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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As expungement lawyers in Georgia, we help our clients clean up their criminal record. From finding work to spending time with your children, having a criminal record can impact nearly all aspects of your life. When you get convicted of a crime, jail time, probation, and fines are just the beginning of a lifetime of consequences. For this reason, many people who get convicted in Georgia find themselves needing to determine if their record is eligible for expungement.

Unfortunately, the answer to this question is painfully clear: In Georgia, expungement is not an option.  While a change in the law that went into effect clarifies the option to petition for “record restriction,” in Georgia there is not an option to have your criminal record wiped clean. As explained by the Georgia Justice Project:

“Georgia’s old law used the term ‘expungement,’ which implied that criminal records information was deleted or destroyed. In reality, criminal records were not deleted or destroyed; the term ‘expungement’ simply meant that the information was unavailable to be viewed for all purposes except law enforcement and criminal justice. “Georgia’s new law, effective July 1, 2013, does not use the word ‘expungement.’ Instead, the process is now referred to as ‘record restriction.’ Only the name of the process has changed. Record restriction means that eligible records on your official criminal history report are restricted from public view and are only accessible to law enforcement for criminal justice purposes.” Is this a distinction without a difference? Not necessarily. While private employers and most public employers will not have access to your restricted record, you will not be able to legally state that you “don’t have a criminal record.” Whereas expungement under other states’ laws truly erases your record – making it as though you were never arrested or convicted – in Georgia your criminal record stays with you forever.

Two Paths to Record Restriction in Georgia: Automatic and By Petition

In Georgia, you can have your criminal record restricted in one of two ways: (i) automatically, or (ii) by petition. But, before we get into a discussion of these methods, there are a couple of points that need to be made clear:

• Record Restriction is Charge-Specific. The term “record restriction” as used in Section 35-3-37 of the Georgia Code is somewhat misleading. This is because any “restriction” for which you are eligible does not apply to your criminal record as a whole, but rather only to an individual eligible charge. If you have multiple charges on your criminal record, then you will need to address each charge independently in order to have your entire record restricted from public view.
• Not All Criminal Charges are Eligible for Restriction. Under Section 35.3-37, not all criminal charges are eligible for restriction. As a general rule, felonies convictions are ineligible, including (but not limited to) convictions for child molestation, sexual assault, sexual battery, certain theft crimes, and certain serious traffic offenses.

1. Automatic Record Restriction

If you were arrested but your case was never referred for prosecution, then the record of your arrest will automatically be restricted after a designated time period. The length of this period varied depending upon the severity of the crime for which you were arrested:

• Misdemeanors: Two years
• Felonies: Four years
• Serious violent and sex-related felonies: Seven years

However, this automatic restriction may be temporary. If a prosecutor eventually decides to take up your case, then your record will be “unrestricted” pending the final outcome. Other circumstances in which a criminal record will be automatically restricted include:

• Your case was referred for prosecution but was subsequently dismissed.
• The grand jury returned two no bills.
• The grand jury returned one no bill and the relevant time period listed above has expired.
• Your charge was dismissed or nolle prossed.
• You were sentenced under conditional discharge.
• You completed a drug court treatment program, mental health treatment program, or veterans treatment program, our case was dismissed or nolle prossed, and you were not arrested while you were enrolled in the program.
• You were acquitted in court (unless the prosecution challenges restriction within 10 days of your verdict).

Importantly, these rules are subject to a number of exceptions. For example, a charge will not be automatically restricted if it was dismissed because you entered a plea resulting on conviction for a different offense arising from the same events, or if you were acquitted due to judicial misconduct or jury tampering.

2. Record Restriction by Petition

If your record is not eligible for automatic restriction, then you will need to file a petition with the appropriate court. This will be an option if:

• Your felony charge was dismissed but you were found guilty of an unrelated misdemeanor;
• Your conviction was vacated or reversed;
• Your case has been on the “dead docket” for more than 12 months; or,
• You were prosecuted for a misdemeanor as a youthful offender.

In addition to filing your petition in the appropriate court, you must also serve copies of the petition on all relevant agencies. Your petition will need to include:

• The Offender Tracking Number (OTN) for the specific charge you are seeking to have restricted;
• A copy of the final disposition from the prior case;
• Evidence demonstrating that your criminal record is causing you harm (i.e. preventing you from obtaining housing or finding a job) that “outweighs the public interest in the criminal history record information being publicly available;”
• A Draft Order; and,
• The filing fee or a petition to waive the fee and an affidavit of indigency.

