OCGA 7-4-12 controls the award of post judgment interest in Georgia, and it states that the interest is recovered at a rate equal to three percent over the prime rate as Published by the Board of Governors of the Federal Reserve System on the day the judgment was entered.
However, if the contract from which the judgment was derived from specifies another post judgment interest rate, then that is the rate that will be applied.
So, if you weren't paying attention back in 2003 when this change was implemented, you still might think that the rate was 12%. WRONG! And if in some freakish circumstance, you still have an active judgment entered before July 1, 1980, you would be applying a 7% rate, even for accrued interest after July 1, 2003.
Now PRE Judgment interest is a different beast. OCGA 7-4-16 allows a maximum rate of 1.5% per month on the balance from the date that the statment of account is rendered to the obligor (unless otherwise contracted for in writing).
So what does all this mean?
Well, first it means you better have the initial contract reviewed before signing, and second it means you better plead your request for damages in the complaint for the breach of contract.
Happy collecting!
Tuesday, December 7, 2010
Friday, December 3, 2010
State v. Federal v. Galactic Law
Occasionally, you see a court filing that makes you wonder if the internet is a bad thing. Not of course because free speach is a negative influence in the world, but because you wonder if Al Gore messed up once again, and in his magical, single handed creation of the internet created a medium where irrational thoughts can collect and multiply, growing into dangerous beasts that gobble up minds just so eager for answers that they will grab on to anything other than their meager existence.
For example, there is this one:
http://www.galacticroundtable.com/
Now I hesitate to add that link, as it only adds to the fire, sort of like the negative publicity and corresponding rocketing up the Google search engine listings of companies like DecorMyEyes.
http://www.nytimes.com/2010/11/28/business/28borker.html?scp=1&sq=decormyeyes&st=cse
BUT, que sera, sera.
Now if you look into the general concept of the members of the Galactic Round table, they just want world peace, and have fun pointing giant spotlights into the sky meditating (with 100s participating).
HOWEVER, the dark side of this good natured feelgoodedness is when they start giving legal advice about how to fight a speeding ticket. (or any other imposition of the local government into your galactic existence.)
http://www.galacticroundtable.com/profiles/blogs/instructions-for-filing-a-12
Now, the local state court doesn't enforce Federal law, let alone Galactic law, so the only thing you are going to achieve by filing anything from this site is a cocked eyebrow, and a few extra dead trees as the court office staff copies it off and distributes for an amusing detour from the routine of court work.
Once again, refer back to Peter Griffin's experience, previously detailed in one of the earliest blog posts from the dispenser of pez. http://pezdispensergeorgialaw.blogspot.com/2010/10/things-that-work-and-things-that-dont.html
Just remember good sir, or madam, that your mind is free to think whatever it wishes.
Your mind may in fact reject the slave-name the system has given in through a birth certificate, but that name does in fact identify your corporeal being, and until you can free your mind to the extent that it can float free without the body, the state can and will arrest you for violation of the laws that the government has approved, whether or not you have had an individual say with your galactically aware mind.
Cheers.
(and please keep your lips off that glass dick)
For example, there is this one:
http://www.galacticroundtable.com/
Now I hesitate to add that link, as it only adds to the fire, sort of like the negative publicity and corresponding rocketing up the Google search engine listings of companies like DecorMyEyes.
http://www.nytimes.com/2010/11/28/business/28borker.html?scp=1&sq=decormyeyes&st=cse
BUT, que sera, sera.
Now if you look into the general concept of the members of the Galactic Round table, they just want world peace, and have fun pointing giant spotlights into the sky meditating (with 100s participating).
HOWEVER, the dark side of this good natured feelgoodedness is when they start giving legal advice about how to fight a speeding ticket. (or any other imposition of the local government into your galactic existence.)
http://www.galacticroundtable.com/profiles/blogs/instructions-for-filing-a-12
Now, the local state court doesn't enforce Federal law, let alone Galactic law, so the only thing you are going to achieve by filing anything from this site is a cocked eyebrow, and a few extra dead trees as the court office staff copies it off and distributes for an amusing detour from the routine of court work.
Once again, refer back to Peter Griffin's experience, previously detailed in one of the earliest blog posts from the dispenser of pez. http://pezdispensergeorgialaw.blogspot.com/2010/10/things-that-work-and-things-that-dont.html
Just remember good sir, or madam, that your mind is free to think whatever it wishes.
Your mind may in fact reject the slave-name the system has given in through a birth certificate, but that name does in fact identify your corporeal being, and until you can free your mind to the extent that it can float free without the body, the state can and will arrest you for violation of the laws that the government has approved, whether or not you have had an individual say with your galactically aware mind.
Cheers.
(and please keep your lips off that glass dick)
Wednesday, December 1, 2010
See ya at the Blind Pig!
Don't know what a "Blind Pig" is?
.
Perhaps you know it instead as a "Blind Tiger."
.
Well you've been waiting for a great post, so here it is, courtesy of the Corpus Juris Secundum of 2010:
A "blind tiger" or "blind pig" is a place where intoxicating liquors are sold on the sly in violation of law;[FN1] a place where, in defiance of law, intoxicating liquors are kept for illegal sale.[FN2] It has been defined by statute as a place in which intoxicating liquors are sold by any device whereby the person selling or delivering the liquor is concealed from the person buying or receiving it;[FN3] and as a place, in prohibition territory, where spirituous, malt, or intoxicating liquors are kept for sale, barter, exchange, or habitual giving away as a beverage in connection with any business conducted at such place.[FN4]
--------------------------------------------------------------------------------
[FN1] Ill.—People v. Simmons, 330 Ill. 494, 161 N.E. 716 (1928).
[FN2] Ala.—Allison v. State, 1 Ala. App. 206, 55 So. 453 (1911).
[FN3] Tex.—Fitch v. State, 58 Tex. Crim. 366, 127 S.W. 1040 (1910).
[FN4] La.—State v. Doremus, 137 La. 266, 68 So. 605 (1915).
.
Perhaps you know it instead as a "Blind Tiger."
.
Well you've been waiting for a great post, so here it is, courtesy of the Corpus Juris Secundum of 2010:
A "blind tiger" or "blind pig" is a place where intoxicating liquors are sold on the sly in violation of law;[FN1] a place where, in defiance of law, intoxicating liquors are kept for illegal sale.[FN2] It has been defined by statute as a place in which intoxicating liquors are sold by any device whereby the person selling or delivering the liquor is concealed from the person buying or receiving it;[FN3] and as a place, in prohibition territory, where spirituous, malt, or intoxicating liquors are kept for sale, barter, exchange, or habitual giving away as a beverage in connection with any business conducted at such place.[FN4]
--------------------------------------------------------------------------------
[FN1] Ill.—People v. Simmons, 330 Ill. 494, 161 N.E. 716 (1928).
[FN2] Ala.—Allison v. State, 1 Ala. App. 206, 55 So. 453 (1911).
[FN3] Tex.—Fitch v. State, 58 Tex. Crim. 366, 127 S.W. 1040 (1910).
[FN4] La.—State v. Doremus, 137 La. 266, 68 So. 605 (1915).
Tuesday, October 26, 2010
What do I do now that "The Man" from DDS took my driver's license?
Of course you mean what do you do BESIDES learning how bad the public transportation is in Atlanta? Well once you get your Marta Breeze card and load it up with what money you have left, you may want to consider talking to a Georgia Criminal Defense Attorney about what your appeal options are.
The first thing he is going to need to know is how/why was your license suspended? Was it done through an administrative action of the Department of Driver's Services? Was it done through action of the Department of Human Resources because you weren't paying child support? Was it done because you were found guilty in court of multiple DUI's, or conviction on other sorts of traffic offenses?
Here is a list of just some of the laws that allow the state to suspend your license.
Each method of losing your license may have a different method of regaining it, so either start reading up on all the vagaries of Georgia law, or call someone like, guess who, a West Georgia DUI Lawyer.
Let's say for sake of argument, that the traffic court judge was having a bad day, and just didn't want to hear your arguments as to why you don't think you should get a DUI for driving that golf cart down the highway with a half drunk bottle of Jack. You think you were still on the private golf course, and not on public roadways. Maybe you have a chance to appeal that conviction, erase the points you got, and get your license back!
Method 1 - Writ of Certiorari (If you can't pronounce that, just say "Writ of Cert.") This method points out specific errors that the traffic court judge made, because even though you may deserve the ticket, you may have the law on your side. If the law is on your side, and the judge made a mistake, the Writ of Cert may be the way to go.
Method 2 - Direct Appeal to Superior Court. Since you already waived your right to a jury trial in traffic court, (otherwise you wouldn't have gotten the trial held there) you only get a review of the record by the Superior Court judge. If the facts of the case are on your side, and the prosecution just didn't make their case, this may be the way to go.
HOWEVER, whether the facts or the law are on your side, that is NOT the only consideration in choosing your appeal method. TALK TO A GEORGIA LAWYER NOW! (You only have until 30 days after your conviction to do something.)
The first thing he is going to need to know is how/why was your license suspended? Was it done through an administrative action of the Department of Driver's Services? Was it done through action of the Department of Human Resources because you weren't paying child support? Was it done because you were found guilty in court of multiple DUI's, or conviction on other sorts of traffic offenses?
Here is a list of just some of the laws that allow the state to suspend your license.
Each method of losing your license may have a different method of regaining it, so either start reading up on all the vagaries of Georgia law, or call someone like, guess who, a West Georgia DUI Lawyer.
Suspension by the DDS
In the end, this is the way your license is going to be suspended regardless of the circumstances that lead to the suspension. The Department of Driver's Services is the licensing authority for that little piece of plastic that allows you to motorvate across this state, and across this great country.
Suspension due to failure to pay child support
Guess what, not only can the state revoke your driver's license, they can revoke your hunting and fishing licenses too. So what if you can't drive to work to make money after that license is pulled. For some reason, money starts showing up for the kid when DHR puts people in jail, so they probably won't listen to you when you make arguments about restrictions short of incarceration.
Suspension due to conviction in state courts
Well, the suspension itself is still coming from the DDS, but the cause of that pain could have been directly caused by either an administrative hearing initiated by the DDS, or it could have been the result of convictions for traffic offenses being forwarded to them after a trial either in a traffic court or superior court.Let's say for sake of argument, that the traffic court judge was having a bad day, and just didn't want to hear your arguments as to why you don't think you should get a DUI for driving that golf cart down the highway with a half drunk bottle of Jack. You think you were still on the private golf course, and not on public roadways. Maybe you have a chance to appeal that conviction, erase the points you got, and get your license back!
Method 1 - Writ of Certiorari (If you can't pronounce that, just say "Writ of Cert.") This method points out specific errors that the traffic court judge made, because even though you may deserve the ticket, you may have the law on your side. If the law is on your side, and the judge made a mistake, the Writ of Cert may be the way to go.
Method 2 - Direct Appeal to Superior Court. Since you already waived your right to a jury trial in traffic court, (otherwise you wouldn't have gotten the trial held there) you only get a review of the record by the Superior Court judge. If the facts of the case are on your side, and the prosecution just didn't make their case, this may be the way to go.
HOWEVER, whether the facts or the law are on your side, that is NOT the only consideration in choosing your appeal method. TALK TO A GEORGIA LAWYER NOW! (You only have until 30 days after your conviction to do something.)
Tuesday, October 19, 2010
Veni Vivi Venue. (I came, I lived, I got venue.)
Its the simple things in life that make going to court hard. Like the fact that in the United States, you have the substative due process right of free travel amongst the states. Not "free" like you don't have to pay for it, "free" in the fact that you don't have to pass government checkpoints or get permission to travel somewhere.
Well, all that may change for latino's living in The People's Democratic Republic of Arizona, but as Eddie Murphy taught us long ago, white people can still pretty much do what they want throughout the country.
Well all that freedom to go frolicking about, both between states, and within the state of Georgia can cause significant issues when you either want to get a divorce, need a court order to keep them from stalking you, or just generally need to sue them for any reason in general. It causes an issue because the Georgia State Constitution requires that the target of a civil action (the "Defendant") has to be sued in the county in which they reside. (Article VI, Section II) or (page 41 of 89).
