Request Information Regarding Georgia Sex Offender Registry Removal

Georgia law (O.C.G.A. 42-1-19(4)) allows individuals to petition to be removed from the Sex Offender Registry in certain circumstances. Every case is unique, but if (1) you have completed all terms of your sentence, (including all prison, parole, probation, and supervised release conditions) and (2) you have been leveled a level 1 risk by the Georgia Sexual Offender Registration Review Board, you may have good cause to petition to be removed from the registry. Even if you have not yet been leveled by the GSORRB, the court can order an assessment at no cost to you during the petition process.

The registry removal process is quite detailed so it is important to have an experienced attorney assist you throughout the process. Our firm has helped many clients successfully get off Georgia’s sexual offender registry.  We have the skill and knowledge to help navigate the legal process. We make sure that our petitions are detail-specific so as to ensure the best possible chances of success. We provide vigorous representation in court arguing on behalf of our client’s right for registry removal. Additionally, our flat fee retainer ensures that you get effective representation every step of the way with no surprise costs. 

We have developed a brief questionnaire to assist in understanding your options for registry removal.

Follow the link below and provide us with the required information and we will follow up with you to schedule an in-person or telephone consultation.

http://www.davisandjoneslaw.com/questionnaire

If you wish to speak further about the registry removal process, please contact us at (404) 487-8678 or follow the link to the questionnaire above.

Georgia Registry Removal Preparation (Evidence and Witnesses)

Prior to filing for removal from the Georgia Sex Offender Registry there are a few practical issues one should consider.  It is important to think about the story the court is going to hear as it considers your petition.  Your story is presented to the court through evidence and witnesses.

Evidence will primarily focus on your history while on the registry.  Has reporting been an issue? Were there any issues while you were on probation?  What indicates to the court that you will not reoffend?

The Sex Offender Registration Review Board is responsible for the classification and risk assessment of sex offenders in Georgia.  In order to be considered for removal the offender must be classified as Level 1 if their sentence concluded in the previous 10 years.  If you have not been classified by the Sex Offender Registration Review Board prior to petitioning the court for removal the judge in your case can order the review.

You must also show that you have no additional convictions for sex offenses, no prior similar allegations, the victim did not suffer any intentional physical harm, the victim was not transported during the offense and the victim was not physically restrained.

Once you have met those evidentiary standards consider who can be an effective witness on your behalf. Counselors and therapists can be extremely valuable in regards to testimony regarding potential for reoffending and progress made since the time of the offense. Friends and family can play a pivotal role in discussing your character and describing you as a person.  In the past we have also seen that probation officers and sheriffs with knowledge of your behavior while on the registry can be influential if you have maintained a positive rapport and track record.

These are just a few brief examples of things to consider in preparation for filing a petition for removal from the registry.  For more information regarding Petitions for Removal from the Sex Offender Registry in Georgia, contact Davis & Jones. 

Despite Protections, Juveniles Are Subject To Life Without Parole

The United States Supreme Court’s 2005 decision in Roper v. Simmons ruled that the death penalty for minors violated the Eight Amendment’s protections against cruel and unusual punishment. And, although not completely barred, the Court has also placed severe limitations on a sentencing court’s ability to impose a sentence of life without the possibility of parole (LWOP) on juvenile offenders. In essence, before a juvenile LWOP sentence may be imposed, the sentencing court must conduct a hearing to determine if that person is one of the “exceptionally rare” juveniles for whom such a sentence is appropriate because of a specific determination that they are “irreparably corrupt” or “permanently incorrigible.” (Miller v. Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana, 193 LE2d 599 (2016)). Miller and Montgomery require that those findings be made on the record and, in essence, serve as a protective barrier against LWOP sentences for juveniles except in the most extreme and unusual circumstances.

But what about circumstances where a juvenile is not technically sentenced to life without parole but, instead, is sentenced in such a way that effectively acts as a LWOP sentence? Do Miller’s protections still apply?

The Supreme Court of Georgia, in Veal v. State S17A1758 (2018), recently ruled that Miller’s protections do not extend beyond the explicit confines of a LWOP sentence. In Veal, a juvenile was sentenced to “eight consecutive life sentences plus sixty years.” The defendant appealed, arguing that, due to his age and the first legally possible opportunity at parole, the sentence was unconstitutional “because it amounts to a de facto LWOP sentence . . . without any determination of the factors set forth in [Miller and Montgomery] which a court is required to find before imposing an LWOP sentence on a convicted defendant who was younger than 18 at the time of the crime.”

