Getting Credit for Time Served in Georgia Criminal Cases

A question we often get in Georgia criminal cases is whether a criminal defendant will receive credit for the time he or she has served. This usually comes up when a person is arrested for a crime and has spent time in jail before the resolution of the case. In the cases where the defendant bonds out of jail immediately, credit for time served does not come up.

When a defendant is denied bond or cannot pay the bond amount, they may sometimes spend months and even years locked up before trial, a plea, or a dismissal of the case. What happens to all that time that has built up? The simple answer, under Georgia law, is that such a person gets automatic credit for each and every day spent in confinement toward the sentence they were being confined under.

Under O.C.G.A. 17-10-11, a person is to get credit for each and every day for any “pre-trial confinement, for any reason, since the date of arrest, for the offense which is the subject of the sentence; and post-trial confinement awaiting the remitter from an appellate court or transfer to the Department of Corrections or other court ordered institution or facility.”

Exceptions to the Rule

It is important to note that under this particular code section, time served must be given automatically and the judge or prosecutor has no discretion to take it away from the accused. There are instances, however, when credit for time served is not given automatically and it is left to the judge’s discretion, meaning the judge may choose not to give your credit. These instances are listed specifically in O.C.G.A. 17-10-11 and include sentences to a probation detention center, work release program, and for misdemeanor offenses when the time spent in confinement was in a jurisdiction other than that of the sentence.

Another important exception to keep in mind concerns issues with probation. People who are arrested for new crimes while on probation are often arrested separately for a probation violation for committing a new offense. Time spent incarcerated for a probation violation or awaiting a probation revocation hearing may not necessarily be credited to the underlying sentence.

The Importance of Hiring an Attorney

Credit for time served can have a substantial impact on a defendant’s life. It could be the difference between being released at sentencing or going to prison; a fair sentence and an unfair sentence; or freedom or additional confinement. No one wants to spend any more time in confinement than is necessary or required by law. And no one should have to. When dealing with questions of credit for time served, it is important to consult with or hire an attorney who can help you receive credit towards your sentence for every day that you deserve. Call us today for a free consultation.

Understanding Georgia’s New Expungement Law

In the past, if you have been convicted of a crime in Georgia it has been very difficult if not impossible to remove these convictions from your background and criminal history. This has caused problems for countless people, especially for those seeking employment, housing, professional licensing, and more.

One important exception has been First Offender and Conditional Discharge, but these laws usually deal with felonies and can only be used once. If an individual has used first offender and is convicted of a felony thereafter, that felony is essentially there for life.

Several years ago, Georgia passed a retroactive first offender statute, which allows those with a felony conviction, who could have been sentenced as first offenders had they known about it, to petition the court retroactively to receive first offender status. Today Bill SB 288 expands expungement opportunities for many people with criminal history.

The New Law

Adding to these criminal justice reforms, late last year Governor Kemp signed into law SB 288. This act provides potential record expungement for qualifying misdemeanor and felony convictions. Effective January 1, 2021, many misdemeanor and some felony convictions are eligible for record restriction and sealing, effectively removing them from public and private background checks.

For qualifying misdemeanor convictions, a person can petition the Court to restrict up to two convictions four years after the sentence is complete. A sentence is fully complete when all jail time has been served and probation has been terminated. This law applies to all misdemeanors except for those specifically listed under O.C.G.A. 35-3-37(j)(4), which includes traffic offenses (such as DUI), family violence battery, sexual crimes, and more.

For felony convictions, a person must apply for and receive a pardon for the offense before he or she is eligible to petition the court for expungement. This step obviously makes the process more difficult, but a large amount of felony offenses are still available for expungement, excluding crimes such as murder, armed robbery, rape, child molestation, sexual exploitation of a minor, and more.

Bottom Line

SB 288 is a large step forward for criminal justice reform in the State of Georgia and greatly expands expungement relief for many with a criminal histories. If you have questions about whether you are eligible for relief under the new expungement law, give our office a call today and schedule a free consultation.

What is the Georgia Youthful Offender Act?

When facing prison time, many younger criminal defendants and their families are concerned about them entering the prison system. Prison can be a dangerous and troubling place, especially for teens. Unfortunately, a long prison sentence often leads the young offender down a path of further criminality rather than a road to rehabilitation.

