What Happens When Police Mistake the Law in Georgia?

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  • In today’s post, we discuss what happens when police mistake the law in Georgia. If the police stop you for something that wasn’t actually illegal, can you be charged with evidence of any other crimes they discover afterwards? The short answer is, no — unless it was “objectively reasonable” for the officer to believe you were breaking the law. It doesn’t matter if the officer himself thought it was reasonable. Rather, it matters if it was objectively reasonable.

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State v. Cartwright

In State v. Cartwright, an officer pulled a vehicle over for its center brake light being out. 329 Ga. App. 154 (2014). After approaching the car, the officer noticed the smell of alcohol on the defendant’s breath and later arrested him for DUI. The defendant filed a motion to suppress, arguing that there was no reasonable suspicion for the stop. The vehicle in question had two working side brake lights, but the center brake light was out. The officer believed that the law required all the manufacturer brake lights to be working, pursuant to Georgia Code 50-8-25(b).

The trial court found that although the officer believed that having the center brake light out was a violation of the law, the officer was wrong. The trial court granted the motion to suppress on the grounds that there was no violation of the law and that the officer was mistaken. The Court of Appeals, however, reversed the trial court’s ruling due to the officer’s “good faith belief that Cartwright had violated Georgia Code 40-8-25(b).” The conclusion in Cartwright was that a stop can still be legal even if the officer gets the law wrong so long as the mistake was a “good faith belief.”

Abercrombie v. State

In Abercrombie v. State, an officer pulled a vehicle over for lacking an interior rearview mirror. Again, the Court found that the officer had not interpreted the law correctly. And it likewise found that the officer “initiated the stop in good faith based upon a reasonable belief that those statues were violated.” However, rather than relying on the reasoning found in State v. Cartwright, it cited new precedent requiring that an officer’s mistake of law be “objectively reasonable.” In essence, the new test is an “objective” rather than “subjective” standard. Ultimately, the Court concluded in Abercrombie that “the officer’s mistake of law was not objectively reasonable and thus could not provide the reasonable, articulable, suspicion necessary to justify a traffic stop.” The stop was illegal.

Importantly, the Abercrombie decision specifically called into question the conclusion in Cartwright. The Court reasoned that “it is questionable whether State v. Cartwright. . . continues to maintain any precedential value.”

Take Away

The important takeaway from these cases is that an officer’s belief about the law must be objectively reasonable for the stop of a vehicle to be legal. If the stop of the vehicle was not legal, your attorney can file a motion to suppress. A motion to suppress can exclude evidence at trial and even lead to a dismissal of the whole case. Furthermore, if you resisted arrest after being illegally arrested, you have a claim to self defense and immunity from prosecution. If you feel as though you were illegally stopped, speak to an experienced attorney today to discuss your options!

THC Oil in Georgia – Felony or Misdemeanor?

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In most places in Georgia, possession of a personal amount of Marijuana is a misdemeanor. Possession of less than an ounce of Marijuana is charged under O.C.G.A. 16-13-2(b). This statute refers to possessing the parts of the marijuana plant itself. But what about other forms of THC such as oil, resin, or wax that are extracted from the plant? These substances don’t fall under 16-13-2(b) and can be charged as a Schedule I felony. However, there is a potential way around getting charged with a felony for possession of THC Oil.

Low THC Oil

A little known statute, O.C.G.A. 16-12-191, governs the possession of “low THC oil.” This statute defines low THC oil as oil with less than 5% concentration of THC. Low THC is punished by a misdemeanor so long as the amount possessed is under 20 ounces. One interesting fact about this is that the GBI crime lab usually doesn’t provide an analysis of THC concentration. Thus, the prosecutor may not be able to prove the oil concentration even if the oil is above %5 concentration. In such a case, you may be able to negotiate a plea to a misdemeanor charge.

Bottom Line

Unlike a growing number of states, possession of marijuana remains a crime in Georgia. Furthermore, for most marijuana extracts, simple possession of any amount is a felony. If you are stuck with a felony THC charge, you may also consider applying for drug court. Talk with an experienced criminal lawyer today to discuss your best option. Contact us today for a free consultation!

The Legal Consequences of Family Violence Battery

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A family violence battery in Georgia is identical to a battery except that it contains an additional “family relationship” element. While battery and family violence battery are very similar, the consequences are not. Family violence battery has very serious consequences that many do not know about. Both family violence battery and battery occur when someone “intentionally causes substantial physical harm or visible bodily harm to another.” See Georgia Code 16-5-23.1. Any type of slap, punch or physical contact, that leaves a mark, is generally enough to constitute a battery charge. A simple battery charge results when there is no mark or evidence of injury.

What is Family Violence?

A family violence crime is one that occurs between the following people:

  • Spouses or former spouses
  • People who have a child together
  • Parents and children
  • Step-parents and step-children
  • Foster-parents and foster-children
  • Roommates or former roommates

A family violence crime can involve simple battery, battery, aggravated assault, simple assault, and more. When a crime involves “family violence,” there are different consequences associated with it.