The Court disagreed. Noting that

neither Miller nor Montgomery addressed the imposition of aggregate life-with-parole sentences for multiple convictions or whether sentences other than LWOP require a specific determination that the sentence is appropriate given the offender’s youth and its attendant characteristics, and the nature of the crimes.

The court declined to extend the Supreme Court’s Eighth Amendment jurisprudence to non-LWOP sentences, even when they logically amount to a sentence of life without parole. Even though the juvenile in Veal was guaranteed a life sentence and the possibility of parole did not exist until after his reasonable life expectancy, the sentence did not violate the Constitution because it did not explicitly exclude parole on its face.

After Veal, it appears that sentencing courts can sidestep Miller and the United States Constitution’s protections by engaging in a bit of legal gamesmanship. The decision allows judges to impose sentences that prohibit any reasonable or practical possibility of parole as long as the sentence doesn’t specifically preclude parole by its terms. To be sure, the situations where Veal come into play are thankfully rare but hopefully the Georgia Supreme Court will correct the legal loophole the decision creates and extend the Eighth Amendments protections to its logical conclusion.

To read the full Veal opinion, click here.

Field Sobriety Tests Have Strict Limits

When conducting a traffic stop for a suspected DUI, police officers have many tools at their disposal. Although their efficacy and probative value is arguable, Field Sobriety Tests provide officers many avenues to collect evidence from defendants suspected of driving under the influence. One of the most commonly used “roadside tests” is the Horizontal Gaze Nystagmus, or HGN. When administering the HGN, officers will direct an individual to follow his or her finger with their eyes, training the eyes back and forth across a plane to detect movement, straining, or other signs within the eyes meant to evidence impairment. Despite some objections, HGN “has reached a state of verifiable certainty in the scientific community and is admissible as [evidence] that a driver [is] impaired by alcohol.” Hawkins v. State, 223 Ga. App. 34 (1996).

The problem arises when officers and DUI prosecutors try to use HGN results to prove something more beyond mere evidence of impairment. In Spencer v. State, S16G1751 (Oct. 2017), an officer administered the HGN exam prior to making a DUI arrest. However, at the later trial, the officer testified that the “four out of six” clues he observed during the HGN “indicates an alcohol concentration equal to or greater than a .08.” Not only was the officer trying to use HGN results to show evidence of impairment, but also that such results indicated a specific blood alcohol content in excess of Georgia’s legal limit.

The Georgia Supreme Court found that such use of HGN results was a bridge too far. Noting that the use of “HGN test to identify a specific numeric BAC has not ‘been recognized in court as reaching the requisite scientific stage of verifiable certainty,’” the Court found that the officer’s testimony in Spencer was improper. The officer had no medical or scientific training to be able to draw a correlation between HGN results and a specific BAC level and, although courts in Georgia allow HGN to show signs of impairment, speculating on specific levels of impairment, without relevant scientific data to support the conclusion, is unacceptable. As such, the Court reversed Spencer’s DUI conviction.

It often feels like the deck is stacked against citizens during DUI investigations and prosecutions. The law gives great authority to officers during DUI stops and the remedies and rights of individuals in those situations can, at times, feel negligible. Nevertheless, the authorities’ powers are not without limit. Field Sobriety Tests are designed for specific, limited uses and stretching those tests’ results beyond what they are intended to provide is unacceptable. HGN can show general signs of impairment but never, without more, specific levels of blood alcohol content. Joel Davis and Lincoln Jones are experienced DUI attorneys are if you or somebody you know has recently been involved with a DUI stop and potential arrest, please call us so that we can make sure your rights are protected during the entire process.

To read the full Spencer opinion, click here.

You Have the Right to Walk (or Run) Away

Georgia law categorizes police interactions with citizens in three ways:

·         a first-tier encounter involves only voluntary communications between police and citizens without any coercion or detention by law enforcement;

·         a second-tier encounter involves a brief detention of a citizen by police to investigate the possibility that a crime has been or is being committed; and

·         a third-tier encounter is an arrest and must be supported by probable cause.

Each tier represents an increased escalation both in the rights of police to detain citizens but also in the requisite legal authority required to initiate such an action. In other words, during a tier one encounter, either party is free to leave at any time. A tier two allows for a brief, temporary “detention” that is short of a full arrest, but also requires a specific, articulable basis to believe a crime has been committed. And a tier three stop, of course, requires full probable cause to initiate an arrest.

Against this backdrop, the Georgia Court of Appeals recently addressed the question: does running from police during a first-tier encounter give rise to probable cause for an arrest? In Johnson v. State, A17A0733 (2017) the court affirmed the principle that “a citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter.” (citing In the Interest of J. B., 314 Ga. App. at 681).

