Criminal Court, Probation Office, Sherrif’s Office, and other criminal justice-related agencies eat up over a third of Cobb County’s budget. To a great extent, these agencies depend on fines and fees generated through the criminal courts. To obtain the most possible money, prosecutors usually bring the most aggressive charges the facts could possibly support, especially in the five areas discussed below.
All that money means prosecutors have considerable resources. A Marietta criminal defense lawyer cannot possibly match these resources. But money-motivated prosecutors often don’t feel very passionately about these cases. Good defense lawyers, on the other hand, don’t relent until they obtain the best possible result under the circumstances. This result must account for direct and likely collateral consequences.
Prior DUI
Many people cannot remember what they had for breakfast last Wednesday. They certainly don’t remember seven or eight-year-old DUI convictions. But like an elephant, the law never forgets.
Georgia, like most other states, has a ten-year lookback period for charging purposes. For sentencing purposes, the lookback period is usually infinite. More on that below.
Georgia is rather unique in that a prior DUI not only enhances potential maximum penalties. It also adds mandatory minimums. For a second DUI offense, penalties include a minimum of 72 hours in jail maximum one year), minimum $600 fine (maximum $1,000), mandatory community service (40 hours), and a minimum 3-year drivers’ license suspension. Common additional add-ons include an alcohol or drug treatment program, DUI school, and ignition interlock device.
A third DUI conviction within the past ten years means longer license suspension, higher fines, and more jail time. A fourth DUI offense is a felony in Georgia.
Prosecutors almost always use prior DUIs, no matter how old they are, for sentencing purposes. For example, prosecutors may offer jail time instead of probation, especially if the prior conviction was between ten and twenty years old.
Generally, prosecutors must produce a certified copy of the prior judgement to use an old DUI for charge enhancement purposes. These documents are often difficult to obtain if the prior conviction occurred outside Cobb County. Unfortunately, no such requirement exists for sentencing enhancement purposes.
DUI BAC Upgrade
In most states, a DUI is a DUI. But in Georgia, not all driving under the influence offenses are created equally.
Most people know that .08 is the legal limit in Georgia. Most people don’t know that enhanced penalties apply if the defendant’s BAC was above .15. Furthermore, most people don’t know about the lower commercial driver BAC limit (.04) or the lower under-21 limit (zero tolerance).
Breathalyzer reliability, or rather the lack thereof, is often an issue in these cases. A modern Breathalyzer is just a 1920s Drunk-O-Meter with additional bells and whistles. Therefore, Breathalyzers often have reliability issues, mostly improper calibration.
Operational reliability is a three-step proof process. First, the state must prove the gadget was working properly at the time of the test. Second, the state must produce maintenance records. Third, the state must prove that the law enforcement department always removes malfunctioning Breathalyzers from service.
This problem is very real. In 2023, a Massachusetts judge threw out over 20,000 DUI convictions due to uncalibrated Breathalyzers.
Reliability is usually an issue in borderline BAC cases. The acknowledged margin of error is .02. If proof of reliability is shaky, that number could easily climb to .03 or even .04.
Drug Free Zone
Ordinary drug possession in Georgia, including marijuana possession, is a serious crime. Drug free zone-enhanced possession is a much more serious crime. Drug-free zones typically include areas within 1,000 feet of places such as:
- Schools (public or private, from pre-K through 12th grade),
- Public or private colleges and universities,
- Public housing projects,
- Public parks, recreation centers, and playgrounds, and
- School bus stops during designated hours.
Almost every street corner in a dense, urban area, like downtown Marietta, is within 1,000 feet of a prohibited place. 1,000 feet is roughly the length of three football fields.
If you think all that sounds bad, we’re just getting started. Prosecutors measure the distance in a straight line (as the crow flies). Therefore, people are inside drug-free zones even if they cannot see or access the protected location.
Perhaps even more significantly, these prohibitions apply (except the school bus stop prohibition) regardless of the time of day. In July, a school is an empty building. But for criminal law purposes, it’s still a drug-free zone.
On a related note, not all schools look like schools. Small educational annexes dot Cobb County. Furthermore, the definition of “public housing project” is vague. A vast apartment complex with two or three income-restricted units could be a public housing project.
Aggravated Assault
The aggravated assault enhancement transforms a run-of-the-mill Christmas party scuffle or domestic fight into one of the most serious felonies in the penal code.
Prosecutors upgrade ordinary assault charges to aggravated assault if the alleged victim sustained a serious injury, the alleged victim was in a protected class, or the defendant allegedly used a deadly weapon.
Serious injuries, usually putting someone in the hospital, often have proof issues. Frequently, the state cannot produce sufficient medical bills or other documents on this point.
As for protected classes, this enhancement only applies if the individual was exercising official powers. Moonlighting police officers aren’t police officers for purposes of this law.
Similar proof issues affect deadly weapon enhancements. The state must prove the defendant used a deadly weapon, not that s/he brandished it or that one was available.
White Collar Conspiracy
Doing what your boss tells you to do could be a criminal offense in Georgia, mostly because of the state’s broad criminal conspiracy and white-collar crime laws.
The state must only prove overt act and agreement. This overt act can be minimal, such as sending an email, making a phone call, or transferring documents that further the scheme. Frequently, prosecutors use conduct to prove intent (e.g. they use an overt act to prove an agreement).
Harsh penalties apply to everyone involved in the conspiracy. For many white-collar offenses, a conspiracy conviction may carry up to one year less than the maximum sentence for the completed offense. For example, if the underlying crime is a felony fraud offense punishable by 10 years, the conspiracy could carry up to 9 years. Other common consequences include fines, restitution payments, forfeiture of assets, and probation.
These offenses are difficult to defend. Coercion is an affirmative defense. But in many cases, coercion in these matters is very subtle and difficult to prove.
Criminal enhancements leave a big lump of coal in your stocking. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Convenient payment plans are available.