Due to the complexities involved in filing a petition for record restriction (in addition to the potentially severe consequences of failing to successfully have your criminal record restricted), it is important that you seek help from an experienced attorney. At Davis, Chapman, & Wilder, LLC, our attorneys can review your record to determine if you are eligible to file for restriction; and, if you are, we can guide you through the process of filing your petition.

Find Out if Your Criminal Record is Eligible for Restriction

If you would like to speak with a criminal defense lawyer, we invite you to contact us for a confidential initial consultation. To schedule an appointment at our law offices in Augusta, Georgia, please call 706-200-1578 or inquire online today.

Record Restriction and Expungement FAQs:

Q: Does Georgia allow expungement of criminal records?
A: Georgia no longer uses the term “expungement.” Instead, the process is called record restriction, which limits who can see certain criminal records.

Q: What is record restriction in Georgia?
A: Record restriction is Georgia’s legal process that seals qualifying criminal records from public view. Law enforcement and certain government agencies may still access restricted records, but they won’t appear in background checks for most employers.

Q: Who is eligible for record restriction in Georgia?
A: Eligibility depends on factors like the outcome of your case (dismissal, not guilty, or certain first-offender cases), the type of offense, and your criminal history. Some offenses, such as violent crimes or DUIs, typically cannot be restricted.

Q: How do I apply for record restriction in Georgia?
A: The process often starts with submitting a request through the arresting agency or directly with the prosecuting attorney’s office. An attorney can help ensure paperwork is filed correctly and improve your chances of approval.

Tags: Expungement
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If you have been charged with a crime in Georgia, you need to defend yourself by all means available. Under Georgia law, misdemeanors and felonies both carry the potential for substantial fines and terms of incarceration, and having a criminal conviction on your record can impact virtually all aspects of your life.

There are many potential defenses to criminal charges in Georgia. Determining which defenses you have available requires a thorough assessment of the allegations against you, the facts and circumstances surrounding your arrest, and the specific criminal statutes that apply. Depending on the circumstances of your case, here are 20 defenses that you may be able to use to avoid a conviction (or mitigate the consequences of your arrest) when facing charges in Georgia criminal court:

1. Abandonment or Withdrawal

If you were involved in a plan to commit a crime but ultimately decided not to participate, you may be able to assert the defense of abandonment or withdrawal. In order to assert this defense, you must be able to show that you informed law enforcement of the plot or took other sufficient steps to prevent the commission of the crime.

2. Alibi

If you were somewhere else when the crime was committed, proving your alibi will provide a strong defense to the charges against you. There are many ways to prove an alibi, from security camera footage to eye-witness testimony.

3. Burden of Proof

In Georgia, the prosecutor’s office must prove your guilt beyond a reasonable doubt. If you can cast any reasonable doubt on the government’s case, then the jury cannot legally convict you.

4. Castle Doctrine

Georgia’s “castle doctrine” applies to the use of deadly force in the protection of your personal safety and your property in your own home. While the castle doctrine does not provide absolute protection, it will provide a strong defense in many cases involving attacks on intruders.

5. Coercion or Duress

If you committed a crime because someone else put you in a situation where you felt that you had no choice other than to do so, then you may be able to assert the affirmative defense of coercion or duress.

6. Defense of Others

Similar to self-defense (discussed below), defense of others can also constitute justification for the commission of an assault or homicide in Georgia. Exceptions include situations where the defendant provoked the attack, the defendant was fleeing after the commission of a felony, or the defendant was involved in physical combat.

7. Denial of Right to Counsel

Under the Fifth Amendment to the U.S. Constitution, all criminal defendants have the right to counsel. If you were denied your right to counsel, then any statements you made to the police or prosecutors may be inadmissible in your criminal trial.

8. Double Jeopardy

The Fifth Amendment also protects defendants against being prosecuted twice for substantially the same offense. This is true even if the prior prosecution did not result in a conviction.

9. Ex Post Facto Law Enforcement

You can only be prosecuted for a crime if it was outlawed at the time of your alleged offense. If Georgia enacted a law prohibiting your conduct after the fact, then you are protected under the U.S. Constitution’s protection against ex post facto criminal prosecution.

10. Faulty Evidence

From improper calibration of breathalyzer devices in DUI cases to chain of custody issues involving drugs, guns, and other evidence, if the government’s evidence against you is faulty, it should not be admitted into evidence in court.

