Below we will attempt to address some of the most common questions people have for a criminal defense attorney. This page will be updated when as necessary. If you have a concern that is not covered here, please do not hesitate to contact us for a no cost, no obligation, confidential, consultation.
RECORD RESTRICTION OR EXPUNGEMENT
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: Everyone is concerned about the consequences of a criminal conviction on their lives. A conviction can affect what kind of job you can get or hold onto, where you can go to school, whether you can get a professional license, where you can live, whether you can vote and whether you can carry a firearm. Additionally, a conviction is embarrassing. Unscrupulous websites post this information for public viewing and extort citizens to pay them to take it down. Fortunately, in many cases, people convicted of crimes have options to avoid these consequences. For example, one of the best choices is retroactive first offender, restriction and sealing. if this was your first and only arrest, Georgia law provides that you may be able to return to court and obtain an order to retroactively be found not guilty. After that first step, you can then you can get your record restricted and sealed. This means that you will not have a record of criminal conviction and your case will be hidden from the general public. Most employers will find it impossible to find your record. Websites that publicize such information will be required to remove it.
PRIVATE PROBATION COMPANIES
Q: I was put on misdemeanor probation and blew the whole thing off and never reported to probation or did anything. What will happen if I ever get caught?
A: In 2014, the Georgia Supreme Court issued an important decision regarding misdemeanor probation that still effects hundreds if not thousands of cases throughout Georgia. If any Georgia court sentenced you to probation and you were placed under the supervision of a “private probation” company, that is, a for-profit private company hired by a court to supervise you on your misdemeanor sentence, then your probated sentence may, under certain circumstances, continue to run out and then terminate, whether you report, pay the fines, or fulfill the conditions of your probation, or not. There are many private probation companies in Georgia affected by this Supreme Court case and subsequent 2015 Georgia legislation. Some of the more common private probation companies are Georgia Probation Management, Sentinel Offender Services, Judicial Correction Services, Middle Georgia Probation, LLC, CSRA Probation Services, Inc., Judicial Alternatives of Georgia (JAG, Inc), South Georgia Probation, Red Hills Community Probation, and Middle Georgia Community Probation Services. In many, if not most such cases, neither the court or the private company can or will take the steps necessary to “stop the clock”, or “toll”, your probation if you stop reporting or otherwise complying with the terms of your probation. So, for example, if you were sentenced to serve 12 months on “private” probation and never reported at all, once 12 months have passed, your sentence may be over and your probation cannot ever be revoked. Additionally, if a probation arrest warrant was issued against you and your sentence would now otherwise be expired because of the passage of time, the warrant may illegal and invalid. Further, if you are in jail because a court already revoked your “private” probation and the sentence would otherwise be expired because of the passage of time and the failure of the probation company to take certain time consuming clerical steps, you may be jailed illegally. Additionally, some counties and cities have established their own government run probation departments for supervision of misdemeanor cases. These cases are not supervised by the Georgia Department of Community Supervision (formerly the Department of Corrections) either. They are part of the local city or county government where the sentencing court sits. Probation officers there are government employees. In such cases, defendants under sentence, under certain circumstances, may not have their sentences tolled or extended. Everybody’s case is different. Therefore, please call us today if you believe you or a loved one are affected by this important Georgia Supreme Court decision and the 2015 legislation.
MIRANDA WARNINGS
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 guilt. 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. Miranda rights:
- 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.
RIGHT TO REMAIN SILENT
Q: What should I do do if the police want to question me?
A: Be polite and cooperative. Don’t lie or do anything that could be interpreted as obstruction of the police. Obstruction of police is doing anything that prevents the police from doing their jobs. You could be arrested if you do. Don’t say anything to the police except your name and other identifying information. DO NOT discuss the situation with them. People lose their cases as a result of talking 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 may have already decided to arrest you before they even talk to you. In that case any amount of talking to defend yourself won’t help you. The police will sometimes lie during an interrogation in order to make you say something against your interest. The police are allowed to do this and are taught to do this.This is known as the Reid 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?”
DOMESTIC VIOLENCE
Q: I called the police when my husband shoved me. They came and arrested him! I didn’t want this to happen. The District Attorney told me that I must testify against my husband. 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 no longer have the traditional right to assert the “marital privilege” and refuse to testify against your spouse. If you are a spouse being ordered to testify against your husband or wife, and you don’t want to, I would strongly advise you to get your own independent lawyer. You need a lawyer’s protection. This is because if you do testify and you deny what you already told the police (meaning you recant) you can be arrested for giving police false information or perjury. Your spouse’s lawyer is usually not permitted to represent the both of you when this happens. Fortunately, this difficult 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.
TRIAL
Q: Can I have a trial?
A: 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 call an attorney?
A: It’s 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, So, why I should hire a lawyer?
A: 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 frequently 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 certain 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 pursue you more vigorously and, should you be convicted, the punishment will usually be more severe if you lose. This is known as recidivist treatment. 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 government 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 arrested person 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 state.
Q: How do you post bail?
A: Bail can always be posted in cash, dollar for dollar. Payment is made 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.
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. Now what?
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 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 rehabilitation 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.
Bert W. Cohen, Marietta, Cobb County and Metro Atlanta Criminal Defense Lawyer, 191 Roswell Street, Marietta, GA 30060, Tel: (770) 422-5101
