We cannot anticipate the many questions you may
have when confronted with criminal or DUI driving related charges. However, below we will attempt to address some of the most
common questions people have for a criminal defense attorney. This page will be updated and supplemented as frequently as
possible. If you have a concern that is not covered here, please do not hesitate to contact us for a no cost, no obligation,
EXPUNGEMENT --THIS HAS BEEN THE NUMBER ONE QUESTION FOR AT LEAST THE LAST FIVE YEARS!
Q: I pled guilty to a crime a long time ago when I was just a kid. My lawyer
told me that this wouldn't show up on my record. He was wrong. My employer found out and fired me! Now, no one will hire me.
Can you please expunge my guilty plea and conviction?
A: HB1176 begins to change the law on expungement in Georgia
effective July 1, 2012. Major changes will take effect July 1, 2013. There is hope now. Follow this link to a summary of the
new Georgia Expungement law. Call us for help with your Georgia expungement.
Q; When I was arrested the police didn't tell me my Miranda rights. Can I get the case thrown out?
A: Generally, no. I call the Miranda rights the
"television rights" because of how inaccurately they are portrayed on all the police shows. Here's why: The police
do not have to tell you your Miranda rights (see rights at end of this Answer) unless they interrogate you while you are in custody. If you are merely arrested and
never questioned, your Miranda rights do not become an issue. The much more important Miranda related issue in a criminal
case is whether the in custody statement made by a defendant was freely and voluntarily made, without the hope of leniency
or other benefit to the defendant given in exchange for the statement. If an individual is arrested and makes an incriminating
statement to the police (that is; a statement that the police can use against the accused to help obtain a conviction), that
individual has the right to make the State prove to the judge that the defendant was not forced, or coerced, into talking
or that the police didn't promise a benefit, such as dismissal of charges, or release from jail, for the statement. At the
hearing, the State would have to also prove that the defendant was explained and understood his or her Miranda rights, and
waived the rights to an attorney or to remain silent. This hearing is known as a Jackson
v. Denno hearing, and is a very important tool for the criminal defense lawyer. If the
State cannot prove the voluntariness of the statement to the police or that Miranda rights were ignored by the police, then
the statement cannot be used at trial. If the statement cannot be used at trial, this does not automatically mean that the
case is dismissed. But it often means that the State's case against the accused is weakened as a result. Sometimes, without
the statement, the prosecutor may choose to dismiss the charges because it would be impossible to convince a jury of the defendant's
It is also important to have this hearing because it could
provide the defense lawyer with additional information about the facts of the case so that the lawyer can be better prepared
for trial. Also, because at the hearing the police testify under oath and in front of a court reporter (stenographer),
who prepares a transcript of the testimony, a skilled lawyer can pin down the police officer to the officer's one specific
version of the facts that cannot be changed at trial without officer losing credibility.
- You have the right to remain silent.
- If you do say anything, what you say can be used against you in a court of law.
- You have the right to consult with a lawyer and have that lawyer
present during any questioning.
- If you cannot afford a lawyer,
one will be appointed for you if you desire.
- If you choose
to talk to the police officer, you have the right to stop the interview at any time.
TO REMAIN SILENT (also see Miranda above)
Q: What should
someone do if the police want to question or arrest him or her?
A: Be polite and cooperative. Don't argue or struggle, even if you didn't do anything wrong. You could be charged with
obstructing police if you do. Don't say anything to the police except your name and other identifying information. DO NOT
discuss the situation with them. Many convictions result from statements made to the police. Whether the officer speaking
to you is nice to you or not, he or she is looking for evidence that can be used against you. The police will sometimes lie
during an interrogation in order to induce a confession. In fact, the law permits this as a valid interrogation technique!
You are safest telling the police that you want to speak to a lawyer, and that you do not want to speak to them until you
have spoken to a lawyer. For more information, please see the heading, "When should a person contact an attorney?"
Q: I called the police when my husband
shoved me.They came and arrested him! I had no idea that would happen.That's not what I wanted. Now he is going to have a
jury trial for domestic violence battery. The District Attorney told me that I must testify against my husband. But I don't
want to. I love him and want to stay with him. What do I do?