In Johnson, a police officer was on foot patrolling a local hotel known as an area of high crime and drug activity. In the course of the officer’s patrol, he encountered Johnson and four other individuals standing in the hallway. The officer made eye contact with Johnson who then “looked away and pulled up his pants. According to [the officer], the fact that Johnson pulled up his pants indicated that he was about to run from police.” The officer yelled “don’t do it” before Johnson fled on foot. A chase ensued which ended with Johnson being stunned with a taser gun and placed under arrest for obstruction. A subsequent search yielded marijuana on his person.

The Court of Appeals later overturned Johnson’s convictions, noting that Johnson’s initial encounter with the police officer was clearly a first-tier encounter and, as such, he was free to leave at any time. As such, because “an individual who leaves (or even flees) a first-tier encounter with police is not guilty of obstruction,” Johnson’s convictions must be overturned.

Unless police officers have a particularized, articulable basis to believe a crime has occurred, they have no legal authority to even briefly detain a person for investigative purposes. Absent such a basis, you are free to walk (or run) away from police at any time and police cannot use that flight against you either (1) as a crime in and of itself or (2) as a basis to for reasonable suspicion or probable cause to believe a crime has occurred.

Georgia citizens have constitutionally protected rights during encounters with police that should be protected and fought for both in and out of a courtroom. For any arrest stemming from a police encounter gone wrong, contact Davis & Jones, Attorneys at Law and we’ll fight to protect your rights to the fullest extent possible. 

Read the full Johnson opinion here.

In Traffic Stops, Even Law Enforcement Must Stay Inside the Lines

It is well established law in Georgia that police officers must have reasonable, articulable suspicion of a crime in order to initiate a traffic stop. And while what constitutes reasonable and articulable suspicion varies depending on the facts of every case, it is the burden of law enforcement and the State to prove that an officer had valid grounds to initiate any traffic stop. So how demanding is the requirement of reasonable suspicion? The strength of the law’s protections may surprise you, as even missing car parts may not give authorities the grounds to pull you over.

In Abercrombie v. State, A17A1847 (2017) the Georgia Court of Appeals found that the defendant’s traffic stop was not initiated lawfully even though Mr. Abercrombie’s truck had no rearview mirror. At a suppression hearing, the officer that pulled the defendant over testified that it was specifically Abercrombie’s lack of an interior rearview mirror that caused him to pull the vehicle over. During the traffic stop, the officer found drugs in Abercrombie’s possession and placed him under arrest.

Although it may initially seem reasonable to assume that a vehicle operating without a rearview mirror is in violation of the law, the Court of Appeals disagreed. Noting that the relevant state law requires only that a vehicle’s equipment be in “good working order [and] equipped with such lights and other equipment as [the law requires],” the court failed to find any legal authority specifically requiring an internal rearview mirror. Importantly, Abercrombie’s truck was equipped with external side-view mirrors and they were sufficient to “reflect to the driver a view of the highway for a distance of at least 200 feet” as required by statute. As such, the officer had no legal authority to initiate the traffic stop in the first place and the drug-related evidence obtained during the stop must be suppressed.

It is a mistake to assume that just because a police officer pulls you over that he or she had the proper lawful authority to do so. The law requires “reasonable articulable suspicion” and, regardless of how justified a stop may appear during the confusion of the moment, there may be legal defenses available to you to challenge the stop. At Davis & Jones, we’re here to help you with any criminal case stemming from a traffic stop. Feel free to call us or stop by our office; just make sure your vehicle is in “good working order” before you do.

To read the full Abercrombie opinion, click here

In Georgia, "Disorderly Conduct" May be Protected Speech

Disorderly Conduct, much like “obstruction,” is a frequently used, broadly interpreted charge that seems to get tacked on to many criminal cases in Georgia. Law enforcement will commonly identify any behavior that isn’t affirmatively cooperative as obstructive or disorderly and will charge a person with a separate crime simply for what usually amounts to impolite behavior. However, rather than simply proscribing aggravating conduct, Georgia law generally requires that a person place another in reasonable fear of the safety of such person's life, limb, health, or property to rise to criminal conduct. O.C.G.A. 16-11-39. In other words, not all bad behavior is legally disorderly.

The Supreme Court of Georgia recently affirmed this principle and further clarified that some conduct, although potentially disorderly by the Webster's definition, may still be protected as Constitutionally protected expressive speech. In Freeman v. Georgia, 805 S.E. 2d 845 (2017), Davis Freeman was convicted of disorderly conduct after standing up in a church service and raising his middle finger toward the pastor. Once the church service concluded, Freeman shouted out loud about the evils of public school and suggested public school children were being raised by the devil. He was charged with disorderly conduct for this behavior.

