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How can I be charged with drug possession when police didn’t even find drugs on me?

Under Georgia law, there are two types of possession: actual and constructive. Actual possession is easy enough. They found the drugs on you. Constructive possession is when you don’t have physical control but you had the intent and power to exercise control over the item.

I was just riding in a car or at a house when police found drugs. Can they arrest me as well?

YES! A police officer only needs probable cause to arrest someone. If drugs are found in a vehicle or house and no one claims it then most officers usually arrest everyone and let the assistant district attorney figure it out or wait until someone claims the drugs. An experienced criminal defense attorney will work swiftly to try and resolve your case by filing motions or speaking with the assigned assistant district attorney to show your innocence.

Do officers need a search warrant to enter my residence?

NO! if an officer obtains valid consent or if there are exigent circumstances then they may enter your home without a search warrant. Additionally, an arrest warrant may be a valid basis to enter the home and “search” for that person.

The police didn’t read me my Miranda rights. The case goes away, right?

NO! Everyone has heard Miranda rights read on TV “you have the right to remain silent. . .” Many people have been misinformed that if there rights are not read to them then it makes the entire case go away. The Miranda rights only deal with whether or not statements you make will be admissible against you at trial. Most officers will have you sign a “Miranda Waiver” before they question you. Keep in mind that voluntary statements you blurt out can be used against you at trial and Miranda will not apply. Additionally, statements you make that were in violation of Miranda can still be used against you at trial for impeachment purposes. Bottom line is the best course of action is to usually remain silent. Consult with an attorney for further information about evidentiary issues you may have in your case.

The police want to speak with me. Should I talk with them?

Most defense attorneys would say NO WAY! If law enforcement is demanding to speak with you then they usually don’t have enough to charge you and are looking for you to slip up or they have already made up their mind but are trying to lure you in without thinking you are a suspect and have to say something incriminating that makes the case even stronger. With very few limited exceptions, you should never speak with law enforcement and if you do never without an attorney present.

I have a no contact order in place, but the victim is contacting me, what can I do? Can she/he be arrested?

It is all to common that if you arrested that a judge will place a no-contact order as a condition of the bond. This can be extremely burdensome if the victim is your significant other because you will be barred from your own home in fear of violating this no contact order. Even worse, after you have moved in with friends or family awaiting your criminal case, the victim is calling you all of the time. DO NOT CALL THE VICTIM BACK! A wise decision is to call police to document this fact and save your phone records. Inform your attorney and he/she should make a motion to the court lifting the no contact provision.

The second part of this is NO! This can be very frustrating. You have been falsely accused of a crime against your significant other and then she/he is contacting you, but the no contact provision does not apply to her. Thus, she/he cannot violate the no-contact order or be arrested. The best thing to do is to have it lifted and also he/she contacting the defendant is evidence that can be used in trial at a later date. A victim claiming to be in fear of defendant at trial will have a hard time explaining if she was so scared why she was seen driving by his/her house or calling defendant’s phone shortly after incident.

The victim is my wife or husband, can the state make my wife or husband testify against me?

Depends! As noted earlier, the State can subpoena a victim who doesn’t want to prosecute/testify in Court and compel them to testify. However, under Georgia law, a wife or husband who is legally married cannot be compelled to testify against the other. It goes back to the husband and wife are deemed to be one and it would be similar to self-incrimination. There are other policies reasons for this rule as well. This rule is often called spousal privilege and a wife/husband simply has to invoke this right. This law even applies if the victim was not legally married at the time of the incident, but only gets married after the incident. It even applies if they are getting married just to avoid PROSECUTION! As with most laws/rule, there is an exception. If children were present during the incident, then the state can still make the wife/husband testify. The policy behind this is the protection of children overrides the protection of the sanctuary of marriage.

