Cansino Blanchette & Oswalt- Smith, LLC

Understanding Field Sobriety Tests and Refusal Implications in Georgia: Know Your Rights

2025-01-20T08:51:06Z

1. Implied Consent Law: In Georgia, there is an "implied consent" law, which means that by obtaining a driver's license, you have already given your consent to submit to chemical tests (such as breath, blood, or urine tests) if you are suspected of DUI. However, it's important to note that this law does not apply to field sobriety tests. Refusing to take FSTs in Georgia does not result in automatic penalties related to your driver's license. 2. Officer's Discretion: While you have the right to refuse FSTs in Georgia, it's essential to understand that law enforcement officers still have the discretion to arrest you based on other evidence or observations. They may consider your refusal as a factor in their decision-making process, potentially leading to an arrest. 3. Limited Admissibility in Court: If you refuse to take field sobriety tests, the prosecution may not be able to present evidence of your performance (or lack thereof) in court. However, it's important to note that the prosecution can still use other evidence, such as observations of your behavior, driving patterns, and the results of chemical tests, to build their case against you. 4. No Automatic License Suspension: Unlike some states, Georgia does not impose automatic driver's license suspensions for refusing FSTs. However, if you are subsequently arrested for DUI and refuse to take a chemical test as required by the implied consent law, your license may be suspended for one year. This suspension is separate from any penalties related to your refusal to perform field sobriety tests.

Conclusion:

In Georgia, you have the right to refuse field sobriety tests without immediate penalties related to your driver's license. However, refusal does not guarantee immunity from arrest or other consequences. It's crucial to consult with a qualified attorney who specializes in DUI cases to understand the specific laws and potential implications of refusing FSTs in Georgia.

Gun Rights

2025-01-20T08:51:11Z

The Right To Bear Arms: Criminal Consequences

It’s common knowledge that Americans have many rights and privileges given to us through the United States Constitution and its State’s Legislations. Of particular interest in criminal defense cases is protection of a client’s U. S. Constitution 2^nd Amendment Rights, more commonly known as the right to bear arms. This is a hot topic in Georgia cases; it’s no secret that Southerners love their firearms.

Those charged with crimes are often upset to find that their right to own and purchase their firearms may be at stake depending on their charges. They can be equally relieved to hear that many crimes will not subject them to a loss of their privilege to bear arms, especially here in Georgia. However, it’s critical to understand that Federal Law will override Georgia Law in certain circumstances and for a certain category of cases, specifically regarding the right to possess and own firearms. More on that in a minute.

The Right To Bear Arms: Felony Vs. Misdemeanor

Understanding when someone’s right to bear arms is or isn’t at stake starts by assessing the severity of their charge. Generally, it’s a simple assessment; a felony conviction will automatically revoke a person’s right to possess firearms through Federal Law. There are no exceptions to this rule and convicted felons run the risk of additional felony charges in the future if they do not adhere to the removal of their firearms upon conviction. Those facing felony convictions should seriously consider legal assistance and advice in their case in order to minimize the chance of losing their right to bear arms.

Alternatively, misdemeanor charges do not carry the same penalty, EXCEPT for one specific subcategory of misdemeanor offenses. Those facing misdemeanor charges will be happy to hear that your gun rights are safe if you are charged with any misdemeanor not pertaining to domestic violence. This is due to a Federal Statute that states that anyone carrying a domestic violence conviction, misdemeanor or felony, will forfeit their right to possess or own firearms.

This is a big deal, and is often a major reason to consider the assistance of an attorney if facing misdemeanor family violence charges. It’s equally important because very few people facing these charges realize their gun rights are at stake. For reference, the following categories of misdemeanor violence cases can qualify per federal law as domestic violence if the victim of such a crime is the following:

Spouse of previous spouses
People who share a mutual child, with or without marriage
Parents and children
Step- parents and step- children
Foster- parents and foster- children
Roommates and former roommates

Some of these are obvious, and others not so obvious, but the bottom line is that any domestic violence conviction, felony or misdemeanor, that involves one of these categories as the victim will eliminate a person’s right to possess firearms. Please reference our blog on Family Violence for more specific information on this topic.