A; In Georgia,
if you are still married at the time of trial, you have the right to assert the "marital privelege" and refuse to
testify against your spouse. It is not the prosecutor's obligation to tell you about this right because the prosecutor is
not your lawyer. You need to be familiar with this right and to then decide whether to assert it. What I usually do in this
situation is advise the spouse to consult with her (or his) own independent lawyer. As the lawyer for the accused spouse,
it is usually inappropriate for me to give legal advice to the witness who may testify against my client. And, as I stated
previously, you should not expect the prosecutor to tell you how to avoid testifying against your spouse. Finally, also understand
that this situation can often be entirely avoided because the accused spouse may be able to get into a diversion program,
resulting in case dismissal, or other beneficial non trial resolution of the case.
Q: Can I have a trial?
Yes! In misdemeanors and most DUI offenses, generally
crimes where the punishment is up to a year in jail, you have an absolute right to a jury trial before six jurors. You and
your lawyer have the right to participate in chosing the jury. In felonies, you have a right to a jury trial before 12 citizens
also chosen in a process involving you and your attorney. In all criminal trials, the State has the burden of proving the
guilt of the accused. The State's burden is high. To obtain a guilty conviction, the State must convince every single juror
that, beyond a reasonable doubt, the accused is guilty.
Q; When should a person contact an attorney?
A: Its a very good idea to contact
a lawyer as soon as you learn that you are being criminally investigated, or if you believe that you may have committed a
crime. There are several reasons for this. An attorney can intervene with the police and either prevent an arrest or, if you
are going to be arrested, arrange for your surrender at a time and in a manner that limits embarrassment to you or your family.
Also, a lawyer's involvement at this stage can minimize the possibility of you or others getting hurt or property damaged
by the police during the course of your arrest. Additionally, the police often seek to question people they are investigating
and people often think it better to talk to the police when the police want to question them. However, talking to the police
without first consulting a lawyer could be a very bad mistake. First, people suspected of crimes have been known to sometimes
lie to the police thinking they could get away with it. However, when you lie to the police, and they find out, you could
be charged with another crime; either a misdemeanor, or a felony. Additionally. when you retain a lawyer, this makes it easier to exercise your right to remain silent.
Thus, you aren't making your situation worse than it may already be because your lawyer, as your representative can politely
and professionally decline an invitation to tell your side of the story. Frequently, the police have already made up their
mind to arrest you by the time they decide to ask you what happened. Therefore, it often really doesn't help you to allow
yourself to be interviewed. If you really need to tell your side of the story, you could save your statement for an acceptable
future time, such as at some stage of the formal proceedings, say during pretrial negotiations, or at trial. Remember, absolutely
no negative inference can be made against you in court for refusing to talk to the police when they request. Its usually wisest
to save your statement for a time after you have conferred with a lawyer.
Q: I'm not guilty, I don't see why
I should hire a lawyer because the prosecutor will see that I'm not guilty and will eventually dismiss the case....Right?
A: Wrong! Innocent people do get accused, do get convicted, and do go to prison, or worse! Also, people who may have committed one crime often get accused of committing additional and
more serious crimes. This freqeuently happens because more and more, prosecutors are "over charging" people who
are accused of crimes in order to induce them to plead guilty to something. This is because more and more in the United States,
there are mandatory prison sentences upon conviction of cetain serious crimes. People are unfortunately,and more and more
frequently induced to "take the deal" the prosecutor offers to avoid the possibility of conviction of something
more serious. This is known as an Alford plea. Also, if you have a prior conviction from long ago, police and prosecutors will persue you more vigorously and, should you
be convicted, the punishment will usually be more severe if you lose. Once again, whether you are innocent or guilty of committing
a crime, you have a right to remain silent at all times. You should never discuss your case with the police or the prosecutor.
Even if you have nothing to hide, you should assert your right to remain silent and still have your lawyer represent you and
speak on your behalf. The Govenment will have a lawyer. You really should too.
ARREST AND BAIL QUESTIONS
Q: What should a person expect if he or she is arrested?
A: You will be brought to the police station or sheriff's office and "booked." This procedure will include
fingerprinting and photographing and obtaining your biographical information. You will be able to make a telephone call (make
it either to a lawyer or a family member who can call a lawyer and who has the funds necessary to come bail you out). Depending
on the crime with which you have been charged, your bond will either according to a pre-set schedule, or will have to be set
at a later time by a judge. The amount of your bail can vary depending on the nature of the charges against you, any previous
criminal record, your community ties, whether you are a risk to others or their property, and whether you are a risk to run
away. Once the bail is paid, either by cash, professional bondsman, or by someone pledging a piece of real estate (people
frequently bet their home equity on an accused showing up for court), you should be released. You must appear at court at
the time told to you by the police or the sheriff.
