770-534-2035
112 West Academy Street Suite 102, Gainesville, Georgia 30501
Experienced North Georgia Criminal Defense Attorney
Scroll down for more information

Legal Resources

About the Law & Your Rights

The criminal justice system protects us by arresting and jailing criminals. Yet not everyone who is arrested is a bad guy. Someday, you, a family member, or a close friend may be accused of committing a crime and be arrested. This information provides an overview of the rights of those who have been arrested and explains how your lawyer can help protect your rights.

View More Information

Arrested by Law Enforcement Officers

jeffery talley court jury

In an arrest, a law enforcement agent, such as a police officer, a sheriff, or a state trooper constrains your freedom of movement because of your possible involvement in a criminal offense. In some cases, the arresting officer may take you into custody; in others, you may be stopped, verbally or physically, so that you can be questioned about a crime.

An arrest warrant is a written order by a judge directing the police to arrest the person named in the warrant. If a warrant for your arrest has been issued, the police may arrest you in your home or in a public place. At the time of your arrest, the officers making the arrest should tell you that they have a warrant and show it to you.

The police can also arrest you without a warrant if they have reason to believe that you have committed a felony, such as robbery, murder, or drug offenses. If you are arrested without a warrant for a felony or misdemeanor, you are entitled to a prompt hearing to determine whether the officer has the minimum level of evidence required for a legal arrest.

Resisting Arrest

The police may use reasonable force necessary to arrest you, but they are not permitted to use excessive force or brutality. Even if you are innocent, you should not resist arrest. Besides risking injury to yourself, you may be charged with the crime of resisting arrest. If you resist a citizen’s arrest, you might be charged with assault and battery. Even if you are eventually found innocent of the original charges, the arrest is not illegal if it conformed to the requirements of the law.

Search

Ordinarily, the police must have a search warrant before conducting a search. However, after you have been arrested, the police may search you and the immediate area around you without a warrant if they reasonably suspect that you may be armed. A search is also permitted when the police see contraband at the time of making an arrest. If the police find something that is a crime to possess, such as a gun or drugs, they may take it and arrest you for possessing it. The police may also take your money and property from you to keep in a safe place until it can be returned to you or used as evidence. If possible, try to verify that all the items taken from you are inventoried on a written list.

Getting Legal Assistance

business signing agreement legal

You are entitled to telephone a lawyer, a friend, or a family member to notify them of your arrest. You have the right to consult with a lawyer and have him or her present when the police question you. The best practice is to remain silent until your lawyer is present since any statements that you make can be used as evidence against you. If you cannot afford to hire an attorney, you are entitled to a court-appointed lawyer. Depending on local procedures, the court may appoint a private attorney, a lawyer from a legal aid society or a public defender. The police are required to notify you of these rights before they question you. Ordinarily, they are recited during the confusion of the arrest. Remember them. They may become critical to your defense later on.

Even if you declined a lawyer at the time of arrest, you retain the right to have a lawyer at any time after being arrested. You should seek the advice of a lawyer at the earliest possible time to avoid incriminating yourself to get released from custody, to decide how to plead, and to prepare yourself for your trial.

If you are called by a family member or friend who has been arrested, remind them that they have a right to a lawyer and they do not have to respond to police questioning until the lawyer is present. If a lawyer has been engaged, the person who has been arrested should let the police know that they can claim the right to counsel and that a lawyer is on the way.

Being Taken Into Custody

After you have been arrested, you may be taken into custody and brought to a detention facility. At the detention facility, your arrest will be registered into police records and you may be fingerprinted and photographed. After you have been taken into custody, you or your lawyer can make arrangements for your release while you are waiting for your trial.

You may be asked to participate in a lineup. This is a procedure in which several people, including one or more suspects, are shown to victims or witnesses of a crime to see if they can identify the one who committed it. If you are asked to participate in a lineup, you have a right to have your attorney present.

If you are confined in a detention facility, it may be several hours to a couple of days before you appear before a judge who can consider releasing you. Do your best to stay calm and do not discuss the circumstances of the alleged crime with others. Any statements you make may be reported to the police and used against you.

If you are accused of a less serious crime, such as a minor traffic violation, the police may ask you to sign a citation instead of taking you into custody. If you sign the citation, you are promising to appear in court, but you are not admitting guilt. If you have no identification or refuse to sign the citation, the police may take you into custody.

Getting Released from Custody

After the arrest, you will be brought before a judge to be formally charged with a crime and provided an opportunity to be released while awaiting a trial. If you appear in court without a lawyer, the judge must allow you a reasonable time to find one before your trial. To decide whether to grant bail, the judge will consider various factors such as your family ties, financial resources, employment record, and the seriousness of the crime you have been charged with.