The Right To Bear Arms: Keeping Your Rights

There’s a lot of bad news about losing rights in the previous section for those facing felony or domestic violence charges. However, with proper representation and resolution there are several options that would allow for a person facing convictions for these crimes to maintain their right to own and possess their firearms.

The most obvious outcome, excluding outright dismissal, is to negotiate a felony charge down to a misdemeanor charge. This is most often accomplished through a defense attorney’s careful review and negotiation of a case. Reductions of felony charges to misdemeanor charges is often viewed as a very positive outcome, not only regarding retention of gun rights, but also due to being able to maintain a multitude of other rights such as the right to vote, the right to be part of a jury, and other possible conditions based on a specific felony sentence.

Unfortunately, not every felony case can be negotiated to a misdemeanor level. There is still some good news for first time felony offenders. First time offenders can choose to use what is called “first offender’s status” on their first felony conviction. This statute provides the opportunity for a first- time offender to restore all rights temporarily removed by adhering to the strict conditions of their sentence. Upon completion of first- offender sentence, a person’s sentence is considered complete without an adjudication of guilt or a conviction. Simply put, a first- offender status case that is completed without any probation violations nor any new charges during probation will disappear from a person’s record. Naturally, if it’s off your record, the rights you would have lost are also restored.

But what about the misdemeanor family violence cases? Similar to felony reductions, a tactic commonly used by defense attorneys is to negotiate the removal of the family violence tag from a misdemeanor case. Someone pleading to misdemeanor simple assault with no domestic violence tag is not subject to the federal statute preventing their gun rights. Some jurisdictions may allow an individual to plead to a misdemeanor domestic violence case using nolo contendere. Similar to first offender status, a nolo contendere plea is not considered a plea of guilty, and therefore does not disqualify an individual from their gun rights per the federal statute.

The Right To Bear Arms: Special Circumstances

There are a few time limited situations where someone may lose their right to possess their firearms temporarily that may have nothing to do with being charged with a crime. The most common scenario where this happens is in situations involving a Temporary Protective Order (TPO).

In Georgia, a TPO may prohibit an individual from possessing firearms for the duration of the order. Generally, these orders are in effect for 12 months. However, there are conditions that must be met in order for an individual to have their gun rights temporarily suspended:

The Defendant of the TPO must be properly served the TPO and subsequently must have the opportunity to be heard at a scheduled hearing.
The Petitioner must qualify as an intimate partner of the Defendant. Per Georgia law, “Intimate Partner” is qualified as 1) a spouse or previous spouse of the Defendant 2) A Parent or Child of the Defendant and 3) a cohabitant (roommate) or previous cohabitant of the Defendant.
The TPO must restrain what is referred to as future conduct. Future conduct is a loose category that includes acts of harassment, threats, or intimidation against the Plaintiff, specifically any acts that may cause the Plaintiff to fear bodily injury to themselves or someone they also hold intimate.
The TPO finds that the Defendant is deemed a “credible threat”. The credible threat condition would be determined by the preceding judge and would show that there is reason for the judge to believe that the Defendant poses potential threat of violence against the Petitioner.

Defendant’s in a TPO scenario may find it worth their time to consult with an attorney to make certain that their interests and rights are protected as thoroughly as possible.

THE RIGHT TO BEAR ARMS: FINAL THOUGHTS

There’s a lot on the line when facing felony or misdemeanor charges. Of particular interest to Georgians is their right to purchase and possess firearms. Anyone facing criminal charges should seek to consult with criminal defense specialists to be certain their rights are protected as much as possible.

Felony convictions outright eliminate many rights an individual possesses, including the right to bear arms. However, there are avenues that will protect these rights. Proper negotiation in a felony case can result in dismissal, reductions, or conditional sentencing that will protect the individual’s rights to the highest degree possible.

All misdemeanor cases excepting one specific category will not eliminate an individual’s right to bear arms. Misdemeanor family violence convictions can and will prohibit you from owning and purchasing firearms. As with felony cases, misdemeanor domestic violence cases can be navigated properly and confidently with the right legal assistance to be certain that a person’s rights remain intact.