Given these concerns, in 1971 Georgia passed the Youthful Offender Act, which targets the treatment of criminal defendants, ages 17 to 24. According to O.C.G.A. § 42-7-8, the sentencing judge can make a written recommendation on the sentence that the defendant receive youthful offender treatment. While the judge can make this recommendation, the Department Corrections ultimately evaluates and then makes the decision whether to treat defendant as a “youthful offender.”

Under O.C.G.A. § 42-7-3 subsection (a), “Youthful offenders shall undergo treatment in secure institutions, including training schools, hospitals, farms, and forestry and other camps and including vocational training facilities and other institutions and agencies that will provide the essential varieties of treatment.” Importantly and to the extent possible, the statute adds, “such institutions and facilities shall be used only for treatment of youthful offenders who have the potential and desire for rehabilitation as provided in this chapter.”

Essentially, young offenders have the chance to go to special facilities for their age group aimed at rehabilitation and skills training. Such programs can make a big difference for those seeking to turn their lives around.

What The Youthful Offender Statute Is Not

Some people may confuse the Youthful Offender Act with the First Offender Act. However, these two statutes do different things. The First Offender act does not deal with opportunities while a defendant is incarcerated. Its purpose–as laid out in a previous blogpost–is to protect a first-time offender from having a life-long felony record.

The Youthful Offender Act is also not a guarantee that a qualifying criminal defendant will be sent to a certain facility or not. As explained above, these decisions are ultimately made by the Department of Corrections, not the sentencing judge.

Bottom Line

If you or a loved one is facing prison time and is under the age of 25 and has goals for rehabilitation, it is important that your attorney request you be sentenced under the Youthful Offender Act to help give the best chance of success. Call today for a free consultation.

What is a 90-Day Bond in Georgia Criminal Law?

Getting a defendant a bond is one of the most crucial stages in any Georgia criminal case. In many cases this happens automatically, such as with misdemeanor offenses. In more serious cases or when there are bad facts following the defendant, a bond must be sought either at the magistrate or higher court depending on the offense. However, even if bond is denied after a hearing, hope for a bond is not necessarily at an end.

The 90-Day Statute

One of the best approaches to getting a bond set when it has been denied by a judge in Georgia, is to assure that the district attorney has complied with O.C.G.A. Section 17-7-50. Except for in death penalty cases, this statute gives the defendant the right to have his or her case put before a grand jury for indictment within 90 days of being incarcerated. If that does not happen and the deadline is passed, the defendant is entitled to having a bond set in their case.

A Few Considerations

While the statute is clear that a bond must be set, it does not indicate the amount of the bond that is required. The bond amount, and conditions/restrictions on the bond are still within judicial discretion. Thus, it is still important to have an attorney advocate for a reasonable bond amount and associated conditions.

A second important consideration is that the statute gives the incarcerated defendant the right to have his case put to the grand jury. Thus, if the prosecutor only accuses the case and does not seek an indictment before the grand jury, a bond still must be set after the 90-day period expires.

The 90-Day Period and COVID-19

Unfortunately, during COVID-19 in Georgia there is a tolling effect going on in Georgia criminal cases with respect to bond. Given the judicial emergency, any time from March 13 until the judicial emergency ends (it is now set to expire on May 13) is tolled or does not count toward the 90 day period for indictment. The practical effect is that there are many individuals sitting in jail without a bond or being indicted in Georgia at this time.

If you or a family member is incarcerated and is seeking bond or otherwise seeking a solution to be released from confinement, contact us today for a free consultation!

Georgia DUI Case Basics

DUIs are some of the most common yet devastating criminal charges in Georgia. Not only can you face jail time and probation when convicted of a DUI, your license can quite easily be suspended for one year just for refusing state administered testing. As such, whether this is your first DUI or one of many, it is crucial to seek an experienced attorney to help you navigate the complex and technical world of DUI law.

Although DUIs are very serious offenses and carry with them stiff penalties and sentences in Georgia, there are several ways in which a competent attorney can advocate for you in your defense and can potentially get your case either reduced to a lesser charge, dismissed, or acquitted at trial. An attorney may also help save you from any license suspension.

Police Car

Administrative License Suspension and Hearing

The three primary ways that a person can suffer a license suspension in a Georgia DUI case is through refusing state administered chemical testing, having a blood alcohol level of .08 or greater, or actually being convicted of a DUI.