Being Detained

You can be detained without being arrested if the police suspect that you are engaging in a criminal activity or that you might be armed. For example, the police may ask you to identify yourself and conduct a limited search for weapons if they observe you pacing in front of a closed store in the dark. Or a store owner or employee might detain you for a reasonable time for questioning if they have a strong reason to believe that you have stolen or attempted to steal something.

Conclusion

For people who have never before faced criminal charges, an arrest can be a frightening experience. The stress of the arrest may cause you, your family members, or friends to overlook important matters, such as the right to remain silent and the right to advice from a lawyer. If you are arrested, you should consult a lawyer as soon as possible in order to protect your rights and defend yourself against charges made against you. He or she can also negotiate on your behalf with the police and the prosecution and advise you of the risks and advantages of cooperating with the authorities. Your lawyer can also help you with the bail process. If you cannot afford to hire a lawyer, you may ask the judge to appoint a court-paid lawyer for you.

Above all, do your best to stay calm. An arrest is not a conviction. You really are innocent until proven guilty.

CLOSE

Georgia Point System For Suspension of Drivers' Licenses

The state of Georgia has specific rules for deducting points from drivers’ licenses after traffic violation. After a certain number of points are taken off your driver’s record, your license may be suspended, and our lawyers can help you fight against suspension or get your license back.

View More Information

REVOCATION OF DRIVERS’ LICENSES OF PERSONS UNDER 21 YEARS OF AGE

The driver’s license of any person under 21 years of age convicted of hit and run or leaving the scene of an accident in violation of Code Section 40-6-270, racing on highways or streets, using motor vehicle in fleeing or attempting to elude an officer, reckless driving, any offense for which four or more points are assessable under subsection (c) of Code Section 40-5-57, or a violation of Code Section 40-6-391 shall be suspended by operation of law as provided by this Code section.

View More Information

The driver’s license of any person under 21 years of age convicted of hit and run or leaving the scene of an accident in violation of Code Section 40-6-270, racing on highways or streets, using motor vehicle in fleeing or attempting to elude an office, reckless driving, any offense for which four or more points are assessable under subsection © of Code Section 40-5-57, or a violation of Code Section 40-6-391 shall be suspended by operation of law as provided by this Code section. A plea of nolo contendere shall be considered a conviction for the purposes of this law.

The driver’s license of any person under 18 years of age who has accumulated a violation point of four or more points under Code Section 40-5-57 in any consecutive 12 month period shall be suspended by the department. A plea of nolo contendere shall be considered a conviction for purposes of this law.

CLOSE

Boating Under the Influence

Operating a boat comes with additional risks because you are in a body of water. Boating under the influence is dangerous and can have severe consequences, but Jeff Talley can help you work through these charges.

View More Information

BOATING UNDER THE INFLUENCE (BUI) IN GEORGIA

yacht boat ocean water

Last year, nearly 300 BUI arrests were made on Georgia’s waters including cases in Lake Lanier, Allatoona, Oconee, Sinclair, Jackson, and Hartwell. BUI is a criminal offense that can result in fines, imprisonment, and loss of boating privileges. Under the BUI implied consent law, all people boating are deemed to have given consent to have a breath or blood test conducted, at any time, to determine if they are under the influence of alcohol. If you refuse to take a chemical test, the State will try to suspend your boating privileges for 12 months.

The Boat Safety Act of Georgia prohibits persons from boating under the influence (BUI). BUI means operating a boat, personal watercraft (jet skis), or sailboat, while under the influence of alcohol or drugs. It is also illegal for the owner of a boat to allow a person to operate the boat or water ski, aquaplane, surfboard, or similar device being towed by the boat when the owner has reasonable grounds to believe that said person is under the influence of alcohol or drugs.

There have been catastrophic accidents on Lake Lanier that shed light on our boating laws and need for change. In the Georgia Legislative Session of 2013, the Lake Lanier Legislative Delegation along with the governor of Georgia sought out to update our boating laws. In May of 2013, Georgia Senate Bill 136 went into effect.

The main part of the new BUI law is the change of BAC from .10 to .08. Now the boating “legal limit” matches the motor vehicle law of .08. Consequently, there are stiffer penalties for first-time and repeat offenders that are more in line with those that were put in effect in 2008 for automobile DUI violations.

THINGS TO REMEMBER IF YOUR BOAT IS STOPPED BY DNR:

  • Safety checks are permitted on boats without any probable cause or reasonable suspicion. In short, law enforcement does not need a reason to stop you on a lake or river.
  • To avoid safety checks, and pass them when they occur, keep your vessel in compliance with all laws and local ordinances. This includes keeping all lights working and in their proper position, having an adequate number of life jackets and keeping a pressurized fire extinguisher on board.
  • It is not illegal in Georgia to have alcohol in an open container on a boat, or for the person operating the boat to have a drink. It is only illegal if the blood alcohol content of the person operating the boat is .08 percent or higher. So, do not panic if you have an open beer, this will only make the officer suspicious.
  • Be polite and cooperative. Let the officer do his job so he will move on to the next vessel and will not feel compelled to administer any chemical tests.
  • Georgia has a “zero tolerance” blood alcohol level of .02 for people operating a boat under age 21.
  • Different laws regarding what blood alcohol content is considered over the limit can apply depending on whether the waterway is federal or Georgia.
  • Georgia BUI laws apply for motorboats, sailboats, personal watercrafts (including jet skis), water skis and sailboats.