I have been arrested for drug possession, can I just do drug treatment?
Drug addiction is a serious problem for many people and someone usually knows a loved one that has battled some sort of addiction. Many drug possession charges are felonies and a conviction (even for misdemeanor marijuana) will suspend your license for at least 12 months. Additionally, possession of certain drugs on your first conviction can result in imprisonment for up to 15 years! Most judges will allow a defendant to go through treatment rather than putting them in jail or prison, especially if they haven’t been through treatment before. Many treatment facilities are expensive and the client or client’s family will have to pay for this treatment. Drug Court and the RSAT program are two alternatives that the State runs that are free or at little cost to the client. Not all counties offer Drug Court and each county’s program will differ so consult with an attorney about whether this is a viable option. The RSAT program is usually a last resort before serious incarceration and last between 6-9 months. Consult with an attorney and he/she can provide you with additional details/options.
I have only been arrested for a misdemeanor, do I really need to hire an attorney?

A misdemeanor can still result up to 12 months in jail. For most people, any jail time could have serious ramifications on a person’s life as they could lose their job, house, or other even car. Even with no prior criminal history, some judges would still incarcerate a defendant even on his first misdemeanor. Some misdemeanors can even make you lose your right to possess or own a gun under Federal Law. The bottom line being arrested even for a misdemeanor is serious and proper legal representation throughout the process is strongly encouraged.

I don’t have any prior criminal history. What should I expect when I go to court?

Many clients who have never been arrested erroneously believe that since they have no prior record nothing bad will happen to them. A person only arrested once in their lifetime can still lose their rights as a citizen and serve time in jail or prison if they are convicted of a felony However, a lack of prior criminal history will certainly go a long way and an attorney will certainly use this to his advantage in handling your case.

I was arrested for a DUI, now what?

After being arrested for a DUI, you need to speak with an attorney as soon as possible because you only have ten days after the date of your arrest to request an administration license hearing or your license will be suspended administratively if the officer files the proper paperwork. This suspension is for 12 months unless you are later acquitted of the DUI or you plea to a lesser non-DUI offense (reckless driving). If you file the proper paperwork a hearing will usually be held within 30 days. At this point, an attorney is trying to raise a number of objections, but most relate to the probable cause of the stop. The outcome at this hearing will play a vital role in how to proceed with your case down the road and what will happen to your license.

What is the difference in sentencing for a misdemeanor versus a felony charge?

A misdemeanor offense is punishable by up to 12 months in jail and/or fines not to exceed $1,000. A felony charge is punishable by at least one year of probation or prison time.

What are the most common felonies and their sentencing time?
  • Criminal damage to property - up to 10 years
  • Terroristic Threats - up to 10 years and max 5,000 fine.
  • Theft over 500 dollars is a felony in Georgia - up to 10 years.
  • Arson - up to 20 years
  • Shoplifting over 300 dollars or your 4th charge in a lifetime is a felony - up to 10 years
  • Deposit Account Fraud for 500 dollars or more - up to 3 years
  • False Statements and Writings - up to 5 years
  • Obstruction of a police officer - up to 5 years
  • DUI-4th within 10 years is a felony - up to 5 years
  • Burglary - up to 20 years
  • Rape - up to life in prison
  • Statutory Rape - up to 20 years
  • False Imprisonment - up to 10 years
  • Child Molestation - up to 20 years on first offense
  • Forgery - up to 10 years
  • Drug possession-schedule I: up to 15 years on first offense, 30 years on second
  • Drug possession-schedule II: up to 15 years on first offense, 30 years on second
  • Drug possession-Schedule III: most up to 5 years on first offense; and 10 years on second
  • Drug possession - possession of marijuana over an ounce (28 grams) is a felony
How can I keep a felony off my record if I am charged or convicted of one?

In Georgia, there are two available options to keep a felony off your records if you are ultimately convicted or plea guilty to the felony. The first option is called First Offender. The second one is called Conditional Discharge, which specifically deals with felony drug charges or property crimes that were the results of drug use. Both allow a person to say he/she was not convicted of the felony because the judge withheld judgment. After you complete your sentence it will appear as though you were never convicted of the felony. Note: Many people, even attorneys, wrongfully say that the conviction will be expunged from your record, but that is inaccurate. Your criminal history will still show that you were arrested for the crime but it will usually show up as a dismissal or that you successfully completed First Offender. Speak with a competent criminal defense attorney to learn more details and the downside of pleading First Offender or Conditional Discharge.

