How are crimes classified in Georgia?
In Georgia, crimes are classified as either misdemeanors or felonies. As unbelievable as it may sound, even basic traffic violations are considered misdemeanors. The maximum penalties for a misdemeanor are a $1000 fine, up to 12 months in jail, or both. More serious misdemeanors are classified as misdemeanors of a “high and aggravated” nature. The maximum penalties for these offenses are a $5000 fine, up to 12 months in jail, or both.
For felonies, it all depends on the specific offense. All offenses carry a maximum punishment, which can include life in prison or even the death penalty, or even as low as 5 years. Regarding prison, many felony offenses do not have mandatory minimum sentences regarding custody, and so a judge could order the entire sentence to be served on probation. Others do have mandatory minimum sentences regarding custody, and in those cases, a defendant would at least have to serve that mandatory minimum period of time in prison.
What is the difference between Magistrate, Municipal, State and Superior courts?
The way cases move through the judicial system in Georgia can confuse many people. Magistrate Court has jurisdiction over criminal cases that have not yet been formally charged. So hearings related to bond and probable cause hearings will be heard in Magistrate Court. Once a case has been formally charged, it will proceed to either Municipal, State or Superior Court.
Misdemeanor cases will be heard in either Municipal or State Court. If a police agency from a specific municipality (the city of Marietta, for example) brought the charges, or if the charge is a municipal ordinance violation only and not a crime that is covered throughout the state of Georgia, the case will proceed in that city's Municipal Court.
Misdemeanor cases that originate from county law enforcement agencies (the Cobb County Police Department, for example) will proceed in that county's State Court. Also, if the misdemeanor charge is not a city ordinance and is a criminal offense that is found in the state's criminal code, that case can be transferred to State Court even if the charges were filed by a municipal law enforcement agency.
Superior Court has jurisdiction over all felony cases. While the case may originate in Magistrate Court, once it is formally charged that case will proceed to Superior Court for disposition.
What is a bind-over?
Simply put, binding over a case is a defendant's right to transfer his case in certain situations from Municipal Court over to State Court in the county where the case originated. A defendant does not have a statutory right to have a jury trial in Municipal Court. As long as the charges are misdemeanor offenses codified under state law, and not merely municipal ordinance violations, a criminal defendant may transfer, or "bind-over", his case to State Court, where he is entitled to have a jury trial on his case.
Should I talk to the police if I think they suspect me of a crime?
Absolutely not! You would think this question does not need to be asked, but history is filled to the brim with cases where a person handed the prosecution a conviction by doing nothing more than speaking. Every person has a 5th Amendment right to remain silent. You may have seen a scene in a movie where a person is being read his ‘Miranda' rights by a police officer. What you may not know is that you may exercise that right at any time. Besides doing basic things like giving over your license and registration if you are pulled over on a traffic stop, you are under no obligation to answer any questions asked by law enforcement.
If you are being questioned in connection to a crime they think you may have committed, remain silent and ask to speak to your attorney.
If an officer wants me to do field sobriety tests if they suspect me of DUI, should I?
No. As stated above, every person has a 5th Amendment right to remain silent. Use it. Be polite to the officer. Give the officer your license and paperwork like your registration and proof of insurance. But you are under no obligation to answer any questions, such as, “Have you had anything to drink?” or “Where are you coming from?”
You also do not have to perform any field sobriety tests, such as walking in a straight line, letting him shine a light in your eyes, or standing on one foot. Also, many officers try to convince a person to submit to what is called a portable breath test at the scene of the traffic stop. While the results of this portable breath test are not admissible in court, you are under no obligation to blow into that device, and you should not.
If I am arrested for DUI, should I blow into breathalyzer machine back at the police station?
No. Just as you are under no obligation to answer questions, perform field sobriety tests, or submit to a portable breath test, you have the right to refuse to blow into the breathalyzer machine back at the police station. Any results of this test are admissible in court, so why would you want to provide the State with more evidence by which to prosecute you?
What is an arraignment?
An arraignment is the early part of the process where the defendant is formally advised of the charges pending against him and explained what his constitutional rights are. Additionally, an experienced attorney will request that the State hand over all of the evidence that is their possession, also known as discovery.
How does the bail process work?
This is one of the more common question I have gotten in my career. Bail is the monetary amount a judge assigns that a person can post to be released from custody. When someone is arrested, bail is commonly set for minor offenses. However, for more serious offenses or if a person is presently on probation or parole, a judge may initially deny bail.