We look forward to working with you to make sure that your rights are protected. Call us today so we can get to work for you.

Is it ever in your interest to talk to the police?

2025-01-20T08:51:16Z

When approached by a police officer, our first instinct is often to help. Even if we are accused of something, we may assume that we would be better off explaining our side of the story and assuaging the officer’s suspicions. Unfortunately, many times, talking to the police can make the situation more serious for you. This can be the case when you are a mere bystander or witness, but it is especially true when the police suspect you may have committed a crime. The truth is, talking to the police can sometimes – if not always – can get you into trouble. Among the foremost experts, Virginia's Regent Law School professor James Duane famously argued in his book, “You Have the Right to Remain Innocent,” that people should never speak to the police under any circumstances whatsoever. Here are a few of his main points:

Talking to the police cannot help you

It may seem counter-intuitive that talking to the police not only will not but cannot help you. However, according to Professor Duane, the evidence is clear. People are virtually never successful at talking their way out of an arrest. Moreover, talking to the police could lead you to admit guilt, even when you are not guilty. This does happen, unfortunately, altogether too frequently. Finally, if you admit guilt to the police, you get nothing in return. If you wait to admit guilt until later in the process, you may get something in exchange.

Even a small mistake could be viewed as a lie – and it is easy to make mistakes

People like to talk in stressful situations. Even innocent people who are trying to tell the truth may make mistakes. These mistakes could be viewed as lies and used against you in court. Also, even truthful responses can sometimes give the police something to use to help convict you. For example, admitting to having a negative relationship with a crime victim could help the state prosecute you. And, even if you’re completely innocent and only tell the truth, you are likely to have to tell your story several times, including in court. The chances are very high that you will miss or misstate small details. This can be used to make you appear to be deceptive. It is important to understand that many law enforcement officer do not record their interviews – or even write down exactly what you said, word for word. If the officer doesn’t remember your statement accurately, it could cost you at trial. It would be your word against the officer’s.

The police are not the judge, jury or prosecutor

Many people think the police will help them if they are honest. Sometimes, officers even imply this. However, only prosecutors have the authority to negotiate plea agreements or other deals.

Even if you may be guilty, confessing to the police could cost you

It’s entirely possible that the police do not have enough evidence to convict you without your confession. They may have booked you on a much more serious offense than the prosecutor would ultimately allow. There may be circumstances in your case that justify a lesser charge or even exonerate you. Confessing to the police locks in the often too-harsh charges the police may have preferred.

Even if you are the victim of the crime, you could still be charged with something

You may assume that Professor Duane meant only that criminal suspects have nothing to gain from talking to police. He actually meant that no one should speak to the police, ever – and that includes crime victims. If you invite the police into your life, they may discover evidence of a completely separate crime (often drug-related). If they do, they may arrest you. These are all good reasons to exercise your right to remain silent and to ask for a lawyer. An experienced criminal defense lawyer can help you navigate the legal system and protect your rights at every step.

How to get the best outcome after a DUI charge in Georgia

2025-01-20T08:51:21Z

A lawyer’s job is to make sure that clients have solid legal support and understand the charges that they’re facing. Often, this means tempering expectations and encouraging our clients to understand what the most likely outcomes are. Getting the best outcome after a DUI charge requires clients to be aware of the possibilities, so they can actively focus on the right kind of defense or consider plea deal options. Not every charge for the same offense will have a similar outcome because no two cases are exactly alike. To give yourself the best opportunity for a good outcome in your DUI case, the very first thing that we, as attorneys, need to do is to thoroughly review all of the evidence that the State intends on using against you. Next, we review this evidence or lack of evidence with you and obtain a full understanding of your position. We then explain to you what are the best reasonable expectations you should have in your case. Once this is done, you will have a better understanding of your legal defenses and potential risks and in turn, know what expectations you should have in resolving your case.

Misinformation is damaging to those looking for a positive outcome

During your DUI case, it is important not to take advice from those who aren’t familiar with the laws. Friends and family members mean well but they may not be attorneys, so their advice should, typically, not be taken. In law, it is rare that advice is always 100% helpful in every scenario, which is why you need to go over the specifics of your case with someone specifically focused on your situation.

