend yourself at trial.

However, constitutional issues are rarely straightforward. Most police officers and prosecutors do their best to comply with the law, and this means that most constitutional violations are unintentional. Additionally, despite more than 200 years of precedent, there are still many grey areas when it comes to determining when an act or omission crosses the line into the unconstitutional territory. That said, asserting your constitutional protections can be an effective defense strategy in many circumstances. In this article, we countdown 10 of the key constitutional protections that apply in Georgia criminal cases, and then we discuss the potential consequences of constitutional violations for criminal defendants in Georgia.

10 Constitutional Protections that Apply in Georgia Criminal Cases

10. The Right to a Jury Trial

As a criminal defendant, the Seventh Amendment guarantees you the right to a trial by a jury of your peers. While you can waive this right (although this is not something you should do unless advised by your attorney), neither the prosecutor’s office nor the court can deprive you of your right to a jury trial in a criminal case.

9. The Right to a Speedy Trial

The Sixth Amendment provides several important protections to criminal defendants in Georgia, one of which is the right to a “speedy and public trial.” If you are unfairly prejudiced by a delay in your trial date (which requires a thorough analysis of the specific facts and circumstances involved with the delay), then you may be entitled to walk free.

8. The Protection Against Double Jeopardy

Under the Fifth Amendment, you cannot be prosecuted twice for the same offense arising out of the same set of events. You can be forced to go through a second trial if the jury is unable to reach a decision or the judge orders a mistrial for other reasons; but, if you get acquitted, then your case should be over.

7. The Protection Against Ex Post Facto Laws

If you do something and then Georgia makes it illegal, you cannot be prosecuted retroactively. This is known as the prohibition against ex post facto laws.

6. The Right to Know the Evidence Against You

Another protection afforded by the Sixth Amendment is the right to know the evidence against you. Before your trial, you are entitled to conduct “discovery” in order to obtain information about the prosecution’s case. If the prosecutor’s office withholds any evidence (or subsequently obtains evidence and does not disclose it), this may constitute a violation of your Sixth Amendment rights.

5. The Right to Confront Witnesses

The Sixth Amendment also entitles criminal defendants to confront any witnesses against them. This means that the prosecution cannot present police officers’ or other witnesses’ testimony unless you are afforded the opportunity to conduct a cross-examination.

4. The Requirement for “Reasonable Suspicion”

Under the Fourth Amendment, the police cannot stop a person unless they have “reasonable suspicion” to believe that the person has been involved in criminal activity. There are some exceptions (including DUI checkpoints in Georgia); but, generally speaking, the police cannot stop people arbitrarily or on a discriminatory basis.

3. The Requirement for “Probable Cause”

A stop is different from an arrest. While a stop requires “reasonable suspicion,” an arrest requires “probable cause.” If the police arrest you without probable cause (or if they conduct a warrantless search in violation of the Fourth Amendment’s probable cause requirement), they are in violation of your constitutional rights.

2. The Right to Remain Silent

The Fifth Amendment affords you the right to remain silent once you have been accused of a crime. If the police or prosecutors violate your right to remain silent, then anything you say subsequent to the violation could be inadmissible in your Georgia criminal trial.

1. The Right to an Attorney

Finally, and most importantly, you have the right to an attorney. This right exists under the Sixth Amendment, which states that, “the accused shall enjoy the right to . . . the assistance of counsel for his [or her] defense.”By hiring a defense attorney as soon as possible, you can ensure that you avoid costly mistakes and assert all of the defenses that are available to you under the U.S. Constitution and Georgia law.

Can You Avoid a Conviction by Proving that Police or Prosecutors Violated Your Constitutional Rights?

So, let’s get back to our original question: What happens if Georgia police or prosecutors violate your constitutional rights?

While the specific circumstances of your case will determine what options you have available, the general rule is that evidence obtained in violation of a suspect’s or defendant’s constitutional protections is inadmissible in criminal court. If the violation did not result in the collection of evidence (i.e. if you were denied your right to a speedy trial or your right to know the evidence against you), then the violation could entitle you to have your case dismissed. Either way, in order to assert your rights, you will need to hire an experienced criminal defense attorney who can effectively argue your constitutional protections on your behalf.

