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Tuesday’s Legal Tidbit: Does Police Failure to Give Miranda Rights Always Mean an Arrest Is Illegal?

Question: My nephew was walking to a Marta train station when he was stopped and arrested for Possession of Marijuana Less Than an Ounce near Underground Atlanta in Downtown Atlanta. The officer said that he could smell burnt marijuana on my nephew when he asked him his name. The officer said that my nephew was not under arrest and that he could leave if he liked. However, after he said this, the officer stated that he just wanted to ask my nephew a couple of really quick questions. After the officer asked three questions, my nephew admitted to smoking marijuana and having a five dollar bag of marijuana in his front pants pocket. My nephew consented to a search and he was arrested. The officer never read him his Miranda Rights like they do on TV. Will my nephew’s case be kicked out of court as being an illegal arrest?

Answer: No, the police encounter and arrest were both legal. In June 1966, the United States Supreme Court created a legal standard for police encounters and citizen questioning with Miranda v. Arizona. The Miranda warning or giving an individual their “Miranda Rights” is intended to protect a citizen’s Fifth Amendment right to refuse to answer self-incriminating questions from law enforcement officers.

First, it is important to note that a police encounter is not an arrest for purposes of Miranda. The police are allowed during an encounter to ask non-testimonial questions such as your name, address, and date of birth. To get this information, an officer may ask to see your state-issued driver’s license. The United States Supreme Court has ruled that asking an individual for this non-testimonial information is not an unreasonable detention, and thus legal. Miranda Rights are invoked when there is a “Custodial Interrogation.” This legal term basically means that an individual is not free to leave and the officer is asking testimonial questions that could be used against that individual in a court of law. A prime example would be when an officer has arrested an individual and is now asking that individual questions about their alleged crime.

Here, the officer said that the nephew was free to leave before he asked one question. There was no arrest at that time. For purposes of this article, the nephew could have kept walking towards the train station. He had a choice to walk-away, not answer the questions and not consent to a search of his persons. All the nephew’s actions were voluntary. Spontaneous utterances or voluntary statements may be used as evidence in court. Therefore, the nephew’s answers to the officer’s questions will be admissible in court and the arrest will be deemed legal.

Please exercise your legal right to remain silent when encountering law enforcement officers and to walk-away if the officer states that you are free to leave. Remember, you don’t have to be rude to law enforcement officers when exercising your rights. Be polite and call The Boddie Law Group, LLC at 404-287-2393 if you are arrested for a crime in Georgia.

(c) 2012. The Boddie Law Group, LLC. All rights reserved. The information contained in this post is subject to our Disclaimer. Comments to this blog are moderated.

 

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Tuesday’s Legal Tidbit: What Constitutes Second Degree Forgery in Georgia

Question: My cousin was also charged with second degree forgery when he was arrested for a DUI in Austell. When the police searched his car before they impounded it, they found three checks on the passenger seat with his signature on the checks. The problem is that the checks were in someone else’s name with their bank account number on the checks and not my cousin’s name. My cousin told the police officer that he intended to cash the checks at a bank in Marietta, but never got around to it. Is he guilty of second degree forgery?

Answer: Yes, the cousin would probably be found guilty of Forgery in the Second Degree in Georgia. Under 16-9-2(a), a person commits the offense of forgery in the second degree when with the intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority. Forgery in the second degree is a felony and the penalty carries a possible sentence of one (1) year to five (5) years in prison.

In Georgia, the delivery of the forged document is not an essential element of forgery in the second degree. The accuser only has to possess the document with the intent to defraud a person, business, or financial institute with the fraudulent document and this is done without prior legal authority to possess the document.

The actual “delivery or uttering” of the fraudulent document to a person, business, or financial institute makes the accuser guilty of forgery in the first degree. The “delivery or uttering” language with the intent to defraud language are both essential elements of forgery in the first degree. This offense carries a possible prison sentence of one (1) year to ten (10) years.

In this case, the cousin clearly states his intent to present the forged checks found in his car to a bank in Marietta sometime in the future. Without legal authority to sign and possess the checks, the cousin’s case meets the statutory requirements of forgery in the second degree.

If your friend or a family member has been charged with Forgery in the Second Degree or any other type of fraud crime, please call The Boddie Law Group, LLC at 404-287-2393 for a full and thorough legal consultation. Visit our websiteto learn about our attorneys.