DO YOU NEED AN ATTORNEY IF ARRESTED FOR BUI?

If you find yourself in the unfortunate situation of being arrested for BUI in Georgia, you definitely need an experienced attorney. An attorney with the proper resources and contacts can analyze and attack the accuracy of the state’s breath or blood test. An attorney will also help avoid any unwanted ramifications of a BUI, such as having a negative impact on your ability to operate a boat, or being subject to child endangerment laws if there were minors on the boat. Failing to have an attorney may result in a greater punishment, which is never a good outcome.

Anyone convicted of a BUI, will be guilty of a misdemeanor; if it is a third conviction then it will be considered a high and aggravated misdemeanor; and a fourth conviction will be a felony.

CLOSE

Driving Under the Influence

A DUI charge can cause a major disruption in your life. Recently, new laws have made the DUI process very expensive and time consuming, which is why The Law Offices of Jeffery Talley want to help you through it.

View More Information

Driving Under the Influence

car keys drink dui criminal crime alcohol

A DUI charge can cause major disruption in your life. Because of political pressures brought to bear on the system, a DUI has become a very expensive and time consuming charge to deal with correctly.

There are many ways to attack a DUI case. The first question your attorney needs to answer is whether you were stopped legally. This threshold question may offer a quick way out of the process. The benefit of showing that the police violated the law at this stage is that it can prevent unfavorable evidence from being presented. Unlike most other areas of criminal law, the burden of proving an illegal stop is on the defense.

In a DUI case, the state must prove that because of the introduction of alcohol into his or her body, the defendant was intoxicated while driving. Georgia law allows a prosecutor to prove a person intoxicated in one of two ways: by proving the person was driving while intoxicated to the extent he or she was a less safe driver or the person was driving while having a blood alcohol content of .08 or greater.

Depending upon which theory an officer uses to arrest an individual for the offense of DUI, DUIs can be quite subjective and depend in large part on a police officer’s observations of the person arrested. The first observations normally noted by a police officer are driving facts. That is, the officer’s reason for pulling a person over. A police officer cannot simply stop a person because he wants to. There must be a legal justification for doing so.

The second observations concern the suspect’s appearance and attitude. Most people arrested for DUI can soon expect to hear that the officer found they had red, bloodshot eyes, slurred speech, and an odor of an alcoholic beverage about their breath. Officers also note whether a person was dressed neatly, fumbled for their driver’s license, and other such matters.

Police officers make most of their observations while conducting Field Sobriety Tests (FSTs). These tests are supposed to help the officer determine whether a person has their “normal” faculties.

The next set of observations in a DUI is a breath or blood test. In Georgia, police use the Intoxylizer 9000 to measure a person’s blood alcohol content. Again, proper procedures must be followed both during the test, and in maintaining the machine prior to the test. Proper maintenance and operation of the machine includes many factors. For example, people with diabetes often have a high amount of acetone in their systems. Therefore, such person can produce a false positive result on the machine. There are other useful ways of attacking the testing procedures and the machine itself.

UNDERSTANDING GEORGIA’S 10-DAY RULE

If you have been arrested on suspicion of DUI, you need to be fully aware of what the 10-day rule could hold for you. Under the law, you could lose your driver’s license for 1 full year, unless you schedule an administrative license suspension (ALS) hearing within 10 days.

How to know if you need to schedule this hearing with the Department of Driver Services? At the time of your drunk driving arrest, you would have handed your license over to the officer and been given Form 1205, a yellow piece of paper that reads “Georgia Department of Driver Services” at the top. This form serves as your temporary license, and you have 10 days to save your confiscated license.

If you refused a blood, breath, or urine test, you will have been given this temporary license. The same is true if you attempted these DUI tests, but were mistakenly reported as refusing to these tests. Finally, if you did complete DUI tests, then you will need to schedule a DDS hearing if the test results showed:

  • A blood alcohol content (BAC) of 0.08 or more
  • A BAC of 0.04 or more and you have a commercial driver’s license (CDL)
  • A BAC of 0.02 or more if you were underage at the time of the arrest

UNRELIABILITY OF FIELD SOBRIETY EVALUATIONS:

woman pulled over ticket police cops speeding dui

For decades, it has been apparent that many field sobriety tests are unscientific and inaccurate with some studies suggesting a nearly 30% to 50% error rate. Particularly for drivers who may have a borderline BAC, these field sobriety tests can be highly unreliable.