Now that sounds all nice and simple, doesn't it? Well that part IS simple, but it is the exceptions that immediately destroy the illusion of simplicity. And the exceptions start right away, and in that same old Georgia Constitution for which I just gave you the link. So in a divorce case, where the Defendant has left not only the home, but has left the state, the Plaintiff can file suit in the county where the Plaintiff resides. If the Defendant has not left the state, and still lives in Georgia, you can file suit either in the county where s/he has moved to, or, if it is within 6 months of them moving out, you can file in the county where you had the marital domicile.
Now wait just one hot minute! Domicile? Residence? What is the difference? And why did the Georgia Supreme Court imply that the word "Residence" means something different in a domestic violence context than in any other context?? Davis-Redding v. Redding, 246 Ga. App. 792, 793 (2000). I don't know. But what I do know (I think) is that "residence" is where you generally sleep at night and have mail sent to, and maybe even pay some bills for gas and electric and such. A residence becomes a Georgia "domicile" when you intend to stay there for any length of time.
As clear as an unmuddied lake? As clear as an azure sky of deepest summer? Don't even get me started on contempt or interstate custody actions.
Just call up your Georgia Trial Lawyer and have him look at OCGA 19-2-1 before you file your divorce, or any other civil lawsuit.
Here it is in case he doesn't have his code books handy:
(a) The domicile of every person who is of full age and is laboring under no disability is the place where the family of the person permanently resides, if in this state. If a person has no family or if his family does not reside in this state, the place where the person generally lodges shall be considered his domicile.
(b) The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining at the new residence. Declaration of an intention to change one's domicile is ineffectual for that purpose until some act is done in execution of the intention.
Well, all that may change for latino's living in The People's Democratic Republic of Arizona, but as Eddie Murphy taught us long ago, white people can still pretty much do what they want throughout the country.
Well all that freedom to go frolicking about, both between states, and within the state of Georgia can cause significant issues when you either want to get a divorce, need a court order to keep them from stalking you, or just generally need to sue them for any reason in general. It causes an issue because the Georgia State Constitution requires that the target of a civil action (the "Defendant") has to be sued in the county in which they reside. (Article VI, Section II) or (page 41 of 89).
Now that sounds all nice and simple, doesn't it? Well that part IS simple, but it is the exceptions that immediately destroy the illusion of simplicity. And the exceptions start right away, and in that same old Georgia Constitution for which I just gave you the link. So in a divorce case, where the Defendant has left not only the home, but has left the state, the Plaintiff can file suit in the county where the Plaintiff resides. If the Defendant has not left the state, and still lives in Georgia, you can file suit either in the county where s/he has moved to, or, if it is within 6 months of them moving out, you can file in the county where you had the marital domicile.
Now wait just one hot minute! Domicile? Residence? What is the difference? And why did the Georgia Supreme Court imply that the word "Residence" means something different in a domestic violence context than in any other context?? Davis-Redding v. Redding, 246 Ga. App. 792, 793 (2000). I don't know. But what I do know (I think) is that "residence" is where you generally sleep at night and have mail sent to, and maybe even pay some bills for gas and electric and such. A residence becomes a Georgia "domicile" when you intend to stay there for any length of time.
As clear as an unmuddied lake? As clear as an azure sky of deepest summer? Don't even get me started on contempt or interstate custody actions.
Just call up your Georgia Trial Lawyer and have him look at OCGA 19-2-1 before you file your divorce, or any other civil lawsuit.
Here it is in case he doesn't have his code books handy:
O.C.G.A. 19-2-1. Place of domicile; change of domicile
(a) The domicile of every person who is of full age and is laboring under no disability is the place where the family of the person permanently resides, if in this state. If a person has no family or if his family does not reside in this state, the place where the person generally lodges shall be considered his domicile.
(b) The domicile of a person sui juris may be changed by an actual change of residence with the avowed intention of remaining at the new residence. Declaration of an intention to change one's domicile is ineffectual for that purpose until some act is done in execution of the intention.
Saturday, October 16, 2010
Is it true that I can kill anyone I want in Georgia, as long as I kill them in my house?
Now before I say a single word on this topic, how about you think about how much sense that actually makes. . . . Do you really think that it is O.K. to kill anyone you want as soon as they cross the threshold of your front door? Nevermind. There are people out there who still think that Obama is a Muslim, so I guess I can waste some time talking to you about this Georgian urban myth about killing in your home.
It is true that there is a lowered bar for proving "self defense" for a defendant who uses deadly force when that defendant is in his home (or his car) in Georgia. However, it is not a carte-blanche license to kill anyone who annoys you during dinner by offending your irrational neo-con sensibilities by laughing in your face when you insist that Obama is promoting an African anti-colonial agenda.
But this article isn't about talking about how stupid you are for listening to Newt Gingrich about morality issues or for listening to political pre-chewed pulp in today's polarized "discussions" that have been dumbed down to historic levels due to the 24/7 media. It is about getting you to go to Jon Stewart's Rally to Restore Sanity! Whoops.
No, this post is about me trying to release a tiny amount of knowledge out there on the internet about Georgia law without giving you the impression that you are entering into any sort of attorney-client relationship with me. What IS happening is that I am shamelessly linking on this blog to a website where you CAN create an attorney-client relationship, with this West Georgia Criminal Defense Attorney.
But who am I, you may ask? I'm SKIP WALTERS DAMMIT, and don't ask any personal questions about me, or I will drag your ass to my yard, and in a violent and tumultuously manner throw you in through the back door and kill you there, because I know how to pull that shit off. You don't. Even after I tell you who you can kill in your house you won't know how to do it right.
Why? Because I'm Skip Walters and you're not. That's why.
Walters. Skip Walters.
Dammit.
Anyway, in Georgia, OCGA 16-3-23 explains when you can use force in the defense of your home, and that is why it is titled "Use of force in defense of habitation."
It says that you are justified in threatening or using force in defending your home to the extent that you reasonably believe that such force is necessary to prevent or terminate the unlawful entry; and, you are justified in using deadly force only if one of the following three situations exist:
1) entry is made in a "violent and tumultuous manner" AND you believe it is made for the purpose of assault AND deadly force is needed to prevent the assault; or
2) the deadly force is used against a non-family member who entered the house unlawfully AND forcibly AND you know that that person entered unlawfully AND forcibly; or
3) the deadly force is used against a person that you reasonably know has entered the house for purposes of committing a felony in the house.
Basically, what this means, is if you know how to set up the situation, and fake the evidence, you pretty much CAN kill anyone in your house, provided you are going to hide the fact that they really were invited to the house, and you really just killed them because they said some really stupid shit about Obama.
Hey, wanna come over tonight?
Hah! Just joking. I'm not going to kill you. Manny is. (here is a longer clip of that scene.)
Ok, if you really did kill someone, and then dragged the body into your house because you thought you could get away with it that way, you are going to need to talk to a Georgia Criminal Defense Attorney now!
It is true that there is a lowered bar for proving "self defense" for a defendant who uses deadly force when that defendant is in his home (or his car) in Georgia. However, it is not a carte-blanche license to kill anyone who annoys you during dinner by offending your irrational neo-con sensibilities by laughing in your face when you insist that Obama is promoting an African anti-colonial agenda.
But this article isn't about talking about how stupid you are for listening to Newt Gingrich about morality issues or for listening to political pre-chewed pulp in today's polarized "discussions" that have been dumbed down to historic levels due to the 24/7 media. It is about getting you to go to Jon Stewart's Rally to Restore Sanity! Whoops.
No, this post is about me trying to release a tiny amount of knowledge out there on the internet about Georgia law without giving you the impression that you are entering into any sort of attorney-client relationship with me. What IS happening is that I am shamelessly linking on this blog to a website where you CAN create an attorney-client relationship, with this West Georgia Criminal Defense Attorney.
But who am I, you may ask? I'm SKIP WALTERS DAMMIT, and don't ask any personal questions about me, or I will drag your ass to my yard, and in a violent and tumultuously manner throw you in through the back door and kill you there, because I know how to pull that shit off. You don't. Even after I tell you who you can kill in your house you won't know how to do it right.
Why? Because I'm Skip Walters and you're not. That's why.
Walters. Skip Walters.
Dammit.
Anyway, in Georgia, OCGA 16-3-23 explains when you can use force in the defense of your home, and that is why it is titled "Use of force in defense of habitation."
It says that you are justified in threatening or using force in defending your home to the extent that you reasonably believe that such force is necessary to prevent or terminate the unlawful entry; and, you are justified in using deadly force only if one of the following three situations exist:
1) entry is made in a "violent and tumultuous manner" AND you believe it is made for the purpose of assault AND deadly force is needed to prevent the assault; or
2) the deadly force is used against a non-family member who entered the house unlawfully AND forcibly AND you know that that person entered unlawfully AND forcibly; or
3) the deadly force is used against a person that you reasonably know has entered the house for purposes of committing a felony in the house.
Basically, what this means, is if you know how to set up the situation, and fake the evidence, you pretty much CAN kill anyone in your house, provided you are going to hide the fact that they really were invited to the house, and you really just killed them because they said some really stupid shit about Obama.
Hey, wanna come over tonight?
Hah! Just joking. I'm not going to kill you. Manny is. (here is a longer clip of that scene.)
Ok, if you really did kill someone, and then dragged the body into your house because you thought you could get away with it that way, you are going to need to talk to a Georgia Criminal Defense Attorney now!
Friday, October 15, 2010
Your first day dealing drugs or selling blow jobs? Well asking “are you a cop?” won’t help screen your customer base for police.
Do people still believe asking if you are a cop will save you before you commit your criminal act? Apparently so, despite a million online resources that will tell you otherwise. I guess people are still watching old 70’s blacksploitation movies where this apparently was the screening method. To convince yourself if won’t work, start with Snopes, or do your own online search. If you are still not believing, call your Georgia Criminal Defense Attorney and ask him directly.
In the meantime, let’s talk a little bit about the three things that you have to prove to show entrapment in Georgia.
(1) the idea of the crime started with the police officer
(2) the defendant did the crime because of undue persuasion, incitement, or deceit
(3) the defendant was not predisposed to commit the crime
Now before you get all excited about #2, remember that all three have to be shown for a successful defense of entrapment.
OH YEAH! I almost forgot. Entrapment is what is called an affirmative defense to the crime. That means that to start arguing that you were entrapped, you have to first admit that you did the crime. Maybe admitting that you did the crime isn’t a big deal, but it is showing that you have come to the last gasp of your legal defense.
So anyway, back to those three things you have to show to prove entrapment.
FIRST, you have to prove that the police officer initiated the idea of doing the crime. An undercover officer pretending to be a drug dealer is NOT initiating the crime. You driving up to that undercover agent (in your station wagon with the kids in the back seat) and asking to buy “half a slab for fifty” is not entrapment, it is you committing the crime of attempted possession of cocaine, even if the undercover cop only has wax pellets to sell you. See Guzman v. State, 206 Ga. App. 170. (1992).
SECOND, you have to show that you did the crime because the cop somehow tricked or coerced you into it. Keep in mind though, that even if the undercover agent becomes extremely irritating by asking you repeatedly over a two week period to sell him hard drugs, he didn’t trick you or coerce you. Garrett v. State, 133 Ga. App. 564. (1974).
Additionally, if the police have a really hot female undercover informant, just because your little head took over control and made you do what she told you to do that still isn’t entrapment. That’s just part of being a dumb guy. Lightsey v. State, 289 Ga. App. 181 (2008).
THIRD, you have to show that you weren’t predisposed to committing the crime anyway. So, don’t even think about an entrapment defense working if you are caught on tape voluntarily going to, and feeling completely comfortable in, a meeting where you are discussing the sale of 400 grams of meth. Urapo-Sanchez v. State, 267 Ga. App. 113 (2004).
Don't want to read all that caselaw? Just call your Georgia Criminal Defense Attorney.
In the meantime, let’s talk a little bit about the three things that you have to prove to show entrapment in Georgia.
(1) the idea of the crime started with the police officer
(2) the defendant did the crime because of undue persuasion, incitement, or deceit
(3) the defendant was not predisposed to commit the crime
Now before you get all excited about #2, remember that all three have to be shown for a successful defense of entrapment.
OH YEAH! I almost forgot. Entrapment is what is called an affirmative defense to the crime. That means that to start arguing that you were entrapped, you have to first admit that you did the crime. Maybe admitting that you did the crime isn’t a big deal, but it is showing that you have come to the last gasp of your legal defense.
