Yes, normally. Class C misdemeanors, such as loitering and underage alcohol consumption, aren’t that serious. A higher-level misdemeanor is a serious charge, in terms of direct and collateral consequences. Once upon a time, a brush with the law usually meant a “go forth and sin no more” warning. Today, a third of working-age adults have criminal records.
Most defendants know about the direct consequences of a criminal conviction, such as fines and jail time. Most people don’t know about the collateral consequences, such as housing and immigration issues, until it’s too late to do anything about them.
Let’s face it. The odds are against you in criminal court. The state has almost unlimited resources, and most jurors believe that “punishing criminals” will make Cobb County a safer place to live. Since the stakes are so high, a Marietta criminal defense lawyer must have a clear vision for a misdemeanor defense right from the start.
Jail Release
Let’s face a few other facts about criminal law. Most people assume that jail inmates did something wrong. Additionally, most inmates want to get out as quickly as possible. This combination all but ensures a conviction or an agreement to an unfavorable plea bargain. The sooner a person gets out of jail, the more time a Marietta criminal defense lawyer has to prepare a proper defense. More on that below.
Fortunately, jail release is normally straightforward in misdemeanor cases. First-time, nonviolent offenders are normally eligible for OR (own recognizance) release. Defendants who pay a small fee and promise to abide by pretrial release conditions are free until their cases are resolved. These conditions normally include:
- Standard Conditions: Normally, everyone must check in regularly with a supervision officer, work and/or attend school full time, remain in the county, and most importantly, stay out of trouble with the law. A subsequent arrest usually means bond forfeiture.
- Offense Specific Conditions: An IID in a DUI may be the best example of an offense-specific release condition. Other offense-specific conditions include a keep-away order in a stalking case and a substance abuse evaluation in a drug possession case.
Other jail release options include cash bail and a bail bond, usually a bail bond. A Marietta criminal defense lawyer expedites the bail bond process and, in many cases, can handle the entire process in a misdemeanor case.
Case Evaluation
Once a defendant is out of jail, time is no longer a factor, and the presumption of innocence is in full force and effect. Therefore, a Marietta criminal defense lawyer can usually identify procedural, substantive, and affirmative defenses.
Fourth and Fifth Amendment violations are very common in misdemeanors. Many officers believe these offenses aren’t as serious, so they don’t take them as seriously.
The Fourth Amendment prohibits most warrantless searches and seizures. Judges may only issue warrants if officers establish probable cause in affidavits. A few search warrant exceptions, such as owner consent, apply in some cases.
The Fifth Amendment “right to remain silent” applies when officers begin custodial interrogation. Significantly, “custody” usually means the point at which the defendant doesn’t feel free to leave. Most people don’t feel free to leave as soon as they see squad cars in their rearview mirrors.
Substantively, the state must prove every allegation in a misdemeanor case beyond any reasonable doubt. Most misdemeanors have multiple elements. For example, in a drug possession case, the state must prove not only proximity, but also knowledge and control.
Self-defense might be the most common affirmative defense. In Georgia, people can use a proportionate amount of force to counter an immediate threat to themselves, their property, or someone else. Coercion could be an affirmative defense in a gang-related crime. Many of these defendants don’t really have a choice.
Resolving a Misdemeanor in Cobb County
The procedural, substantive, or affirmative defense need not be strong enough to “beat” the case in court. Usually, a Marietta criminal defense lawyer uses these defenses as leverage during pretrial settlement negotiations. Nowadays, criminal trials are extremely rare. About 94 percent of state misdemeanor cases (97 percent of federal misdemeanors) settle before trial.
Jail case plea negotiations, as mentioned above, really aren’t “negotiations.” Most defendants in these situations take the state’s first offer. For that reason, plea bargaining has a bad rap. In most cases, however, plea bargaining is more like a trial without a judge. Baseball players usually know if a pitch is a ball or a strike, whether or not an umpire raises his arm. Likewise, prosecutors and Marietta criminal defense lawyers can see the strengths and weaknesses of their own cases.
Frequently, a misdemeanor resolution involves deferred disposition. The defendant pleads guilty, and the judge passes a sentence of probation. But the judge doesn’t say the magic words “Guilty as the day is long.” Instead, the judge defers that finding until the defendant completes probation. Then, if the defendant had a satisfactory record, the judge dismisses the case.
Post-Trial Matters
Many defendants don’t have to serve their entire probationary terms. Under Georgia law, judges can modify or end probation at almost any time. Usually, they’re willing to consider such motions if the defendant has served at least a third of the sentence and has paid all restitution.
Additionally, many misdemeanor defendants are eligible for record sealing, thanks to a new Georgia law. Generally, first-time offenders are eligible for record restriction. The conviction officially remains on the books, but the court seals the records. So, for most purposes, it doesn’t exist.
Furthermore, everyone is eligible for executive pardon. We know what you’re thinking. A pardon application is a waste of time and money. However, as a rule of thumb, governors consider about 10 percent of the pardon applications they receive, and they grant about 10 percent of these applications. So, a pardon is a long shot, but not a desperation half-court heave.
A misdemeanor in Cobb County is a serious matter. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.
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