Sober people are known to “fail” these tests simply because of misunderstood instructions, anxiety, language barriers, or simply distractedness. Sometimes, an officer may not have the proper training to administer these tests correctly. The results of field sobriety evaluations are far from iron clad. Talk to Attorney Jeff Talley to learn how you could counter this evidence and go on to win your case.

Despite the dubious results these evaluations can provide, police officers often rely on some or all of the following tests to assess whether or not someone has been driving impaired:

  • Horizontal Gaze Nystagmus (HGN) Test: This eye test involves an officer holding out an object such as a penlight and asking you to follow it with your eyes. If your eyes twitch before hitting a 45-degree angle, or if your eyes jerk in various ways, you could be suspected of DUI. This test is considered scientific and highly reliable in ideal conditions. Impairment is not the only reason this test can be failed of course, as prescription medication or medical issues could produce similar results, or an officer can administer the test incorrectly.

  • One-Leg Stand Test: This involves standing on one leg and counting, often for about 30 seconds. Waving your arms, hopping, and letting your foot touch the ground are a few of the simple ways this test can be failed. Of course, there are a host of other reasons besides impairment that could be the real reason behind a failed test, such as being overweight, taking medications, wearing bad shoes, or getting distracted.

  • Walk-and-Turn Test: This is the test in which participants are supposed to take nine heel-to-toe steps, twist around, and then take those same steps back, all while maintaining balance, keeping to a straight line, and counting aloud. Age, weight, and nervousness are just a few of the reasons a failed test could be inaccurate.

CLOSE

Drug Cases

Drug cases are more common than you think and there are several variations in charges and drug related laws depending on the amount and type of drug in your possession.

View More Information

DRUG TRAFFICKING & POSSESSION

marijuana money criminal drugs

Georgia drug laws can generally be broken down into three basic categories: trafficking, possession with intent to distribute, or simple possession. While virtually all drug offenses in Georgia are felonies, trafficking offenses carry severe mandatory minimum prison sentences that increase with the quantity of the drugs.

DRUG TRAFFICKING LAWS IN GEORGIA:

Trafficking cocaine is defined as selling, manufacturing, delivering or knowingly possessing 28 or more grams of cocaine. If the quantity is at least 28 grams but less than 200 grams, the penalty is a mandatory minimum sentence of 10 years. For quantities of at least 200 grams but less than 400 grams, the law requires a minimum sentence of 15 years. More than 400 grams of cocaine carries a minimum sentence of 25 years.

When it comes to morphine or opium (including heroin), a person commits the crime of trafficking when he or she possesses 4 or more grams. Selling, delivering or possessing 4 or more grams but less than 14 grams requires a minimum sentence of 5 years. Quantities between 14 grams and less than 28 grams require a sentence of at least 10 years. For 28 grams or more, the law demands a sentence of at least 25 years.

Trafficking in marijuana is defined as selling, manufacturing growing, delivering or possessing more than 10 pounds of marijuana. An amount greater than 10 pounds but less than 2,000 pounds requires at least a 5-year sentence. An amount between 2,000 but less than 10,000 pounds requires a minimum sentence of 7 years. For 10,000 or more pounds, the minimum sentence is 15 years.

For methamphetamine or amphetamine, trafficking involves the sale, delivery, or possession of 28 or more grams. Amounts between 28 but less than 200 grams will result in at least a 10-year sentence. For amounts between 200 but less than 400 grams, there is a mandatory minimum of 15 years. Greater amounts trigger a 25-year mandatory minimum sentence. Manufacturing these drugs carries its own penalties, which are virtually the same as above. The only difference is that the manufacturing of any amount under 200 grams requires a minimum sentence of 10 years.

While the above-listed sentences are mandatory minimum sentences, there are three different ways a defendant can be sentenced to less than the mandatory minimum. First, the District Attorney can file a motion asking the sentencing court to reduce or suspend a sentence if the defendant provides substantial assistance in the identification, arrest, or conviction of any other individuals in the drug operation. Second, the sentencing court may use its own discretion to depart from a mandatory minimum sentence if the defendant was not a leader in the drug operation, if the defendant did not possess a weapon, the criminal conduct did not result in a death or serious bodily injury, the defendant has no prior felonies, and the interests of justice will not be served by applying the mandatory minimum sentence. Third, the sentencing court may depart where the District Attorney and the defendant have agreed to a sentence that is below a mandatory minimum sentence.

DEFENDING DRUG TRAFFICKING & POSSESSION CHARGES:

In defending a drug charge, a criminal defense attorney will normally try to determine whether the search and seizure that led to the discovery of drugs was legal. If the drugs were discovered in a vehicle, the attorney will have to determine if the officer who stopped the vehicle had cause to do so. It will also have to be determined if the officer had cause to search the vehicle or if consent was given by the accused. If the drugs were discovered in a home, an attorney will have to verify that the search was based on a valid search warrant or other probable cause. If the police violated a person’s rights, a judge may be forced to suppress any evidence of drugs.