After reiterating the long-held principle that certain language and behavior falls outside the protection of the 1st Amendment, the Court found that “a raised middle finger, by itself, does not, without more, amount to fighting words” or other behavior that falls outside of constitutional protection. Because “Freeman’s actions did not amount to such fighting words or a true threat, the pastor could not have been placed in ‘reasonable fear of the safety of [his] life, limb, or health’” as required by the statute. As such, Freeman’s flipped bird was constitutionally protected free speech and his conviction was reversed.

To be sure, Freeman does not mean that Georgia’s disorderly conduct statue is invalid or that all disorderly conduct charges should be dismissed out of hand. But, given the frequency such charges are filed against criminal defendants in Georgia, it certainly means that each charge should be analyzed on a case-by-case basis to assess whether the charge is valid and/or whether there may be valid legal defenses available to defendants. For any disorderly conduct charge or other criminal matter in Georgia, don’t hesitate to contact Davis & Jones, Attorneys at Law for a thorough analysis of your case and any potential defenses that may be available.

For the entire opinion in Freeman v. Georgia, click here.

In Georgia DUI Cases, Implied Consent No Longer Law of the Land

Georgia's DUI jurisprudence was given a massive shakeup recently courtesy of the Georgia Supreme Court's ruling in Olevik v. State, S17A0738 (October 2017). Per the ruling in Olevik, police in Georgia can no longer force drivers to submit to breathalyzer tests when suspected of driving under the influence. Citing the constitutional protection against self-incrimination, the Court ruled unanimously that the long-standing practice in Georgia violates drivers' constitutional rights.

Previously, the doctrine of implied consent governed the issue of compelled breath tests in the state. Put simply, the law considered all drivers in Georgia to have given consent to tests of their breath, blood, and other bodily fluids simply by choosing to drive within the state. If one was suspected of driving under the influence, police could force drivers to submit to testing and a refusal to do so resulted an automatic forfeiture of one's drivers license as well as other legal penalties. Because all drivers in Georgia were assumed to have given "implied consent" to such tests as a condition of driving, refusing such tests was prohibited.

Olevik seems to challenge the doctrine of implied consent and the longstanding jurisprudence in the state affirming its legality. It is clear, after Olevik, that police can no longer force drivers to submit to breathalyzer tests and, presumably, the refusal to do so cannot be used against criminal defendants in court. This is a big and positive development in the state's DUI law and will be very interesting to see how courts across the state interpret the ruling moving forward.

If you have DUI charges in the state of Georgia, it is very important you hire an experienced attorney to help navigate the process, especially with the laws changing so significantly. Contact Davis & Jones, Attorneys at Law for assistance with any DUI or related charge.

For the full text of the Olevik opinion, please click here

City of Atlanta Decriminalizes Marijuana

Mayor Kasim Reed signed a City of Atlanta ordinance decriminalizing marijuana on October 10, 2017.  It is still unlawful to possess marijuana in Atlanta.  City of Atlanta Ordinance 17-0-1152 reduces the penalties and fines for possession of less than one ounce of marijuana.  Fines associated with possession less than an ounce have been reduced from "not to exceed $1000" to "not to exceed $75".  In addition to the fine reduction the ordinance provides that possession less than an ounce "shall not be punished by imprisonment for any term."  These changes only apply to possession cases arising in the city limits of Atlanta.

For further information you can read the text of the ordinance here:

https://drive.google.com/file/d/0B_WYzCuGGSYFNjdpeXlxRFlJUWc/view

If you or someone you know is facing marijuana possession charges do not hesitate to contact Davis and Jones, Attorneys at Law to schedule a case consultation.

Georgia Sexual Offender Registry Removal

In Georgia, individuals who are sentenced to register on the state’s Sexual Offender Registry are, in essence, given a lifetime sentence of registration requirements and draconian work and residence restrictions. Fortunately, Georgia law also allows individuals to petition to remove themselves from the registry requirements in certain situations. For example, if an individual is

(1)    Confined to a nursing home or hospice facility;

(2)    Totally and permanently disabled; or

(3)    Otherwise seriously physically incapacitated

that person can petition Georgia courts to be removed from the registry, as long as they are not currently under sentence or probation. O.C.G.A. 42-1-19(1)(A)-(C).

However, the vast majority of Georgia registrants don’t fit within those categories and, as a result, their path to successfully removing themselves from registry requirements is a bit more complicated.