So anyway, back to those three things you have to show to prove entrapment.
FIRST, you have to prove that the police officer initiated the idea of doing the crime. An undercover officer pretending to be a drug dealer is NOT initiating the crime. You driving up to that undercover agent (in your station wagon with the kids in the back seat) and asking to buy “half a slab for fifty” is not entrapment, it is you committing the crime of attempted possession of cocaine, even if the undercover cop only has wax pellets to sell you. See Guzman v. State, 206 Ga. App. 170. (1992).
SECOND, you have to show that you did the crime because the cop somehow tricked or coerced you into it. Keep in mind though, that even if the undercover agent becomes extremely irritating by asking you repeatedly over a two week period to sell him hard drugs, he didn’t trick you or coerce you. Garrett v. State, 133 Ga. App. 564. (1974).
Additionally, if the police have a really hot female undercover informant, just because your little head took over control and made you do what she told you to do that still isn’t entrapment. That’s just part of being a dumb guy. Lightsey v. State, 289 Ga. App. 181 (2008).
THIRD, you have to show that you weren’t predisposed to committing the crime anyway. So, don’t even think about an entrapment defense working if you are caught on tape voluntarily going to, and feeling completely comfortable in, a meeting where you are discussing the sale of 400 grams of meth. Urapo-Sanchez v. State, 267 Ga. App. 113 (2004).
Don't want to read all that caselaw? Just call your Georgia Criminal Defense Attorney.
Friday, October 8, 2010
Things that work, and things that don't work in court for a credit card collection case.
Ok, now I am going to say this loud and clear before you get all squirrely on me, I have no frigging idea what the facts of your case are, so everything in this post may or may not apply to you. Talk to a Georgia Defense Attorney before filing ANY court paperwork, and if you are going to appear in court GET A LAWYER.
2) I do not owe the money.
3) I do not owe the amount that the credit card company says I owe.
4) The third party collection agency has not properly been assigned this debt.
2) The case was not filed in the right county.
3) The case was filed too late.
2) I just got fired and can't pay my bills.
3) I just got divorced and my wife took everything, and I can't pay my bills.
4) I just got divorced and my wife took everything, I just got fired, I'm broke, I have cancer, and I can't pay my bills.
(I hope you get the picture that any reason which is just an "I can't pay my bills" is ineffective, no matter how elaborate or heartbreaking. Go listen to some country music and grab a cold one.)
5) I'm really, really sorry, and will the court please have mercy on me.
(Mercy will come in the form of a judgment against you.)
(Go watch the Family Guy episode "E. Peterbus Unum" again, and be glad no one is taking you seriously.)
3) The mean credit card company won't agree to let me pay the 5,000 dollars I owe at the rate of 5 bucks a month.
(There is no obligation for the card company to accept your lousy offer. Go cancel your cable subscription and pay the 100 bucks a month to your existing bills instead of making new ones.)
4) I think that the collection agency is violating federal law.
(This is not relevant in state court. Georgia courts enforce Georgia state law.)
ANY response, whatsoever, even a pleading that only has the case information, one complete sentence stating anything whatsoever, and your printed name and signature will be considered an answer to the complaint. YOU NEED TO FILE ONE OF THESE within 30 days or you automatically lose the case. (hopefully one with an actual legal defense, and not one as described in this paragraph)
2) Failing to state a legal defense in your answer.
The judge, and everyone who reads your truly tragic story of personal loss may in fact get all teary eyed when they reach chapter three where your dog is run over by the ambulance, but if you do not dispute something that has legal significance, you might as well have said "I can't pay the bill" and saved everyone the scrutinizing of your novel for a hidden actual defense.
3) Failing to respond to discovery.
One of the sneaky little facts of civil litigation is that if you do not respond to a party-opponent's request(s) for admissions, those requests are considered to have been admitted as true, and are evidence that the court can use in issuing a summary judgment.
4) Failing to present evidentiary support in response to a motion for summary judgment.
Once again, get a Georgia Defense Attorney! Do you know the rules of evidence? All of them? Or do you think that shouting "hearsay!" in a courtroom is all you have to do based on your experience watching Boston Legal? You cannot rely solely on pleadings in a summary judgment motion. (And even if you went to law school, you may not know what I mean by that.)
5) Believing that you have a right to a hearing because you asked for one in your answer.
Yeah, you filed a request for a jury trial in your answer to the lawsuit. So what. You probably have your own wacky theories on all of the Amendments. The fact of the matter is that if you get caught by one of the extremely basic procedural mechanisms before you get to the trial stage, the court can and will enter judgment against you. How many times do I need to tell you to go get a Georgia Defense Lawyer??
But you're all smart and stuff. You solved the rubik's cube without cheating, and you scored over 150 on your internet IQ test. Fight the lawsuit without professional guidance. After you are done with that, you can perform an emergency appendectomy on yourself.
What are some legal defenses in a credit card collection case?
(based on the merits of the case)
1) I did not use the card.2) I do not owe the money.
3) I do not owe the amount that the credit card company says I owe.
4) The third party collection agency has not properly been assigned this debt.
What are some procedural legal defenses in a credit card case?
1) I was not properly served.2) The case was not filed in the right county.
3) The case was filed too late.
What are things people usually put in their court filings
that have NO LEGAL EFFECT and are NOT valid defenses?
1) I'm broke and can't pay my bills.that have NO LEGAL EFFECT and are NOT valid defenses?
2) I just got fired and can't pay my bills.
3) I just got divorced and my wife took everything, and I can't pay my bills.
4) I just got divorced and my wife took everything, I just got fired, I'm broke, I have cancer, and I can't pay my bills.
(I hope you get the picture that any reason which is just an "I can't pay my bills" is ineffective, no matter how elaborate or heartbreaking. Go listen to some country music and grab a cold one.)
5) I'm really, really sorry, and will the court please have mercy on me.
(Mercy will come in the form of a judgment against you.)
What do people THINK are legal defenses in a Georgia state court,
but ARE NOT EFFECTIVE defenses?
1) The credit card company refuses to send me an original signed contract.
(yes you have the right to proof of the debt, but using the card establishes a valid debt, not a signed contract with the debtor. Nice try, but no good.)
2) I am my own sovereign nation and reject the government's power to enforce debts I have entered.(Go watch the Family Guy episode "E. Peterbus Unum" again, and be glad no one is taking you seriously.)
3) The mean credit card company won't agree to let me pay the 5,000 dollars I owe at the rate of 5 bucks a month.
(There is no obligation for the card company to accept your lousy offer. Go cancel your cable subscription and pay the 100 bucks a month to your existing bills instead of making new ones.)
4) I think that the collection agency is violating federal law.
(This is not relevant in state court. Georgia courts enforce Georgia state law.)
Other stupid things people do that are not effective in court filings:
1) Failing to answer the initial complaint. ANY response, whatsoever, even a pleading that only has the case information, one complete sentence stating anything whatsoever, and your printed name and signature will be considered an answer to the complaint. YOU NEED TO FILE ONE OF THESE within 30 days or you automatically lose the case. (hopefully one with an actual legal defense, and not one as described in this paragraph)
2) Failing to state a legal defense in your answer.
The judge, and everyone who reads your truly tragic story of personal loss may in fact get all teary eyed when they reach chapter three where your dog is run over by the ambulance, but if you do not dispute something that has legal significance, you might as well have said "I can't pay the bill" and saved everyone the scrutinizing of your novel for a hidden actual defense.
3) Failing to respond to discovery.
One of the sneaky little facts of civil litigation is that if you do not respond to a party-opponent's request(s) for admissions, those requests are considered to have been admitted as true, and are evidence that the court can use in issuing a summary judgment.
4) Failing to present evidentiary support in response to a motion for summary judgment.
Once again, get a Georgia Defense Attorney! Do you know the rules of evidence? All of them? Or do you think that shouting "hearsay!" in a courtroom is all you have to do based on your experience watching Boston Legal? You cannot rely solely on pleadings in a summary judgment motion. (And even if you went to law school, you may not know what I mean by that.)
5) Believing that you have a right to a hearing because you asked for one in your answer.
Yeah, you filed a request for a jury trial in your answer to the lawsuit. So what. You probably have your own wacky theories on all of the Amendments. The fact of the matter is that if you get caught by one of the extremely basic procedural mechanisms before you get to the trial stage, the court can and will enter judgment against you. How many times do I need to tell you to go get a Georgia Defense Lawyer??
But you're all smart and stuff. You solved the rubik's cube without cheating, and you scored over 150 on your internet IQ test. Fight the lawsuit without professional guidance. After you are done with that, you can perform an emergency appendectomy on yourself.
Ignoring that lawsuit your credit card company filed is like closing your eyes in a boxing ring.
So you got a knock on your door, and when you opened it, some guy threw papers at your feet and said "You're Served!" Maybe you got lucky, and an actual Sheriff's deputy gave you this notice of lawsuit, and did it a little more tactfully, but either way, you now have a choice.
1) You can ignore it; or,
2) You can do something about it.
Whether you like it or not, you have just been placed in a boxing ring, and choosing path #1 is the equivalent of closing your eyes and tensing up as you wait and hope that it won't hurt too much.
You HAVE to choose path #2, and believe it or not, you might even have a chance to win. It may not even be necessary to consider bankruptcy, but if that ends up what you need to do, call a Georgia Bankruptcy Attorney.
BUT, BEFORE you do anything drastic like bankruptcy, lets do some basic damage control. Those silly papers that were either handed to you or thrown at your feet are a summons and complaint. The summons tells you what court you are being sued in, and the complaint tells you why you are being sued.
If you do not respond to this lawsuit, in 30 days you automatically go into default, and in 45 days, you lose the right to open that default. What that means is the party that filed suit against you can start taking money out of your bank accounts, can garnish your wages, or can put a lien in place against property that you own. Maybe you think you have all your assets hidden and are paid under the table, but if you are all "off the grid" smart, why don't you use some of that brainpower now and fight this lawsuit?!?
Now don't start getting too smart for your own good, because declaring you are a sovereign nation, or demanding that the credit card company produce an original signed contract WILL NOT WORK. Fighting the validity of service, arguing venue or jurisdiction, or possibly arguing statute of limitations MIGHT work, but you need to talk to a Georgia Debtor Defense Attorney about what legal defenses are available.
There are several phases that this lawsuit will go through, and several ways that you can have a judgment entered agaisnt you.
Judgment type 1 - automatic Default Judgment
If you do not file an Anser to the lawsuit, the lawsuit goes into Default in 30 days and a
Judgment type 2 - Judgment entered on motion based on the pleadings filed
After you file an Answer to the lawsuit, if your answer does not raise a legal defense, the party filing suit can obtain a Judgment on the Pleadings
Judgment type 3 - Summary Judgment
If your Answer to the lawsuit raises a legal defense, "discovery" commences. If you do not respond to discovery, the party who filed suit against you may be able to have Summary Judgment entered against you. If you respond to the discovery requests, but your responses fail to support your legal defense, or if you do not file your own evidentiary support in response to the motion for summary judgment, the court may enter judgment against you.
Judgment type 4 - Final judgment after bench trial (judge only) or jury trial
If judgment is not entered based on the above mechanisms, you go to trial. After either a bench or jury trial, judgment is either entered, or you walk out as a winner.
OH . . . by the way . . . all of these judgments are in the end, exactly the same. Whether you fail to respond to the lawsuit, or lose after a jury trial, the entry of judgment is as final and has the exact same effect.
Can you guess what I am going to say next?
You DO NOT know what the valid legal defenses in a debt collection case are, but a Georgia Defense Lawyer does. CALL ONE.
1) You can ignore it; or,
2) You can do something about it.
Whether you like it or not, you have just been placed in a boxing ring, and choosing path #1 is the equivalent of closing your eyes and tensing up as you wait and hope that it won't hurt too much.
You HAVE to choose path #2, and believe it or not, you might even have a chance to win. It may not even be necessary to consider bankruptcy, but if that ends up what you need to do, call a Georgia Bankruptcy Attorney.
BUT, BEFORE you do anything drastic like bankruptcy, lets do some basic damage control. Those silly papers that were either handed to you or thrown at your feet are a summons and complaint. The summons tells you what court you are being sued in, and the complaint tells you why you are being sued.