I’ve been charged with a drug offense, will my license be suspended?

Yes, under Georgia law your license will be suspended unless you plead First Offender or Conditional Discharge. Suspension will usually last for 12 months but can be longer if you have multiple drug convictions in your past (Usually within the last five years).

If the victim does not want to prosecute or will not show up for court, will the State dismiss the charges?

Maybe! The State (District Attorney’s Office) represents the citizens of there respective counties; however, many times a victim will not want to prosecute after they have already called the police. Once the police become involved the “State picks up the case.” The State will make an initial assessment of the case (facts, number of times this has happened before, etc.) and will usually dismiss the case earlier rather than later if the victim requests a dismissal shortly after the incident. If the victim doesn’t fill out a voluntary dismissal request shortly after the incident and the State accuses or indicts the defendant then many times the state will go against the victim’s wishes and will still decide to prosecute.

If the victim refuses to show up for court, the State can subpoena the victim and force their attendance in court. If the victim does not show up after being properly served with a subpoena then the court can hold them in contempt and issue a warrant for their arrest. Additionally, if a victim shows up and refuses to testify the judge can hold them in contempt and put them in jail until they usually purge the contempt. (Ex. Greg Anderson in Barry Bond’s trial.) It is important to contact an attorney early on in the process so they help expedite the process for the defendant and get a quick resolution of the case by a dismissal.

I do not like the plea offer, what can I do to get a better plea offer?

Contrary to popular belief, the State is not under any obligation to even offer a deal (plea offer), but in almost every case they will. A competent criminal defense attorney will be able to negotiate for their clients, but sometimes an Assistant District Attorney will not budge. Some negotiations include; conducting more investigation into the case in order to point out the State’s weaknesses in their case, filing motions could help lead to better negotiations, accepting a blind plea. A blind plea is where you tell the judge you are pleading guilty but don’t like the State’s offer. Note: This can be risky and you should always know the judge before trying a blind plea. You will be stuck with what the judge gives you and it may be a harsher sentence than what the state already offered.

 
PDF Print E-mail
How can I be charged with drug possession when police didn’t even find drugs on me?

Under Georgia law, there are two types of possession: actual and constructive. Actual possession is easy enough. They found the drugs on you. Constructive possession is when you don’t have physical control but you had the intent and power to exercise control over the item.

I was just riding in a car or at a house when police found drugs. Can they arrest me as well?

YES! A police officer only needs probable cause to arrest someone. If drugs are found in a vehicle or house and no one claims it then most officers usually arrest everyone and let the assistant district attorney figure it out or wait until someone claims the drugs. An experienced criminal defense attorney will work swiftly to try and resolve your case by filing motions or speaking with the assigned assistant district attorney to show your innocence.

Do officers need a search warrant to enter my residence?

NO! if an officer obtains valid consent or if there are exigent circumstances then they may enter your home without a search warrant. Additionally, an arrest warrant may be a valid basis to enter the home and “search” for that person.

The police didn’t read me my Miranda rights. The case goes away, right?

NO! Everyone has heard Miranda rights read on TV “you have the right to remain silent. . .” Many people have been misinformed that if there rights are not read to them then it makes the entire case go away. The Miranda rights only deal with whether or not statements you make will be admissible against you at trial. Most officers will have you sign a “Miranda Waiver” before they question you. Keep in mind that voluntary statements you blurt out can be used against you at trial and Miranda will not apply. Additionally, statements you make that were in violation of Miranda can still be used against you at trial for impeachment purposes. Bottom line is the best course of action is to usually remain silent. Consult with an attorney for further information about evidentiary issues you may have in your case.

The police want to speak with me. Should I talk with them?

Most defense attorneys would say NO WAY! If law enforcement is demanding to speak with you then they usually don’t have enough to charge you and are looking for you to slip up or they have already made up their mind but are trying to lure you in without thinking you are a suspect and have to say something incriminating that makes the case even stronger. With very few limited exceptions, you should never speak with law enforcement and if you do never without an attorney present.

I have a no contact order in place, but the victim is contacting me, what can I do? Can she/he be arrested?

