And do I need a lawyer for it?
Absolutely. I would never set foot in a courtroom under any circumstances without an Atlanta criminal defense attorney on my side. First, the judge won't be in the best of moods to start off with because 1) you're already on probation so you ran afoul of the law at some point earlier, and 2) you (potentially) screwed up again while you were under supervision. In other words, you got a break once because you're "on paper" (on probation) and now you've turned around and screwed up again. You could be looking at some jail time.
In Georgia, there are two types of violations - 1) a technical violation, and 2) a subsequent violation. A technical violation is when you don't comply with the terms of probation (e.g., fail to report regularly, don't pay the probation fees, test positive for an illegal substance, etc.) A subsequent violation is when you get arrested for a crime while on probation. A judge can revoke you for no more than two years on a technical violation. On a subsequent, however; the judge can sentence you to up to the balance remaining on the original sentence, less time served previously on probation or in custody.
Lastly, your probation was "tolled" when your probation officer submitted the petition to revoke your probation to the judge. "Tolling" simply means that your probation was stopped, so any days spent while it's tolled does not count towards probation. Think of it as the State hitting the pause button on your probation. So if you didn't report to probation one month, and your P.O. violated you and puts out a probation warrant for your arrest, those days, weeks, or months do not count until you get picked up and put in custody.
Finally, the standard of proof at a probation revocation hearing is much lower than it is at a regular criminal trial. At a trial, you are presumed innocent until the State proves your guilt beyond a reasonable doubt. At a probation hearing, the standard of proof is a preponderance of the evidence. Basically, if they can show that you haven't reported, skipped paying your fees, or pled guilty to another crime, the judge could revoke your probation.
Atlanta criminal defense lawyer Todd E. Barbee defends people charged with felonies, misdemeanors, traffic and DUI charges in Atlanta, Decatur, Stockbridge, Conyers, and Fayetteville, GA. Atlanta criminal defense lawyer Todd E. Barbee also defends people charged with crimes in Fulton, DeKalb, Clayton, Fayette, and Henry Counties. We are available day or night, weekdays or weekends. Call The Barbee Law Firm for a free consultation (404) 855-3838.
Monday, January 30, 2012
Wednesday, January 25, 2012
But Can I Get a Bond?
Let's say that you or a loved one was arrested in Georgia. Once he (or she) is processed and booked into the jail, they will be brought before a magistrate court judge for what's known as "First Appearance." At First Appearance, the judge will read out the charges against you and the arresting officer will read out the warrants he swore out for your arrest. You can't get the case dismissed at First Appearance. However, the magistrate will set a bond.
In Georgia, there are certain types of cases that a magistrate court judge is not authorized to set a bond on. Those cases are serious felonies (murder, rape,armed robbery, drug trafficking, and aggravated stalking to name a few) and bond can only be set by a Superior Court judge. In that scenario, you need to hire an Atlanta criminal defense lawyer so he can file a motion to set bond. That motion will allow you to get to court and ask the judge to set a reasonable bond.
Georgia judges are supposed to look at four factors (commonly known as Ayala factors, after the seminal case Ayala v. State) when setting a bond. They are that the person charged:
1) Is not a flight risk;
2) Does not pose a serious threat to the community;
3) Is not a risk to commit a felony while out on bond; and,
4) Is not a risk to intimidate witnesses
That's it. That's all the judge is supposed to consider. The circumstances and facts of the current arrest are irrelevant as far as the setting of a bond is concerned. The purpose of a bond is primarily to ensure that the accused shows up to all future court dates. But of course, as applied, it doesn't always work like that.
Criminal practice is funny that way sometimes.
Atlanta criminal defense lawyer Todd E. Barbee defends people charged with felonies, misdemeanors, traffic and DUI charges in Atlanta, Decatur, Stockbridge, Conyers, and Fayetteville, GA. Atlanta criminal defense lawyer Todd E. Barbee also defends people charged with crimes in Fulton, DeKalb, Clayton, Fayette, and Henry Counties. We are available day or night, weekdays or weekends. Call The Barbee Law Firm for a free consultation (404) 855-3838.
In Georgia, there are certain types of cases that a magistrate court judge is not authorized to set a bond on. Those cases are serious felonies (murder, rape,armed robbery, drug trafficking, and aggravated stalking to name a few) and bond can only be set by a Superior Court judge. In that scenario, you need to hire an Atlanta criminal defense lawyer so he can file a motion to set bond. That motion will allow you to get to court and ask the judge to set a reasonable bond.
Georgia judges are supposed to look at four factors (commonly known as Ayala factors, after the seminal case Ayala v. State) when setting a bond. They are that the person charged:
1) Is not a flight risk;
2) Does not pose a serious threat to the community;
3) Is not a risk to commit a felony while out on bond; and,
4) Is not a risk to intimidate witnesses
That's it. That's all the judge is supposed to consider. The circumstances and facts of the current arrest are irrelevant as far as the setting of a bond is concerned. The purpose of a bond is primarily to ensure that the accused shows up to all future court dates. But of course, as applied, it doesn't always work like that.
Criminal practice is funny that way sometimes.
Atlanta criminal defense lawyer Todd E. Barbee defends people charged with felonies, misdemeanors, traffic and DUI charges in Atlanta, Decatur, Stockbridge, Conyers, and Fayetteville, GA. Atlanta criminal defense lawyer Todd E. Barbee also defends people charged with crimes in Fulton, DeKalb, Clayton, Fayette, and Henry Counties. We are available day or night, weekdays or weekends. Call The Barbee Law Firm for a free consultation (404) 855-3838.