In the first event, failing to submit to the state administered chemical test for alcohol can be grounds for an automatic one year license suspension. In such a case, the deputy or trooper will issue what is called a DS-1205 Form. That form advises you that you have thirty days to appeal the license suspension by demanding a hearing on the matter through a written letter and sending a check for $150. After receiving the 1205 Form, you have 30 calendar days to request your appeal with DDS before you license is automatically suspended. Requesting a hearing on time, saves your license at least until the administrative license hearing, which is usually held about 45 to 60 days from the initial incident date and arrest.

At the administrative license hearing, you have two primary options — you can negotiate with the deputy or trooper to agree to dismiss the suspension in exchange for some kind of guilty plea, or you can have a hearing on the matter. At the hearing, the burden is on the State to show by a preponderance of the evidence that your license should remain suspended.

If you lose at the hearing or cannot negotiate a deal with the state, your license will be suspended for one year. This is a hard suspension, meaning that there are no limited or work permits available in such a situation. Thus, it is crucial that you seek the help of an attorney to help you try to save your license.

Fighting a DUI cases

In addition to saving your license, there is also the criminal charge that a person accused of a DUI must face. Almost all DUI arrests end up being misdemeanors, but the minimum jail time and other fines and penalties are greater depending on the amount of priors and when they occurred. Depending on the facts of each individual case, there are many ways to fight a DUI.

For first time offenders of DUI, some jurisdictions offer pre-trial diversion for DUI. This is where you receive a dismissal of your case after paying a program fee and completing any requirements of the program, which can include community service and classes. Pre-trial diversion can be a good option for a first time offender where the evidence against them at trial would be strong or overwhelming.

Similarly, even if a jurisdiction does not offer pretrial diversion or you do not qualify, your attorney may be able to negotiate your DUI charge down to a reckless driving offense based on weaknesses in the case or other circumstances. The major benefit of a reckless driving plea is that it does not automatically suspend your license for one year after conviction and is widely considered a less serious offense for your criminal history.

Additional approaches to a case short of trial may include filing a motions to suppress evidence or statements. In a motion to suppress, a judge may order that certain evidence may not be used against you at trial if your fourth or fifth amendment rights were violated. For example, if an officer stopped a vehicle without reasonable suspension or a roadblock was set up without adhering to legal requirements, the evidence acquired against you as a result may be suppressed by the judge.

Do I Need an Expert Witness in a Georgia Criminal Case?

Many readers may be wondering when it might be useful or necessary to employ an expert witness in a criminal case. For some cases, expert testimony may not be helpful — as, for example, in a simple drug possession case where the drug test is not in question, or in simple battery or assault case. In other types of cases — such as sex offenses or violent crime — retaining an expert witness can mean the difference between a guilty verdict or not guilty verdict, or the dismissal or indictment of a charge. With an allegation of child abuse or molestation, for example, an expert opinion on the techniques used in a forensic video can be invaluable. Similarly, a guns, weapons, or DNA expert may be crucial in a murder or aggravated assault case.

Unfortunately, sometimes the question in cases is not whether an expert would be helpful, but whether a client can afford to hire an expert in a case. An attorney can help you decide how crucial an expert may be for your chances at success, and how expert testimony may be useful to you in your case strategy.

Who Can be Qualified to Testify as an Expert Witness?

The trial judge ultimately decides who can testify as an expert. Georgia courts are generally quite liberal in allowing individuals to testify who demonstrate sufficient education, training, or experience in a certain field of study. For example, medical doctors are usually considered experts by Georgia courts. Similarly, forensic scientists at the Georgia Bureau of Investigation are routinely qualified as experts. In addition to being qualified, the science on which an expert opinion is based, must reach the appropriate legal standard.

O.C.G.A. 24-7-707 provides that in criminal proceedings the opinions of experts “on any question of science, skill, trade, or like questions shall always be admissible.” The Georgia Supreme Court in Harper v. State (249 Ga. 519 (1982)) puts a limit on the scientific procedures or theories an expert opinion relies on. Rather than calculating the consensus in scientific community, Harper leaves it to the trial judge to determine whether a given procedure or technique has “reached a scientific stage of verifiable certainty, or . . . whether the procedure ‘rests upon the laws of nature.'”

In short, an expert’s opinion must be based on scientifically valid methods that pass the Harper standard. If an attorney suspects that an expert’s methods do not pass the Harper standard, he or she can file a motion to exclude the testimony.