Speak with an Augusta, GA Criminal Defense Lawyer at Davis, Chapman, & Wilder, LLC

Have you been charged with a crime in Georgia? Do you believe that the police or prosecutors may have violated your constitutional rights? To discuss your case with one of our experienced criminal lawyers, call our Augusta, GA law offices at 706-200-1578 or request a confidential consultation online today.

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As you may have read, Georgia’s Hemp Farming Act, which Governor Kemp signed into law on May 10, 2019, is creating problems for state prosecutors when it comes to pursuing charges for marijuana possession. The Atlanta Journal-Constitution (AJC) recently reported that Gwinnett County – which is situated between Atlanta and Augusta – has been dropping misdemeanor marijuana possession charges dating back to the Hemp Farming Act’s date of enactment. According to the AJC, prosecutors there say that the law, “raises serious questions about how district attorney offices across Georgia can move forward with cases,” for marijuana possession.

So, what’s the issue? According to prosecutors in Gwinnett County, while the Hemp Farming Act was intended to authorize licensed farmers to grow hemp for the production of medical low THC oil (which Georgia legalized in 2015), the law’s language is broad enough that it allows anyone to legally possess hemp in Georgia. While this is not necessarily an issue on its own, the problem lies in the fact that police and prosecutors do not currently have the technology needed to distinguish hemp from marijuana. Since both plants look and smell the same, the AJC reports Gwinnett County prosecutors are concerned that:

“[The Hemp Farming Act] raises questions about police officers’ ability to justify marijuana-related arrests. Predicating arrests and prosecutions on someone possessing a ‘leafy green substance’ or smelling like marijuana may no longer be enough if low-THC hemp can be legally possessed.”

According to WSB-TV 2 Atlanta, a memo obtained from the Gwinnett County prosecutor’s office indicates the office will not be prosecuting marijuana cases until the Hemp Farming Act is amended. It also quoted Gwinnett County District Attorney Danny Porter as stating, “Every single marijuana case is now up in the air pending further action.”According to the news agency, “until a test becomes available, Gwinnett’s prosecutors believe the rest of the state will soon follow their lead.”

Prosecutors are Dropping Misdemeanor Marijuana Possession Charges – For Now

What does all of this mean if you currently have a marijuana charge pending in Georgia state court? Unfortunately, the answer is not as straightforward as it might seem from the media coverage.

First, right now the decision not to prosecute marijuana cases appears to be limited to Gwinnett County. As of right now, there do not appear to be any other counties that have made the decision to stop prosecuting marijuana cases wholesale. Furthermore, even in Gwinnett County, the decision applies to misdemeanor marijuana possession cases only (involving possession of one ounce or less for personal use). Since felony drug crimes have a longer statute of limitations, prosecutors are still keeping these cases on the books.

Second, after WSB-TV 2 Atlanta released its initial report, prosecutors in Gwinnett County responded with a statement that they believe they have now found two field testing devices that police can begin using to distinguish between hemp and marijuana. These tests would allow police officers to determine if a “leafy green substance” has a high level of THC consistent with marijuana. According to WSB-TV 2 Atlanta, police may have these devices in their hands “in a matter of months.”

Third, while the Hemp Farming Act arguably legalizes possession of hemp in Georgia (not all lawmakers and prosecutors agree with Gwinnett County’s interpretation), possessing marijuana is still a crime under all circumstances. You can legally possession low THC oil for medical purposes if you have a Low THC Oil Registry Card from the Georgia Department of Public Health, but possessing or using any other form of marijuana – or possessing low THC oil without a registry card – is minimally a misdemeanor offense carrying the potential for up to a $1,000 fine and year in jail. If you are arrested with more than an ounce of marijuana (up to 10 pounds), you can be charged with a felony carrying up to a $5,000 fine and 10 years behind bars.

Finally, even if other counties do decide to follow Gwinnett County’s lead, for the time being, the decision not to prosecute appears to apply only to marijuana in plant form. So, there are still many ways to be arrested and prosecuted for a marijuana-related crime. If you are caught with edibles, oils, tinctures, topical creams, or marijuana paraphernalia, prosecutors may still have the evidence they need to pursue your case. The same is true if you are arrested for driving under the influence of marijuana (or “driving while high”); and, if you have a growing operation or are caught selling, you will still be in violation of the law regardless of whether your product is marijuana or hemp (unless you have a license under the Hemp Farming Act).