Finding balance and being willing to listen may result in the best outcome for your case

With every defense, there is a point where a possible penalty is reasonable compared to the charges. There may also be a time when the best outcome for your case involves accepting a plea deal instead of going to court or being willing to go through an alternative court and seek substance use disorder treatment in exchange for having the charges dropped. Your attorney’s job is to go over what is reasonable in your case. For you, that may be taking your case to trial because of the State's lack of evidence or accepting a reasonable plea offer negotiated by your attorney based on the specifics of your case.

Shoplifting laws in Georgia: What to know

2025-01-20T08:51:26Z

Shoplifting might not sound like a severe crime compared to some others, but the state of Georgia takes it very seriously. Whether it involves a small lipstick or a large-screen television, Georgia's law enforcement officers, stores and the District Attorney’s Office stand ready to prosecute perpetrators and make an example of them.

What does the state consider shoplifting?

According to the GA Code § 16-8-14 (2019), shoplifting involves taking possession of merchandise without the intention of paying for it. It can involve one person or multiple people acting in collaboration. Changing the price of an item or a package’s contents may also rise to the level of shoplifting, as can putting an item into a less-expensive items’ packaging.

The penalties of a conviction

Instances of shoplifting that involve merchandise valued under $500 are misdemeanors punishable by fines and up to one year of jail. However, shoplifting becomes a felony if the theft involves:

A motor vehicle worth $100 or more
Firearms or explosives
$100 in property taken from three different retail establishments during a 3-day period in the same county
Fiduciary relationship breaches
Deception involving computers or telemarketing

A conviction for this felony charge may result in a fine and a prison sentence of up to 10 years. The court tends to punish repeat offenses much more harshly than a first offense. Criminal convictions also have outcomes that reach much farther than you might expect. With a shoplifting offense on your criminal record, you might find that employers, colleges and landlords turn down your applications. The severity of a shoplifting charge should never be underestimated. Do not simply hope that it will work itself out somehow. Defending yourself from criminal allegations of any sort is crucial in protecting your future and avoiding the consequences.

How traffic violations affect your license and driving privileges

2025-01-20T08:51:31Z

The skill and habits of each driver on the road affect the safety of everyone else. Driving is a privilege, not a right, and the state government places certain restrictions on those privileges. You can lose your license for an arrest or conviction of certain offenses, such as impaired driving. However, you could also lose your license even if you only commit a minor infraction. Georgia, like many other states, has a points system for licenses. Each time a police officer cites you for an infraction, the number of points on your license increases. Understanding how the system works can help protect your driving privileges.

How many points can you accrue and still drive?

Georgia's Point System looks back at 24 months of driving history. Anyone who accumulates 15 points during a two-year period will automatically have their license suspended. Those points can also affect how much you pay for insurance or whether an employer wants you to perform a job with driving-related responsibilities.

What are the points that Georgia assesses for different offenses?

The number of points a single violation carries ranges between one and six. One-point violations include texting while driving, driving in a lane designated for other traffic or a first offense involving the improper restraint of a child. Aggressive driving, exceeding the speed limit by 34 miles per hour or more and passing a school bus unlawfully are all six-point offenses. All other common citations fall somewhere in the middle.

How do you reduce the number of points?

You can ask the state to reduce the points on your license. They can remove up to seven points once every five years after completing a defensive driving course. Other than asking for a reduction, the only other realistic means of reducing the number of points on your license is to a maintain driving record without additional infractions for multiple years. Traffic tickets may not be as serious in a legal sense as a criminal charge, but they can affect your life negatively if you don't respond to them appropriately. Fighting back against traffic tickets can help you protect your driving record and your license while also keeping insurance costs low.

Driving offenses that could cost young drivers their license

2025-01-20T08:51:36Z

What makes young drivers so dangerous on the road is their lack of experience. The more time they put in behind the wheel, the more skilled they become at managing real-life driving situations. Unfortunately, some young drivers get experience with the wrong kind of driving. Teen drivers can form bad habits that put them at increased risk of causing crashes. Anyone that police pull over with too much alcohol in their bloodstream will face arrest and the loss of their license under Georgia law. Minors are subject to higher levels of scrutiny regarding the level of alcohol in their bloodstreams and could have life-altering consequences, even if no one gets hurt. They could also lose their license for other kinds of driving offenses as well.

