Criminal Defense FAQ

Information From a Knowledgeable Athens Criminal Defense Attorney

Below is a list of common questions about criminal defense with answers straight from criminal defense lawyer Lee Webb. If your question is not answered here, or you would prefer to speak directly with someone, call our firm today at (706) 705-5122.

Can I beat a drug charge?

Answer: Certainly drug charges can be beaten. Many factors play into a drug case, such as, was there a warrant, was the warrant overly broad, was there consent to search, was the drug exclusively in your control or did the police have articulable suspicion of criminal conduct to confront you in the first place.

Can I save my driver's license with a drug or paraphernalia charge?

Answer: Yes, you can save your license with a well-structured settlement.

Can I save my driver's license with a marijuana charge?

Answer: The simple answer is YES. The more complex answer is how to structure your particular case and set of facts in such a way that the license is protected. The trick is to structure a settlement that will not result in the Clerk of Court informing the Department of Drivers Services that you were charged.

Question: What if the police didn't read me Miranda warnings?

Answer: Miranda warnings are implicated when a suspect is in custody and is being questioned. Usually, in a DUI case Miranda warnings are not required because there is very little questioning after arrest. This is not always the case however.

In other types of criminal cases Miranda warnings are mandatory. Remember, once arrested, you must be notified of your right to a lawyer and your right to remain silent. Importantly, your Miranda rights protect you from questioning by law enforcement. They do not protect you from voluntary statements, so be quiet.

What sets Lee Webb apart from other criminal lawyers in Athens, Georgia?

Answer: I have 20 years of experience exclusively in criminal law. I have tried hundreds of cases, hundreds of DUIs; many, many, many trials in any kind of criminal case you can have. I have extensive training. I have an NHTSA National Highway Traffic Safety certification in field sobriety evaluations. I have drug recognition expert training through the state. So just training and experience would separate me from some other lawyers in Athens.

Will I lose my driver's license with any type of drug charge?

Answer: An arrest for a drug charge will not suspend your driver's license, but a guilty plea will suspend your license. This is true of simple possession, intent to distribute, manufacturing and drug paraphernalia. It does not matter that you were not driving at the time of arrest.

Will I lose my driver's license with a drug paraphernalia charge?

Answer: An arrest for a drug paraphernalia will not suspend your driver's license, but a guilty plea will suspend your license. Drug paraphernalia can include zip lock baggies used in a distribution case, scales used to weigh drugs, pipes and one hitters. The list goes on and on.

Will I lose my driver's license with marijuana charge?

Answer: An arrest for a marijuana charge will not suspend your driver's license, but a guilty plea will suspend your license. This is true of simple possession, intent to distribute, manufacturing and drug paraphernalia. It does not matter that you were not driving at the time of arrest.

Can you describe some recent Athens, Georgia criminal defense case wins?

Answer: I had a driving under the influence charge for an under 21 driver with a .06 breath test. The blood alcohol limit for someone under 21 is .02, so this gentleman was three times the legal limit. Once we got the videos and police reports, we had some hearings in front of the judge.

A motion to suppress where the breath test results were excluded from evidence. We then went to trial in front of a jury on a less safe DUI, where there was, obviously the alcohol charge was gone, and the jury found the defendant not guilty of the DUI and also found him not guilty of failure to maintain a lane. So he took a per se case that was unwinnable and ended up winning even the underlying traffic offense. I also recently had a felony marijuana possession charge that, after motions and negotiations with the judge, we ended up with a one-year suspended sentence on a first offender plea with the only provision being that this out-of-state defendant could not come back to the state of Georgia for one year. That was the entire sentence.

Can you explain minor in possession of alcohol in Athens, Georgia?