Defending Against a Marijuana Charge in Georgia

So, marijuana is still illegal in Georgia, and the Hemp Farming Act is not the “get out of jail free” card many people were hoping for. What should you do if you have been charged with possession, sale, delivery, cultivation, or any other marijuana-related crime?

• Speak with an Attorney – As with any other crime, if you have been charged with possession, sale, delivery, or cultivation of marijuana, you should speak with an attorney right away. You should let your attorney deal with the police and prosecutors on your behalf; and, if you have an opportunity to avoid prosecution under the Hemp Farming Act, you will want to have your attorney raise the issue right away before circumstances change.
• Evaluate Your Potential Defenses – There are numerous potential defenses to criminal charges in Georgia. Even if you were arrested in possession of marijuana, this does not necessarily mean that you deserve to be convicted. For your consideration, we have published a list of 20 Potential Legal Defenses to Criminal Charges in Georgia.
• Avoid Assumptions and Other Costly Mistakes – While you cannot assume that you will have your charges dropped based on the Hemp Farming Act, you also must not assume that you will be found guilty at trial. There are other potentially costly mistakes you need to avoid as well; and, once again, the best way to protect yourself is to speak with an attorney as soon as possible.

Request a Confidential Initial Consultation in Augusta, GA

If you are facing prosecution for a marijuana crime in Georgia, you need experienced legal representation. To speak with a criminal defense lawyer at Davis, Chapman, & Wilder, LLC in confidence, call our Augusta, GA law offices at 706-200-1578 or contact us online today.

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You were arrested for driving under the influence (DUI) in Georgia, and now you are concerned for your future: What does your arrest mean for your ability to drive? What does it mean for your ability to get into (or stay in) college? Will you be able to find a job? Could you lose your job if your employer finds out about your arrest? Could you go to jail? These are all important questions; and, with the severity of Georgia’s DUI laws, the consequences of your arrest could indeed be substantial.

Q&A with the Georgia DUI Defense Lawyers at Davis, Chapman, & Wilder, LLC

Facing a DUI charge in Georgia is a serious matter. In order to protect yourself, you need to make sure you know what to expect during your case, and you need to hire an experienced DUI defense lawyer. To help you get started, here are answers to 10 frequently-asked-questions (FAQs) about fighting a DUI charge in Georgia:

Q: Is a DUI a misdemeanor or felony in Georgia?

In general, a first-time DUI is a misdemeanor in Georgia. So is a second-time offense. A third offense is a “high and aggravated misdemeanor,” and a fourth or subsequent offense is a felony. However, this assumes that you were arrested for a “standard” DUI. If you caused an accident resulting in serious injury or death, then you could be facing a felony charge even for a first-time offense.

Q: What does Georgia’s implied consent law mean for my case?

In Georgia, all drivers are required to take a breathalyzer test (or blood or urine test) if stopped on suspicion of DUI. This requirement exists under Georgia’s “implied consent” law, which states that drivers consent to test simply by virtue of driving on the state’s public roads. If you refused the breathalyzer during your traffic stop, then you could be facing additional penalties under the implied consent law—and you could be convicted of an implied consent violation even if you are not actually guilty of driving under the influence.

Q: Was I required to submit to the field sobriety tests (FSTs)?

No. Georgia’s implied consent law does not apply to the FSTs. If you refused to walk and turn or stand on one leg, you were well within your rights to do so. However, if you submitted to the FSTs, your performance could be used against you in court, and you will need to determine what defense strategies you have available.

Q: What are the penalties for a first-time DUI in Georgia?

Most people are surprised to learn how much is at stake when they get arrested for a DUI. In Georgia, the potential penalties for a standard first-time offense include:

• Fines of $300 to $1,000
• 10 days to 12 months in jail (with the possibility for a fully or partially suspended sentence)
• A 12-month driver’s license suspension
• A minimum of 20 hours of community service (with a minimum of 40 hours in most cases)
• Completion of a DUI Alcohol or Drug Use Risk Reduction Program
• Clinical evaluation and, if recommended, substance abuse treatment
• 12 months of probation (reduced for any time spent in jail)

Q: Can I apply to have my license reinstated sooner than 12 months?