Impaired driving standards are different for younger drivers

In Georgia, a blood alcohol concentration (BAC) of 0.08% or higher can lead to impaired driving charges even if someone doesn't cause a crash. However, it is not legal for those under the age of 21 to consume alcohol, so they are subject to much stricter restrictions. Drivers under the age of 21 are subject to a zero-tolerance law and can face charges for having.02% BAC, a quarter of the limit for adults. Any significant amount of alcohol can lead to charges, even if a driver doesn't seem impaired at all. The level of someone's BAC will affect how long their suspensions last. A driver under 21 whose BAC is between .02 and .08 % or who wasn't given a test will lose their license for six months without any access to restricted or limited driving privileges. Those under the age of 21 whose BAC is 0.8% or higher or who refused a chemical test lose their license for 12 months with no permits.

What other offenses could impact a youthful driver's license?

Young drivers can also face license suspensions and other mandatory consequences for other driving offenses. Some of the charges that could affect a young driver's license include:

A hit-and-run (leaving the scene of a crash)
Racing on public streets
Fleeing law enforcement in a vehicle
Reckless driving
Improper passing on a hill
Unlawfully passing a school bus
Exceeding the speed limit by 24 miles an hour or more
Aggressive driving

Drivers under the age of 21 who have more than 4 points on their license can also lose their driving privileges, which means an offense that carries more than four points can mean an instant revocation. Fighting back against such charges may be the only way to protect a young driver's license.

What a DUI charge or conviction means for a licensed professional

2025-01-20T08:51:40Z

Getting arrested and charged with driving under the influence (DUI) can feel embarrassing, especially for professionals. You may worry that clients, competitors or your employer will find out about your arrest. Many professionals facing a first-time DUI charge want nothing more than to forget about their humiliating arrest and move on with their lives. Pleading guilty can seem like an easy way to put one mistake or bad situation behind you. However, pleading guilty is a risky decision with any criminal charge. Unless you have a specific, written plea bargain, there is no guarantee that pleading guilty will minimize the consequences you face during sentencing. Additionally, your guilty plea means a criminal record that could have dire implications for your career. Not only might your employer let you go over a conviction if they have a policy on criminal convictions, but you could potentially even lose your ability to continue your profession if you lose your state license.

Georgia oversees multiple professions through licensing boards

Skilled and educated professionals perform services that the general public can't do for themselves. Regulations and licensing requirements for educated and skilled professions help reduce the potential of incompetent or unethical people working in positions of trust. Georgia licenses people who work in many different career fields. Medical professionals, landscaping professionals, manicurists, used car dealers and even librarians have to have licenses to work in their chosen profession. They have to apply for a license, a process that involves submitting documentation to the appropriate State Licensing board. Professionals may have to provide evidence of their education, their work history and even their criminal background in order to secure a license to work in Georgia. Most licensing boards have limitations on criminal convictions. Licensed professionals could face board review and censure or even the loss of their professional license if they plead guilty to a DUI charge.

Avoiding a conviction protects your professional license

Generally, there needs to be evidence of wrongdoing, unethical behavior or other issues for the licensing board to punish you. Once you plead guilty or get convicted, your criminal record will serve as proof in disciplinary review hearings. If you can avoid a conviction, you may be able to avoid professional penalties, like the loss of your license. However, even if you get convicted or plead guilty, you may still be able to defend yourself in front of the state licensing board. Anyone facing board review or punitive measures has the right to defend their license just like they have the right to defend against a crime in court. You may need to explore every avenue open to you to protect your career after a DUI arrest.

Why you should not take a field sobriety test

2025-01-20T08:51:45Z

Imagine a local police officer or Georgia state trooper has pulled you over on the highway or a Cartersville road. The officer asks you to step out of your vehicle to perform some tests. "These tests will show me if you are sober enough to drive," the officer says. What our imaginary officer is referring to are called field sobriety tests. They are designed to help arrest people on DUI charges. And in Georgia, you do not have to submit to them.