Family Violence Battery Consequences

The first major consequence of a family violence battery conviction is that any future conviction for the same crime is an automatic felony. Likewise, if you have been convicted of a felony family violence crime, a subsequent family violence battery automatically becomes a felony. This is true no matter who the victim is. With a normal battery, the charge is always a misdemeanor unless it is the third battery committed against the same victim. Repeat offenses escalate very quickly with family violence battery. This rule, however, does not apply to simple battery, family violence. A second misdemeanor simple battery, family violence is still a misdemeanor.

The misdemeanor/felony distinction is important. A misdemeanor carries a maximum of 12 months of jail or probation with a $1000 fine. A felony carries a sentence of up to 5 years prison or probation. In addition to fines, jail, and probation, many judges assign lengthy and expensive family violence classes. In some places, these classes are up to 24 weeks and cost $30 dollars or more per class.

Losing Gun Rights

Federal law restricts gun rights for those convicted of a “misdemeanor crime of domestic violence.” The statute’s definition includes Georgia crimes of battery and simple battery family violence and more. It defines domestic violence as,

“the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current          or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”

While it is not illegal to possess a gun under Georgia law after conviction, it is illegal under federal law. You could be subject to federal charges for possessing a firearm after pleading guilty to a family violence battery or simple battery.

Given the serious consequences of pleading guilty to a family violence battery, it is crucial that you consult with an experienced Georgia criminal defense attorney. At Wosnik Law, we will carefully analyze the details of your case. If you have been charged with a family violence crime, contact us today for a free consultation.

 

 

What is a Behavioral Incentive Date?

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Last year, the Georgia Legislature passed a bill requiring judges to assign behavioral incentive dates in certain cases. The point of the law is to reduce the amount of lengthy probation sentences for first-time offenders. If the law applies, the judge must set a date at three years or less when probation will be terminated.

Who Gets a Behavioral Incentive Date?

The most current version of the law, O.C.G.A. 17-10-1 (a)(1)(B), spells out who can get a behavioral incentive date. A judge must select a date when the following conditions are present:

  • The charge is for a felony
  • The defendant does not have a prior felony conviction
  • The sentence is for straight probation or jail time with probation afterwards
  • The jail time or incarceration is not more than 12 months

If those conditions are met, the judge will choose a date (at 3 years or less) when the probationer’s sentence will be cut off, so long as the probationer had good behavior while on probation. A probationer has good behavior when he or she:

  • Has no new arrests or convictions
  • Is compliant with all general and special conditions of probation
  • Owes no restitution

Once these last conditions are met, probation is to notify the prosecutor and the court, and produce to the court an order to terminate the Defendant’s probation. As of this year, the law applies whether or not you are using first offender or conditional discharge.

Bottom Line

Ask your attorney about whether you should get a behavioral incentive date in your case. If you do qualify, it can drastically reduce the amount of time you spend on probation. In fact, there is no limit to the amount of probation that can be reduced. For example, a 10 year sentence with 30 days in jail could become a 2 year sentence with 30 days in jail. This could also be true of a 40 or 50 year sentence. Getting a behavioral incentive date, however, is only half the battle. You must also do your part on probation — report, avoid arrests, and pay all fines, fees, and restitution. But if you do, the results are worth it!

 

What is Retroactive First Offender?

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Just recently, the Georgia Legislature passed a bill, now Georgia Code 42-8-66, known as the retroactive first offender statute. This statute is geared towards providing first offender treatment to first-time offenders who pleaded guilty to a felony but did not know about first offender treatment. Normally the courts’ plea forms include a question about whether first offender treatment has been explained and requested. Thus, most people arguably had notice about first offender who plead guilty. However, if you were convicted of a felony and you never knew you were entitled to first offender, you may still be able to get it retroactively.

The Requirements

The first requirement to getting first offender retroactively is getting the prosecutor onboard where the original conviction took place. The statute requires that the prosecutor consent to the petition requesting retroactive first offender. Once the prosecutor consents, your attorney should prepare a motion asking the judge for a hearing on the matter.

At the hearing, the court will consider any evidence you or the prosecutor provide as well as any other relevant evidence. If possible, you should be prepared to present evidence you never knew you could plead guilty using first offender. You may also consider presenting witnesses who can vouch for your good character. The judge will also have to make sure that you would have qualified for first offender originally. To qualify generally, you must have never been convicted of a felony in any place or at any time (outside the felony you are requesting first offender for). What’s more, the felony in question must not be a serious violent felony or other statutorily prohibited felony. Lastly, whether you were revoked on your probation will also influence the judge’s determination.

In making the determination, the judge must first determine that you would have qualified for first offender when you were originally sentenced. Second, she must determine whether the “ends of justice and the welfare of society are served by granting such petition.”

The Bottom Line

Having your attorney request retroactive first offender is a great avenue for those convicted of a felony who didn’t know their options. Unless you are granted a pardon, there is virtually no way to remove a felony conviction from your record in Georgia. This statute is one of the only ways to get an “exoneration of guilt and discharge” for a felony conviction. Talk with an attorney today if you think retroactive first offender may work for you.