If you do not respond to this lawsuit, in 30 days you automatically go into default, and in 45 days, you lose the right to open that default. What that means is the party that filed suit against you can start taking money out of your bank accounts, can garnish your wages, or can put a lien in place against property that you own. Maybe you think you have all your assets hidden and are paid under the table, but if you are all "off the grid" smart, why don't you use some of that brainpower now and fight this lawsuit?!?
Now don't start getting too smart for your own good, because declaring you are a sovereign nation, or demanding that the credit card company produce an original signed contract WILL NOT WORK. Fighting the validity of service, arguing venue or jurisdiction, or possibly arguing statute of limitations MIGHT work, but you need to talk to a Georgia Debtor Defense Attorney about what legal defenses are available.
There are several phases that this lawsuit will go through, and several ways that you can have a judgment entered agaisnt you.
Judgment type 1 - automatic Default Judgment
If you do not file an Anser to the lawsuit, the lawsuit goes into Default in 30 days and a
Judgment type 2 - Judgment entered on motion based on the pleadings filed
After you file an Answer to the lawsuit, if your answer does not raise a legal defense, the party filing suit can obtain a Judgment on the Pleadings
Judgment type 3 - Summary Judgment
If your Answer to the lawsuit raises a legal defense, "discovery" commences. If you do not respond to discovery, the party who filed suit against you may be able to have Summary Judgment entered against you. If you respond to the discovery requests, but your responses fail to support your legal defense, or if you do not file your own evidentiary support in response to the motion for summary judgment, the court may enter judgment against you.
Judgment type 4 - Final judgment after bench trial (judge only) or jury trial
If judgment is not entered based on the above mechanisms, you go to trial. After either a bench or jury trial, judgment is either entered, or you walk out as a winner.
OH . . . by the way . . . all of these judgments are in the end, exactly the same. Whether you fail to respond to the lawsuit, or lose after a jury trial, the entry of judgment is as final and has the exact same effect.
Can you guess what I am going to say next?
You DO NOT know what the valid legal defenses in a debt collection case are, but a Georgia Defense Lawyer does. CALL ONE.
Wednesday, October 6, 2010
That Farging Bastage is HIDING from me! | Service by Publication
The first thing that you will find out when you first look to the courts to resolve a dispute, hopefully instead of looking to your AK-47 to resolve that same dispute, is that until you give proper notice of the officially declared war against your sworn enemy to that sworn enemy, the court will not give you the satisfaction that you seek.
It is not as easy as slapping him/her across the face with a well starched glove, and declaring that you demand satisfaction and the restoration of your honour (with or without the "u"). But, either relying on olde English spelling, or olde English customs will not serve you well in a Georgia Superior Court.
Georgia law requires that the defendant in a civil suit must properly give personal service to the target of that suit (the Defendant) before the court has power to enter a judgment of any kind against him/her. So whether you seek a divorce, a money judgment, or an injunction to keep your neighbor from having a Tea Dance at 10 am on a Sunday morning, you need to have that rascal properly served. (please note at this point that "personal service" means service by legally recognized means of the complaint and summons which orders response from the Defendant. It is not any term recognized by the Urban Dictionary)
You need to ask your West Georgia Attorney about which method of service is most cost effective, but here is the general layout of what you need to do or know when you file a civil lawsuit.
First, and easiest, is just paying the county Sheriff to go strolling up in mid-day to the miscreant's place of work or to his/her residence and banging on the door. It is supremely better if the person is served in their home, as the Georgia State Constitution requires that civil suits occur where the Defendant lives. However, the unsuspecting, and unrepresented Defendant is often ruled against even when they are served outside their home county, because they don't know what their rights are, or because they think that closing their eyes will minimize the pain of the punch that is being thrown at their face.
Second, hire a process server who either is a permanent (yearly) appointee of the county, or is appointed for the specific case you are filing. (have a Georgia Attorney file this paperwork)
Third, if no-one can find the rascal, you may be able to serve them through publication in the legal newspaper of the county. (But seriously, if you can't find them, what good is this going to do?) Maybe it is a divorce case and you desperately want to make the same mistake, and can't until you are legally able to be re-insitutionalized, but perhaps you need to consider whether having a court judgment against a non-findable individual is a suitable expenditure of your time. (look up "judgment proof")
Whatever. It makes no difference whether you are driven by hatred, irrational fear, or by an ignorant boss or client. In any case, your anarchic situation will be calmed by the soothing balm of a court judgment; and, service by publication is available. (someday, a comment, and a link to an irrational unethical attorney will be inserted here, but until I leave my current job, this remains unlinked.)
The critical portion of this process is stating in a sworn affidavit the specific steps that you have taken to find that illusive, tortious, criminal, and/or immoral foe. Don't just state that you have taken all steps humanly possible, please do explain what those steps were.
If your efforts were truly adequate (as heroic efforts are not required), the court will issue an order that service by publication is allowed, and the Defendant will have 60 days from the date the court order was entered to respond to the complaint as if they were personally served by the Sheriff or appointed process server. The Clerk of Court in the meantime had better have published the order 4 times as requred, but that is out of your hands for the most part. (You may want to follow up with them though)
Yeah. But what form do I fill out? . . . . Listen bub. You reaaaalllly need to talk to a Georgia Trial lawyer who gives a flip about your personal issues. Paying him a couple bucks might help as well. You don't think lawyers are useful? Well mostly, they think you are . . . . well . . . . lets just say that you need to improve your attitude more than they do.
It is not as easy as slapping him/her across the face with a well starched glove, and declaring that you demand satisfaction and the restoration of your honour (with or without the "u"). But, either relying on olde English spelling, or olde English customs will not serve you well in a Georgia Superior Court.
Georgia law requires that the defendant in a civil suit must properly give personal service to the target of that suit (the Defendant) before the court has power to enter a judgment of any kind against him/her. So whether you seek a divorce, a money judgment, or an injunction to keep your neighbor from having a Tea Dance at 10 am on a Sunday morning, you need to have that rascal properly served. (please note at this point that "personal service" means service by legally recognized means of the complaint and summons which orders response from the Defendant. It is not any term recognized by the Urban Dictionary)
You need to ask your West Georgia Attorney about which method of service is most cost effective, but here is the general layout of what you need to do or know when you file a civil lawsuit.
First, and easiest, is just paying the county Sheriff to go strolling up in mid-day to the miscreant's place of work or to his/her residence and banging on the door. It is supremely better if the person is served in their home, as the Georgia State Constitution requires that civil suits occur where the Defendant lives. However, the unsuspecting, and unrepresented Defendant is often ruled against even when they are served outside their home county, because they don't know what their rights are, or because they think that closing their eyes will minimize the pain of the punch that is being thrown at their face.
Second, hire a process server who either is a permanent (yearly) appointee of the county, or is appointed for the specific case you are filing. (have a Georgia Attorney file this paperwork)
Third, if no-one can find the rascal, you may be able to serve them through publication in the legal newspaper of the county. (But seriously, if you can't find them, what good is this going to do?) Maybe it is a divorce case and you desperately want to make the same mistake, and can't until you are legally able to be re-insitutionalized, but perhaps you need to consider whether having a court judgment against a non-findable individual is a suitable expenditure of your time. (look up "judgment proof")
Whatever. It makes no difference whether you are driven by hatred, irrational fear, or by an ignorant boss or client. In any case, your anarchic situation will be calmed by the soothing balm of a court judgment; and, service by publication is available. (someday, a comment, and a link to an irrational unethical attorney will be inserted here, but until I leave my current job, this remains unlinked.)
The critical portion of this process is stating in a sworn affidavit the specific steps that you have taken to find that illusive, tortious, criminal, and/or immoral foe. Don't just state that you have taken all steps humanly possible, please do explain what those steps were.
If your efforts were truly adequate (as heroic efforts are not required), the court will issue an order that service by publication is allowed, and the Defendant will have 60 days from the date the court order was entered to respond to the complaint as if they were personally served by the Sheriff or appointed process server. The Clerk of Court in the meantime had better have published the order 4 times as requred, but that is out of your hands for the most part. (You may want to follow up with them though)
Yeah. But what form do I fill out? . . . . Listen bub. You reaaaalllly need to talk to a Georgia Trial lawyer who gives a flip about your personal issues. Paying him a couple bucks might help as well. You don't think lawyers are useful? Well mostly, they think you are . . . . well . . . . lets just say that you need to improve your attitude more than they do.
Monday, September 27, 2010
But I don’t WANNA go to court today! | (Continuance)
Just like in high school, there are reasons that work and reasons that don’t work when you just want to stay in bed and not face the world. In high school, maybe you didn’t finish that book report, and needed just another day of procrastination to put the finishing touches on it, so you prayed for snow or faked illness. Today, maybe you actually do have an important event in your life that conflicts with your court date, or maybe, just like in high school, you just don’t want to face up to your responsibilities in the real world.
What you want is called a continuance, and in a civil case, unless there is a specific statutory reason that requires a judge to give you a continuance, it is at that judge’s sound legal discretion to give that continuance “as the ends of justice may require.” (See O.C.G.A. 9-10-167)
So, if you don’t have one of the statutory reasons, (such as being a member of the Georgia General Assembly or perhaps being called up for National Guard duty) you best either start praying for snow, or talk to your Georgia lawyer about what will appeal to the "sound legal discretion" of the judge.
In a criminal case, the specific code section above doesn't apply, but the principle does. There are a few statutory reasons for a continuance being required, but mostly, it is in the discretion of the judge to grant the continuance. (See O.C.G.A. 17-8-20 through 17-8-38)
I wouldn’t recommend writing a letter to the judge informing him that you have died unexpectedly, but that is the bad choice that some people unfortunately make. (To look into the glassy eyes of the genius who thought this would work, go to this website, and enter 873774 in the text box labelled "SOID", and select "Inquiry" instead of "In Custody" in the drop down box. If she hasn't been arrested again, clicking on "Last Known Booking" in the screen that appears will bring up the gory details and her mugshot.)
If you have died, you certainly will be freed of your earthly responsibilities, but unsigned anonymous letters informing the court that you, a fleeing felony defendant, are seeking donations for imaginary illnesses are only going to really annoy the bail bondsman, if not the judge.
Believe it or not, calling in sick is a potentially legitimate course of action to take, but even if you really do have an illness requiring surgery, if you move up an operation to conflict with your court date, you may not get that continuance, especially if this is the 5th continuance that you are asking for. (See Appling v. Tatum, 295 Ga. App. 78 (2008).)
The best way to get a continuance is to have the opposing party agree to allowing the case continued, and if you don’t have a lawyer, you better get on your thinking cap to figure out how to get that party to talk to you. If it is a criminal case, the prosecutor will probably be too busy to return your call, but in all blunt sincerity, his or her job is putting you in jail, not teaching you the subtleties of the law and the correct way to delay your case. Point being, get a Georgia Criminal Defense Lawyer.
If it is a civil case (and keep in mind that “civil litigation” is one of the starkest oxymorons that you will ever encounter) you will have an even lesser chance of success without a lawyer to speak the magic words that will result in agreement for a court ordered continuance. Same point to make, get a Georgia Trial Lawyer.
To sum up, you have to have a better excuse than you did when you were in high school for not going to school, because it isn’t your mom making the decision any more.
What you want is called a continuance, and in a civil case, unless there is a specific statutory reason that requires a judge to give you a continuance, it is at that judge’s sound legal discretion to give that continuance “as the ends of justice may require.” (See O.C.G.A. 9-10-167)
So, if you don’t have one of the statutory reasons, (such as being a member of the Georgia General Assembly or perhaps being called up for National Guard duty) you best either start praying for snow, or talk to your Georgia lawyer about what will appeal to the "sound legal discretion" of the judge.
In a criminal case, the specific code section above doesn't apply, but the principle does. There are a few statutory reasons for a continuance being required, but mostly, it is in the discretion of the judge to grant the continuance. (See O.C.G.A. 17-8-20 through 17-8-38)
I wouldn’t recommend writing a letter to the judge informing him that you have died unexpectedly, but that is the bad choice that some people unfortunately make. (To look into the glassy eyes of the genius who thought this would work, go to this website, and enter 873774 in the text box labelled "SOID", and select "Inquiry" instead of "In Custody" in the drop down box. If she hasn't been arrested again, clicking on "Last Known Booking" in the screen that appears will bring up the gory details and her mugshot.)
