The simple answer to this question is, yes! In many criminal cases, a person is arrested either in the act of the alleged crime or immediately after. Other times, however, an arrest warrant comes after a period of investigation. This usually happens with more serious crimes. A person does not always know when he is under investigation, but if he is, it’s a good idea to contact an attorney. Getting a case shelved or dismissed prior to arrest or indictment is a best case scenario in any criminal case.

Benefits of an Attorney

If you discover you are being investigated for a crime, you and your attorney could potentially help the investigation end before an arrest is made or an indictment is sought. One of the major benefits of having an attorney help you, is that your attorney can speak with investigators directly without you having to speak with them. In this way the statements your attorney makes in your behalf cannot be used against you in the same way as when you speak to the police directly and make statements. Even if you do want to speak to investigators directly, your attorney can be present to represent your interests. An attorney can also begin to investigate the case and interview witnesses for your defense. This information can then be shared with the state’s investigators.

Investigating the Case

For very serious cases such as rape or child molestations, there are a number of approaches your attorney can take to investigate the case. This can include speaking with witnesses and gathering statements, obtaining physical evidence, health records, and other documents that could help your case. Where a person under investigation is sure of their innocence, they can pay for a private polygraph test, and show the exculpatory results to the investigators. This will not necessarily always lead to the dismissal of the case, but it very well could. For many criminal cases, polygraph tests are worth the price.

Bottom Line

While hiring an attorney when your case is still under investigation will not always lead to a dismissal, there will almost certainly be a better chance of it. An experienced criminal defense attorney can get involved in the case, conduct a separate investigation, and attempt to persuade the investigator not to refer the case for prosecution. Especially for very serious charges, it is important to consult an attorney if you believe you are under investigation of a crime.

In today’s post we will explore the concept of statute of limitations in Georgia law. Simply put, a statute of limitation is a time limit on how long the state can wait to prosecute you for a crime after it has occurred. The general rule is that the more serious the crime is, the longer the state can wait to prosecute you. For example, the general statute of limitations for misdemeanors is two years. This means that for misdemeanors the state must file an indictment or accusation charging you within two years of the date the alleged offense or offenses occurred. If prosecutors indict or accuse you even a day after the statute of limitations has run, the whole case must be dismissed. However, once the prosecutors have formally charged you in a case, there is no statute of limitations defense.

General Statutes of Limitation for Felonies

In Georgia, there is no statute of limitations for murder. That means that even if police discover or recover evidence of a murder from 50 years ago, they may still charge someone. The crime of rape must be charged within 15 years. Charges for all other serious felonies punishable by death or life imprisonment must be brought within 7 years and all other felonies must be brought within 4 years.

Special Exceptions to the Rule

While the above are the general time limits for prosecution, there are several exceptions. For example, for low-level felonies the statute of limitations becomes 7 years instead of 4 when there is a victim in the case younger than 18. Similarly, in sex crime cases, the statute of limitations does not begin to run either until the alleged victim reaches 16 years old or when the alleged victim reports the crime (whichever occurs earlier). For victims 65 years or older, the statute of limitations does not begin to run until the crime is reported or discovered by the state. Another important exception comes up when DNA analysis is used to prove identity in serious felonies such as armed robbery, kidnapping, rape, and other serious crimes. In these instances, the statute of limitations is voided, and the crime can be prosecuted at any time. It is important to be aware of these and other exceptions that can apply to a statute of limitations defense.

Excluded Periods of Time

Georgia Code 17-3-2 provides that the time period within which prosecution must begin (according to 17-3-1) does not include any period which:

(1)  The accused is not usually and publicly a resident within this state;(2)  The person committing the crime is unknown or the crime is unknown;(3)  The accused is a government officer or employee and the crime charged is theft by conversion of public property while such an officer or employee; (4)  The accused is a guardian or trustee and the crime charged is theft by conversion of property of the ward or beneficiary.

In a recent case, the Georgia Court of Appeals defined the instance when the “person committing the crime is unknown” as when ‘the State possesses sufficient evidence to authorize the lawful arrest of that person for the crime charged.” See Riley v. State, S18A1048 (Feb. 18, 2019).

Bottom Line

If there is any question whether the statute of limitations has run in your case, contact us today for a free consultation! If time has expired and no exception applies, you could very well have the case against you dismissed!

In today’s post, I discuss the difference between arrest warrants, indictments, and accusations. Most criminal cases in Georgia begin with police officers arresting an individual for a violation of the Georgia criminal code. Arrests can occur with or without an arrest warrant depending on the circumstances. If a police officer has probable cause to believe that a person has just committed a crime, he can arrest that person without getting a warrant first. “Probable cause” is the constitutional standard that separates legal arrests from illegal arrests. If there is no probable cause that a law was broken, there can be no legal arrest.

Being Arrested Is Not the Same as being Charged with a Crime

A legal arrest (supported by probable cause) is enough to keep a person in jail unless and until he posts bond. But just because a person may have been arrested for a crime, does not necessarily mean he will be charged. Once the prosecutor gets the case, he or she can either dismiss charges, add charges, or keep the charges identical to the arrest warrants.

There are two ways to be charged with a crime in Georgia: either through an indictment or accusation. An indictment is the most formal way of charging someone with a crime and is reserved for more serious felonies. To indict someone, prosecutors must present the facts before a grand jury (a group of 16-23 citizens) and have them determine if there is sufficient probable cause for the crime. Georgia statute permits the use of accusations for misdemeanors and some less-serious felony charges. With an accusation, only the prosecutor needs to determine if there is probable cause, a grand jury is not necessary. However, if a prosecutor does not believe there is sufficient evidence to prosecute you, he can request that the warrants against you be dismissed

Having Your Case Dismissed or Nol Prossed

The period between when you are arrested and when prosecutors are making the decision whether to accuse or indict the case is a crucial one. It is essential that during this period your criminal defense attorney negotiate on your behalf to see if the prosecutor will dismiss the warrant before you are formally charged. This is generally the quickest way to get rid of the case, and to have it eventually be off your record.

Yet even if prosecutors go forward and accuse or indict your case, the case can still be dismissed in what is known as a “nolle prosequi” or “nol pros.” Nol pros is just a fancy latin term for a dismissal of a case that occurs after an accusation or indictment has been filed. A nol pros is fairly common and can occur very early in the case all the way up to the eve of trial. It’s even possible for a prosector to nol pros charges during trial.

A nol pros usually occurs if there has been a successful motion to suppress, new evidence discovered, or some other event that negatively affects the prosecution’s case. A dismissal or nol pros is the best case scenario because it ends the case without having to go through the risk of trial. If you have any further questions about the criminal justice process in Georgia, contact us today so we can answer your questions and schedule a free consultation.