What are field sobriety tests, and what are they for?

Even if you have never been pulled over on suspicion of drinking and driving before, you probably know at least one of the common field sobriety tests. There is the walk-and-turn test, where the officer orders the subject to walk heel-to-toe in a straight line for a certain number of steps, turn, and walk back. There is also the horizontal gaze nystagmus test. For this one, the officer tells the driver to follow the officer's finger with their eyes as the officer passes it across the driver's face. If the driver's eyes jerk while looking back and forth, that could be a sign of intoxication. There are other tests, but what they all have in common is that they are designed to uncover evidence of alcohol impairment. When you are detained during a traffic stop, you are under investigation for a crime, specifically DUI. It is not your duty to help the police make a case for arresting you.

The consequences of declining to take a test

In Georgia, it is not against the law to decline to take field sobriety tests. It is important to understand that refusing field sobriety tests will not necessarily stop an officer from arresting you, but you do not have to assist the officer in building their case against you for DUI. Field sobriety tests are simply investigatory tools that help the officer prove their DUI case against you. Another important aspect to note is that refusing field sobriety tests will not result in penalties on your license, but the refusal of Georgia State Administered Testing (SATs for short) can result in the court suspending your driver's license. Georgia SATs are used to screen your blood, breath, or urine to chemically test for levels of intoxicants AFTER you have been read implied consent. Refusal of the State Administered Testing can result in the issuance of a Form- 1205. Alternatively, an officer may seek a search warrant for your blood, breath, or urine if you choose to refuse the state-administered tests, but your attorney can check the validity of such a search warrant. There are some cases where a search warrant can be proven to be invalid. An individual that receives a Form- 1205 for refusal of the Georgia SATs will have to deal with a one-year suspension of their license unless the suspension is properly appealed through the Department of Driver Services. Losing your driving privileges can seriously affect your life, but that loss should be weighed against the possibility of a DUI on your record, which could cost you a lot more than a temporarily suspended license.

Second Chances for Georgia Residents

2025-01-20T08:51:50Z

“For many, this will remove the scarlet letter of being in the criminal justice system. It allows Georgians to receive a second chance at transforming their lives and moving beyond mistakes made in the past. Our state needs to embrace restorative and redemptive policy, acknowledging all life is precious and valuable.” – Governor Brian Kemp

The famous book written by Nathaniel Hawthorne in the mid-1800s documented the consequences of Hester Prynne who’s adultery “crime” resulted in a sentence that mandated wearing a scarlet letter on her clothing. Over time, the definition has broadened to mean a permanent and punitive mark or brand. Today’s scarlet letter takes the form of a criminal conviction and subsequent record. Regardless of the severity, background checks, at best, impair a fresh start. Even educational opportunities are in question.

The Continuing Challenges

When an inmate is released from prison, having served their full sentence, incarceration does not necessarily end their punishment. Obstacles still exist. While they are considered free, they face a new chapter of their lives with restrictions. As they leave prison, criminal histories do not stay behind when they pass through the gates. They follow them. In 2020, few initiatives can unite lawmakers on both sides of the aisle. Yet, every single member of the Georgia State Legislature and advocacy groups coalesced behind a cause that can make life easier for ex-convicts who have served their time.

A Second Chance

Governor Brian Kemp signed SB 288, a new law will restrict and, in some cases, seal certain conviction records. Taking effect on the first day of the new year, those who have been rehabilitated can look forward to the chance of wiping the slate clean four years post-sentence with the caveat of not reoffending or being convicted of a crime. The second chance also applies to felony convictions when people have received a pardon from the State Board of Pardons and Paroles. They can petition the court for restrictions to and sealing of records provided that they were not incarcerated for serious violent felonies or sex crimes. Exceptions exist, specifically sex crimes, offenses against children, family violence, and drunk driving. An expunged record is only the start. Encouraging employers to join them in this initiative presents even more challenges. The new law addresses that fear of recruiting prospective employees who have a criminal past and provides liability protection for enterprises serving those in vulnerable groups. In a year where nearly everything feels different, change that brings second chances is welcome news.