If you have died, you certainly will be freed of your earthly responsibilities, but unsigned anonymous letters informing the court that you, a fleeing felony defendant, are seeking donations for imaginary illnesses are only going to really annoy the bail bondsman, if not the judge.
Believe it or not, calling in sick is a potentially legitimate course of action to take, but even if you really do have an illness requiring surgery, if you move up an operation to conflict with your court date, you may not get that continuance, especially if this is the 5th continuance that you are asking for. (See Appling v. Tatum, 295 Ga. App. 78 (2008).)
The best way to get a continuance is to have the opposing party agree to allowing the case continued, and if you don’t have a lawyer, you better get on your thinking cap to figure out how to get that party to talk to you. If it is a criminal case, the prosecutor will probably be too busy to return your call, but in all blunt sincerity, his or her job is putting you in jail, not teaching you the subtleties of the law and the correct way to delay your case. Point being, get a Georgia Criminal Defense Lawyer.
If it is a civil case (and keep in mind that “civil litigation” is one of the starkest oxymorons that you will ever encounter) you will have an even lesser chance of success without a lawyer to speak the magic words that will result in agreement for a court ordered continuance. Same point to make, get a Georgia Trial Lawyer.
To sum up, you have to have a better excuse than you did when you were in high school for not going to school, because it isn’t your mom making the decision any more.
Saturday, September 25, 2010
So how much does it cost to have a contested divorce?
I don’t know. How much does it cost to fight a war? Is this going to be a small war like the invasion of Grenada? Or is this more on the scale of WW2? Do you have the assets to support a major war? Or are you looking at a small, limited objective African bush war? More importantly, is this war necessary? War by its very nature demands the destruction of property and the mangling of lives. Can’t you both just get along? Well . . . at least long enough to work out the terms of getting this divorce done. You may think that divorce attorneys salivate over a good fight, and they do, but not when you want to re-fight the battle of Normandy on a battle of San Juan Hill budget.
Then, you think, I’ll just do it myself! No-one can fight as hard as I can for my kids and my house and my 401(k)! Those damn lawyers don’t know what they are doing, arguing about marital versus separate property when I really just need to tell the judge what a horrible person s/he is! My personal story of woe will break the judge’s heart, and the judge will get so mad at him/her that the judge will give me everything and probably have him/her locked up!
Well, the truth is that the judge has probably heard before absolutely everything you are going to say, and your righteous indignation is not going to be the primary issue before the court. Read the second half of this post regarding the judge’s inner tears for your situation.
Granted, sometimes a nasty, contested divorce is inevitable. No matter how reasonable you are, the other party may not be. A good Georgia family lawyer will identify your rights, and let you know what issues you can not only fight about, but actually win.
Then, you think, I’ll just do it myself! No-one can fight as hard as I can for my kids and my house and my 401(k)! Those damn lawyers don’t know what they are doing, arguing about marital versus separate property when I really just need to tell the judge what a horrible person s/he is! My personal story of woe will break the judge’s heart, and the judge will get so mad at him/her that the judge will give me everything and probably have him/her locked up!
Well, the truth is that the judge has probably heard before absolutely everything you are going to say, and your righteous indignation is not going to be the primary issue before the court. Read the second half of this post regarding the judge’s inner tears for your situation.
Granted, sometimes a nasty, contested divorce is inevitable. No matter how reasonable you are, the other party may not be. A good Georgia family lawyer will identify your rights, and let you know what issues you can not only fight about, but actually win.
How is this going to be decided?
Well, first of all, what needs to be decided? Child custody, personal property, real property, marital and personal debts and assets are a good general start. Contesting some things are going to be harder than contesting other things. Property issues are generally decided on the principle of equitable division, and custody issues are generally decided on the principle of “best interests of the child.” What those principles are and how they are applied is a whole ‘nother discussion. Just remember, that while this divorce process is going to be a horrible rotten process, you need to keep your head and remember that the criminal code is still in force. You can’t get physical with the spouse, and you can’t grab the kids and run to Montana. If you do, you are like going to need to call a Georgia criminal defense attorney.
Friday, September 24, 2010
"Uncontested Divorce" means that ALL issues are settled, NOT all-most.
Yeah, I know it’s spelled “almost.” One of my biggest pet peeves is people not understanding that each and every word in a court order actually means something, so to put that near-pun in the title of this post makes me a little uncomfortable. However, I’m trying to make sure that the lowest common denominator understands that to get those $399 specials on the billboards, you really do have to have all things settled.
“Why is that?” you might ask. Well to answer that question, let’s look at what should be a very simple question: “where should you file for divorce?”
However, even this simple rule can get complicated. What happens if the ex has either left the county where you lived in together while married, or went ahead and left the state? Well, if the ex still lives in Georgia, you can still file in the county where you both lived together if you file within 6 months of the separation date. If the ex has left the state you can either file in the county where you both lived together, or in the county where you currently live. However, as long as you have lived in Georgia for 6 months, you can file in any county whatsoever in Georgia if you both agree to it. Hmmmm. It’s simple, but it can get more complicated than necessary quickly.
So the point being, if you are going to fight any detail whatsoever, no matter how mundane, you no longer have an uncontested divorce.
Don’t know how to do all that? Well how ‘bout you plunk down some cash and have a Georgia Family Law Attorney do it properly for you? Want to do it yourself? If you do you probably are the kind of person who also likes to make your own hot-tub out of a can of propane, and an old wash bucket. Good luck with that. Call a Georgia Criminal Defense Attorney when you kill your neighbors in the explosion.
“Why is that?” you might ask. Well to answer that question, let’s look at what should be a very simple question: “where should you file for divorce?”
Where should you file for divorce?
In Georgia, the state constitution requires that civil suits are filed in the county where the Defendant resides. In a divorce, that means that you are required to file in the Superior Court that is in the county where your soon to be ex-spouse lives. However, even this simple rule can get complicated. What happens if the ex has either left the county where you lived in together while married, or went ahead and left the state? Well, if the ex still lives in Georgia, you can still file in the county where you both lived together if you file within 6 months of the separation date. If the ex has left the state you can either file in the county where you both lived together, or in the county where you currently live. However, as long as you have lived in Georgia for 6 months, you can file in any county whatsoever in Georgia if you both agree to it. Hmmmm. It’s simple, but it can get more complicated than necessary quickly.
So the point being, if you are going to fight any detail whatsoever, no matter how mundane, you no longer have an uncontested divorce.
OK, we agree to agree on EVERYTHING. What do we have to file?
For an uncontested divorce without minor children, you must file a verified complaint that alleges the facts necessary to establish jurisdiction and venue as well as grounds for divorce. Remember that I said every word counts? Most of the time “allege” is a word bandied about by people trying to sound like a lawyer (and that includes lawyers trying to sound like a lawyer) but in this case it is accurately used. Because Georgia is a notice pleading state, you can get away in most cases by filing a complaint with any wild-“eyed” accusation and you don’t have to specifically state facts that give rise to a civil action. Divorce however requires specific allegations in order to state a valid claim against the other party. It also requires that you “verify” the complaint, which means you swear in a separate, notarized statement, that your complaint is true.
Is that it? We’re done?
Nope. Then, you either serve the other party, or have them acknowledge service. Since this is uncontested, I’ll hope that you can acknowledge service. Then, you have to wait 31 days before the court can issue the divorce. That divorce will not magically occur on the 31st day though, you need to follow up with the court, and either ask for a hearing after 30 days, or file a motion for the court to enter judgment on the pleadings. Some courts will allow divorces on motions, and others won’t. If you are filling in a county allowing orders on motions, you must comply with Uniform Superior Court Rule 24.6. If you did not file in the county where the Defendant lives, you will need to file a waiver/consent to venue and jurisdiction. If the male spouse has filed and the female wishes to have her maiden name restored, she will either have to file an affidavit to that effect, or have that term incorporated into the settlement. Oh, you did write up a settlement that resolved all issues of marital debt, separate debt, marital and separate assets, personal and real property, and any other issues of the divorce? No? Better go do that, and then incorporate it properly into the final proposed divorce order that you need to prepare for the judge to sign.Don’t know how to do all that? Well how ‘bout you plunk down some cash and have a Georgia Family Law Attorney do it properly for you? Want to do it yourself? If you do you probably are the kind of person who also likes to make your own hot-tub out of a can of propane, and an old wash bucket. Good luck with that. Call a Georgia Criminal Defense Attorney when you kill your neighbors in the explosion.
Thursday, September 23, 2010
I didn’t need a lawyer to get married, why do I need one to get divorced?
Well the problem isn’t that it is too hard to get divorced, the problem is that it is too damn easy to get married. If the world made sense, there would be a law requiring a $5,000 dollar bond being deposited before any marriage license would ever be issued. Unfortunately, the concept of “substantive due process” came to have a life of its own after the Dred Scott decision; where the Supreme Court wrestled with the conundrum of the time where on one hand the U.S. valued freedom as one of its core principles, but on the other hand allowed white people to treat black people like a piece of sellable lawn furniture. The irrationality inherent in that contradiction resulted in the concept of “substantive due process”, a legal oxymoron that spawned a whole series of fanciful legal “rights” unmentioned in the Constitution, to include the rights of marriage and procreation.
Now I’m all for stupid people breeding, because someone has to cook my fries, but when I don’t have the late night drunken munchies, I tend to revisit the topic. Especially when they later come looking for a divorce. But they don’t really want a divorce, they just want to trash their formerly beloved soulmate in open court. For the love of God, it was only 2 years ago when you stood in front of all your friends and embarrassed yourself by staring cow-eyed at that person and promising the world you’d love him/her forever! Do you really want to present to the court the time that s/he called your mother a stupid %$#@% in front of the kids as proof that s/he is an unfit parent? By the way, you do know that your mother really just may be aaaaaah . . . well nevermind.
The point being, people need a lawyer to get divorced because although the government has made it a right to enter into one of the worst contracts in the world without legal counsel, to exit that contract, you will need a professional to un-“do” the mess. Especially when you went and had children. The fact of the matter is, the court looks at your future happiness as an entirely secondary issue when children are involved. The “best interests of the child” means that if you have to sell your Beemer and start riding Marta to work in order to make your child support payments, you better start looking for a Breeze card. The judge just may want to cry a tiny tear on the inside for you due to the depreciation of your once glorious personal life, but that same judge just sentenced 22 people to a total of 476 years in prison yesterday, and all his inner tears are about used up.
The question you gotta ask yourself now is do you want a divorce or do you want to have a long protracted public flogging of your soon to be ex-spouse? Either way, you better get yourself a good Georgia divorce lawyer that knows the ins and outs of Georgia family law. OH. Don't go getting physical, or you might need a Georgia criminal defense lawyer too!
(I didn’t need a lawyer to get married, why do I need one to get divorced? | Georgia Divorce Lawyer)
Now I’m all for stupid people breeding, because someone has to cook my fries, but when I don’t have the late night drunken munchies, I tend to revisit the topic. Especially when they later come looking for a divorce. But they don’t really want a divorce, they just want to trash their formerly beloved soulmate in open court. For the love of God, it was only 2 years ago when you stood in front of all your friends and embarrassed yourself by staring cow-eyed at that person and promising the world you’d love him/her forever! Do you really want to present to the court the time that s/he called your mother a stupid %$#@% in front of the kids as proof that s/he is an unfit parent? By the way, you do know that your mother really just may be aaaaaah . . . well nevermind.
The point being, people need a lawyer to get divorced because although the government has made it a right to enter into one of the worst contracts in the world without legal counsel, to exit that contract, you will need a professional to un-“do” the mess. Especially when you went and had children. The fact of the matter is, the court looks at your future happiness as an entirely secondary issue when children are involved. The “best interests of the child” means that if you have to sell your Beemer and start riding Marta to work in order to make your child support payments, you better start looking for a Breeze card. The judge just may want to cry a tiny tear on the inside for you due to the depreciation of your once glorious personal life, but that same judge just sentenced 22 people to a total of 476 years in prison yesterday, and all his inner tears are about used up.
The question you gotta ask yourself now is do you want a divorce or do you want to have a long protracted public flogging of your soon to be ex-spouse? Either way, you better get yourself a good Georgia divorce lawyer that knows the ins and outs of Georgia family law. OH. Don't go getting physical, or you might need a Georgia criminal defense lawyer too!
(I didn’t need a lawyer to get married, why do I need one to get divorced? | Georgia Divorce Lawyer)
Wednesday, September 22, 2010
Seriously Too. Expunging down and dirty.