11. Innocence

Since the government has the burden of proof, you do not have to prove that you are innocent in order to avoid a conviction. However, if you can prove that you are innocent, then doing so should absolutely protect you from a guilty verdict at trial.

12. Mistake of Fact

The mistake-of-fact defense involves claiming that you believed your conduct was lawful based on your understanding of the circumstances at the time of the alleged offense. For example, if you thought you were borrowing someone’s phone rather than stealing it, you did not have the requisite “criminal intent” to be guilty of a crime.

13. Mistake of Law

While ignorance of the law is generally not a defense, there are limited circumstances in which a misunderstanding of the law can provide a defense to criminal culpability.

14. Necessity

If you committed a crime because you felt that it was necessary to do so, then you may be able to assert the defense of necessity. For example, in the landmark case of State v. Cole, the U.S. Supreme Court held that the defendant was justified in driving on a suspended license in order to find a phone to seek medical attention for his pregnant wife.

15. Self-Defense

Under Georgia law, “[a] person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself . . . however . . . a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself . . . or to prevent the commission of a forcible felony.” As discussed above with regard to defense of others, certain exceptions apply.

16. Setup or Planted Evidence

If you were arrested for possessing illegal drugs, unlawfully possessing a firearm, or any other possession-related offense, if the item was not yours, then you do not deserve to be convicted.

17. Surprise Evidence or Charges

As a general rule, the prosecution is required to disclose its charges and evidence during the pre-trial phase of your case. The introduction of surprise charges or surprise evidence at trial may violate your Sixth Amendment rights.

18. Unconstitutional Search or Seizure

The Fourth Amendment provides fundamental protections against unlawful searches and seizures. If the police searched you or seized your property without probable cause, then any evidence obtained in violation of your Fourth Amendment rights should be suppressed from your trial.

19. Violation of Miranda Rights

In Miranda v. Arizona, the U.S. Supreme Court ruled that law enforcement officers must read suspects their rights prior to conducting a custodial interrogation. If you were interrogated without being read your rights, then any self-incriminating statements you made should be inadmissible in court.

20. Violation of the Right to a Fair and Speedy Trial

The Sixth Amendment guarantees all criminal defendants the right to a public trial without unnecessary delay and with an impartial jury. A violation of your Sixth Amendment rights may compel a verdict in your favor.

Speak with a Criminal Defense Lawyer in Augusta, GA

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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In recent years, Georgia has seen an increase in accidents involving drivers under 25 years old, rear-end accidents, and single-vehicle accidents. In Georgia, over 70 drivers are hurt in accidents every hour. In 2017 alone, Georgia saw 1,549 accident fatalities. Many of these accidents are caused by distracted drivers. As a result, Georgia enacted the Hands-Free Georgia Act. .

As attorneys in Augusta, Georgia, our lawyers handle the criminal defense of people charged with violating Georgia’s hands free law, and we represent people injured in car accidents that were a result of texting and driving.

When will law enforcement start enforcing the hands free law?

Sometimes, a law is enacted on a certain day, but a grace period is provided before the law will be enforced. But for Georgia’s new hands free law, there is not a grace period for enforcement. The hands free law took effect on July 1, 2018, so Georgia drivers can expect a ticket if they’re using their phones while driving.

Which states have banned cell phone use while driving?

Georgia is the 16th state to enact a hands free law. California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Vermont, Washington, and West Virginia have all banned drivers from using cellphones while driving.

Do I have to buy a hands free device?

Under Georgia law, you are not required to purchase a hands free device so you don’t have to run out and buy a mount today. If you do not have a hands free device, you can simply leave your phone on the passenger seat, on the console, in the armrest, or in the pocket of the driver’s door. Just to be on the safe side, we recommend that you use a bluetooth device, headset, or phone mount while driving.

Can I listen to Spotify, Pandora, Apple Music, or other music apps while driving?

Yes, drivers can still use their phones or other devices to play music while driving, as long as they do not touch their devices to open an app or change the song. Even if you are temporarily stopped at a traffic light or stop sign, you cannot touch your phone or device. If you don’t have a good playlist, now is the time to make one. Otherwise, unless your device is controlled by the car’s radio, you might have to pull over and park to select a new song or station. Keep in mind that drivers may not use video apps like YouTube to play music because the hands free law prohibits drivers from watching or streaming videos while driving.

Can I use an iPod, tablet, iPad, or deactivated cell phone while driving?

Georgia’s hands free law prohibits the use of all wireless communication devices and stand alone electronic devices. Generally, when we think of wireless communication devices, we think of our cellphones. However, the law also prohibits the use of iPads, iPods, tablets, computers, mp3 players, and gps devices.