Another defense to drug charges is to argue that the defendant was not in possession of the drugs. A person’s mere presence where drugs are found is not enough for a conviction. There must be some additional evidence connecting the defendant to the drugs that were discovered.

There are two types of possession under the law. Actual possession occurs when the defendant had knowing and direct physical control over the drugs. Constructive possession occurs when the defendant had the power and intention to exercise control over drugs, but not actual possession. Constructive possession of contraband and participation in the illegal act may be shown by direct and circumstantial evidence. For example, a defendant’s attempts to flee or elude police; inconsistent explanation by the defendant for his behavior, the presence of significant amounts of contraband and drug paraphernalia in plain view, the defendant’s possession of large amounts of cash…or drug-related paraphernalia; evidence that the defendant was under the influence of drugs; or drug residue found on the defendant are circumstances from which a defendant’s intent to control contraband may be inferred. There is also a presumption that the owner of a dwelling or the owner or driver of a car is in possession of any drugs that are found in the home or car. This presumption may be rebutted if the defendant can show that others had equal access to the car or home.

Many other potential defenses are available to a person accused of a drug crime. If you have been charged or are being investigated for a Georgia drug crime, you need an experienced Georgia defense lawyer who will defend your legal rights. My firm has successfully represented clients charged with drug trafficking and drug possession for over 24 years. If you have been charged with a drug crime, my firm may be able to help.

The information provided above is a very general summary of Georgia drug laws at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal questions, you should always consult a Georgia criminal defense lawyer. I am licensed to practice in the state and federal courts of Georgia.

CLOSE

Child Molestation Charges in Georgia

Child molestation charges create a sensitive, traumatic situation for everyone involved. It is also common for suspects in these cases to be falsely accused.

View More Information

CHILD MOLESTATION CHARGES IN GEORGIA

police ticket crime law

Child molestation charges are obviously very serious, and can be one of the most difficult criminal cases to properly defend. My team has decades of experience in winning these cases at trial. Jeff Talley has developed an effective approach to these cases through the use of qualified experts and investigators, proven defense theories, and plain old hard work to help our clients respond to false allegations of child molestation and related crimes.

Under Georgia law sex crimes against children include CHILD MOLESTATION and AGGRAVATED CHILD MOLESTATION. Child molestation is defined as performing any indecent or immoral act on or within close proximity of a child under 16 years of age while intending to satisfy the desires of the victim or the offender. The crime becomes aggravated when the conduct harms the child’s body or includes some form of sodomy.

Georgia law also makes it illegal to ENTICE CHILDREN FOR INDECENT REASONS, and to sexually exploit children. A person illegally entices a child when he propositions, lures, or transports a child to a location in order to molest the child or to perform acts that are deemed indecent.

SEXUAL EXPLOITATION OF A CHILD involves using, persuading, inducing, enticing or coercing any minor to participate in explicit behavior of a sensual nature in order to generate some visual depiction. Additionally, it is illegal for a person to generate, duplicate, dispense, encourage, convey, or own with the intention of conveying or dispensing any visual depiction of a child in such conduct. The same law also makes it illegal to possess such material.

DEFENDING CHILD MOLESTATION & OTHER SEX CRIMES:

Defending sex crime allegations is often a complicated and lengthy endeavor. Among the first steps is to examine the statements made by the alleged victim or witnesses for any inconsistencies and the circumstances under which the statements were made. Inconsistent statements or a failure by law enforcement to follow standard protocol in attaining statements are indicators that an allegation is false. Children are exceptionally prone to suggestibility and coercion by adults or other children. Police officers or social workers not trained in the practice of interviewing children often extract statements that are exaggerated or purely fabricated. The way questions are phrased may lead to inaccurate responses. In many cases, these statements may be taped and offered to a jury of their consideration.

Defense counsel should also conduct an investigation into the background of the people involved in the case. The purpose of a background investigation is to search for any motive or explanation as to why the allegations were made. For example, it is not unheard of during a heated divorce for there to be false allegations of molestation. Allegations of molestation are often made by an adult with grievances towards another adult. In fact, there are times when a witness’ testimony regarding a child’s out-of-court statements is simply too unreliable, and a judge will not allow a jury to hear it. In the case of alleged adult victims, the social and legal history of the alleged victim will be examined for any red flags. Accusations are often made based on embarrassment, jealousy, or other emotions when no crime has been committed.