So if you missed “Seriously, How do I expunge my criminal record?” then get the general idea in that link. At this point, we are going to go deeper into the details. I’ll warn you now, this is going to get weird, so get ready to go pro.
Expungement of mere mistakes in your GCIC record is most likely not going to do much good for you. Correcting the arrest report to show that you were arrested across the street from Bulldog’s instead of inside Bulldog’s may make you feel better, but will the people asking for that background check care about those finer details of your felony arrest?
The good stuff in expungement is getting rid of the arrest records completely. The hard stuff is figuring out what the hell the statute means and whether your situation will not only qualify for expungement but not run up against statutory reasons for it not to be expunged.
(References like "(d)(1)(A)" refer to subsections of OCGA 35-3-37)
Path1 – It was never sent to the prosecutor, so unless they know you by name in that office because you have 20 other cases in that county, they should approve the application.
Path2 – The prosecutor did get the arrest records and filed for an indictment or an accusation. There are then at least 7 statutory reasons for denying the application: A) you plead out to a lesser offense; B) evidence against you was suppressed; C) a witness refused to testify against you; D) you are in jail on another charge; E) you went to pre-trial diversion in a deal that did not expressly allow expungement; F) the arrest was associated with the crime wave you are involved in; and, G) you had diplomatic immunity (lucky dog). Tell your lawyer to look up section (d)(7)(A)-(G).
Path 3 – After an indictment or accusal is filed, you don’t have a right to expungement, but if the prosecutor doesn’t object to your expungement request within 60 days after finding out it, GCIC is supposed to expunge the records. ** Path 3 is significantly different that Path 1 or 2, so make sure to have your lawyer review section (d)(9).
Expungement of mere mistakes in your GCIC record is most likely not going to do much good for you. Correcting the arrest report to show that you were arrested across the street from Bulldog’s instead of inside Bulldog’s may make you feel better, but will the people asking for that background check care about those finer details of your felony arrest?
The good stuff in expungement is getting rid of the arrest records completely. The hard stuff is figuring out what the hell the statute means and whether your situation will not only qualify for expungement but not run up against statutory reasons for it not to be expunged.
(References like "(d)(1)(A)" refer to subsections of OCGA 35-3-37)
Cases that will QUALIFY for Expungement
Case 1 - the case was not forwarded to the prosecuting attorney (d)(1)(A)
Case 2 - the prosecuting attorney did not indict the case or file an accusation (d)(1)(B)
Case 3 - after the prosecuting attorney filed an indictment or accusation in the case, the case was subsequently dismissed, dead docketed, or nolle prossed. (d)(6)
Case 4 - Not covered here. Other reasons such as negotiated pleas.
Case 4 - Not covered here. Other reasons such as negotiated pleas.
What do I do if my case qualifies for expungement?
Well, honestly, you should go get a good Georgia Criminal Defense Attorney. Do you really know whether your case was indicted, accused, dead docketed or who the prosecuting attorney was? The short answer is that you have to file a request that bounces around to various government agencies, but the even shorter answer is you need to get someone who knows what they are doing in this sort of proceeding.
If it does qualify, what can go wrong in the application for expungement?
Well first of all, each of the three types of expungement cases has a slightly to significantly different path of processing and review.Path1 – It was never sent to the prosecutor, so unless they know you by name in that office because you have 20 other cases in that county, they should approve the application.
Path2 – The prosecutor did get the arrest records and filed for an indictment or an accusation. There are then at least 7 statutory reasons for denying the application: A) you plead out to a lesser offense; B) evidence against you was suppressed; C) a witness refused to testify against you; D) you are in jail on another charge; E) you went to pre-trial diversion in a deal that did not expressly allow expungement; F) the arrest was associated with the crime wave you are involved in; and, G) you had diplomatic immunity (lucky dog). Tell your lawyer to look up section (d)(7)(A)-(G).
Path 3 – After an indictment or accusal is filed, you don’t have a right to expungement, but if the prosecutor doesn’t object to your expungement request within 60 days after finding out it, GCIC is supposed to expunge the records. ** Path 3 is significantly different that Path 1 or 2, so make sure to have your lawyer review section (d)(9).
OK, its getting Expunged! What just happened?
Actually, not as much as you would like. The only records that are destroyed are fingerprint records and photographs of you that are on file wherever police records are kept for the police department that arrested you. GCIC does not destroy or delete anything, they just restrict access your criminal history with respect to the expunged charge. That means the next time you get busted, even though it is expunged, the D.A. is still going to know it happened, they just have less evidence about it.
Persons seeking your criminal history for employment should not get information about your expunged incidents, but those incident records will still be available to “criminal justice officials upon written application for official judicial law enforcement or criminal investigative purposes." (d)(5).
....
Persons seeking your criminal history for employment should not get information about your expunged incidents, but those incident records will still be available to “criminal justice officials upon written application for official judicial law enforcement or criminal investigative purposes." (d)(5).
....
I warned you this was going to get weird.
It ain’t like spraying some Lysol.
It ain’t like spraying some Lysol.
Expunging sounds good, but it is not easy, and it is not leaving you squeaky clean, even if you do get GCIC to co-operate. It’s best you just keep on the up and up; and keep popping your Pez.
Monday, September 20, 2010
Seriously, how do I expunge my criminal record?
So let's just exercise our collective ability to suspend disbelief and assume that you have honestly given up on your felonious anti-social tendencies after having spent the last 20 years having weekly run-ins with the local, state, and federal law enforcement authorities. You have, in fact, decided that you want to start giving back to society, but that halfway house for hookers and bankers will never get licensed after the city checks your criminal record. Well I want to help you stop at least one of those groups screwing others for money, so instead of focusing on MNF tonight, I am going to be here to parse statutory code and write bad puns. And I'm all out of bad puns.
GCIC stands for Georgia Crime Information Center, and is the division of the Georgia Bureau of Information that maintains your criminal arrest record in Georgia. "Expunging" is the term used for removing information from the GCIC database and destroying original records of arrest.
O.C.G.A. 35-3-37 has all you need to know about expunging your criminal record. (Dig into this link and find it at Title 35, Chapter 3, Article 2). Then be glad I translated it into English for you. Then go talk to your Georgia attorney, because I disclaim any and all misinterpretations of Georgia law while writing this blawg-post, and refuse to enter any sort of situation where you think an attorney-client relationship is forming here.
35-3-37 starts out with a vague warning of never using your powers for evil, then generally calls for an air of calm as you learn to trust your government. After this pre-spell incantation is cast, the knowledge for expunging a mistake in your record is given followed by the knowledge for expunging accurate information from an arrest that wasn't sufficient to result in a conviction.
If the agency disagrees with your position, or otherwise refuses to change information you believe to be innacurate information, its decision is appealable to the Superior Court where you live, or where the agency exists. The appeal is conducted de novo, which is good for you, because that means that you don't have to overturn the agency decision, you just have to convince the court that you are right.
I doubt I can keep your attention for much longer, and I know I can't keep mine, because the damn 49-ers just took the lead. I need more Drew Brees points in my fantasy league, and it can't go to Colston. More about your expunging needs later. I need a beer. And you need a good West Georgia Lawyer.
GCIC stands for Georgia Crime Information Center, and is the division of the Georgia Bureau of Information that maintains your criminal arrest record in Georgia. "Expunging" is the term used for removing information from the GCIC database and destroying original records of arrest.
O.C.G.A. 35-3-37 has all you need to know about expunging your criminal record. (Dig into this link and find it at Title 35, Chapter 3, Article 2). Then be glad I translated it into English for you. Then go talk to your Georgia attorney, because I disclaim any and all misinterpretations of Georgia law while writing this blawg-post, and refuse to enter any sort of situation where you think an attorney-client relationship is forming here.
35-3-37 starts out with a vague warning of never using your powers for evil, then generally calls for an air of calm as you learn to trust your government. After this pre-spell incantation is cast, the knowledge for expunging a mistake in your record is given followed by the knowledge for expunging accurate information from an arrest that wasn't sufficient to result in a conviction.
MISTAKES IN YOUR GCIC RECORD
Innaccurate or incomplete information in your GCIC record can be expunged by sending a request to the agency that has the original arrest records. That request must identify what the innacuracy is, identify desired changes, and request that GCIC be informed of the chang(es).If the agency disagrees with your position, or otherwise refuses to change information you believe to be innacurate information, its decision is appealable to the Superior Court where you live, or where the agency exists. The appeal is conducted de novo, which is good for you, because that means that you don't have to overturn the agency decision, you just have to convince the court that you are right.
ACCURATE YET EXPUNGABLE INFORMATION
IN YOUR GCIC RECORD
OK, so the information can’t be labeled a mistake, but on the other hand you weren’t convicted of the charges brought. The prosecuting attorney either didn't formally bring charges, or later dropped those charges by either "dead docketing" or "nolle prosse"-ing the charges. (Stand by for a post that will dig into the details of the gross over-generalization made in that last sentence.) You aren't out of the woods yet, as you have to file a request with the agency holding the original arrest records, and that prosecuting attorney is going to be the one who reviews the case again. If there are any reasons other than s/he thinks you didn't do the crime, you are going to have a tough road to hoe getting that charge expunged. All of the reasons why it won't get expunged are grist for the mill another day, but the important thing is that the prosecuting attorney's office is the one to butter up here. So don't go laughing maniacally and exit the courtroom with a raised middle finger when you think you have beat the rap.IN YOUR GCIC RECORD
I doubt I can keep your attention for much longer, and I know I can't keep mine, because the damn 49-ers just took the lead. I need more Drew Brees points in my fantasy league, and it can't go to Colston. More about your expunging needs later. I need a beer. And you need a good West Georgia Lawyer.
Friday, September 17, 2010
She ain’t 16, and can’t consent, even if she DOES live in your storage unit.
It used to be in Georgia that a man’s home was his castle, and in that castle, he made the rules. Period. He didn’t have to answer to no lawman when he took to a beatin’ his mouthy wife, and he didn’t have to ask for no identification card before he took to a havin’ sexual relations with that special-delivered Vietnamese prostitute.
Well times have changed indeed good sir, and although we can long for the day when our land will be ruled purely on a cash basis as Ayn Rand envisioned (where men live on magical islands worshipping golden idols in the shape of dollar signs and require the exchange of cash for each and every personal favor); today we live in an imperfect world where the ability to pay is not the sole guiding moral force.
Lo, even though you won that internet auction fair and square and had that 15 year old girl shipped first class to your home, you will have to wait until she is 16 before you can claim her glories. In fact, you best keep your fingers completely off those goods, as your certainly welcome caresses can result in even longer jail time than if you throw caution to the wind and have full blown sexual intercourse with her. The fact of the matter is that intercourse with her has a minimum sentence of 1 year as “statutory rape” but penetrating her most holy of holies with your well manicured and anti-bacterially washed finger has a minimum sentence of 25 years as “aggravated sexual battery.”
It matters not, good sir, that she spent the last 11 years in a Bangkok brothel servicing vacationing German sex-tourists, or that she can do things that would shock an L.A. porn star. Neither her experience nor her apparent willingness will save you in a Georgia court. It is best that you go back to your utopian literature, and follow your intellectual pursuits for the next year making yourself a better husband to her, and dream your dreamy dreams of future marital bliss made possible only because of the magic of the internet.
We will perhaps have to address in a timely manner the 13th Amendment and its application to your current housing arrangement with her, but for the moment, just remember to check her air supply, and do give her a fresh honey-bucket. And talk to a good Georgia Defense Attorney.
Well times have changed indeed good sir, and although we can long for the day when our land will be ruled purely on a cash basis as Ayn Rand envisioned (where men live on magical islands worshipping golden idols in the shape of dollar signs and require the exchange of cash for each and every personal favor); today we live in an imperfect world where the ability to pay is not the sole guiding moral force.
Lo, even though you won that internet auction fair and square and had that 15 year old girl shipped first class to your home, you will have to wait until she is 16 before you can claim her glories. In fact, you best keep your fingers completely off those goods, as your certainly welcome caresses can result in even longer jail time than if you throw caution to the wind and have full blown sexual intercourse with her. The fact of the matter is that intercourse with her has a minimum sentence of 1 year as “statutory rape” but penetrating her most holy of holies with your well manicured and anti-bacterially washed finger has a minimum sentence of 25 years as “aggravated sexual battery.”
