Can I Just Get First Offender?

I get that question a lot as an Atlanta criminal defense lawyer. There are a lot of misconceptions out there about Georgia's First Offender Act. Some people think that getting sentenced under "First Offender" means that they won't go to prison (You can). Others think that it means they will get a conviction expunged (It doesn't, because a conviction is never entered).

Georgia's First Offender Act has many benefits. However, it does carry a substantial amount of risk. The best benefit of the first offender law is that if the defendant successfully completes the terms of his sentence and/or probation, the case is disposed of without an adjudication of guilt. This means that a person will not have a conviction on his record once he has finished everything. Thus, he will not have the stigma that comes with being a convicted felon. On a practical level, a person will still be able to vote, own a firearm (although not while on probation), or do anything else with no restrictions on their liberty. Most importantly, he won’t have to check the “convicted felon” box on a job application. That’s important when you’re trying to get a job, especially in this economy.

Although the benefits are outstanding for people who are able to complete everything without re-offending, those who can’t may subject themselves to severe punishment. If a person given first offender treatment and then later gets his probation revoked, the judge may impose any sentence he was initially authorized too, less any time already served or spent on probation. For instance, let’s say you pled guilty to Burglary under the First Offender Act and were sentenced to five years on probation. If you violated the terms of probation or got convicted of another crime, the judge could take away your first offender treatment, enter an adjudication of guilt, and then sentence you to the maximum time. Burglary carries a twenty year sentence in Georgia. Therefore, a judge could sentence you to twenty years in prison under this scenario, less any time already served on probation.

However, even if you are sentenced under the First Offender Act, a judge can still send you to prison. Everything in the previous paragraph would apply, but you would spend a portion of your sentence in prison rather than complete everything on probation.

In short, the First Offender Act is a great opportunity for someone who makes a mistake in life to get a second chance without enduring the harms that negative consequences of a felony conviction. But it is also can expose someone to extremely harsh sentencing should they slip up a second time. Ultimately, the decision is yours.

 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, Cobb, Cherokee, 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.

I Just got Arrested But I Made Bond. What Happens Next?

Let's say you got arrested, but made bond shortly after you got arrested. What happens next?

In Georgia, if you are released on bond, you waive your right to a preliminary hearing. This is also called a probable cause hearing. You won't get notified of a court date until your case has been indicted. This could be several weeks (or even months) after the initial arrest. Your case in all likelihood is not going away. Sooner or later, you will be indicted and called into court. This time can be the key to securing your freedom, if used correctly.

The first thing you should do is hire a criminal defense attorney. A skilled defense attorney can immediately start mounting a defense to your case during this critical time. He can track down and interview witnesses that can help your case. He can conduct his own investigation which will allow you to refute the State's evidence against you. Most importantly, he can become intimately familiar with the facts of your case, and research the applicable case law. He can then develop your defense and some creative motions that may help keep critical evidence from being admitted against you.

The worst thing to do  at this time is to do nothing. By doing nothing, crucial evidence can be destroyed. Witnesses that could help exculpate you may become nearly impossible to find when your case finally gets called in several weeks or months later.  And certainly don't wait until you've received notice of your arraignment date to start working on your case and finding a lawyer. That can be a recipe for disaster.

 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, Cobb, Cherokee, 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.

But They Ain't Read Me My Rights!!

This is a frequent claim I hear from clients during the initial interview in my office or at a visit at a local jail. Thanks to shows like Southland and Law and Order, it's popular belief that if you are placed under arrest, the police officer must "read you your rights".

The "rights" that people are referring to are the Miranda warnings, so named from the seminal Supreme Court case Miranda v. Arizona. As a result of the ruling in that case, police are required to tell you that you have the right to remain silent, that anything you say will be used against you in court, and that you have the right to an attorney. However, those rights only apply if a custodial interrogation is taking place.

There are two aspects to that requirement - 1) You must be "in custody" and 2) You must be "interrogated." If those two requirements are not met, Miranda  does not apply, and anything you tell the police will be considered an admission and used against you in prosecution. Unfortunately, when the cop places you in handcuffs and stuffs you in the back seat of a patrol is not considered to be "in custody" under the law. This means that Officer Friendly doesn't have to read you your rights the second he slaps the cuffs on you. That only happens on TV.

The best advice I can give anyone who has been arrested or has a loved one who has been arrested is to keep your mouth shut and call an Atlanta criminal defense lawyer immediately.

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, Cobb, Cherokee, 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.

Effects of Georgia's Super Speeder Law

     Georgia's "super speeder" law went into effect in January 2010. If you drive with the pedal to the metal, the law could have dire consequences both financially and on your ability to drive. The super speeder law imposes a mandatory $200 fine on anyone driving 85 miles per hour or more on any street or highway in Georgia or 75 miles per hour on any two-lane road or highway. The $200 fine is in addition to any other fines, penalties or court costs you would have to pay.

     Failure to pay the additional fine within 90 days after conviction will result in the suspension of your driver's license and triggers a $50 reinstatement fee.

     The consequences are worse if you're convicted of violating the super speeder law and you're under 21. For those folks, a super speeder conviction means an automatic suspension of your license and driving privileges for six months. A second conviction under the super speeder statute suspends your license for 12 months if you are under 21 at the time of conviction.

     Of course, this doesn't include the collateral consequences of a getting a super speeder ticket. Your insurance rates will increase dramatically. Or worse, your insurance company could decide to drop you altogether.
       
     If you have a super speedy, or any ticket for that matter, your best course of action is to hire an Atlanta ticket lawyer. A lawyer may not be able to get the charges dismissed, but he may very well be able to get the ticket reduced to a lesser speed. That would result in lower fines, lower insurance rates, and most importantly, may save your license.

 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, Cobb, Cherokee, 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.




 

How Do I Get My Record Expunged?

A popular question for people arrested and charged with crimes is whether they can get their record expunged. In Georgia, if you are convicted of a crime - even if you pled to a reduced charge or entered a nolo plea - you are not eligible for expungement. However, if your case was dismissed ("nolle prossed"), or you entered into some sort of diversion program instead of entering a plea and your case was placed on a dead docket, you are eligible for expungement.

You can get the arrest expunged; however, law enforcement officers will still be able to see that you were arrested before. Importantly, regular companies that do background checks for hiring or to rent an apartment will not be able to access the arrest once it is expunged.

To get an expungement in Georgia, it's best to contact an Atlanta criminal defense attorney as soon as possible.  The first thing an attorney will do is contact the agency that performed the arrest  and request an expungement. The arresting agency will then contact the prosecutor's office that brought charges against you. If they determine that the case is eligible for expungement, they will forward the form to the Georgia Crime Information Center (GCIC). The GCIC will then remove your arrest from your criminal record. Again, law enforcement agencies will still be able to access the information, but companies that seek background checks as part of the hiring process will not.

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, Cobb, Cherokee, 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.

What Is a Probation Revocation Hearing?

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.

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.