Most Georgia citizens will need to utilize O.C.G.A. 42-1-19(4) which requires that a Petitioner will have completed all prison, parole, supervised release, and probation for the offense which required registration. However, if a petition is filed pursuant to 42-1-19(4), the law demands that either

1. Ten years have elapsed since the individual completed all prison, parole, supervised release, and probation for the offense which required registration O.C.G.A. 42-1-19(c)(2)(A); OR
2. The individual has been classified by the Georgia Sexual Offender Registration Review Board as a Level I risk assessment classification. O.C.G.A. 42-1-19(c)(2)(B)

Only one of those requirements must be met. However, if a petition has not previously been leveled by the SORRB, the court can order such a levelling be done as a part of the petition process.

However, even if a person can satisfy the requirements of O.C.G.A. 42-1-19(4) and O.C.G.A. 42-1-19(c)(2)(A) or (c)(2)(B), there is still one more set of requirements that must be met.

O.G.G.A. 17-10-6.2 governs the punishment for sexual offenders and allows for sentence deviations in certain circumstances. For individuals seeking to remove themselves from the sexual offender registry via O.C.G.A. 42-1-19(4), the court must also find that

1. The individual has no prior conviction of a sexual nature
2. The individual did not use a deadly weapon during the commission of the underlying offense
3. There is no evidence of a relevant similar transaction
4. The victim in the underlying case did not suffer any intentional physical harm
5. The offense did not involve the transportation of the victim and
6. The victim was not physically restrained during the commission of the underlying offense

Outside of a few narrow and specific exceptions, a person must meet all of the above requirements in order to successfully petition a Georgia court to remove themselves from registration requirements. The process can be daunting and one should certainly seek the advice and assistance of an experienced law firm to help navigate the process.

If you have any questions regarding the Georgia Sexual Offender Registry or if you wish to petition a court for removal from the registry, don’t hesitate to contact Davis & Jones, Attorneys at Law.

The Double-Edged Sword of Pretrial Intervention

The New York Times has conducted an extraordinary look into Pretrial Intervention programs nationwide, including programs specifically in Georgia. As the Times notes, PTI programs are often exclusively controlled by prosecuting agencies and the requirements and restrictions for each program can vary wildly by jurisdiction.  As we’ve written about before, PTI programs frequently have the same draconian impact on criminal defendants as private probation companies: they demand exorbitant financial costs while simultaneously holding the possibility of future prosecution over impoverished defendants’ heads.

Also discussed in the Times piece are the inequitable barriers required to enter into PTI programs in the first place. Certain defendants, like former Alabama Supreme Court Chief Justice Roy Moore’s son, Caleb, are allowed to enter PTI programs even after multiple previous arrests. Others are denied entry after only their first arrest, seemingly at the capricious will of the relevant prosecuting attorney. Such disparities only serve to further the divide between those with the influence, connection, and money to grease the wheels of justice and those left to hope for the best in the face of uncertain and demanding program entry requirements.

And yet, regardless of the potential downsides, we continue to believe that Pretrial Intervention programs are a benefit to criminal defendants in many circumstances. They afford clients the means to keep their criminals records clear and can oftentimes be the only mechanism available in order to keep people’s jobs and housing. Just like drug courts and first offender programs, PTI is certainly a double edged sword: there are significant gains for defendants who are able to successfully enter and complete such programs. The downsides, unfortunately, can be just as severe.

The full New York Times article can be found in the link below

Legislative Fireworks in Georgia

Governor Nathan Deal recently signed into law Georgia House Bill 110, paving the way for legal firework sales in the state beginning July 1, 2015.

Prior to HB 110, only sparklers and other such minimal “fireworks” were legal for sale in Georgia. However, neighboring states such as Alabama and South Carolina sell fireworks legally, allowing Georgians easy access to such items after a short drive across state lines. Supporters of HB 110, including State Senator Jeff Mullis, hope that the law will provide a seasonal boost to local Georgia economies as well as a regulatory framework to ensure safe and controlled sale of fireworks.

HB 110 requires all potential distributors to pay a licensing fee of $5,000 to sell fireworks and maintain an insurance policy of $2 million dollars “to cover the losses, damages, or injuries that might ensue to persons or property as a result of selling consumer fireworks.” Supporters of the bill anticipate new firework sales will create up to 1,000 new jobs in Georgia.

Davis & Jones wishes everybody a safe, enjoyable, and firework-filled Independence Day.

Full text of GA HB 110 can be found below:

http://www.legis.ga.gov/Legislation/20152016/153851.pdf

davisandjoneslaw.com

Probation Nation: Georgia's Costly Probation Problem

            The Atlanta Journal Constitution recently published an investigation into Georgia’s probation system that exposed the massive size of Georgia’s probation population as well as the pitfalls of allowing for-profit private companies handle Georgia’s probation duties.