It matters not, good sir, that she spent the last 11 years in a Bangkok brothel servicing vacationing German sex-tourists, or that she can do things that would shock an L.A. porn star. Neither her experience nor her apparent willingness will save you in a Georgia court. It is best that you go back to your utopian literature, and follow your intellectual pursuits for the next year making yourself a better husband to her, and dream your dreamy dreams of future marital bliss made possible only because of the magic of the internet.
We will perhaps have to address in a timely manner the 13th Amendment and its application to your current housing arrangement with her, but for the moment, just remember to check her air supply, and do give her a fresh honey-bucket. And talk to a good Georgia Defense Attorney.
Thursday, September 16, 2010
Why am I in jail? I was only smokin’ a li’l mother nature!?!
Well first of all, let’s get this straight . . . you see, it isn’t the consumption of the ganja that is a crime, it is the mere possession of it that leads to your incarceration.
And while there is a move, mostly on the periphery states of the union to make it legal, the Supreme Court has upheld the Federal government’s power to enforce national drug enforcement.
But if you are willing to risk the black helicopters, electronically tricked out vans, and Patriot Act authorized no-warrant wiretaps, you can wander out of state to one of the more liberally oriented jurisdictions.
But forget about Red State – Blue State differentiation as it applies to the two party political system that we currently cope with in the United States, this map show the real “Blue States” you should be thinking about.
These True Blue states are the ones where a short wait for the local Koosh Doctor will make you “legal” in your pursuit of medicated happiness. At least as far as the Blue State authorities go. But as I said, the Feds may have a different view on this, and the DEA won’t care if you do have a license, and neither will any of the local Georgia boys.
But WHY Dammit?!? Why do they have to interfere with what I do with myself in the privacy of my own home? Well you have to realize that ever since Lincoln freed the black man, drug laws have been instituted to take the place of slave quarters and Jim Crowe in keeping the races separate and equal. But it isn’t just institutionally accepted racism that leads to laws that make certain drugs illegal, it is also about border policy and keeping jobs in America.
For those who don't believe the racist nature of the implementation of drug enforcement laws, go ahead and buy the whole series Hooked on Drugs sold from the History Channel. Although there are some misguided people who believe that the best way to deal with the drug problem in America is to incarcerate the users, the real driving force behind the actual implementation of drug laws has had nothing to do with that motivation.
But what do I do in the meantime? All this political crap doesn’t help me get out of jail. Well, call a good Georgia Criminal Defense Lawyer.
And while there is a move, mostly on the periphery states of the union to make it legal, the Supreme Court has upheld the Federal government’s power to enforce national drug enforcement.
But if you are willing to risk the black helicopters, electronically tricked out vans, and Patriot Act authorized no-warrant wiretaps, you can wander out of state to one of the more liberally oriented jurisdictions.
But forget about Red State – Blue State differentiation as it applies to the two party political system that we currently cope with in the United States, this map show the real “Blue States” you should be thinking about.
These True Blue states are the ones where a short wait for the local Koosh Doctor will make you “legal” in your pursuit of medicated happiness. At least as far as the Blue State authorities go. But as I said, the Feds may have a different view on this, and the DEA won’t care if you do have a license, and neither will any of the local Georgia boys.
But WHY Dammit?!? Why do they have to interfere with what I do with myself in the privacy of my own home? Well you have to realize that ever since Lincoln freed the black man, drug laws have been instituted to take the place of slave quarters and Jim Crowe in keeping the races separate and equal. But it isn’t just institutionally accepted racism that leads to laws that make certain drugs illegal, it is also about border policy and keeping jobs in America.
For those who don't believe the racist nature of the implementation of drug enforcement laws, go ahead and buy the whole series Hooked on Drugs sold from the History Channel. Although there are some misguided people who believe that the best way to deal with the drug problem in America is to incarcerate the users, the real driving force behind the actual implementation of drug laws has had nothing to do with that motivation.
But what do I do in the meantime? All this political crap doesn’t help me get out of jail. Well, call a good Georgia Criminal Defense Lawyer.
Monday, September 13, 2010
Calvin Johnson reminds me of legal do-it-yourselfers
Life is good again. The NFL is back, and I get to watch the cream of America's athletic crop violently destroy each other's bodies in a highly regulated ballet of steroid fueled rage. We can watch their long term disabilities develop on our HDTV screens, and tip back a cold one while we complain about their obvious physical inadequacies and lack of heart.
Well in between Matt Stafford exiting after getting blindsided by Julius Peppers, and Kevin Kolb leaving the game after being jammed headfirst into the ground by the Packer's Clay Mathews; ( and an anachronism inserted here); there was an even more unsettling image that came from the battle between Chicago's Bears and Detroit's Lions.
Former Georgia Tech star Calvin Johnson jumped miles in the air over the defense to pull in what seemed certain to be a last minute winning touchdown for a deserving Lions team, but despite his obvious one handed complete control over the football, it was called a non-catch because he did not retain possession after he came to the ground with it.
Well, I tell ya what. Even if us fans don't know the intricacies of the NFL rules, the players should. This play was heart breaking for Lions fans, or sports fans in general, but reminded me of two things. First, how guys who celebrate before getting into the end zone don't score either, and second, how people who go to court without a lawyer get what they deserve when the court decides against them because they don't know the rules of court.
Courts can be very forgiving of the person who defends themself pro se but like the old saying goes, "He who defends himself has a fool for a client." It isn't exactly a courtroom example of this concept, but I keep having this vision of the police interrogation tape where the recently arrested Defendant believably convinces the investigating officer that he did not commit the armed robbery in question by admitting to the 43 other armed robberies he actually did do that month. "Yes Sir, Mr. Officer, I could not have done that crime, because I was robbing someone completely different on the other side of town that day." DOH!
Yes, they will probably not pursue the one crime that they thought they had you for, but you better hope they try to get concurrent sentencing on the 43 felonies you just confessed to. Next time, don't talk to the police, call your West Georgia Attorney. And if you are a pro ball player, know your own rule book.
Well in between Matt Stafford exiting after getting blindsided by Julius Peppers, and Kevin Kolb leaving the game after being jammed headfirst into the ground by the Packer's Clay Mathews; ( and an anachronism inserted here); there was an even more unsettling image that came from the battle between Chicago's Bears and Detroit's Lions.
Former Georgia Tech star Calvin Johnson jumped miles in the air over the defense to pull in what seemed certain to be a last minute winning touchdown for a deserving Lions team, but despite his obvious one handed complete control over the football, it was called a non-catch because he did not retain possession after he came to the ground with it.
Well, I tell ya what. Even if us fans don't know the intricacies of the NFL rules, the players should. This play was heart breaking for Lions fans, or sports fans in general, but reminded me of two things. First, how guys who celebrate before getting into the end zone don't score either, and second, how people who go to court without a lawyer get what they deserve when the court decides against them because they don't know the rules of court.
Courts can be very forgiving of the person who defends themself pro se but like the old saying goes, "He who defends himself has a fool for a client." It isn't exactly a courtroom example of this concept, but I keep having this vision of the police interrogation tape where the recently arrested Defendant believably convinces the investigating officer that he did not commit the armed robbery in question by admitting to the 43 other armed robberies he actually did do that month. "Yes Sir, Mr. Officer, I could not have done that crime, because I was robbing someone completely different on the other side of town that day." DOH!
Yes, they will probably not pursue the one crime that they thought they had you for, but you better hope they try to get concurrent sentencing on the 43 felonies you just confessed to. Next time, don't talk to the police, call your West Georgia Attorney. And if you are a pro ball player, know your own rule book.
Saturday, September 11, 2010
So why can't I can't bang my sister? Dad does.
There is nothing MORE annoying than being pulled out of bed in the middle of the night by a jackbooted Georgia stormtrooper just because you dipped your wick in your 13 year old step sister. For the love of Zeus, you didn't even get first crack at her last night!
For some reason, Georgia does not look kindly (any more) on dad or brother Bubba testing the goods before putting it out on the market. It used to be that it was just a measure of Southern Hospitality to make sure that Sister Sue knew how to give a good blow job before you pimped her out to the local potentate. But now, for some unimaginable reason, it seems that sex with your blood relatives, or those under 16 are frowned on.
It seems that these days, if you aren't going to hire a pro, you are just bound to wind up on Americas Most Wanted or To Catch A Predator. Hey it's ok. Sort of. Well, not really. But we understand. Kind of. Well, at least if all fails, the Constitution is interpreted to mean that you should be provided legal cousel. And if you are in Carrol County, you can even hire the best Carrol County Defense Attorney available.
All inappropriate kidding aside, sometimes you get accused of something that you didn't do. Especially in rural Georgian jurisdictions where the police are still all pissed off about gays getting married in California and want to make a bust where they can argue that anyone who doesn't want to put you in jail is an anti-American devil worshipper who probably voted for Obama in the last election. But, you say, Obama isn't really a Muslim, and the neo-con conspiracy theorists that wants to raise pointless issues about birth certificates are hopelessly misguided. Look . . . don't start messing with facts sir, you have been arrested for child molestation, and your politics will not serve you well here.
It's time you, as they say not only in the South, come to Jesus. And not in the superficial way, where you wear a WWJD bracelet and continue to take advantage of your tenants by overcharging them for poorly maintained and unsafe rental properties.
For some reason, Georgia does not look kindly (any more) on dad or brother Bubba testing the goods before putting it out on the market. It used to be that it was just a measure of Southern Hospitality to make sure that Sister Sue knew how to give a good blow job before you pimped her out to the local potentate. But now, for some unimaginable reason, it seems that sex with your blood relatives, or those under 16 are frowned on.
It seems that these days, if you aren't going to hire a pro, you are just bound to wind up on Americas Most Wanted or To Catch A Predator. Hey it's ok. Sort of. Well, not really. But we understand. Kind of. Well, at least if all fails, the Constitution is interpreted to mean that you should be provided legal cousel. And if you are in Carrol County, you can even hire the best Carrol County Defense Attorney available.
All inappropriate kidding aside, sometimes you get accused of something that you didn't do. Especially in rural Georgian jurisdictions where the police are still all pissed off about gays getting married in California and want to make a bust where they can argue that anyone who doesn't want to put you in jail is an anti-American devil worshipper who probably voted for Obama in the last election. But, you say, Obama isn't really a Muslim, and the neo-con conspiracy theorists that wants to raise pointless issues about birth certificates are hopelessly misguided. Look . . . don't start messing with facts sir, you have been arrested for child molestation, and your politics will not serve you well here.
It's time you, as they say not only in the South, come to Jesus. And not in the superficial way, where you wear a WWJD bracelet and continue to take advantage of your tenants by overcharging them for poorly maintained and unsafe rental properties.
Friday, September 10, 2010
The nice officer is asking me to do a Field Sobriety Test
So you're minding your own business, driving home after having "two beers" at the local sports bar after having spent the entire day there watching everything from the pre-game analysis to the late games wrap up, and you get a warm fuzzy feeling deep in your belly when your rear view mirror suddenly explodes with flashing blue lights. "Gosh I'm glad that the police are here to protect me." you gently tell yourself in a voice that would make Ghandi proud.
You resist the urge to jam your foot down on the accelerator, and realize that although you are f-ed, a night in jail and some unwanted bills are better than a lead lobotomy at the end of a high speed chase. So you pull over to the side of the road, and wait for Officer Friendly to shine his flashlight in your eyes and ask the inevitable "Have you had anything to drink tonight?"
You honestly respond, "Only two beers ossifer." and hand over your ID and insurance, with only a slight waiver in your voice, and a tremor in your hands. A study should be done some day to determine why people think that two beers is the best answer to this question. The fact of the matter is that two beers is still drinking, and your butt is still firmly planted behind the wheel of a recently moving car.
Your next step in this real life Greek tragedy is your decision whether or not to take the field sobriety tests that your friendly neighborhood protector will undoubtably ask in his most friendly manner. The reason he is being so friendly at this point is because if you take those tests, you will make his life a 100 times easier when it comes time to convict you. Ask a West Georgia DUI Lawyer if you should take those tests, but think of it this way: you do not have to take those tests, and taking them can only hurt you. They are not designed for you to pass them, they are designed only to provide evidence of your drunkenness. Read the NHTSA description of them, it does not discuss pass/fail, it discusses how the officer looks for clues to your intoxication in order to establish probable cause for your arrest. You CANNOT PASS THESE TESTS, YOU CAN ONLY SHOW THAT YOU ARE INTOXICATED.