Bottom Line

Expert witnesses play an important role in many jury and bench trails across the state. Jurors and judges both are often greatly influenced by the testimony of expert witnesses. Whether you are calling an expert to testify in your defense or attacking the credibility or methods of the state’s expert, a thorough understanding of Georgia expert witness law is essential to any good defense. Contact our office today for a free consultation if you have any questions regarding the law of expert witnesses in Georgia.

Must a Wife or Husband Testify Against Their Spouse in a Georgia Criminal Case?

A question I get often in Georgia criminal cases is whether one spouse must testify against another at trial or a hearing. The simple answer is that there is a spousal immunity privilege for partners who are legally married in Georgia, but that this privilege does not apply in all cases. Put another way, you have a legal right not to testify for or against your spouse in a Georgia criminal proceeding, unless an exception applies.

Exceptions to the Rule

There are several important exceptions to the spousal immunity privilege in Georgia. These are found in Section 25-5-503 of the Georgia Code. You may be required to testify in the following scenarios: First, where one spouse is accused of committing a crime against a child under the age of 18. However, you can only be required to testify regarding the specific acts for which your partner is charged. Second, where you were the victim of the crime either while you were married or before marrying. Lastly, when the accused spouse is charged with damaging either joint marital property or your property.

Another informal exception to the rule is for any communications that you and your spouse had outside of the courtroom. For example, there is no privilege against the state using text messages, emails, letters, videos, or any other out of court communication between you and your spouse to prosecute the case.

Important Points to Keep in Mind

  • The spousal privilege can only be used or asserted by the husband or wife who is not accused of committing the crime. The accused cannot assert the privilege himself. That means that an accused’s spouse could testify against them even if they do not want them to.
  • The privilege dissolves in divorce or when one spouse dies.
  • The privilege can even be asserted even when the spouse is not charged, but where testifying in another proceeding could incriminate that spouse.
  • Marrying another party for the sole purpose of not having to testify against them does not invalidate or waive the privilege

The most important thing to keep in mind is to consult with an attorney before testifying against your spouse. The court nor the prosecutor has a duty to tell you about your right not to testify. And sometimes it is the testimony of one individual that can make or break a case.

Appealing a Criminal Conviction in Georgia

Just because someone has been convicted by a jury and found guilty in a criminal case, doesn’t mean the case is necessarily over. All criminal defendants maintain the right to appeal a conviction. Defendants can file an appeal and request that the conviction be overturned and a new trial granted. In Georgia, murder cases are appealed to the Supreme Court of Georgia and all other felonies are appealed to the Georgia Court of Appeals.

The Mechanics of the Appeal

The first step in getting an appeal in Georgia after conviction is to file what is called a “motion for new trial” within thirty days of the verdict or judgment. Filing even a basic motion for new trial stops the clock from running and allows your attorney the necessary time to request the trial transcripts and compile other evidence. The motion for new trial also gives the defendant an opportunity to try to convince the trial court to overturn the conviction and to grant a new trial.

If the trial judge denies the motion for new trial, a notice of appeal must then be filed within thirty days of the denial. Once the case is docketed with the appellate court and the record is prepared, each side (the defense and the prosecution) prepare briefs that they submit to the court. If necessary, the court can hear oral arguments from each party regarding the contested legal issues. The court will then issue a decision.

What Kind of Issues Can be Addressed in an Appeal?

Some of the most common claims made in a criminal appeal are ineffective assistance of counsel and insufficiency of the evidence. Ineffective assistance of counsel is where the trial attorney’s representation in the case was deficient and where (but for that deficiency) the outcome of the trial would have been different. Examples of ineffective assistance of counsel can include failure to prepare a proper defense, interview witnesses, or object to prejudicial or irrelevant evidence coming in to evidence at trial.

Other appellate issues include prejudicial or irrelevant material being introduced into evidence over the objection of the defense attorney; and denials of motions to suppress evidence or statements made in violation of the Fourth or Fifth Amendments. Appellate lawyers can also challenge comments made by the prosecutor, judge, or witnesses during trial as well as technical issues during jury selection or the charging conference.

Other Ways to Appeal a Conviction

If the Court of Appeals denials your appeal, you can request that the Supreme Court of Georgia review your case through filing a petition for certiorari. These petitions, however, are discretionary — meaning that the court does not have to take your case.