            According to the AJC report, Georgia had over 500,000 people on probation in 2013, the highest in the nation. Proportionally, Georgia also has the most probationers of any other state by far: 6,829 out of every 100,000 adults are on probation in Georgia. The next closest state is Ohio with 2,802 per 100,000 adults. The sheer disparity in national numbers is enough to cause concern about the way Georgia is handling its probation system. However, the state’s for-profit misdemeanor probation system and exorbitant probation fees highlight a problem worse than high probation numbers.

            Minor traffic offenses – for example, speeding or running a red light – often are resolved by people paying fines. However, when citizens can’t afford to pay their fines immediately, courts will often place them on probation as a means of giving people time to pay their fines. Usually, once the fines are paid, probation may terminate.

            The problem is that eighty percent of Georgia’s misdemeanor probation is controlled and supervised by private, for-profit probation companies. These companies charge monthly fees for probationers on top of their court ordered fees, often compounding the total cost of a minor traffic infraction well beyond the original fine. For example, the AJC report profiles Vera Cheeks, who was placed on probation over a $135 stop sign violation. Over the course of three months, probation fees escalated Ms. Cheeks’s total expense to $267, nearly double the original amount of her fine.

            We have written before about the inherent problems with a for-profit probation system that has a financial incentive to keep Georgians on probation and to keep Georgia’s probation numbers high.  What initially seems like a charitable idea – giving people extra time (via probation) to pay fines associated with minor misdemeanor offenses – turns into a viscous cycle where Georgians are being gouged by high costs and threats of incarceration for failing to pay probation fees.

            Probation reform in Georgia is a necessity and the recent attention the current system is receiving is encouraging. Hopefully judiciaries in counties across the state will consider alternative sentencing avenues for low-level misdemeanor Georgians that would bypass the costly probation system currently in place.  If you or someone you know needs help with probation or a potential probation revocation, please contact Davis & Jones, Attorneys at Law.

Here’s the full AJC story (may require subscription to read full story):

http://www.ajc.com/news/news/crime-law/georgia-probation-system-ensnares-those-too-poor-t/njB6n/

UPDATE: 

http://www.ajc.com/news/news/breaking-news/supreme-court-rules-private-probation-companies-ca/njD4W/

Georgia Seeks to Stop Patent Trolls

            On July 1, 2014, a new Georgia law went into effect that seeks to limit the activities of “patent trolls.” HB 809 acts to protect entrepreneurs from meritless demand letters by individuals or entities that buy large groups of patents but never intend to develop or market a product. Instead, “patent trolls,” as they have come to be known, simply threaten expensive and drawn out legal action via “demand letters” against people they assert are violating their patents. The demand letters typically demand large settlements in a short amount of time as a way of preventing further legal action.

            HB 809 discourages such demand letters from patent trolls in several ways. First, under the law, demand letters must be made in “good faith.” Otherwise the person sending the demand may be required to post a bond “in an amount equal to a good faith estimate of the target's expenses of litigation,” including attorneys fees. Secondly, whether a demand letter is made in good faith hinges on several factors, including:

(1) whether the author of the demand letter makes a substantial investment in the use of the patent or in the production or sale of a product or item covered by the patent and

(2) whether the author of the demand letter has demonstrated good faith business practices in previous efforts to enforce the patent, or a substantially similar patent.

            Bills similar to HB 809 have recently been enacted throughout the country, partially in connection with the recent advent of podcasting. Podcasts have become an increasingly popular form of entertainment in the past several years and a group called Personal Audio has filed suit against several of the biggest names in podcasting, claiming ownership over several patents related to podcasting. It should be noted that Personal Audio does not create podcasts or work in the podcasting industry, it simply claims to own the underlying patents related to the platform.

            The future of patent trolling, particularly in response to bills like HB 809, will be interesting to watch as it plays out in the court system over the next few years.

The full text of HB 809 can be found here:

http://www.legis.ga.gov/Legislation/20132014/143216.pdf

More info on patent trolls and the world of podcasting can be found here:

http://www.economist.com/blogs/babbage/2014/03/intellectual-property

SCOTUS Protects Cell Phones From Warrantless Searches

            On June 25, 2014, the Supreme Court of the United States unanimously ruled that police officers may not search an individual’s cell phone, even after lawful arrest, without first obtaining a search warrant. The decision is one of the first the Court has made addressing privacy concerns in the digital age and is a landmark decision protecting individual privacy rights.