Bail operates to ensure a defendant appears for future court appearances. If a defendant does not have bail set, courts look at several factors when analyzing whether to grant bail and in what amount. It looks at a person's criminal history, whether he is a danger to the community, if he is likely to intimidate victims or witnesses, whether he is likely to commit a felony while on bail, and if he is a risk to flee the jurisdiction while the case is pending. In certain cases, a court may deny bail altogether.
What is the difference between bail and bond?
Bail is the total amount a person may post in order to be released from custody. Often, a person in unable to afford to pay that entire amount. In such a case, that person may go to a bail bondsman. The bondsman will act as a surety to the court for the entire amount and will be responsible for that amount if a defendant fails to appear in court. A defendant pays a fee for this service to the bail bondsman, which is usually between 10-15% of the total bail amount. If a defendant pays the entire bail himself, he can recover that money after his case is completed. If a bail bondsman is used, the money paid to the bondsman is a fee and cannot be recovered by the defendant. In some cases, the judge may grant what is called a ‘signature bond,' meaning that a defendant does not have to post any bail and his signature acts as a surety that he will appear to all future court appearances.
What if the judge denied bail in my case?
Unfortunately, this happens in some cases. If bail is initially denied, an experienced attorney can request a hearing in order to persuade the judge that bail should be granted. In addition, if a defendant has been in custody for more than 90 days without bail and the state has not formally charged the case, he is entitled to bail as a matter of law.
What is a probable cause hearing?
A defendant is entitled to a probable cause hearing if he is in custody and either has no bond set or cannot post the bond that is set. The purpose of a probable cause hearing is to see whether there is probable cause for the charges the defendant was arrested on. The prosecution has to prove by a preponderance of the evidence that the charge or charges is justified. The State carries the burden of proving their case.
Remember, the standard of proof is not beyond a reasonable doubt. All the State needs to do is show that it is more likely than not (greater than 50%) that the charge(s) were committed, and that the defendant is the one who committed them.
Despite the low burden of proof, there are certain benefits to having this hearing. One, they may not be able to prove their case as to one or all of the charges, meaning the judge may dismiss those charges outright. Another benefit is that it gives the defense some information about the case at such an early stage. The State does not need to provide copies of their case file to the defense until after the case is accused, so learning as much as possible early on can give an experienced attorney an idea of whether there are legal or factual defenses to consider down the road.
What is a statute of limitation and how is it applied?
Simply stated, a statute of limitation is the period of time by which the State must commence a prosecution against an accused after the commission of the crime. Generally speaking, the State has 2 years to commence a prosecution for misdemeanors and 4 years for most felonies. The State has 7 years to prosecute crimes punishable by death or life imprisonment, except it is 15 years for the crime of forcible rape. A prosecution for certain offenses where DNA evidence is used to establish the identity of the accused may be commenced at any time. Likewise, a prosecution for murder may be commenced at any time.
Why is my case taking so long to complete?
There could literally be dozens of reasons for this. Each case is different and each has its own unique circumstances. Some municipalities and counties simply move at a much slower pace than others. Some cases have a lot of discovery that needs to be compiled and examined. Certain prosecutor's offices happen to have a very high turnover rate among its staff, so there may be multiple prosecutors being assigned to the case within a short time. And remember, the State only has to abide by the particular statute of limitations attached to your case before they commence a prosecution, which in some cases can be 4 years or longer.
However, with a few limited exceptions, the more time that passes between an arrest and a trial benefits the defendant. Witnesses may move, officers may retire, and evidence may deteriorate or get misplaced. Stay calm if your case does not seem to be progressing at lighting fast speed. In most cases, I assure you your attorney is.
Are there any traffic offenses that will cause the automatic suspension of my driver's license?
Yes. Some examples of offenses of which a conviction will suspend your driver's license are: DUI, hit and run or leaving the scene of an accident, using a vehicle in fleeing or attempting to elude an officer, among others.
Does Georgia have a ‘point system' for driver's licenses, and will acquiring too many points suspend my license?
Yes. Each traffic violation has a number of points depending on the offense, and a conviction for that offense will attach those number of points to your driver's license. For drivers aged 18 and older, an accumulation of 15 or more points in any consecutive 24-month period will result in the suspension of your driver's license.
For drivers aged 18-20, in addition to being subject to suspension if you accumulate 15 points in any consecutive 24-month period, if they are convicted of any one traffic offense worth 4 or more points, your license will be suspended.
For drivers under the age of 18, your driver's license will be suspended if you accumulate 4 or more points in any 12-month period.
What is a “no contest” plea?