Yes, after 120 days you can apply to have your driver’s license reinstated if you have completed the DUI Alcohol or Drug Use Risk Reduction Program. There is also a reinstatement fee of $200.00 (or $210.00 if you apply in person).

Q: What are the other potential consequences of a DUI conviction?

A DUI conviction in Georgia can impact your life far beyond the restoration of your driving privileges. In addition to the criminal penalties listed above, having a DUI conviction on your record can also:

• Significantly increase the amount you pay for car insurance
• Limit (or even exclude) your eligibility to work in certain occupations
• Impair your ability to get into college or trigger disciplinary action by Judicial Affairs
• Result in disciplinary action by your professional licensing board

Q: If I get convicted, will I eventually be able to have my DUI expunged?

No, Georgia does not have an expungement law. Your DUI will be eligible for record restriction; however, unlike expungement in other states, record restriction in Georgia does not wipe your DUI off of your record.

Q: What are some potential defenses to a Georgia DUI?

While every case is truly unique, the good news is that there are several potential defenses to DUI in Georgia. Some examples of these defenses include:

• Faulty breathalyzer test results
• Misinterpretation of FST results or alternate explanation for poor performance
• An alternate explanation for driving behaviors that triggered the traffic stop
• Unlawful traffic stop or arrest
• Lack of evidence of guilt

Since a DUI is a criminal charge, the prosecution has the burden of proving your guilt beyond a reasonable doubt. If there is any way to poke any hole in the prosecution’s case, this could be enough to save you from a life-altering conviction.

Q: What if my blood alcohol concentration (BAC) was above 0.08% but my driving wasn’t impaired?

Driving with a BAC of 0.08% or above is what is known as a DUI per se. Under Georgia law, it is illegal to drive with a BAC of 0.08% or above regardless of whether or not your driving abilities are impaired. As a result, arguing that you were driving safely will not protect you against a conviction. However, you may be able to successfully defend against your DUI charge by challenging the validity of your breathalyzer test result.

Q: Should I fight my DUI if I know I was driving drunk?

Yes, absolutely. Many of the defenses to DUI can be asserted regardless of whether or not you were actually driving drunk at the time of your arrest. With the consequences of a conviction, you should do everything possible to fight your DUI.

Discuss Your Case with a DUI Defense Lawyer in Augusta, GA

Where you arrested for DUI in Augusta, GA? If so, the DUI defense lawyers at Davis, Chapman, & Wilder, LLC can help. To get started with a confidential case assessment, call us at 706-200-1578 or request an appointment online today.

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If you have been charged with a crime in Georgia, it is important to understand the penalties that are on the table. While Georgia law establishes two classes of misdemeanors each with a specified range of penalties, it assigns penalties for felonies on a crime-by-crime basis. This makes identifying the potential penalties in your case a bit more challenging, and you will need to speak with a criminal defense lawyer in order to make sure that you know exactly what is at stake if your case goes to trial.

In this article, we will outline Georgia’s statutory penalties for “standard” misdemeanors and misdemeanors “of a high and aggravated nature,” and we will list the penalties for some of the more-common felony charges under Georgia law. We will also discuss the ancillary penalties that apply in certain types of cases, and we will highlight some of the collateral consequences you may face regardless of the specific sentence you receive at trial.

1. Misdemeanor Penalties Under Georgia Law

As a general rule, the dividing line between a misdemeanor and a felony is 12 months of incarceration. Misdemeanors can carry up to 12 months of jail time, while a felony conviction carries the risk of more than a year (and, for many offenses, multiple years) of incarceration in a state penitentiary.

Unlike many other states, in Georgia, all misdemeanors carry the potential for up to 12 months of jail time. The law distinguishes between “misdemeanors” and “misdemeanors of a high and aggravated nature,” with the primary difference – in terms of sentencing – being the maximum fine:

• Penalties for Georgia Misdemeanors – Up to 12 months in jail or a diversion center and a $1,000 fine (C.G.A. § 17-10-3).
• Penalties for Georgia Misdemeanors of a High and Aggravated Nature – Up to 12 months in jail and a $5,000 fine (C.G.A. § 17-10-4).