Another way of appealing a criminal conviction is through filing a state petition for habeas corpus. State habeas petitions are civil motions designed to challenge constitutional issues such as ineffective assistance of counsel. After all all avenues have been exhausted, there is such a thing as federal habeas corpus petition as well as extraordinary motions. These final motions are rare, but can be sought if no other options are available.

Understanding Restitution in Georgia Criminal Cases

Restitution is money a criminal defendant may have to pay as part of a guilty plea or conviction. The amount is based on how much the victim lost as the result of a crimes. For example, if a defendant stole a tv or caused damage to property, he may be ordered to pay for the value of the tv or the cost of the damage as restitution. Restitution can then be made a special condition of probation.

How is Restitution Calculated?

Georgia case law makes clear that the amount of restitution ordered can be equal to or less than the victim’s damages, but it cannot be more. Generally speaking, to determine restitution, the prosecutor speaks with the victim and gets a total of the amount of damages incurred from the conduct. However, if the Defendant does not agree to the amount in question, Georgia Code 17-14-7 permits the Defendant to request a restitution hearing.

At the restitution hearing, the burden is on the state to prove by the preponderance of the evidence the amount in question. The Defendant is required to show his available financial resources. The judge is then required to issue a decision with written findings of fact. It is also important to note that the evidence produced at trial cannot be used in lieu of a restitution hearing.

In making her determination, the Judge is required to consider the following factors:

  1. The financial resources and other assets of the offender or person ordered to pay restitution including whether any of the assets are jointly controlled;
  2. The earnings and other income of the offender or person ordered to pay restitution
  3. Any financial obligations of the offender or person ordered to pay restitution, including obligations to dependents
  4. The amount of damages
  5. The goal of restitution to the victim and the goal of rehabilitation of the offender
  6. Any restitution previously made
  7. The period of time during which the restitution order will be in effect
  8. Other factors which the ordering authority deems to be appropriate

If you or someone you know is planning to enter a guilty plea but does not agree to the restitution amount, hire a Georgia criminal defense attorney to help negotiate the restitution or conduct a restitution hearing.

What is the Child Abuse Registry?

In the last couple of years, many individuals charged with crimes in Georgia have gotten a notice in the mail stating that they have been put on the “Child Abuse Registry.” This notice usually comes after an arrest or investigation, but often comes before a person has been convicted or even charged with a crime.

The notice states that the person has 10 days to return a notice appealing placement on the list or else they will be placed on the list permanently. If the person appeals within the allotted time frame, a hearing is set to determine if the person should be removed from the registry. The Child Abuse Registry (or “CAR”) was established by statute in 2016, and extends to certain crimes allegedly committed on or after July 1, 2016. If you have been served with such a notice, contact an attorney immediately.

What Crimes Put a Person on CAR?

While many obvious crimes like molestation and child sexual abuse will place somebody on the registry, the registry extends to physical abuse and charges like cruelty to children in the third degree. Cruelty to children in the third degree occurs when there has been a family violence battery committed, and a child younger than the age of 18 either heard or saw the incident. The primary aggressor in the family violence battery would also be guilty of cruelty to children in the third degree.

A full list of the types of crimes and conduct that can put someone on CAR can found in Section 49-5-183 of the Georgia Code.

What If I Have Been Wrongly Placed on the Registry?

If you have been accused of a crime you didn’t commit, it is crucial that you return the notice of appeal requesting that your name be removed from the registry within the appropriate timeframe. You should consult with an attorney to ensure you have filed the paperwork correctly.

Once you file the appeal, you will receive a notice of a hearing in the mail with a court date before a Georgia administrative law judge. At that hearing, the Division of Family and Children Services is tasked with showing that you committed the acts in question by a preponderance of the evidence. Preponderance of the evidence means it is more likely than not (more than 50%) that you committed the crime or crimes in question. If DFCS does not meet its burden, the administrative judge will issue a written decision ordering your name to be removed from the registry.

The hearing itself functions much like a criminal trial with opening statements, rules of evidence, calling of witnesses, and closing argument. However, there is no jury called, and the administrative law judge decides both questions of law and fact.

Given the serious nature and consequences of being put on the Child Abuse Registry, it is important that you retain an attorney to represent you at the hearing. An attorney can present witnesses and evidence, cross examine witnesses, argue the law, and make your case before the judge. If you are in need of an attorney, give us a call for a free consultation today.