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.

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 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.

 

 

 

• 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.

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!

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!

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!

 

In previous posts we covered how to avoid getting convictions on your record. In this post we will discuss record restrictions (formerly known as “expungement”).

In Georgia, just because your case has been dismissed, nolle prossed, or dead-docketed, it does not mean that there is no record of it. If you have been arrested, it may still be visible to employers and others who seek a background check. Records of your arrest can remain on your record even if you’ve had your case dismissed or otherwise resolved. Requesting a record restriction can make it so the arrest or dismissal can only be seen and used for law enforcement and criminal justice purposes. Record restrictions can either happen automatically or by request. Georgia Statute 35-3-37, which went into effect on July 1, 2013, governs these issues.

Automatic Restrictions

35-3-37 requires that arrests that were not “referred for prosecution” be automatically restricted after certain time periods. All you have to do in these cases is wait! For misdemeanors (2 years), most felonies (4 years), serious violent felonies and sex crimes (7 years). Arrests “not referred for prosecution” means that the alleged crime was never pursued, accused, or indicted by prosecutors. Automatic restrictions apply for arrest dates before and after July 1, 2013.

Requested Restrictions

If prosecutors accused or indicted your case already, you no longer qualify to have your record automatically restricted. However, unless one of the exceptions below applies, you can simply contact the prosecutor about having the record restricted if the arrest occurred after July 1, 2013. There is no fee or application required for this, and you can do it with or without an attorney. If the arrest occurred before July 1, 2013, you must apply for a record restriction with the arresting agency. However, there are certain record restriction requests which only a judge can grant.

Petitioning The Court

Some scenarios are not necessarily prohibited from record restriction, but require a judge’s order. There are four primary scenarios. First, when a defendant had a felony dismissed or was acquitted, but was convicted of a misdemeanor that was not a lesser included of the felony. Second, if the appellate court reversed a conviction and the prosecutor hasn’t retried the case within two years. Third, when a case has been dead docketed for more than 12 months. Lastly, when an individual was convicted of one or more misdemeanors and the individual is a “youthful offender.” With this final scenario, there are a few more necessary conditions and requirements.

The youthful offender must have successfully completed the terms and conditions of probation and, subsequently not been arrested for any other offenses for five years, outside of non-serious traffic offenses. What’s more, the original conviction can’t be a prohibited misdemeanor, most of which deal with misdemeanor sexual offenses and serious traffic offenses.

If any of these scenarios apply in your case, you can ask your attorney to petition the court to order a record restriction. The court can order a hearing to consider the nature of the crime and the public interest in having the record available to the public.

When Record Restrictions Are Not Allowed

There are certain instances in which the statute does not permit record restrictions. The first and most obvious instance is for felony convictions. Even if a charge has been nolle prossed or otherwise dismissed there are certain instances when record restriction is also not allowed. Second, when there is a plea agreement to a lesser charge that resulted out of the same transaction or occurrence of the felony charge.

Third, when the prosecutor dismisses the case because the judge has granted a motion to suppress or a motion in limine. Fourth, when the dismissed charge is part of a pattern or crime spree and there are charges in other jurisdictions. Fifth, when the defendant at trial is convicted of some but not all of the charges against them. Sixth, a defendant is acquitted, but it is found out later that there was jury tampering. Seventh, the Defendant has some kind of diplomatic or other immunity.

The Bottom Line

If you were arrested for but not convicted of a crime, there is a good chance that you can get the record of it restricted. As discussed above, this either occurs automatically, by entry of the prosecutor, or by petitioning the court. If you have been arrested for a crime but your charge was dismissed, consult with an attorney about your options.

Having Your Record Sealed

In our previous posts, we discussed two important ways to avoid getting a criminal record in Georgia. In this post, we cover how to have your record sealed after pleading guilty as a first offender.

The primary benefit of first offender is that it can protect you from having a criminal record. However, your record will show your first offender status until you finish your sentence. Put another way, you must finish all your probation before you get the full benefits of first offender. The only alternative is for your attorney to ask the judge for your record to be sealed while you are on probation.

What Does Having Your Record Sealed Do?

O.C.G.A. 42-8-62.1 permits the sentencing judge to order that public access to your first offender status be limited while you finish your sentence. At sentencing, the judge can order up to three things. First, she can prohibit the spreading of the first offender sentence. Second, she can require that all of the case information be sealed by the clerk of court and be made unavailable to the public. Third, she can order law enforcement agencies to limit public access to any information regarding your first offender status.

In order for the Judge to seal a record, the statute requires that she “weigh the public’s interest in the defendant’s criminal history record information being publicly available,” on the one hand. And on the other hand weigh “the harm to the defendant’s privacy and issue written findings of fact thereupon.” Your attorney should be ready to argue how leaving your record unsealed would harm you. For example, you may not be able to get a good job or provide for your family if your record is left unsealed. Your attorney should also make an argument regarding the lack of interest the public has in knowing your criminal record. For example, the crime may be victimless, a low-level misdemeanor, or a one-time occurrence.

Having your record sealed is a great tool your attorney can use to keep your record clean while you finish your first offender sentence. By restricting public access to your first offender status, record sealing can help you get your life back to normal as quickly as possible.

Gist of the Law

In today’s post, we discuss a new case from the Georgia Court of Appeals, Garr v. State, which concerns First Offender. This case states that the trial court must give a reason on the record for why it is denying First Offender. In specific, Garr prohibits judges from denying First Offender in two instances: First, when there is a “general refusal to consider first offender treatment.” And second, if there was “an erroneous expression of belief that the law did not permit the exercise of such discretion.” In short, automatic denial of First Offender — either by policy or getting the law wrong — is abuse of discretion and grounds for reversal.

Gist of the Facts

Applying this standard to the facts of the case, the Court found that the trial court did not abuse its discretion. Although the trial court said it would not “consider first offender treatment in the case,” it explained that the Defendant had not accepted responsibility. It also explained that because he was serving a straight confinement sentence, there was not the usual benefit of First Offender as there is with a split sentence. The Court found that because the trial court didn’t get the law wrong or fail to give reasons for denying First Offender, there was no abuse of discretion.

Practical Application

Despite the ruling against the Appellant in this case, your attorney can use Garr v. State to your advantage. If you are in a courtroom where the judge just doesn’t give First Offender for certain crimes, your attorney may be able to use this case. For example, some judges may, as a matter of policy, deny First Offender in family violence cases without making any particularized factual findings on the record. According to Garr v. State, this is error. Similarly, if a judge gets the law wrong and thinks that the law prohibits First Offender in certain cases where it actually doesn’t, this is also error. For example, this would occur if a judge thought she may not grant First Offender in all aggravated assault cases. While this is true of aggravated assault on a peace officer, it is not true of aggravated assault generally (see O.C.G.A. 42-8-60).

Garr v. State is important because it protects criminal Defendants from an abuse of discretion by the trial court. This new decision not only requires judges to give particularized reasons before denying First Offender, but also requires that they understand the law correctly.