Justification: Self Defense in Georgia Law

Self-defense (legally known as justification) is one of the most effective legal defenses a person can raise in a criminal case in Georgia. This is in part because an argument of self-defense is available before and during trial. To raise this defense before trial, your attorney can file what is commonly called an “immunity motion.” During trial, your attorney can ask the judge to instruct the jury on the law of justification prior to closing argument. With a justification defense, you essentially get two bites at the apple.

Immunity Motion

If you believe you have a self-defense claim but the prosecutor will not dismiss your case, it is crucial that your attorney file an immunity motion and request a hearing. Georgia Code 16-3-24.2 makes it clear that anyone who threatens or actually uses force in a justified manner “shall be immune from criminal prosecution.” Georgia courts have also made it clear that a hearing on immunity is to be held prior to trial commencing. At the hearing the defendant is required to prove that she was justified in her use or threat of force by a preponderance of the evidence (meaning more likely than not).

What is Justification?

Georgia Code 16-3-21 states that 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 or a third person against such other’s imminent use of unlawful force.” This is another way of saying that it is legal to use force against a person if you or another is in immediate danger of unlawful force. Additionally, use of deadly force is only justified when a person reasonably believes that deadly force is necessary to prevent “death or great bodily injury.”

However, the statute also puts limitations on this defense. First, the person seeking to use the defense cannot have been the aggressor in the scenario. Second, the person cannot provoke an attack as an excuse to harm the other person. Third, a person cannot use the justification defense when committing, attempting to commit, or fleeing from commission of a felony.

Justification at Trial

If you lose your immunity motion, you may still raise the defense at trial. And it may actually be easier to win at trail than at a hearing due to the burden of proof being different. As mentioned above, the burden of proof is on the Defendant to show at an immunity hearing that his or her conduct was justified. At trial, the defense need only show evidence that of justification and then the burden shifts to the state to prove beyond a reasonable doubt that the defendant was not justified. This is a very high burden for the state. Simply put, if the jurors have any suspicion or doubt that you could have been justified in the case, they must acquit you of the charge.

If you believe you may have a self-defense claim in your case, contact a Georgia criminal defense attorney today for a free consultation and case analysis.

Can you withdraw a guilty plea in Georgia?

In today’s post, I discuss when a person is allowed to withdraw a guilty plea. Many people, for one reason or another, change their mind after pleading guilty to a crime and wish to withdraw their plea. Georgia law permits the withdraw of a guilty plea only in certain circumstances.

Withdrawing a Guilty Plea Before Sentence is Imposed

The first and easiest way to withdraw a guilty plea is to do it before the judge imposes a sentence. Georgia Code 17-7-93(b) permits a defendant the total right to withdraw a guilty plea so long as they do so before they are sentenced. This is especially applicable when the judge delays sentencing and sets a sentencing hearing. Often, however, a defendant is sentenced immediately after the tender of his or her guilty plea. After sentence, whether a plea can be withdrawn comes under the discretion of the judge.

Withdrawing a Guilty Plea After Sentence is Imposed

Withdrawing a guilty plea becomes much more difficult after someone is sentenced in a case. According to the Uniform Superior Court Rules, a judge may withdraw a plea after sentence, but only if it is to correct a “manifest injustice.” Every plea made by a criminal defendant must be knowingly, voluntarily, and intelligently made. This basically means that the person must have been in their right mind and not fooled, tricked, misled or forced in to the plea. A plea that was not tendered knowingly, voluntarily, and intelligently, would be a manifest injustice.

Furthermore, the motion to withdraw must be filed within in the same term of court when the plea was originally entered. (In many counties in Georgia, a term of court is about every 3 months). After the time limit expires, the filing of a petition for habeas corpus is the only possible relief available.

It is also worth noting that pleas made under the First Offender Act or pleas into drug court (or any type of deferred sentencing) cannot be withdrawn. This is because there is no conviction actually being entered in on the case, which makes the statute inapplicable.

Bottom Line

If you or someone you know wants to withdraw a guilty plea, consult with a Georgia criminal defense attorney to better understand your options. A person may be able to withdraw a plea if done before sentencing or if the judge determines that not allowing the withdraw would be a manifest injustice.

Should You Hire An Attorney While Your Case Is Still Under Investigation?

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.

Understanding Statutes of Limitations in Georgia Criminal Cases

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!

Understanding Arrest Warrants, Indictments, and Accusations

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.

Getting an Uncontested Divorce in Georgia

Divorce is never easy. Not only is it extremely emotionally difficult and complex, it can also be very expensive. The price of a divorce usually depends both on the complexity of a couple’s financial and family situation and how much disagreement there is between the parties. For couples who agree on the particulars of their divorce, filing for an uncontested divorce can be a great option. A Georgia family law attorney usually will provide assistance with an uncontested divorce for a reasonable flat fee rate. On the other hand, contested divorces are usually billed on an hourly basis and usually result in being much more expensive.

What Must Be Agreed Upon?

Just like in any divorce action, the same elements must be resolved. For couples without children, this includes alimony, debt, and asset division. These two areas broadly come down to money — who gets what and who gets paid. For couples with children, child custody, visitation, and child support also must be decided. In an uncontested divorce, all of these issues can be agreed upon by each spouse and submitted to the judge for approval. Uncontested divorce is a much more affordable option for divorce because it usually does not require hearings, argument, testimony, and evidence to determine the outcome of all of these issues.

What Documents are Needed to File for an Uncontested Divorce?

In any divorce in Georgia, one party must file a complaint alleging the proper grounds for divorce. To make things easier the respondent usually waives service of process and his or her right to trial on the matter. The next essential document is the settlement agreement. This is a contract, usually drawn up by one of the parties’ attorneys, that lays out the agreement over alimony, property division, and debts.