Q: Does the defendant have to put up his own bail?
A: No. Anyone can post the defendant's
bail. However the person posting bail must know that if the accused fails to show up to court the money will be lost to the
Q: How to you post bail?
A: Bail can always be posted in cash, dollar for dollar. Payment
is meade to the sheriff. This amount is refunded when the case is completed. Additionally, bail bond, or surety, is a promise
to pay the amount of the bail if the defendant does not return to court when required to do so. Only a licensed bail
bondsman, approved by the local sheriff, can post a bond or surety with the court. Bonding companies are private businesses
that charge a set fee to post the bond and become surety on a case. They also sometimes require some type of collateral (cash
or property) for their security. When the case is over, assuming the defendant shows up for court when required, the bond
will be released and the collateral will be returned. Bail can also be posted in most jurisdictions by someone pledging the
equity in a piece of real estate that he or she owns. For instance, if the accused's parents own a $150,000 house and owe
$100,000 to the bank, they may be permitted to post bail based on the $50,000 in equity they have in the real property. However,
if the son misses court, the State would then have a lien on the house. Additionally, different jurisdictions, that is, cities
and counties, apply different formulas when determining the amount of property owner equity that is required to post a criminal
bond. In other words, say, as in the above example, there is $50,000 equity in the property offered in a criminal property
bond. That usually does not mean that the homeowner can post a bond of up to $50,000. That $50,000 in equity would not be
applied dollar for dollar toward the bond, but instead could only be used to post a bond of less than $50,000; sometimes a
whole lot less. Each jurisdiction sets its own rules regarding the amount of equity that is necessary to post a criminal bond
in a given amount. These rules are not secret. They can be obtained by contacting the local sheriff's department, police department,
or magistrate, or city court clerk or judge.
COBB COUNTY PROBATION REVOCATION
Q: My son was arrested for failing to report to probation. He may also be in trouble for a new crime. The probation
officer refuses to talk to us. Nobody else will tell us anything and he can't get out of jail. He's about to lose his job.
A; If your son is on felony probation, and the probation warrant lists only technical violations
such as failing to meet with his probation officer or not paying the fine, then his hearing will probably be at the jail before
a presiding judge within a couple of weeks. However some of the Superior Court (felony) judges in Cobb County require that
the probationer appear back before them, and it could therefore take a few weeks longer for him to get before the judge for
a hearing. So it first depends on who the original sentencing judge was.
Also, if there are new crimes and they
are listed in the probation revocation warrant, your son's case will then more likely go back to the original sentencing judge.
This is considered a much more serious matter. Judges frequently severely punish individuals whom they previously sentenced
to probation who thereafter violate the law. It's considered a matter of trust- and someone who commits a new crime while
on probation has violated the judge's trust. The judge will then have to decide whether and how much time to revoke
a probated sentence to prison based on the severity of the facts of the case.
A probated sentence can converted
to a prison sentence for up to the balance of the probation period. Further, individuals who have been sentenced under Georgia's
First Offender Act can have their sentence period first increased to a longer period, and then converted to a prison sentence.
If new crimes are alleged as the basis for revoking probation, there will likely be another delay of several
more weeks until the original judge decides to hear it. At that point negotiations between to defendant’s lawyer and
the prosecutor are encouraged by the court- similar to a plea bargain. However, often a case could be postponed yet again
for several more weeks, in order to allow the prosecutor time to subpoena witnesses to testify at a probation revocation hearing.
If a probation revocation hearing is held the witnesses frequently testify in a proceeding very similar to an
actual trial. After the hearing, depending on the facts, the judge will decide if the defendant either did or didn’t
violate probation. Even if the judge decides the defendant violated probation the judge could still give the defendant a second
chance - depending on the specific facts.
What do you need to do now? Simple. Call us now. This is a very serious
matter. A knowledgeable attorney has several excellent options immediately available. In the past, with cases like this, some
of the alternatives to prison that I have been able to obtain for my clients are: obtain the defendant’s immediate release
on a probation revocation bond; get the court hearing date set much earlier; convert the prison sentence to work release and
save the defendant’s job; have the defendant transferred to a drug/alcohol rehabiltation facility, convert the sentence
to boot camp; and negotiate additional community service.
Much more can be written concerning probation revocations.
These are just some highlights. Please contact us regarding the facts of your specific situation.