A no contest plea, otherwise known as a plea of “nolo contendere,” simply means that a defendant does not desire to contest the truth of the charges against him or her. It is not a plea of guilty nor is it a plea of not guilty. This type of plea carries many benefits. A nolo plea cannot be used against a defendant in any other court or proceedings as an admission of guilt or otherwise. This is helpful if there was an auto accident and a driver is suing the other driver for monetary damages in civil court. In addition, a nolo plea does not assess any points against your driver's license in a case involving a traffic ticket. Also, a nolo plea in some instances is not considered a conviction that would affect one's civil rights like the right to vote or the right to own a firearm.
Please keep in mind, however, that a plea of nolo contendere is a privilege, and not a right. Meaning the judge has to agree to accept that plea. Also, such a plea may not be used in cases involving capital felonies. Finally, there are certain statutory exceptions where a nolo plea is considered a conviction, such as a DUI charge.
Is it possible to avoid a conviction on my record when I still plead guilty?
Yes. In Georgia, there are two mechanisms for this to happen. The first is a sentence under the Conditional Discharge Act, found in OCGA § 16-13-2. This type of plea is used for crimes involving drug possession. It can also be used in cases involving nonviolent property crimes if it can be demonstrated that the defendant is suffering with an addiction to controlled substances or alcohol. A defendant cannot have a prior drug conviction in order to enter this type of plea.
The other mechanism for this type of plea is known as the Georgia First Offenders Act under OCGA § 42-8-60. If a defendant has no prior felony convictions, he may enter this type of plea. This type of plea cannot be used on serious violent felonies as defined in OCGA §17-10-6.1 and for certain offenses of a sexual nature.
If I am sentenced to serve jail time, where will I serve it?
For all misdemeanor cases, any jail time will be served at the local jail. The sheriff of the county where the case is located will control the sentence. For felony cases, any jail time that is ordered belongs to the Georgia Department of Corrections. Therefore, any jail time would have to be served in prison. Now for very short sentences in a felony case, a defendant may actually serve that time at the local jail, but again, that decision is solely left to the discretion of the personnel at the Georgia Department of Corrections.
If I am sentenced to serve jail time, how much of that time will I actually serve?
This is one of the more common questions I receive. If a defendant has been sentenced to jail on a misdemeanor case, it will be served at the local jail. Many counties have programs where he may get released early in certain cases. For example, if he volunteers as a jail trustee or if he demonstrates good behavior, he may only serve 50% of the sentence in certain misdemeanor cases. Again, it all depends on the individual case and the county where the sentence is being served. There are certain misdemeanor offenses that are categorized as a “high and aggravated” misdemeanor. If a defendant is sentenced under one of these offenses, then he will have to serve every day of that sentence.
On felony cases, any jail time that is ordered belongs to the Georgia Department of Corrections and will most likely be served at one of the prisons in the state. There is no precise calculation on most cases as to when an inmate will be released. Many things factor into that determination, including the type of offense the person was convicted of, his criminal history, his behavior while he is in prison, whether he participates in any programs in the institution, among others.
If a person is convicted of a serious violent felony, he will have to serve every day of that sentence and is not eligible for parole or any other sentence-reducing measure. The crime of armed robbery, for example, carries a mandatory minimum sentence of 10 years in prison and is one of the serious violent felonies described above. If sentenced under this offense, the defendant will have to serve every day of those 10 years. The specific offenses categorized as serious violent felonies are listed in O.C.G.A. § 17-10-6.1.
How can I get my criminal history expunged?
Another common question. Technically, the legal term for expungement is a ‘record restriction.' In certain cases, pleas accepted under certain statutory guidelines can get restricted once the sentence has been completed, even if the defendant pleaded guilty. In other cases, the record may be able to get restricted if charges were never filed or if charges were filed and the case was subsequently dismissed. In addition, the Georgia legislature recently passed a law where certain misdemeanor convictions may be eligible for record restriction depending on both the nature of the offense and the amount of time that has elapsed since the end of the sentence.
An experienced attorney can petition the court to restrict a person's criminal history record. In some cases a hearing has to be held on this issue. If granted, that person's criminal history will be restricted from public view. What many people do not know is that if the motion is granted, all record of the arrest and/or disposition will be restricted on the person's criminal history record maintained by the Georgia Crime Information Center (commonly referred to as a “rap sheet”), as well as all records being maintained by the clerk of court in the municipality where the case originated as well as all records being maintained by the law enforcement agency that made the arrest, such as mug shots and fingerprint cards.
Having your criminal history sealed and restricted from public view can be a great benefit to many people and will help eliminate many barriers that you may face in the future as you try to achieve your dreams. I have helped a lot of people in this area, and I have the knowledge and experience to assist you throughout all stages of this process.