(c) 2012. The Boddie Law Group, LLC. All rights reserved. The information contained in this post is subject to our Disclaimer. Comments to this blog are moderated.

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Tuesday’s Legal Tidbit: Can I Have My Daughter’s Mother Prosecuted for Child Abuse?

Question: I’m a Georgia father who has full custody of his  five-year-old daughter but her mother has visitation rights. I have long suspected my ex-wife was abusing our daughter during visits and that was confirmed after this weekend’s visit to her mother when my daughter came home distraught, with bruises on her arms and legs, telling me her mother had beaten her several times for spilling juice on the floor just once and that she didn’t want to be left with her mommy anymore. Can I have my daughter’s mother prosecuted for child abuse and limit or prevent further visits?

Answer: Yes. Under O.C.G.A. 19-15-3(A), child abuse is defined as, “Physical injury or death inflicted upon a child by a parent or caretaker thereof by other than accidental means….” The law differentiates spanking from abuse in that, under that Code Section, “physical forms of discipline may be used as long as there is no physical injury to the child.” If the child’s body shows evidence of physical injury, like the bruises you describe, under Georgia law, that is considered child abuse and a parent who commits child abuse can be arrested and prosecuted.

In order for the daughter’s mother to face prosecution for suspected abuse, you must first contact law enforcement in your jurisdiction, who are considered “abuse investigators” under the law, and make a verbal and written report to them. They will talk to the child, examine the child and document any physical injuries. And, if they determine that the child shows evidence of having been physically abused and the mother is the likely culprit, they will coordinate the questioning and, potentially, the arrest and prosecution of the child’s mother in her jurisdiction.

More than likely, they also will contact the Department of Family and Children’s Services (DFCS) about the alleged abuse. The Agency will conduct its own investigation to determine if it is in the best interest of the daughter to spend unsupervised visitation time with her mother. However, while DFCS can suspend visits to the mother, legal modification of a visitation order will have to be made in court by a judge and can be done based on police reports and DFCS’ investigation.

If you have questions about alleged child abuse, child visitation order modification or any other family law matter, please call The Boddie Law Group, LLC at (404) 287-2393 for a full and thorough legal consultation. Visit our website to learn about our attorneys.

(c) 2012. The Boddie Law Group, LLC. All rights reserved. The information contained in this post is subject to our Disclaimer. Comments to this blog are moderated.

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Tuesday’s Legal Tidbit: Can My Son Be Charged with Burglary for Driving the Car Used in the Crimes?

Question: My 17-year old son was driving a car in which two of his friends used in committing three burglaries in our neighborhood. Even though, he never got out the car, handled, or attempted to sell the stolen items can he be convicted of burglary? This is his first time getting into trouble.

Answer: Yes. In the State of Georgia, the son is just as guilty as the active participants in the burglary. Under O.C.G.A. 16-2-20(a), which is better known as the “Party to a Crime Statute,” every person concerned in the commission of a crime is a party thereto. The son is a concerned in the commission of multiple burglaries. This notion is supported, in detail, in O.C.G.A. 16-2-20(a)(3), which states the a person is concerned in the commission of a crime when that person intentionally aids or abets in the commission of the crime.

The son intentionally drove a car to aid his friends in committing residential burglaries. As the result of the son driving the car, the target offenses of burglary were acted upon and committed. Under Georgia law, the son cannot absolve himself of the completed crime of burglary by stating that he did not benefit monetarily or personally from the crimes. Benefit of the bargain is not a required element of the Party to a Crime Statute.

The prosecution only needs to show the common criminal intent of the son along with the actual burglars that the target crime be committed. Accordingly, the son will face the same punishment in the State of Georgia for the first conviction of burglary, which is 1-20 years in prison. Residential burglaries are very serious crimes in Georgia and most county prosecutors are asking for at least 2 to 3 years in prison followed by probation for first-time offenders upon conviction.

In Georgia, Party to a crime is most common in theft crimes such as burglary and theft by taking and even in more serious violent crimes (i.e.; “The Seven Deadly Sins”) such as armed robbery and murder. If you, a family member or a friend has been charged as a Party to a Crime, please call The Boddie Law Group, LLC at 404-287-2393 for a full and complete consultation.

(c) 2012. The Boddie Law Group, LLC. All rights reserved. The information contained in this post is subject to our Disclaimer. Comments to this blog are moderated.

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