Can I hold my phone in my hand while driving if I’m not using it?

As the name of the law implies, drivers may not hold their phones in hand while driving. This is the case even if drivers are not actively using their phones. In fact, drivers cannot hold or support phones or other electronic devices with any part of the body.

Can I talk on the phone while driving?

Yes. Drivers may use headsets, bluetooth devices, earpieces, or watches to talk on the phone. Drivers may also touch their phones to answer or end a call or to dial a number as long as the driver is not holding or supporting the phone. However, Georgia drivers may not use electronic devices or phones to write, send, read, or record except when when using voice-to-text functions to control vehicle navigation. While drivers may use headsets to talk on the phone, they cannot use them to listen to music or other audio while driving.

How is Georgia’s texting and driving law different from Georgia’s hands free law?

Georgia’s previous texting and driving law, which was enacted in 2010, prevented distracted driving by prohibiting drivers from reading or sending texts and emails while driving. However, in 2018, Georgia lawmakers decided that enforcing the texting and driving law was too difficult because law enforcement officers had trouble determining whether drivers were unlawfully texting. As a result, Georgia enacted a new hands free law that prohibits drivers from holding their phones and other stand-alone electronic devices.

Can I use my cell phone or tablet while stopped at a traffic light?

Temporarily stopping at a traffic light or stop sign will not suffice under Georgia’s new hands free law. Drivers may not use their devices unless they are completely parked. Drivers may use their devices if they are reporting an emergency, accident, or acting as an emergency responder.

What are the penalties for violating Georgia’s hands free law?

If you are charged with violating Georgia’s hands free law for the first time, you will likely be assessed a $50 fine, and one point could be added to your driver’s license. On the first offense, in certain circumstances, the court may dismiss the ticket if you show proof that you’ve purchased a hands free device. On the second conviction, you can be fined up to $100, and two points could go on your license. On the third conviction and any convictions thereafter, you can be fined up to $150, and 3 points could be added to your license. Drivers should remember that points on your license could mean higher insurance rates. Accumulating 15 points on your license in a two year period could result in a suspension of your right to drive.

Does the hands free law apply to commercial drivers?

Commercial drivers must be properly licensed and in operation of a commercial vehicle. Commercial drivers may use one button to begin or end a phone call. Commercial drivers are prohibited from reaching for their phones or devices if doing so requires them to be improperly restrained by a seat belt or requires the driver to no longer be seated in the proper position.

How does the hands free law apply to school bus drivers?

School bus drivers are highly trained and tested because they have the important job of transporting and protecting children. School bus drivers are prohibited from using two-way radios or wireless telecommunication devices while loading or unloading passengers. Drivers are permitted to use wireless telecommunication devices while the bus in in motion to allow live communication between the driver and the school and/or public safety officials.

In summary, here is what is legal and what’s not while driving or temporarily stopped:

Allowed

• Dialing a phone number
• Starting and ending a call
• Talking on speakerphone
• Wearing a headset to talk on the phone
• Use of bluetooth device or Bluetooth through the vehicle
• Smartwatch phone calls
• GPS/Navigation with voice
• Filming with mounted dash cam
• Setting up music apps while parked
• Calling 911 or otherwise reporting an incident to emergency personnel

Not Allowed

• Texting or emailing from any device
• Holding a phone or other electronic device using any part of the body
• Listening to music through a headset or earpiece
• Scrolling Social media
• Adjusting music apps with your hands
• Viewing the internet
• Watching videos
• Recording a video
• Video calls (FaceTime, Skype, etc)

If you or someone you know has been injured in a car accident caused by a distracted driver or has been charged with violating Georgia’s hands free law, contact the lawyers at Davis, Chapman, & Wilder, LLC for a complimentary case evaluation.

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As experienced criminal defense attorneys in Augusta, Georgia, we obtain favorable results for our clients.  These results include acquittals, dismissals, pretrial diversions, and reductions in charges. During our client consultations, we are often asked: “how do I expunge my record?”  This article will provide an overview of issues surrounding record restriction.

What is a record restriction?

In Georgia, record restriction, formerly known as expungement, is the process of removing criminal charges from an arrest record.    Record restriction limits the information accessible to the general public and most employers about prior arrests. Your arrest history can have a significant impact on your ability to find work and may even impact housing availability.

Why is record restriction important?