            Riley v. California, 573 U.S. ______ (2014) is actually a consolidated ruling on two different cases. Both underlying cases had the same relevant facts: an individual was lawfully arrested and, pursuant to a search incident to arrest, police officers discovered cell phones on both defendants. After searching through the contents of the phones, evidence was gathered that linked the individuals to other crimes and both men were later convicted, largely due to the evidence gathered from their cell phones.

            Even balancing the government’s interest in protecting officer safety and preserving potential evidence contained on cell phones, the Court found the privacy invasion of warrantless cell phone searches too extreme and noted that “more substantial privacy interests are at stake when digital data is involved.”  The Court recognized the inherently unique and personal quality of cell phone data, and found the parallel between “inspecting the contents of an arrestee’s pockets” and inspecting an arrestee’s cell phone too tenuous and the privacy implications of a cell phone search to be much greater.

            It will be interesting to see how Riley’s impact plays into other personal electronic devices such as iPads and tablet computers, but the Court’s posture toward warrantless searching of personal electronic data is promising. Davis and Jones applaud the Court for their unanimous decision protecting individual privacy rights.

The full opinion can be found at: 

http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

Court of Appeals Checks Prosecutors on Sentencing Authority

           In State v. King, A13A1127 (Nov. 14, 2013), the Georgia Court of Appeals reaffirmed a fundamental principle of guilty plea negotiations and sentencing: the trial court, not the State, has ultimate authority on sentencing.

            Facing armed robbery charges in Troup County, Georgia, King and his attorney negotiated a guilty plea wherein King would plead guilty to robbery and aggravated assault. As part of the negotiations, the State recommended a sentence of 20 years, 15 of which would be served in prison. The trial court accepted King’s guilty plea but deviated from the State’s recommendation and sentenced King to 15 years, 5 of which to be served in prison.

            The State attempted to set aside the guilty plea because the Court did not sentence pursuant to its recommendation. Finding no relief at the trial level, the State appealed, claiming it had a right to appeal “void” sentences.

            The Court of appeals found that the sentence of 15 serve 5 is within the statutorily permissible range of punishment for robbery and aggravated assault and, as such, the sentence was not legally “void.” Further, because the State has no authority to appeal an otherwise valid sentence, the Court found it lacked the jurisdiction to entertain the State’s appeal and dismissed it.

            This case highlights the oft-held misconception that prosecutors hold all the power in terms of criminal sentencing. Although King’s decision actually serves to benefit the criminal defendant, many cases wherein the court deviates from the sentencing recommendation result in harsher sentences than recommended, not lighter. As such, it is always best practice for attorneys to advise criminal defendants during the course of plea negotiations that the judge has final say in terms of sentencing, regardless of what the State may recommend.

The full King opinion can be found here:

https://efast.gaappeals.us/download?filingId=f4f20027-eb1c-488e-bc0a-8337ccc0c334

Lethal Secrecy Stands in Georgia

            On Monday, Georgia’s Supreme Court affirmed the constitutionality of O.C.G.A. § 42-5-36(d), known colloquially as Georgia’s “Lethal Injection Secrecy Law.” The law, passed in 2013, operates to, among other things, keep the drugs used in Georgia’s lethal injection executions a “state secret,” which are not available to the general public or even the condemned themselves.

            Warren Lee Hill was sentenced to death for beating a fellow inmate to death in the 1990s. His attorneys filed a constitutional challenge to O.C.G.A. § 42-5-36(d) on the grounds that Hill’s due process rights were violated by keeping the ingredients that were to be used in his execution secret from him and also alleged that such a concoction would likely subject Hill to cruel and unusual punishment, contrary to the Constitution.

            In a 5-2 decision affirming the constitutionality of keeping the drug a secret, Georgia’s Supreme Court noted that the need for privacy was “obvious” to prevent potential harassment against the manufacturers and distributers of such drugs. Satisfied that “Georgia’s execution process is likely made more timely and orderly” by maintaining such secrecy, the Court concluded that certain efficiency in executions is more valuable than potential privacy and cruelty concerns to a defendant.

            Although reasonable privacy safeguards and judicial economy are laudable goals in the criminal justice system, it’s discouraging to see our state’s highest court so easily dismiss the very real concerns of Hill and others on Georgia’s death row. The state is granted extraordinary power in the ability to sentence citizens to death; and with such power comes great responsibility to ensure that the rights of all are zealously protected, even those condemned to die.