A minor in possession of alcohol is a pretty common charge, and basically it means just what it says: that you're under 21 years old and you have alcohol. There are a few different types of minor in possession, what we call an MIP. You can actually have alcohol on you; in other words you can be standing there holding a beer. You can also have what's called possession by consumption, which means you have alcohol in your system, but you may not have any actual alcohol on your person. T

he most typical minor in possession charge is possession by consumption where the officer asks if you've been drinking, you say "yes," or they do an Alco-Sensor, a little hand-held breath test device and it shows positive for alcohol. Another way to get a minor in possession is if you attempt to purchase alcohol or if you are in a store trying to buy it. Any minor in possession of alcohol will cost you your driver's license.

Can you explain reasonable suspicion in Athens, Georgia?

Answer: Reasonable suspicion is a standard set in the law where a police officer has to have reasonable suspicion to either stop your vehicle or approach you and question you and detain you. It's a Fourth Amendment issue where a police officer can't just randomly pick you out and start questioning you about your whereabouts or what you're doing or whatever he suspects. He's got to be able to have a reasonable suspicion that you're committing some criminal activity or are about to commit a crime. If he does not have reasonable suspicion then he can't approach you. It's a typical situation where maybe a police officer's trying to get a warrant for either a search or an arrest and he would have to explain to a judge, typically a magistrate judge, why he suspects that he needs this warrant. And it has to be reasonable.

How are your fees set up and do you have payment plans?

Answer: My fees are set up as flat fees. I don't charge by the hour, I don't charge by the trip. It's a flat rate. The only additional charge would be if we have to have a jury trial. So it's a flat fee to get us up to a jury trial. If we get the case settled or dismissed, then no additional fees are due. If we have a jury trial, there's an additional flat fee due. The amount of the fee depends on the nature of the case. I do have payment plans. We take an initial amount down and then we can spread the remaining payments in equal monthly installments. The amount of time that we can spread the payments out, again, depends on the charge and which court the case is in.

How does someone bond out of jail in Georgia?

Answer: To bond out of jail, the first step is to have a bond set. Some charges-typically a misdemeanor charge-would have what's called a scheduled bond. In other words, when you get to jail on a misdemeanor charge, there's already a bond set and everybody that's charged with whatever you're charged with-whether it's DUI, shoplifting, marijuana possession-whatever the misdemeanor is, there's already a set bond already for that charge. If it's a charge that does not have a scheduled bond, then within 72 hours of going to jail, you would have a right to go to the judge and ask for the bond to be set. The judge would then either set a bond or schedule a bond hearing, at which point he would hear from both the prosecutor and the defendant to determine what he thinks a reasonable bond in the case would be. Once a bond is set, then you can use cash, property if you live in the county, or you can obviously use a bonding company. A bonding company is going to take about 13%, and then they will loan you the money to make the bond.

What Is The Difference Between A Misdemeanor Charge And A Felony Charge?

Answer: The most obvious difference between a misdemeanor and a felony is the potential of jail time. In a misdemeanor case in Georgia, the maximum jail time is one year, and that one year would be spent in a county jail. In a felony, usually no less than one year-or it can be no less than five years, it depends on the felony-and the jail time can go up to 15, 25, all the way to life. And any amount of jail time that you get in a felony you will spend in prison, you will not spend in the county lockup.

Is there such a thing as expungement or record restriction for certain criminal offenses?

Answer: Yes, there are certain criminal offenses in Georgia that can be expunged or restricted. Typically, if it is expugnable then the prosecuting attorney, the prosecutor that works for the state, has to agree that it's expugnable. And typically on the sentencing sheet the judge would write that it is expugnable.

After a certain amount of time, the defendant has to go and fill out expungement paperwork. Typically they can get the paperwork from the local police station or the clerk of court. They would fill out the expungement paperwork, they would then take it to the district attorney's office or the solicitor's office depending on which court it was in. And then there is a duty solicitor or DA that basically looks at the expungement request and either approves them or denies them. It's very specific to which court you're in and which charge it is. For instance, a driving under the influence of an alcohol charge is not expugnable, no matter if you're found not guilty. But a possession of marijuana, if you go through a diversion program or a drug court program, would be expugnable. So it just depends on the court and depends on the charge.

