In this series of blogposts we will be discussing common defenses to crimes in Georgia. If you have been charged with a crime (or even if you are under investigation for a potential crime), it is crucial that you know what your defenses are. Some defenses are quite obvious. For example, you did not commit the crime or someone misidentified you. Or you did the act, but it was an accident (you lacked the necessary criminal intent). While many defenses are a matter of common sense, others are more technical.

Constructive vs. Actual Possession

The legal doctrine of equal access is more technical, but is an extremely important defense in cases that allege possession of illegal contraband. To prove possession of illegal drugs, for example, the state must prove that you knowingly and intentionally possessed drugs. Georgia law indicates that there are two forms of possession, actual and constructive possession.

Actual possession comes about when the illegal item is on your person or in your immediate control. In your pocket, purse, or wallet, etc. Constructive possession occurs when the thing may not be with the person currently, but is still within the person’s control. For example, a person has an illegal firearm in a safe inside their house. Actual and Constructive possession are both enough to prove a crime in Georgia.

Equal Access Defense

The equal access defense comes in when the state alleges that you were in possession of some type of contraband. Perhaps drugs were found in your vehicle, your home, or inside a purse or wallet. If you can produce evidence at trial that someone other than you had the opportunity or “equal access” to the location where the drugs were found, and could have placed them there, then the jury must acquit you of the charge.

A typical example of this would be if you let a friend borrow your car earlier in the day before you were driving it, and drugs were then found in the center consul of the vehicle. You would want to present evidence at trial of the friend having driven the car earlier that day. An even clearer example is when a person borrows the car of another person. This would clearly establish that another person (the owner) would have had equal access to the vehicle.

Bottom Line

While getting an equal access jury instruction may save you at a jury trial, prosecutors often won’t dismiss a charge just because there is an equal access argument. It is crucial that you be careful who you ride with and whose possessions you borrow. If you share a car or house with someone who has a drug problem, you may easily open yourself up to liability.

If you have been charged with possession of drugs or contraband, call us today for a free consultation!

Once you have been convicted of a felony in Georgia, you will likely be stuck with it on your record for life. This is the case whether you were convicted by a jury or pleaded guilty in front of a judge. One of the ways to truly clear your record is through filing a petition for retroactive first offender, which we discussed in a prior post. If you knew about first offender and chose not to exercise the right or you already had a felony conviction, you are not eligible for retroactive first offender.

Requesting a Pardon Through State Board of Pardons and Parole

Requesting a pardon is the second best option to retroactive first offender. While a pardon does not completely clear your record, it will show on your criminal history that you have been formally “pardoned” or forgiven by the State of Georgia. This can be very beneficial for seeking new employment or continuing education.

The application for requesting a pardon can be filled out with or without an attorney and is available through the State Board of Pardons and Parole’s website.

What is Required for a Pardon?

For all crimes other than sex offenses, there are four general conditions that must be met to petition for a pardon. First, you must have completed all sentences at least five years before applying. That means that you must have been off probation for five years. If you were given a straight confinement sentence, you must have been out of confinement for 5 years. Second, you must not have committed any new crimes in the last five years. Third, you cannot have any pending charges. And lastly, you must have paid off any fines or restitution that were required as part of your sentence.

For sex offenses, receiving a pardon is much more difficult. The wait period after your sentence is 10 years, and you must submit to several other conditions 90 days before filing. These conditions include a psychosexual evaluation, a polygraph examination, providing a SORB risk level, and more.

Meeting these conditions does not necessarily mean that you will receive a pardon, but it does mean that your petition will at least be considered. In your petition you will want to highlight two things to better your chances. First, any of your achievements, advancements in education or employment, participation in charitable organizations, or any other involvement in your church or community. Second, you need to explain the way in which the conviction is holding you back in life. For example, if it is barring you from progressing in employment or education.

Restoring Your Rights

If you are pardoned, this will automatically restore your civil and political rights such as the right to hold office, serve on a jury, and to be a notary public. Even without getting a pardon, you can petition to restore your rights. You can do this after only two years of having completed your sentence, lived a law abiding life, and paid off all your fines and restitution. Your right to vote is immediately restored after having completed your sentence. It is also important to note that a restoration of rights doesn’t automatically restore the right to possess a firearm. This must be inquired of separately, and is within the discretion of the board to grant.

If you have any questions about your criminal history, please contact our office today for a free consultation!