But hey, you know better. Go ahead and try to do a heel to toe tightrope on a dark unlevel highway with a spotlight on you and traffic flying by. Just for fun.
You resist the urge to jam your foot down on the accelerator, and realize that although you are f-ed, a night in jail and some unwanted bills are better than a lead lobotomy at the end of a high speed chase. So you pull over to the side of the road, and wait for Officer Friendly to shine his flashlight in your eyes and ask the inevitable "Have you had anything to drink tonight?"
You honestly respond, "Only two beers ossifer." and hand over your ID and insurance, with only a slight waiver in your voice, and a tremor in your hands. A study should be done some day to determine why people think that two beers is the best answer to this question. The fact of the matter is that two beers is still drinking, and your butt is still firmly planted behind the wheel of a recently moving car.
Your next step in this real life Greek tragedy is your decision whether or not to take the field sobriety tests that your friendly neighborhood protector will undoubtably ask in his most friendly manner. The reason he is being so friendly at this point is because if you take those tests, you will make his life a 100 times easier when it comes time to convict you. Ask a West Georgia DUI Lawyer if you should take those tests, but think of it this way: you do not have to take those tests, and taking them can only hurt you. They are not designed for you to pass them, they are designed only to provide evidence of your drunkenness. Read the NHTSA description of them, it does not discuss pass/fail, it discusses how the officer looks for clues to your intoxication in order to establish probable cause for your arrest. You CANNOT PASS THESE TESTS, YOU CAN ONLY SHOW THAT YOU ARE INTOXICATED.
But hey, you know better. Go ahead and try to do a heel to toe tightrope on a dark unlevel highway with a spotlight on you and traffic flying by. Just for fun.
Am I drunk driving yet? | DUI | DWI
The only thing worse than taking legal advice from a convicted felon or a person currently incarcerated is listening to your drunken friends tell you how to avoid getting caught for drunk driving, or listening to that same drunken friend tell you exactly what criteria automatically classifies as DUI or DWI in court.
"Yeah man, if you leave your keys in the ignition, even if you are in the back seat, you are SOOO DUI, automatically, BUSTED dude!"
Well, your friend, and lets just call him Brad, has a tiny kernel of truth that he is expanding to unjustifiable proportion. For example, you will be legitimately busted for DUI if, like in the case where the the DeKalb County police responded to a report of a single car accident where the car in question was found resting against a raised curb blocking the entrance to an apartment complex, and the driver was found slumped over the wheel, passed out and drooling on himself, and when revived via smelling salts, the only words out of his mouth were to say that he was "fucked up." Yes indeed, the cop also found the keys in the ignition, but that particular fact was one of many, like the beer bottle found on the passenger seat, that sealed the fate of the Defendant in that case.
Despite what Brad tells you, the single fact of your keys being in the ignition are not determinative of your committing the crime of driving drunk in Georgia.
Those keys in the ignition may be particularly relevant to finding that you are guilty of drunk driving if you are, for example, found parked at a rest stop behind the wheel of your car, with its hood still warm to the touch, but that drunk driving determination will be a no-brainer if you tell the police that you were just out drinking with a girlfriend after having a fight with your wife, then go ahead and consent to not only the rigged field sobriety tests, but the breath tests as well.
The facts of the matter are that there is no one circumstantial fact alone that will be determinative of you being doomed to being found guilty of drunk driving, but some facts are more damning than others.
Some day, you will find a less dangerous way of getting around when you are drinking, but hey, until then, a West Georgia DUI lawyer has to eat too.
"Yeah man, if you leave your keys in the ignition, even if you are in the back seat, you are SOOO DUI, automatically, BUSTED dude!"
Well, your friend, and lets just call him Brad, has a tiny kernel of truth that he is expanding to unjustifiable proportion. For example, you will be legitimately busted for DUI if, like in the case where the the DeKalb County police responded to a report of a single car accident where the car in question was found resting against a raised curb blocking the entrance to an apartment complex, and the driver was found slumped over the wheel, passed out and drooling on himself, and when revived via smelling salts, the only words out of his mouth were to say that he was "fucked up." Yes indeed, the cop also found the keys in the ignition, but that particular fact was one of many, like the beer bottle found on the passenger seat, that sealed the fate of the Defendant in that case.
Despite what Brad tells you, the single fact of your keys being in the ignition are not determinative of your committing the crime of driving drunk in Georgia.
Those keys in the ignition may be particularly relevant to finding that you are guilty of drunk driving if you are, for example, found parked at a rest stop behind the wheel of your car, with its hood still warm to the touch, but that drunk driving determination will be a no-brainer if you tell the police that you were just out drinking with a girlfriend after having a fight with your wife, then go ahead and consent to not only the rigged field sobriety tests, but the breath tests as well.
The facts of the matter are that there is no one circumstantial fact alone that will be determinative of you being doomed to being found guilty of drunk driving, but some facts are more damning than others.
Some day, you will find a less dangerous way of getting around when you are drinking, but hey, until then, a West Georgia DUI lawyer has to eat too.
Thursday, September 9, 2010
Reasonable Articulable Suspicion | Search | Seizure | Georgia
Reasonable Articulable Suspicion is perhaps a compound oxymoron, as it is in itself not only a tongue twister, but a mildly contradictory self-defining term. How exactly is something like a suspicion only reasonably articulable? Doesn't that add more doubt and suspicion onto the suspicion? At what point does that vague, generalized hatred towards your skin color or lifestyle materialize into a socially acceptable thought that can be spoken out loud with sufficient clarity and grammer such that a judge will grudgingly condone your being stopped and subsequently arrested?
On top of that . . . which comes first . . . the suspicion or the reason to articulate it?
Well dear reader, that is the question raised in contemplating this hazy subject matter. Sit back, loosen up your belt, and ponder on the daily pontification that the pez dispenser pops out.
The police are not allowed to stop your car on a mere "hunch" that is merely pretextual, arbitrary, or harrassing. Instead, they have to find a way to invoke public safety concerns, find you violating a little known traffic law or vehicle ordinance, or get lucky and find you tipping back a cold one while driving down I-85.
In the end, whether the stop is legal or not is a matter that a judge will decide, but during that stop, if the cop finds a stash of whatever you stash, along with a loaded handgun and a stolen baby in the trunk, you might find that the cop is nearly clairvoyant in his pre-stop articulations of reasonable suspicions to the court. The best course of action good sir, is to stop your thieving, assaulting, baby stealing, misdemeanoring (or worse) ways; or at least hide them better in the privacy of your own sound-proof, windowless bomb shelter.
But, given that boys will be boys, and sometimes girl will be too, trouble may have already found you, and someone else too immediately afterwards. The someone else may be the local Sheriffs boys (or girls), the Federales, or the GSP (alternately known as either Gods Special People, or the Georgia State Patrol)
When that happens, you best hope is that the Man can't say the magic words if he hasn't found another way to justify the stop. Or a good Georgia Lawyer who pops his daily pez from the dispenser.
On top of that . . . which comes first . . . the suspicion or the reason to articulate it?
Well dear reader, that is the question raised in contemplating this hazy subject matter. Sit back, loosen up your belt, and ponder on the daily pontification that the pez dispenser pops out.
The police are not allowed to stop your car on a mere "hunch" that is merely pretextual, arbitrary, or harrassing. Instead, they have to find a way to invoke public safety concerns, find you violating a little known traffic law or vehicle ordinance, or get lucky and find you tipping back a cold one while driving down I-85.
In the end, whether the stop is legal or not is a matter that a judge will decide, but during that stop, if the cop finds a stash of whatever you stash, along with a loaded handgun and a stolen baby in the trunk, you might find that the cop is nearly clairvoyant in his pre-stop articulations of reasonable suspicions to the court. The best course of action good sir, is to stop your thieving, assaulting, baby stealing, misdemeanoring (or worse) ways; or at least hide them better in the privacy of your own sound-proof, windowless bomb shelter.
But, given that boys will be boys, and sometimes girl will be too, trouble may have already found you, and someone else too immediately afterwards. The someone else may be the local Sheriffs boys (or girls), the Federales, or the GSP (alternately known as either Gods Special People, or the Georgia State Patrol)
When that happens, you best hope is that the Man can't say the magic words if he hasn't found another way to justify the stop. Or a good Georgia Lawyer who pops his daily pez from the dispenser.
Arizona v. Gant | Search | Seizure | SCOTUS
Arizona v. Gant, 129 S. Ct. 1710, (2009)
Just when you though it wasn't safe to ride around in your car with your stash, the US Supreme Court made it just a wee bit safer to keep illegal substances in the front seat of your car. That is, at least if you are already handcuffed and in the back of the police cruiser.
It used to be that under New York v. Belton, the police could do a complete search of the passenger compartment of your car after you were stopped for any minor violation whatsoever, then arrested based on probable cause determined after the stop.
Now dear driver, and transporter of illegal substances, they can no longer argue that it is in the interests of officer safety when they search the passenger compartment of your auto after they have you safely tucked away and handcuffed in the back of their cruiser.
Enjoy the freedom!
Now you must also be careful, because there are a dozen other ways that Johnny Law will make you his prison bitch faster than he can snap his reflecting sunglasses shut and smoothly transform them into a hanging decoration on his brown shirt.
To stop you, he only needs a "reasonable articulable suspicion" of criminal activity, or you can make it even easier on him by having a broken tail-light, or by changing lanes without using your turn signal.
Now if "reasonable articulable suspicion" makes your head hurt and your tongue twisted, just think how it makes him feel. Does your average Georgia trooper who gave up his Mensa scholarship in order to pursue his boyhood dream of high speed chases through residential neighborhoods have to bust out his 50 cent words to justify stopping you?? Hell no, dear reader, not at all.
He can stop you as long as he can catch you changing lanes without using a turn signal, driving without a taillight, or by catching you not having your lights on a half hour before sunset. Any minor violation of any of the laws on the books are good for a stop.
He sees you with a beer in your hand? Well, forgedaboutit. You're about to be legally stopped, and no advanced articulation will be necessary. Better call a good Georgia Lawyer.
Just when you though it wasn't safe to ride around in your car with your stash, the US Supreme Court made it just a wee bit safer to keep illegal substances in the front seat of your car. That is, at least if you are already handcuffed and in the back of the police cruiser.
It used to be that under New York v. Belton, the police could do a complete search of the passenger compartment of your car after you were stopped for any minor violation whatsoever, then arrested based on probable cause determined after the stop.
Now dear driver, and transporter of illegal substances, they can no longer argue that it is in the interests of officer safety when they search the passenger compartment of your auto after they have you safely tucked away and handcuffed in the back of their cruiser.
Enjoy the freedom!
Now you must also be careful, because there are a dozen other ways that Johnny Law will make you his prison bitch faster than he can snap his reflecting sunglasses shut and smoothly transform them into a hanging decoration on his brown shirt.
To stop you, he only needs a "reasonable articulable suspicion" of criminal activity, or you can make it even easier on him by having a broken tail-light, or by changing lanes without using your turn signal.
Now if "reasonable articulable suspicion" makes your head hurt and your tongue twisted, just think how it makes him feel. Does your average Georgia trooper who gave up his Mensa scholarship in order to pursue his boyhood dream of high speed chases through residential neighborhoods have to bust out his 50 cent words to justify stopping you?? Hell no, dear reader, not at all.
He can stop you as long as he can catch you changing lanes without using a turn signal, driving without a taillight, or by catching you not having your lights on a half hour before sunset. Any minor violation of any of the laws on the books are good for a stop.
He sees you with a beer in your hand? Well, forgedaboutit. You're about to be legally stopped, and no advanced articulation will be necessary. Better call a good Georgia Lawyer.
A blog is born
It began in a dark room, far from where the happy people laughed and ice cubes clinked musically in a glass filled with bourbon. A book was opened, and the dust that had settled on the top of the musty book scattered and fell. The part time librarian and full time explorer had found the code section that his troubled friend needed to keep him out of jail, and a subdued chuckle let forth from his lips which quickly turned into a mischievous and determined grin.
This will not stand.
Justice will be dispensed.
This will not stand.
Justice will be dispensed.
Subscribe to:
Posts (Atom)