Medical evidence is another common issue raised at trial. With many sex crimes allegations, a medical report is produced. It is important for a defense attorney to interview any treating physicians or nurses if possible, since not all important information is contained with a medical report. Factors such as timing, the degree and type of damage, and physical evidence must be compared with the allegations. An expert witness may be needed to show that the allegations do not match the medical evidence, or that the evidence is benign in nature.

It is important to remember that false allegations can and do lead to convictions. That’s why it is absolutely necessary to hire an experienced criminal defense attorney who will defend your rights and fight for your interests. My firm has successfully represented those falsely accused of molestation and sex crimes for many years. If you have been accused of molestation or a sex crime, my firm may be able to help.

The information provided above is a very general summary of Georgia sex crime laws at the time the text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal questions, you should always consult a lawyer. I am licensed to practice in the state and federal courts of Georgia.

CLOSE

Georgia Child Pornography Cases

Since child pornography cases are primarily based on computer-related evidence, attorneys who handle these cases should be well-versed in interpreting computer data and must be able to recognize and obtain the type of data that will prove the client’s innocence. It is vitally important for lawyers to know how to use and analyze computer evidence and, more importantly when to retain a computer forensics expert.

View More Information

PEER-TO-PEER FILE SHARING PROGRAMS:

computer digital strategy responsive

Most child pornography cases stem from the use of peer-to-peer file sharing programs such as Ares, eMule, and Shareaza that provide access to a vast network of files. Many people use these programs to download pornography and the majority of it is legal adult pornography. Occasionally, a person may accidentally download a file containing child pornography but may not realize this until the file is actually viewed. While deleting the file will keep it out of sight to the user, this does not remove it from the hard drive of the computer or device. Thus, a person who has accidentally downloaded child pornography will still remain in possession of the file well after it is deleted.

In order for your attorney to prove that the file was accidentally downloaded, it is critical for the attorney to analyze the file and folder properties on the computer. Many times legal counsel can obtain the search terms used by the client to prove that the download was accidental. Since law enforcement will never be looking for this type of evidence during their investigation, it is imperative for legal counsel to search for and obtain this evidence in order to prove the client’s innocence.

CACHE & DELETED FILES:

Anytime a website is viewed, all of the pictures and videos on that site are automatically downloaded to what are known as “cache files,” or “temporary internet files.” These files are downloaded without the user’s knowledge and may remain on the computer for a long period of time. These cache files very often lead to the unknowing possession of child pornography.

Another type of cache file is a “thumbs.db” file. Thumbs.db files are system cache files that are created by Windows and are associated with actual image files stored somewhere on the computer. These files are also stored without the user’s knowledge and are typically hidden from view. Even if the image file is later deleted from the computer, the thumbs.ds file will remain on the hard drive. The problem is that the thumbs.db file contains the same picture that the image file contains – just in a lower resolution. So, if an image of child pornography is deleted from the computer, the associated thumbs.db file, containing that very same image, will remain on the hard drive without the user’s knowledge.

In Barton v. State, the Georgia Court of Appeals held that the presence of child pornography saved in a person’s cache files does not, by itself, constitute knowing possession of child pornography. The ruling in Barton, also applies to deleted files found in the unallocated space of the computer. To provide that a person knowingly possessed cache files or deleted files in the unallocated space, the prosecution will have to prove that the person actively sought out and stored these files on the computer.

COMPUTER FORENSICS EXPERTS:

jeffery talley african

With the assistance of computer forensics experts, your attorney can usually prove when a user has accidentally downloaded or possessed child pornography. Using software such as EnCase or FTK, the expert can retrieve date from the hard drive that enables your attorney to retrace the steps that led to the unwanted files entering the computer. For instance, an expert can assist your attorney in locating search terms used with the file sharing programs, internet history data, file properties that can show when files were downloaded or deleted, as well as extract data that will help create timelines surrounding the downloading of the unlawful files.

It must be stressed that very little of this data can be obtained from the hard drive without the use of a computer forensics expert. My firm is fortunate to be able to work with some of the best experts in the field and with their assistance have successfully proven the innocence of many people.

CLOSE

Georgia Murder & Violent Crimes

Murder is the most serious criminal offense you can be accused of. While the victim always deserves adequate justice, it’s equally important for the suspect to be charged only if they truly committed the crime.

View More Information

GEORGIA MURDER & VIOLENT CRIMES

magnifying glass fingerprints crime scene

MURDER occurs when an individual with premeditated malice unlawfully causes another person to die. The element of malice may be satisfied by showing an expressed or implied form of malice. The law also states that an individual commits murder when he causes the death of another while engaging in a felony. In such cases, malice does not have to be proven. The punishment for a conviction of murder is death or imprisonment for life.

Murder is reduced to a charge of VOLUNTARY MANSLAUGHTER when the defendant’s actions are due to a passion that is impulsive, aggressive, and irresistible stemming from a grave provocation that would create the same passion in a reasonable person. Generally, there cannot be an opportunity for the defendant to have calmed down between the provocation and the killing. A conviction carries up to 20 years in prison.