A full text of the Court’s decision can be found here:

http://www.gasupreme.us/sc-op/pdf/s14a0092.pdf

DUI Evidence Addressed by Georgia Court of Appeals

            Georgia’s recently revised Evidence rules are now being tested in the trial courts. Specifically, Jones v. State, No. A13A1940 (March 28, 2014) restricts similar transaction evidence in DUI cases. A brief explanation of similar transaction evidence and Georgia’s recent changes is below.

            The State of Georgia is allowed to present evidence of prior bad acts, or “similar transactions” in certain criminal cases. For example, if a person is charged with Driving Under the Influence, the State may try to introduce evidence that the person has previously been convicted of Driving Under the Influence. In theory, the State isn’t allowed to introduce the similar transaction simply to show “bad character.”  In practice, however, similar transaction evidence is extraordinarily damning against any criminal defendant. The reasoning is obvious: no matter the purported purpose, once a jury hears evidence of a prior conviction, that bell cannot be unrung.

            O.C.G.A. § 24–4–404(b), the Georgia statute governing similar transaction evidence, provides that

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

            In Jones v. State, the State attempted to introduce similar transaction evidence in a DUI case to show the defendant’s (1) intent to drive under the influence and (2) knowledge that drinking would make him a less safe driver. However, the Court of Appeals found such use to be improper: because DUI is a general intent crime, specific intent to drive drunk is entirely irrelevant. Similarly, knowledge that drinking would make one a less safe driver is irrelevant: the Court noted that

Admission of the similar transaction evidence as proof that Jones knew that drinking alcoholic beverages made him a less safe driver did not elucidate or       throw light upon whether, in this instance, he committed the same crime again; no culpable mental state was required.

           Similar transaction evidence is some of the most problematic evidence that can be used against a criminal defendant. It’s encouraging to see the courts restricting such evidence against DUI defendants and we hope Georgia courts will continue to diminish the admissibility of similar transactions.

Full text of the Jones case can be found here:

http://caselaw.findlaw.com/ga-court-of-appeals/1661959.html

Gov. Deal Vetoes Private Probation Expansion

            On April 29, 2014, Governor Nathan Deal vetoed Georgia House Bill 837. HB 837, as proposed, would have further expanded Georgia’s already onerous private probation system for misdemeanor-level probationers.

            In Georgia, private probation companies often contract with local counties and city governments to maintain probation services for citizens convicted of misdemeanors and low-level ordinance violations. These companies often charge high probation fees for their services, which makes the cost of being on probation unreasonably high for probationers.

            If enacted, HB 837 would have made the costs and hurdles of successfully completing probation even higher. For example, the bill would have authorized the companies to require probationers to pay for ankle monitors during probation. Such monitors are extremely expensive and often largely unnecessary to monitor low-priority probationers convicted of, for example, traffic violations.

            Most importantly though, HB 837 would have further exacerbated the underlying problem with Georgia’s private probation system: that for profit companies have a financial incentive to keep people on probation. Rather than focusing on rehabilitation and probationer well-being, private probation companies are in the business are charging exorbitant fees and keeping people on probation as long as possible so as to maximize profits.

            Having dealt with private probation companies for several years, Davis and Jones acutely understand the problems the for-profit probation system creates for Georgia probationers and their communities. We applaud Gov. Deal for vetoing legislation that would have made a bad system even worse.

The full text of the proposed bill can be found here:

http://www.legis.ga.gov/Legislation/en-US/display/20132014/HB/837

Expungement and Restriction of Criminal Records

            Davis & Jones frequently receives questions regarding Georgia’s expungement statute and the possibility of expunging criminal records. Due to relatively recent changes in Georgia law, record “restriction” has largely replaced expungements, although the two operate in similar ways.

            As of July 1, 2013, certain criminal records will be eligible for “restriction” only, not expungement. Under O.C.G.A. § 35-3-37 “restriction” means, broadly speaking, that only law enforcement agencies will be able to view restricted criminal records and that such records  “shall not be disclosed or otherwise made available to any private persons or businesses . . .” (emphasis added).

            The most significant change to O.C.G.A § 35-3-37 is to place the burden for restricting records directly on the Georgia Crime Information Center (GCIC) and the local law enforcement agencies themselves. For example, O.C.G.A. § 35-3-37(h) details the various scenarios in which certain criminal records “shall be restricted by the Center.” (emphasis added). Similarly, if a local law enforcement agency never forwards an arrest file to the proper prosecuting authority for prosecution, “[i]t shall be the duty of the head of the arresting law enforcement agency to notify the Center” for restriction. O.C.G.A.  § 35-3-37(h)(1)(A)(i).

            Such a change in responsibility stands in stark contrast to Georgia’s prior statute, which placed the emphasis squarely on the individual to apply to the GCIC for potential expungement.