For couples with children, issues of child custody, child support, and visitation must be addressed and agreed to by both parties. These issues should also be included in any settlement agreement. In addition to including these issues in the settlement agreement, the court also requires that the parties complete a child support worksheet, parenting plan, and sometimes other associated documents.

Can You Put Anything You Want in a Settlement Agreement?

The short answer is yes. As described above, you can include terms of child support and visitation, asset division, alimony, and anything else related to the ending of the marriage. However, for the settlement agreement to be enforced by the court, the judge in the case must approve it and incorporate it into the final decree. If the agreement appears to be fundamentally unfair or problematic in some other way, the judge may choose to incorporate only part of the agreement or reject the agreement altogether.

Bottom Line

For couples who want to be divorced and can agree on the terms of the divorce, seeking an uncontested is a financially sound option. While parties can represent themselves, it crucial that you hire a Georgia family law attorney who can explain your options to you and make sure you file all the appropriate paperwork correctly. Call us today for a free consultation!

Bond Revocation

In last week’s post, we discussed the process of getting a bond generally. In today’s post, we discuss bond revocations. In Georgia, if you violate a condition of your bond, you could have your bond revoked. This means you will be taken in to custody until your case is resolved. Bond conditions usually include staying away from the alleged victim, witnesses, or the property in the case, and avoiding any new criminal charges. Most bond conditions include the provision that you not “violate the rules of any state or governmental unit.” This could be anything from a traffic ticket to a felony. But just because you have been charged with a new crime does not necessarily mean you will have your bond revoked.

Right to Notice and a Hearing

Georgia case law is clear that you must first be given notice and an opportunity to be heard before your bond can be revoked. The judge cannot simply revoke your bond from his chambers without telling you. See Hood v. Carsten 267 Ga. 579 (1997). Moreover, you must also be given a hearing, which is “structured to insure that the finding of a violation of a condition of bond and the exercise of the court’s discretion to revoke bond were based on verified facts.” If the judge has not provided you with a hearing or notice, then he may not revoke your bond.

At the hearing, the judge will need to determine if there is enough evidence to show that you violated the conditions of your bond. If the evidence against you in the new charge is weak, you will not likely have your bond revoked. It also matters whether the new charge is a felony or a misdemeanor. Under the standard, 4-factor test for bond, you are only to be denied bond if the judge finds you a substantial risk of committing a new felony. Nowhere does the test discuss committing a new misdemeanor. If you are only to alleged to have committed a new misdemeanor, this is not a traditional ground revoking one’s bond. Your attorney should explain to the judge that a misdemeanor charge or conviction is not covered by the 4-factor test for bond.

Bottom Line

If you are out on bond and have picked up a new charge, talk to criminal defense attorney today about your options. The state may try to revoke your bond. However, you do have rights. You can request a hearing to determine if there is sufficient grounds to revoke your bond. If the new charge is a misdemeanor or if the evidence for a felony is weak, you may be able to keep you bond from being revoked.

Getting a Bond in Georgia

One of the first issues addressed in a criminal case is pretrial release (also known as bond). As in all criminal cases, the defendant is presumed innocent until proven guilty. As such, the defendant is entitled to have a reasonable bond set in all misdemeanor cases. In felony cases, a defendant is also entitled to a bond unless the state can show that the Defendant

  • is a significant risk of flight.
  • is a significant risk of danger to persons or property in the community.
  • is a significant risk of committing any felony pending trial.
  • is a significant risk of intimidating any witnesses in the case.

If the State can demonstrate just one of these factors, then the judge can deny bond. While the burden of proof in the hearing is placed on the state, the defendant is tasked with the initial “production” of evidence relating to ties to the community. In Georgia, magistrate judges give most bonds. However, there are certain serious charges for which only a superior court judge is authorized to grant bonds. These include primarily:

  • Treason
  • Murder
  • Rape
  • Aggravated Sodomy
  • Armed Robbery
  • First Degree Home Invasion
  • Aircraft Highjacking and Automobile Highjacking in the First Degree
  • Aggravated Child Molestation
  • Aggravated Sexual Battery
  • Sale, Manufacture, or Distribution of Drugs
  • Aggravated Stalking

If a person has been charged with one of these crimes, only a superior court judge can grant bond.

Bond

Bond Hearing

In Georgia, bond is usually set within the first 24 to 72 hours after a person is incarcerated in what is known as the initial or first appearance. People charged with misdemeanors or with low level felonies (with little or no criminal history) usually get a bond at first appearance. If a person does not receive a bond at first appearance, he or his attorney can file a bond motion. If it is the defendant’s first bond motion, statute requires the motion to be heard within 10 days of its filing. At the bond hearing, your attorney can present evidence and make arguments to show that you are not a substantial risk of violating any of the bond factors. This may include calling witnesses or gathering letters to demonstrate a person’s work history, lack of criminal history, and good character in the community.

The most important case in Georgia governing bond is Ayala v. State. Ayala explains that the purpose of bond is to “prevent punishment before a conviction and to secure the appearance of the person in court for trial.” Ayala v. State, 262 Ga. 704 (1993). Ayala also suggests factors the court should consider when deciding bond, which include, “defendant’s length and character of residence in the community, employment status and history, past history of responding to legal process, and prior criminal record.”

Bottom Line

Getting released prior to trial or conviction is a fundamental constitutional right. People are not to be punished before a guilty conviction or jailed without cause. The state only has the ability to remove those rights under certain conditions. Contact an experienced attorney today who can protect your rights and work to get you released from jail prior to trial.

 

 

 

What Happens When Police Mistake the Law in Georgia?

  • 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.

dui-criminal-defense-dismiss-stop

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?

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!