The Georgia Crime Information Center is the state agency that tracks a person’s arrests and convictions and also provides background checks. Background checks are requested for a variety of reasons including:

• Employment
• Licensing
• Immigration
• Volunteers
• Security clearance
• Housing

When a person is arrested and charged with a crime, certain personal information is collected, reported, shared, and accessible to law enforcement agencies across the state.  Arrest history is connected to specific identifying information, such as fingerprints, social security numbers, and dates of birth. This same information is requested by many potential employers and organizations when screening for the purposes listed above.

Who receives an application for record restriction?

The process of restricting a past criminal arrest involves multiple agencies, including the prosecuting officer, the arresting agency, police department, or sheriff’s office, as well as the Georgia Bureau of Investigations (GBI), which is the record-keeping agency for all finger printable arrests in the State of Georgia.

An application for a restriction must be made to each arresting agency.  If you live in a large geographic judicial circuit, such as Augusta which includes Burke, Columbia, and Richmond Counties, an application for record restriction will need to be made with each sheriff’s office.

Who is the prosecuting officer?

The prosecuting officer varies by jurisdiction. The District Attorney is an elected official and prosecutes felonies in Superior Court. The District Attorney is also charged with prosecuting misdemeanors in areas where there is not a designated misdemeanor prosecutor.  The Solicitor General prosecutes misdemeanors in counties that have elected to create a State Court. These prosecutors review applications to determine whether a charge is eligible to be removed from your criminal record.

What kind of records can be expunged in Georgia?

In Georgia, several factors are taken into consideration to determine whether a record can be restricted.  Both the timing of when a case is dismissed and the reason a case is dismissed are important. Additionally, participation in a treatment court or successful completion of a deferred adjudication program can create an opportunity for restriction of an arrest and associated charges at a later date.

Can you get your record restricted if you plead guilty?

Charges can be resolved at varying stages during the course of a prosecution.  Examples include the following:

• A person may be arrested for a particular offense, but formal charges never follow and the case is dismissed for insufficient evidence.   
• A person may be arrested for a particular offense, and the charges are upgraded by the charging document or indictment, but a enters a guilty plea to a lesser included offense.  
• One agency may initiate a prosecution but the charges are later pursued by a different agency.  
• A person may be acquitted of all charges during a trial because the prosecutor could not meet the burden of proof requiring guilt beyond a reasonable doubt.
• A person may acquit of some charges and found guilty of lesser included offenses of other charges during a trial.
• An aggressive and effective motion practice may result in the suppression of evidence recovered by law enforcement. Evidence recovered during the bad search can no longer be used at trial and the case is dismissed.

In the above examples, some of those accused are eligible to have their charges and arrests restricted while others are not. Additionally, a person sentenced pursuant to the First Offender Act has some protections while under sentence and increasing protections once the conditions imposed by the court have been successfully completed.

Does record restriction happen automatically?

Record restrictions also have a time component.  Some arrests are automatically restricted while others actually require an application.  The older the arrest, the more likely it is to need review. The law regarding expungements changed in 2013.  The exact date of arrest determines whether an offense will be automatically restricted upon certain dispositions or will require an application.

Can I appeal a denial of a record restriction?

Evidentiary hearings before the court can be requested to challenge the interpretation and application of certain record restriction provisions.  The court is empowered to engage in a balancing test weighing public policy and community interests against the harm to the accused. Most often a record restriction occurs after a final disposition of a charge.  However, if a conviction has been overturned by an appellate court and the case has not been retried in a timely fashion, a restriction may be available to the accused.

The attorneys at Davis, Chapman, and Wilder, LLC understand that your past does not predict your future and that sometimes people find themselves in unanticipated situations.  Don’t let an old arrest keep you from reaching your maximum potential. Davis, Chapman, and Wilder, LLC has the experience and expertise to review your criminal history and help you clean up your record.  Call us today at 706-200-1578 to find out how we can help you.

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As criminal defense lawyers in Augusta, we often assist clients who are concerned about the consequences of a traffic ticket.

Do I need a lawyer for a traffic ticket in Georgia?

You may think traffic tickets are more a nuisance than a danger to your liberty, but that is not always the case. Georgia is the last remaining state to classify low level traffic tickets, such as speeding tickets, as misdemeanor offenses. That means that technically, when that officer hands you a ticket for traveling over the speed limit, you could be facing up to 12 months in jail and a $1000 fine.

Is a judge really going to put me in jail for your speeding ticket?