It is all to common that if you arrested that a judge will place a no-contact order as a condition of the bond. This can be extremely burdensome if the victim is your significant other because you will be barred from your own home in fear of violating this no contact order. Even worse, after you have moved in with friends or family awaiting your criminal case, the victim is calling you all of the time. DO NOT CALL THE VICTIM BACK! A wise decision is to call police to document this fact and save your phone records. Inform your attorney and he/she should make a motion to the court lifting the no contact provision.

The second part of this is NO! This can be very frustrating. You have been falsely accused of a crime against your significant other and then she/he is contacting you, but the no contact provision does not apply to her. Thus, she/he cannot violate the no-contact order or be arrested. The best thing to do is to have it lifted and also he/she contacting the defendant is evidence that can be used in trial at a later date. A victim claiming to be in fear of defendant at trial will have a hard time explaining if she was so scared why she was seen driving by his/her house or calling defendant’s phone shortly after incident.

The victim is my wife or husband, can the state make my wife or husband testify against me?

Depends! As noted earlier, the State can subpoena a victim who doesn’t want to prosecute/testify in Court and compel them to testify. However, under Georgia law, a wife or husband who is legally married cannot be compelled to testify against the other. It goes back to the husband and wife are deemed to be one and it would be similar to self-incrimination. There are other policies reasons for this rule as well. This rule is often called spousal privilege and a wife/husband simply has to invoke this right. This law even applies if the victim was not legally married at the time of the incident, but only gets married after the incident. It even applies if they are getting married just to avoid PROSECUTION! As with most laws/rule, there is an exception. If children were present during the incident, then the state can still make the wife/husband testify. The policy behind this is the protection of children overrides the protection of the sanctuary of marriage.

I have been arrested for drug possession, can I just do drug treatment?
Drug addiction is a serious problem for many people and someone usually knows a loved one that has battled some sort of addiction. Many drug possession charges are felonies and a conviction (even for misdemeanor marijuana) will suspend your license for at least 12 months. Additionally, possession of certain drugs on your first conviction can result in imprisonment for up to 15 years! Most judges will allow a defendant to go through treatment rather than putting them in jail or prison, especially if they haven’t been through treatment before. Many treatment facilities are expensive and the client or client’s family will have to pay for this treatment. Drug Court and the RSAT program are two alternatives that the State runs that are free or at little cost to the client. Not all counties offer Drug Court and each county’s program will differ so consult with an attorney about whether this is a viable option. The RSAT program is usually a last resort before serious incarceration and last between 6-9 months. Consult with an attorney and he/she can provide you with additional details/options.
I have only been arrested for a misdemeanor, do I really need to hire an attorney?

A misdemeanor can still result up to 12 months in jail. For most people, any jail time could have serious ramifications on a person’s life as they could lose their job, house, or other even car. Even with no prior criminal history, some judges would still incarcerate a defendant even on his first misdemeanor. Some misdemeanors can even make you lose your right to possess or own a gun under Federal Law. The bottom line being arrested even for a misdemeanor is serious and proper legal representation throughout the process is strongly encouraged.

I don’t have any prior criminal history. What should I expect when I go to court?

Many clients who have never been arrested erroneously believe that since they have no prior record nothing bad will happen to them. A person only arrested once in their lifetime can still lose their rights as a citizen and serve time in jail or prison if they are convicted of a felony However, a lack of prior criminal history will certainly go a long way and an attorney will certainly use this to his advantage in handling your case.

I was arrested for a DUI, now what?

After being arrested for a DUI, you need to speak with an attorney as soon as possible because you only have ten days after the date of your arrest to request an administration license hearing or your license will be suspended administratively if the officer files the proper paperwork. This suspension is for 12 months unless you are later acquitted of the DUI or you plea to a lesser non-DUI offense (reckless driving). If you file the proper paperwork a hearing will usually be held within 30 days. At this point, an attorney is trying to raise a number of objections, but most relate to the probable cause of the stop. The outcome at this hearing will play a vital role in how to proceed with your case down the road and what will happen to your license.

What is the difference in sentencing for a misdemeanor versus a felony charge?

