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.

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.

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?”

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)

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)

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.

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).
....
I warned you this was going to get weird.   
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.
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.
     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.

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.

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.

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. 


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.

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.

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.

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.

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.