Monday, January 23, 2012
Top 5 Things to do When Stopped by Police for DUI
It's Friday night. You want to celebrate the end of the week with a few drinks after work. One drink turns into two. Two turns into four. A few hours later, you hop in the car and head home. Five minutes from your doorstep, you see them in your rear view window. The dreaded blue lights. What do you do?
1. Don't panic. Pull over to the side of the road.
That one's pretty self explanatory. Certainly do not start a high speed chase with the cops. Those never end well. Trust me.
2. When the officer approaches, hand him your license, registration, and proof of insurance. Don't say anything.
Here's where it can get a little tricky. The cop is looking for a reason to further detain you or to search your car. Trying to see if you got alcohol on your breath, or if the car smells like "burnt marijuna." If he asks, "You know why I pulled you over?", say no, and hand over your documents. Look straight ahead. Don't engage in conversation. You don't have to talk to him. But be respectful. If he asks where you've been or where you're headed, simply say I'd prefer not to answer any questions. Again, you don't have to talk. Anything you say will only hurt your situation.
3. If asked, do not blow into a breathalyzer machine.
Especially if you're to' up from the flo' up. (That means really, really drunk) All you're going to do by blowing is building the case against yourself. However, under Georgia's implied consent law, refusal to submit to a breath test will be suspended for a minimum period of one year. You must request a hearing within 10 business days or you will automatically lose your driving privileges for one year. If you want to keep driving legally, it is of the utmost importance that you contact an Atlanta DUI lawyer immediately.
4. When asked to perform a field sobriety test, politely say, "No."
If you followed tip #3 from above, Officer Friendly will ask you to perform field sobriety tests. Politely refuse. Your actions are being recorded, and a video recording of you struggling to perform a field sobriety test will only complicate matters down the road. The cop is looking for a reason to arrest you for drunk driving. Don't give him one.
5. If asked if you've been drinking or how many drink you've had, politely say that you don't want to answer any questions.
This ties back into Tip #2. Georgia courts don't consider roadside conversations with police officers as an "interrogation", so your Miranda rights don't apply (You know, like on Law and Order. You have to the right to remain silent, anything you say can and will be held against you in a court of law...) Which brings me to this important point. Anything you say at this is considered an "admission" and will be used against you when charges are brought. So telling the officer, "I only had a couple of beers" will only help establish probable cause, and further help prove that you were driving under the influence. So be on the safe side, and don't say anything. It could be the difference between a conviction, and keeping your record clean.
Atlanta criminal defense lawyer Todd E. Barbee defends people charged with felonies, misdemeanors, traffic and DUI charges in Atlanta, Decatur, Stockbridge, Conyers, and Fayettevile, GA. Atlanta criminal defense lawyer Todd E. Barbee also defends people charged with crimes in Fulton, DeKalb, Clayton, Fayette, and Henry Counties. We are available day or night, weekdays or weekends. Call The Barbee Law Firm for a free consultation (404) 855-3838.
1. Don't panic. Pull over to the side of the road.
That one's pretty self explanatory. Certainly do not start a high speed chase with the cops. Those never end well. Trust me.
2. When the officer approaches, hand him your license, registration, and proof of insurance. Don't say anything.
Here's where it can get a little tricky. The cop is looking for a reason to further detain you or to search your car. Trying to see if you got alcohol on your breath, or if the car smells like "burnt marijuna." If he asks, "You know why I pulled you over?", say no, and hand over your documents. Look straight ahead. Don't engage in conversation. You don't have to talk to him. But be respectful. If he asks where you've been or where you're headed, simply say I'd prefer not to answer any questions. Again, you don't have to talk. Anything you say will only hurt your situation.
3. If asked, do not blow into a breathalyzer machine.
Especially if you're to' up from the flo' up. (That means really, really drunk) All you're going to do by blowing is building the case against yourself. However, under Georgia's implied consent law, refusal to submit to a breath test will be suspended for a minimum period of one year. You must request a hearing within 10 business days or you will automatically lose your driving privileges for one year. If you want to keep driving legally, it is of the utmost importance that you contact an Atlanta DUI lawyer immediately.
4. When asked to perform a field sobriety test, politely say, "No."
If you followed tip #3 from above, Officer Friendly will ask you to perform field sobriety tests. Politely refuse. Your actions are being recorded, and a video recording of you struggling to perform a field sobriety test will only complicate matters down the road. The cop is looking for a reason to arrest you for drunk driving. Don't give him one.
5. If asked if you've been drinking or how many drink you've had, politely say that you don't want to answer any questions.
This ties back into Tip #2. Georgia courts don't consider roadside conversations with police officers as an "interrogation", so your Miranda rights don't apply (You know, like on Law and Order. You have to the right to remain silent, anything you say can and will be held against you in a court of law...) Which brings me to this important point. Anything you say at this is considered an "admission" and will be used against you when charges are brought. So telling the officer, "I only had a couple of beers" will only help establish probable cause, and further help prove that you were driving under the influence. So be on the safe side, and don't say anything. It could be the difference between a conviction, and keeping your record clean.
Atlanta criminal defense lawyer Todd E. Barbee defends people charged with felonies, misdemeanors, traffic and DUI charges in Atlanta, Decatur, Stockbridge, Conyers, and Fayettevile, GA. Atlanta criminal defense lawyer Todd E. Barbee also defends people charged with crimes in Fulton, DeKalb, Clayton, Fayette, and Henry Counties. We are available day or night, weekdays or weekends. Call The Barbee Law Firm for a free consultation (404) 855-3838.
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