Probably not, but that doesn’t mean there won’t be unforeseen consequences. Traffic tickets can impact you in numerous ways. They can impact your insurance rates. They can have high fines. They can put points on your license. Some tickets can suspend your license. Other types of traffic violations do carry mandatory time in jail. Violations can have increasingly severe consequences each time you are convicted.

Should I plead guilty to a traffic ticket?

When you get a ticket, you may plan to just grumble to your friends, pay the ticket, and move on. However, even if you can just pay the ticket instead of appearing before a judge, paying a ticket means that you are entering a guilty plea to the charge. Depending on the type of infraction, that may have little impact on anything but your wallet, or it may suspend your license. Before you plead guilty, you should know that the Department of Driver Services will automatically suspend your license for a conviction of:

• hit and run,
• leaving the scene of an accident,
• racing,
• driving with a revoked, canceled, or suspended license,
• driving without valid insurance,
• driving under the influence of drugs or alcohol

These are just some of the infractions that can lead to a suspension of your driver’s license.

You can also lose your license if you get 15 points on your license within a 24-month period. Points can come from tickets received outside the State of Georgia as well.

If your teenager is the one who comes home with a ticket, you need to be aware that violations that may not suspend an adult’s license may have more severe consequences for someone under the age of 21.

Calculating License Points in Georgia

Aggressive Driving	6 points
Reckless Driving	4 points
Unlawful Passing of a School Bus	6 points
Improper passing on Hill or Curve	4 points
Speeding less than 15 miles over the speed limit	0 points
Speeding 15 to 18 miles over the speed limit	2 points
Speeding 19 to 23 miles over the speed limit	4 points
Speeding 24 to 33 miles over the speed limit	6 points
Failure to Obey Police Officer	3 points
Possessing an Open Container of an Alcoholic Beverage while Driving	2 points
Violation of Child Safety Restraint (1st Offense)	1 points
Violation of Child Safety Restraint (2nd+ Offense)	2 points

You can see a list of offenses and their associated points on the Georgia Department of Driver Services website.

Remember that as of July 1, 2018, Georgia has a new hands free law, making it a violation to use your cell phone while driving unless it is operating through a hands free device.

How Long Do Points Stay on Your License in Georgia?

The Department of Driver Services has a 24 month “look back” period for point calculations. That means that your old points will roll off your license after two years.

If you are near the maximum number of points, the good news is that the Department of Driver Services allows license holders to request a reduction in the number of points on their license once every five (5) years. To request the points reduction, you have to complete a certified Driver Improvement course, commonly called defensive driving, and present the certificate you receive to the department. The Department of Driver Services keeps a list of approved programs that you can access here.

Can I just plead nolo contendere (no contest)?

Typically you can enter a no contest plea once every five (5) years, assuming that the judge accepts your plea. To do so, you will have to go to court on your court date. If your ticket is payable and you choose to pay the fine rather than go to court, remember that the court will enter a guilty plea on your behalf even if you were eligible for a no contest plea. A no contest plea can save you points on your license or even keep your license from being suspended under the right circumstances. A key example would be a no insurance ticket. If you were to plead guilty, your license would be suspended for 60 days, and you would have to pay a reinstatement fee to the Department of Driver Services to get your license back. However, if you entered a no contest plea for your first no insurance ticket within a five year period, your license would not be suspended.

Can I get a permit to drive to work if my license is suspended?

If you are at least 21 years old, there are some situations in which you may be eligible for a limited permit during your suspension period. You may have to pay a fee or abide by additional restrictions in order to be given such a permit. A limited permit gives you permission to operate a vehicle as long as you are going to an approved location or completing an approved task. Examples of places you may be allowed to drive are:

1. Driving to work.
2. Going to necessary doctor’s appointments.
3. Attending classes at a college or school.
4. Attending regularly scheduled AA or NA meetings or other treatment program.
5. Attending a driver education program.
6. Attending court, report to community supervision or probation, or to perform community service.
7. Transporting unlicensed immediate family members to the doctor, to work, or to school.

Do You Need a Criminal Defense Attorney in Augusta, Georgia?

If you want to speak to a lawyer about the consequences of your speeding ticket, DUI, driving with a suspended license, habitual violator charge, or other related charge in Augusta, Evans, Martinez, Grovetown, Waynesboro, and the surrounding areas, you should contact the attorneys at Davis, Chapman, and Wilder, LLC immediately for a complimentary case evaluation. Our attorneys can advise you of all the consequences you may face if convicted and can work to fight the ticket, lessen the fine, or reduce the other penalties associated with your charge.

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