A misdemeanor offense is punishable by up to 12 months in jail and/or fines not to exceed $1,000. A felony charge is punishable by at least one year of probation or prison time.

What are the most common felonies and their sentencing time?
  • Criminal damage to property - up to 10 years
  • Terroristic Threats - up to 10 years and max 5,000 fine.
  • Theft over 500 dollars is a felony in Georgia - up to 10 years.
  • Arson - up to 20 years
  • Shoplifting over 300 dollars or your 4th charge in a lifetime is a felony - up to 10 years
  • Deposit Account Fraud for 500 dollars or more - up to 3 years
  • False Statements and Writings - up to 5 years
  • Obstruction of a police officer - up to 5 years
  • DUI-4th within 10 years is a felony - up to 5 years
  • Burglary - up to 20 years
  • Rape - up to life in prison
  • Statutory Rape - up to 20 years
  • False Imprisonment - up to 10 years
  • Child Molestation - up to 20 years on first offense
  • Forgery - up to 10 years
  • Drug possession-schedule I: up to 15 years on first offense, 30 years on second
  • Drug possession-schedule II: up to 15 years on first offense, 30 years on second
  • Drug possession-Schedule III: most up to 5 years on first offense; and 10 years on second
  • Drug possession - possession of marijuana over an ounce (28 grams) is a felony
How can I keep a felony off my record if I am charged or convicted of one?

In Georgia, there are two available options to keep a felony off your records if you are ultimately convicted or plea guilty to the felony. The first option is called First Offender. The second one is called Conditional Discharge, which specifically deals with felony drug charges or property crimes that were the results of drug use. Both allow a person to say he/she was not convicted of the felony because the judge withheld judgment. After you complete your sentence it will appear as though you were never convicted of the felony. Note: Many people, even attorneys, wrongfully say that the conviction will be expunged from your record, but that is inaccurate. Your criminal history will still show that you were arrested for the crime but it will usually show up as a dismissal or that you successfully completed First Offender. Speak with a competent criminal defense attorney to learn more details and the downside of pleading First Offender or Conditional Discharge.

I’ve been charged with a drug offense, will my license be suspended?

Yes, under Georgia law your license will be suspended unless you plead First Offender or Conditional Discharge. Suspension will usually last for 12 months but can be longer if you have multiple drug convictions in your past (Usually within the last five years).

If the victim does not want to prosecute or will not show up for court, will the State dismiss the charges?

Maybe! The State (District Attorney’s Office) represents the citizens of there respective counties; however, many times a victim will not want to prosecute after they have already called the police. Once the police become involved the “State picks up the case.” The State will make an initial assessment of the case (facts, number of times this has happened before, etc.) and will usually dismiss the case earlier rather than later if the victim requests a dismissal shortly after the incident. If the victim doesn’t fill out a voluntary dismissal request shortly after the incident and the State accuses or indicts the defendant then many times the state will go against the victim’s wishes and will still decide to prosecute.

If the victim refuses to show up for court, the State can subpoena the victim and force their attendance in court. If the victim does not show up after being properly served with a subpoena then the court can hold them in contempt and issue a warrant for their arrest. Additionally, if a victim shows up and refuses to testify the judge can hold them in contempt and put them in jail until they usually purge the contempt. (Ex. Greg Anderson in Barry Bond’s trial.) It is important to contact an attorney early on in the process so they help expedite the process for the defendant and get a quick resolution of the case by a dismissal.

I do not like the plea offer, what can I do to get a better plea offer?

Contrary to popular belief, the State is not under any obligation to even offer a deal (plea offer), but in almost every case they will. A competent criminal defense attorney will be able to negotiate for their clients, but sometimes an Assistant District Attorney will not budge. Some negotiations include; conducting more investigation into the case in order to point out the State’s weaknesses in their case, filing motions could help lead to better negotiations, accepting a blind plea. A blind plea is where you tell the judge you are pleading guilty but don’t like the State’s offer. Note: This can be risky and you should always know the judge before trying a blind plea. You will be stuck with what the judge gives you and it may be a harsher sentence than what the state already offered.