Importantly, both types of misdemeanors are potentially eligible for probation and suspended sentences depending upon the circumstances involved.

Which crimes are classified as misdemeanors of a high and aggravated nature? There isn’t a list. Instead, repeat offenders will often be charged with misdemeanors of a high and aggravated nature, and certain other circumstances (such as committing battery against a family member, senior, or woman who is pregnant) can elevate the risks of criminal prosecution for a misdemeanor-level offense as well. Additionally, certain offenses (such as aggressive driving) will be charged as misdemeanors of a high and aggravated nature regardless of the defendant’s criminal history or the factual circumstances at hand.

2. Examples of Felony Sentences Under Georgia Law

In Georgia, felony penalties range from one year in prison to the death penalty, with the specific sentencing ranges varying for individual offenses. Examples of felony sentencing ranges in Georgia include:

• Aggravated assault – One to 20 years in prison (with minimum sentences of three and five years for assaults against the elderly and peace officers, respectively) (C.G.A. § 16-5-21).
• Aggravated battery – One to 20 years in prison (with added fines and minimum sentences of three and five years for battery committed against the elderly and peace officers, respectively) (C.G.A. § 16-5-24).
• Marijuana possession for personal use (more than one ounce) or possession with intent to distribute (10 pounds or less) – One to 10 years in prison and a $5,000 fine (C.G.A. § 16-13-30).
• Rape – Death, life imprisonment without parole, life imprisonment, or at least 25 years of imprisonment followed by probation for life (C.G.A. § 16-6-1).
• Robbery – One to 20 years in prison (with a minimum sentence of five years for robbery of a person 65 years of age or older) (C.G.A. § 16-8-40).

3. Ancillary Penalties for Certain Criminal Offenses in Georgia

In addition to fines, probation, and jail or prison time, individuals convicted of certain crimes in Georgia can face ancillary penalties as well. Examples of these penalties include:

• Asset Forfeiture – Crimes involving theft and other means of profiting from illegal activity (such as selling drugs) can result in forfeiture of the proceeds of the illegal activity (including any assets purchased with illegally-obtained funds).
• Loss of Driving Privileges – Traffic offenses, DUIs, and various other offenses can result in temporary or permanent loss of driving privileges in Georgia.
• Restitution – For certain types of crimes, the sentence can include payment of restitution to the victim (in addition to any applicable fines).
• Sex Offender Registration – Individuals convicted of most types of sex crimes must register as a sex offender in Georgia. In addition to having their name listed in the public registry, registered sex offenders are also prohibited from residing within 1,000 feet of childcare facilities, schools, churches, and other places “where minors congregate,” and they are prohibited from working at these facilities and any other businesses located within 1,000 feet of a childcare facility, school, or church.
• Special Terms of Probation for Drugs – For certain types of drug crimes, the sentence can include special conditions of probation (such as substance abuse evaluation and treatment, random drug testing, and community service) that are not applicable to convictions for non-drug-related offenses.

4. Collateral Consequences of Having a Criminal Record in Georgia

Regardless of the crime for which you are convicted, having a criminal record can impact your life in ways far beyond the sentence you receive at trial. For many people, the collateral consequences of a criminal conviction will include:

• Difficulty finding housing
• Difficulty obtaining credit or a loan
• Difficulty finding a job (or termination of employment)
• Difficulty getting into college (or expulsion from school)
• Ineligibility for federal student loans and other forms of financial aid
• Loss of voting rights
• Loss of the right to own firearms

Furthermore, since Georgia criminal records are not eligible for expungement, unless you successfully petition to have your record “restricted,” your conviction will show up on background searches indefinitely. Not all convictions are eligible for record restriction; and, even if you obtain a record restriction, your conviction will still continue to play an active role in your life.

Speak with a Criminal Defense Lawyer in Augusta, GA

If you have been charged with a crime in Georgia, it is important that you speak with a criminal defense lawyer as soon as possible. To schedule a confidential initial consultation with a criminal attorney at our law offices in Augusta, GA, call us at 706-200-1578 or request an appointment online now.

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