If a person unintentionally kills another during the commission of an unlawful act, that is not a felony; he can be charged with INVOLUNTARY MANSLAUGHTER and receive a sentence of up to 10 years. If a person kills another unintentionally while performing a lawful act in an unlawful manner that is likely to cause great bodily harm, the person may also be charged with involuntary manslaughter; however, the conviction of such a crime is only a misdemeanor.

AGGRAVATED BATTERY occurs when a person’s actions cause physical injury to another person through the loss of a body part or through the loss of function of a body part. A charge of aggravated battery is also appropriate when the injury results in disfigurement of the victim’s body or a part of the body. A conviction will generally result in up to 20 years. An aggravated battery committed upon a law enforcement officer will result in a 10 to 20-year sentence. In addition, if the alleged victim was 65 or older, the sentence will be between 5 and 20 years.

AGGRAVATED ASSAULT is another serious crime in Georgia. An individual commits this crime when he assaults another with the intention of murdering, raping, or robbing. An aggravated assault can also be committed when a person assaults another with a lethal weapon or device likely to cause serious injury to the body, or that actually does cause such an injury. A third way to commit an aggravated assault is when a person discharges a firearm towards another from a vehicle without legal justification. A conviction of this crime carries a sentence of between 1 and 20 years. If the assault is committed upon an officer, the minimum sentence is increased to 5 years. If the alleged victim is 65 or older, the sentence is a minimum of 3 years.

KIDNAPPING is defined as abducting any person without lawful authority and holding such person against his or her will. Kidnapping differs from false imprisonment in that kidnapping requires an additional element of transportation or movement of the alleged victim. Kidnapping carries with it a 10 to 20-year sentence for victims 14 years and older. For a victim of less than 14, a defendant can receive 25 years to life. If bodily injury occurs during a kidnapping, the penalty is life imprisonment. The crime of false imprisonment carries with it a sentence of 1 to 10 years.

A charge of OBSTRUCTION OF A LAW ENFORCEMENT OFFICER is a common charge. Obstruction occurs when a person deliberately opposes or resists any officer through a form of violence. It should be noted that this law requires that the officer be acting in his capacity as an officer for there to be a conviction. A conviction for obstruction carries with it a sentence of up to 5 years. Obstruction is a misdemeanor when a person deliberately hinders an officer from carrying out his duties, but no force or violence is involved.

DEFENDING MURDER & VIOLENT CRIME CHARGES:

A criminal defense attorney has many options in defending allegations of a violent crime. Of course, the state must always prove every element of a crime as charged. There can be no conviction if the state cannot prove every element beyond a reasonable doubt. For instance, kidnapping requires several elements, including transportation. If there is no evidence that the victim was moved against his will, there can be no conviction.

A defense attorney will also investigate the arrest and any police investigations that were conducted for possible defenses. Part of this work usually involves investigating the witnesses and alleged victims. Violent crimes are often the result of personal or emotional situations when tempers are running high. When cooler heads prevail, stories may change and a witness’ trial testimony may be inconsistent with the initial statement.

Additionally, criminal allegations are often made against people who were justified in their actions. This is referred to as an affirmative defense. A person is justified in using force against another to the extent that he reasonably believes that such force is necessary to defend himself or a third person against anothers imminent use of unlawful force. Furthermore, Georgia provides that a person may use deadly force if he believes that it is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.

Georgia also allows a person to defend his or her home. A person is justified in using force against another when he reasonably believes that such force is necessary to prevent or terminate another’s unlawful entry into the home. A person may use deadly force when the owner reasonably believes the intruder intends to assault someone or commit a felony inside the home. Deadly force is also generally allowed when the owner has reason to believe that an unlawful and forcible entry occurred when the intruder is not a member of the family or household. It is important to note that a person defending his or her home, self, or others has no duty to retreat and has the right to stand his or her ground.

Many other defenses are available to someone accused of a violent crime. In many cases, a skilled attorney will be able to negotiate for a reduced charge or have a charge dismissed entirely. A reduction could mean the difference between a felony and a misdemeanor. The complexity and gravity of violent crime charges underscore the necessity of an experienced attorney who will defend your legal rights. For many years, my firm has successfully represented clients charged with violent crimes. If you have been charged with a violent crime, my firm may be able to help.

The information provided above is a very general summary of Georgia’s murder and violent crime laws at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal questions, you should always consult a lawyer licensed to practice in your jurisdiction. I am licensed to practice law in state and federal courts of Georgia.

CLOSE

Robbery & Burglary

Under Georgia law, ROBBERY occurs when a person with the intent to commit theft, takes the property of another from another in the immediate presence of another by use of force, sudden snatching, intimidation, of use threat or coercion, or by placing a person in fear of immediate serious bodily injury to himself or another person.

