Common misdemeanors in Georgia include possession of controlled substances or drugs, retail theft, prostitution, indecent exposure, ordinary assault, resisting arrest, and DUI.
Generally, misdemeanor offenders receive probation. For example, 89 percent of convicted DUI defendants are on probation. Community supervision terms are unusually long and restrictive in Georgia. Unlike most states, Georgia doesn’t cap probation limits at the incarceration limit (e.g. a maximum one-year probation in a misdemeanor). Additionally, state judges have almost unlimited discretion to impose whatever conditions they see fit.
These matters also have significant collateral consequences. Most misdemeanors are crimes involving moral turpitude. CIMTs have significant employment, family law, and immigration law consequences. For example, a CIMT conviction could lead to immediate deportation proceedings or long-term status adjustment issues.
A Marietta criminal defense lawyer reduces, or eliminates, the direct and collateral consequences of misdemeanor convictions by carefully breaking down these cases and aggressively challenging the state’s evidence.
Drug Possession
The elements of a drug possession case have remained largely unchanged since, well, forever. But since the environment has changed, these cases are much easier to defend.
Atlanta, Savannah, Macon, Athens, and other cities have decriminalized marijuana. This trend is at least a tacit acknowledgement that many drugs, when used for personal recreational purposes, aren’t a threat to public safety.
Furthermore, drug possession cases have a surprising number of moving parts. In court, prosecutors must establish three elements:
- Close proximity,
- Actual knowledge, and
- Exclusive control.
Assume a few acquaintances give Paul a ride home from a party. If police find drugs in a locked glove compartment, close proximity is a gimme. But prosecutors will be hard-pressed to establish actual knowledge and exclusive control beyond any reasonable doubt.
Retail Theft
The environment has changed in these cases as well. Many local law enforcement agencies don’t respond to disturbance calls for retail theft under $50.
This trend not only reflects a “so what” attitude toward these offenses, but also the proof problems retail theft cases impose on prosecutors.
Many misdemeanors, such as DUI and drug possession, are single-witness cases. The arresting officer provides all necessary evidence. But retail theft, like indecent exposure and most ordinary assault cases, require additional testimony from a non-police witness, which in this case is the property’s owner.
Most people relocate frequently, and most retail theft cases result in no actual financial loss. Therefore, simply getting the owner to cooperate and appear in court could be an issue. Then, since these witnesses aren’t professional witnesses, they usually require some preparation.
To a young prosecutor trying to get a conviction in a relatively minor misdemeanor that caused no actual harm, that’s an awful lot of work. So, prosecutors are often ready to wheel and deal in these matters.
Prostitution
Most law enforcement efforts target organized prostitution rings, such as illicit massage parlors and topless bars. Generally, an undercover officer provides the damning testimony.
Undercover officer activities could involve the entrapment defense. However, this defense is usually difficult to prove in court. A Marietta criminal defense lawyer must convince jurors that:
- The defendant had no predisposition to commit the crime, and
- Officers induced the defendant.
The no predisposition element usually torpedoes entrapment claims. If the defendant is a dancer in a topless bar, the defendant has some predisposition to go further than the law allows.
On a related note, undercover officers don’t have to show their badges or otherwise identify themselves if asked about their occupations. However, when they lie, that prevarication affects their credibility on the stand.
Indecent Exposure
On their face, public indecency cases are very easy to prove in Georgia. Section 16-6-8 imposes no mens rea (criminal intent) requirement, such as intentionally or knowingly.
In Georgia, these charges could hold up in court if the defendant performed a lewd act in public. A lewd act is any “gross indecency which was sufficiently open and notorious as to tend to corrupt the morals of the community.”
Usually, indecent exposure cases are multiple witness cases with an additional twist. The non-officer witness must also identify the defendant. Most standard identification tools, such as lineups, are unreliable at best.
Ordinary Assault
Barroom brawl ordinary assault matters are somewhat rare. Most of these cases are domestic violence assaults. These matters have severe indirect consequences. The “DV” designation is a red flag in many contexts, such as family law cases. Furthermore, domestic violence assaults usually spawn protective orders.
A Marietta criminal defense lawyer significantly reduces these collateral consequences by paying close attention to details during plea bargaining sessions.
Usually, prosecutors will drop the “DV” note, especially if the alleged victim isn’t cooperating or isn’t credible. On the civil (protective order) side, an attorney often hammers out a consent decree with the alleged victim. Consent decrees have the same provisions as protective orders without the stigma.
Resisting Arrest
Misdemeanor resisting arrest in Georgia is knowingly and willfully obstructing or hindering peace officers as they carry out their official duties. Section 16-10-24 is an example of small details in the statute that make a big difference.
People resist arrest when they “knowingly and willfully” obstruct officers. The combination implies active resistance as opposed to not cooperating quickly enough to please an officer.
Furthermore, the statute doesn’t apply if officers were moonlighting as security guards, didn’t clearly identify themselves as officers, or the law enforcement contact was illegal because officers didn’t have reasonable suspicion.
DUI
We end this post with what may be the most common misdemeanor in Georgia. Like the other misdemeanors on this list, DUIs have significant direct and collateral consequences. Unlike the other cases on this list, DUI is an umbrella term for three matters:
- Test Cases: Most defendants provide chemical samples, usually breath samples. If the sample is above the legal limit, the defendant could be guilty as a matter of law. However, breath tests and other scientific tests aren’t 100 percent accurate.
- Non-Test Cases: If defendants refuse to provide chemical samples, prosecutors normally use field sobriety test results as circumstantial evidence of intoxication. These adverse results include stumbling during the walk-and-turn and swaying during the one-leg stand.
- Complete Refusal Cases: These matters are very rare because the only available evidence is very shaky. This evidence, which includes physical symptoms like an odor of alcohol, usually only proves consumption, at best.
First and second-time DUIs are usually misdemeanors. Prosecutors could add enhancements or additional charges, such as a child passenger or an open container of alcohol.
All misdemeanors have severe direct and collateral consequences. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