View More Information

automobile security thief robbery break in

An item that was taken does not need to have actual contact with the victim’s body. The item simply needs to be under the victim’s control or responsibility and not too distant from the victim. A conviction will result in a 1 to 20 year sentence. Additionally, if the victim was 65 or older, the defendant will be sentenced to between 5 and 20 years. The judge is also required to force the defendant to make restitution to any victim equal to the uncompensated portion of damages.

The more severe crime of ARMED ROBBERY is committed when a person intends to commit a theft and takes property from another or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such a weapon. An offensive weapon is essentially anything that is likely to produce death or great bodily injury.

Even the use of a toy replica may be sufficient to convict someone of armed robbery. A conviction will result in a mandatory minimum sentence of 10 years with the possibility of up to 20 years in prison. If the armed robbery occurs at a pharmacy in which the person takes a controlled substance and intentionally inflicts bodily injury upon any person, a conviction will result in a sentence of at least 15 years.

Georgia also makes it a separate offense for a person to possess or use a machine gun, sawed-off shotgun, sawed-off rifle, or a silencer-equipped firearm during the commission of a robbery. A conviction requires a sentence of 10 years which will run consecutively to any other sentences. A second offense will result in life imprisonment.

The crime of BURGLARY generally occurs when a person enters or remains within a building or structure without authority and with the intent of committing a felony or theft thereon. It is important to note that forced entry is not an element of burglary.

Intent to commit a felony or theft inside the home or structure may be inferred simply by the presence of valuables inside and no items need to have been actually taken for a conviction. A conviction will result in a 1 to 20 year sentence. A second conviction carries a 2 to 20 year sentence. A third offense carries a 5 to 20 year sentence.

A charge similar to burglary is CRIMINAL TRESPASS. However, criminal trespass is only a misdemeanor and often results from a reduced burglary charge. Criminal trespass may be committed in a variety of ways, including when a person knowingly and without authority enters upon the land or premises of another for an unlawful purpose. The crime can be also charged when a person enters upon the land or premises of another after being given notice by the owner that such entry is forbidden or remains upon the land or premises after being told to leave. Criminal trespass is also committed when a person intentionally damages property valued at $500.00 or less without consent. Similarly, this crime can be charged when a person knowingly and maliciously, interferes with the possession or use of the property of another without consent.

Defending Robbery & Burglary Cases

A criminal defense attorney has many options in defending allegations of robbery or burglary. Of course, the state must prove every element of the crime as charged. There can be no conviction if the state cannot prove every element beyond a reasonable doubt. For instance, robbery requires several elements including the intent to commit theft. If there is no evidence of this intent, there generally can be no conviction.

Georgia also provides for two affirmative defenses in the crime of burglary. This is if the defendant was authorized to be in the building or was authorized to enter the building. Any conflict in testimony between the defendant and the alleged victim is generally a question of credibility for the jury to resolve. The second affirmative defense is to argue a mistake of fact.

Many other potential defenses are available to a defendant accused of a robbery or burglary. If you have been charged with one of these offenses, you need an experienced Georgia attorney who will defend your legal rights. My firm has successfully represented clients charged with robbery and burglary and may be able to help.

The information provided above is a very general summary of Georgia’s robbery and burglary laws at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a Georgia criminal defense lawyer. I am licensed to practice in all state and federal courts in Georgia.

CLOSE

Choosing Drug Court: A Dance with the Devil

Drug Court is an accountability court that typically lasts two (2) years and requires you to successfully complete various phases prior to graduation. While in the program, individuals pay monthly fees, perform community service, attend drug and alcohol counseling classes, attend AA/NA meetings, be subject to random drug and alcohol screens, have full-time employment, etc. Upon successful completion of the program, the charges against the client are dismissed.

View More Information
Drug court consent form

However, if you get caught up in the program and have violations or sanctions, the program can become a never ending cycle of doom. When being taken into the program, clients enter a plea to the charges for which they have been arrested. This is known as a blind plea. The client is not sentenced, and the case is held pending your efforts in the program. In essence, the court holds a prison sentence over your head. Additionally, the client enters into a drug court contract where he or she waives many of their constitutional rights. In the event you are terminated from the program, the judge can sentence you to anything within the parameters of the law for the offenses in which you entered the plea, which in most instances will involve being sent to prison. Further, depending upon individual performances, the (2) two year program can be extended or prolonged. For example, if you have failures or issues while in the program, you can be sent to inpatient rehabilitation, serve county jail time, be required to restart a phase, perform extra community service hours, etc. While the beauty of the program is a dismissal of the charges, the requirements are very intensive, time consuming, and overbearing in a lot of instances. It is suggested that you speak with your own private attorney prior to making the decision to enter into this program. A copy of the Drug Court contracts along with supporting documents are included here for your review.

CLOSE