What are actual possession and constructive possession of drugs in Athens, Georgia?

Answer: Actual possession of drugs is pretty obvious: you have it in your pocket, you have it in your bag; it's on your person, there's nobody else that it could be, it has to be yours. That's actual possession. Constructive possession is very common in drug charges where there's multiple people that could have access to the drugs. A good example would be if a bag of marijuana was found in the floorboard of the car and there's three people in the car that each have the ability to grab that bag-it's close enough to everybody. And then what they do, if nobody admits that the drugs were theirs, the police would charge everybody with possession of the same bag of drugs, and that's called constructive possession. It just means they can't prove who owned it, so they will charge everybody.

What are pre-trial motions?

Answer: Pre-trial motions are called a motion to suppress or a motion in limine or discoveries. We would file discovery motions to get the videos, police reports, witness statements; you can file motions to suppress, which would be in an effort to suppress any tangible evidence that the state may have, whether its drugs, a gun-whatever sort of tangible evidence they have. And then we can file what's called a motion in limine, which is asking the court to exclude some form of evidence that's not tangible: maybe a statement or some oral statement that you may have made. They're called pre-trial motions because the judge will hear these motions prior to you having a trial, then you will know when you go to trial exactly what evidence is in against you and exactly what evidence is not going to be used against you.

What are the pros and cons of a public defender versus using an experienced Athens criminal Defense lawyer?

Answer: The difference between having an experienced criminal lawyer or a public defender-obviously, the public defender is going to be less expensive. You generally have to pay a fee of $50 to $100, but then you have this lawyer. But the downside to having a public defender is resources and experience. And a public defender is going to have hundreds and hundreds of cases that he's working on, that he or she is working on, at any given time. Whereas a retained counsel or a retained lawyer will only have a handful of cases that he's concentrating on. An experienced lawyer will also have a lot of resources to pull from and more assistance and more specialized training.

What Is a plea bargain?

Answer: A plea bargain is basically negotiations between the attorney for the state-the district attorney-and the lawyer for the defendant. We would get together, we discuss the case, we discuss the facts of the case, applicable laws; we would talk about the defendant's prior criminal history or lack of prior criminal history; we would talk about whether it was a violent situation or a peaceful situation. And then we'd come to an agreement on what both sides think is a reasonable outcome to the case. And that's the plea negotiations. We then present the negotiations to the judge in the case to see if the judge agrees that what we're presenting him is fair. If he does, then we enter a plea and it's called a negotiated plea. If we can't negotiate, we can't plea bargain, then you can enter what's called a blind plea, which just means that we're leaving it entirely in the hands of the judge as to what our sentence would be.

What as an arraignment?

Answer: An arraignment is the first court date in a case, and it's where the court wants to know if you plead guilty or not guilty. If you plead guilty, obviously your case would be over. By pleading not guilty, you're informing the court that you want a trial or you want hearings or you want to try to work your case out. You have generally 10 days to file your motions after a not guilty plea, so any motions have to be filed at arraignment or within 10 days of arraignment.

What Is Nolo contendere?

Answer: Nolo contendere is a no-contest plea. Essentially you're saying, "I'm not admitting guilt, but I don't want to contest this charge, either." It's similar to something called an Alford plea, where you're saying, "I'm not saying it, I'm not admitting guilt, but I do think you have enough facts to convict me." The advantage to a nolo contendere plea, depending on the charge, is it may keep your driver's license. There's many charges that will suspend your driver's license. But if you enter a nolo contendere plea, your license would not be suspended. If you're under 21, a nolo contendere plea can help keep things off your record. The other advantage to a nolo contendere is if it's a moving violation in the car, for instance, where you're going to get points on your driver's license, you can plead nolo and get no points on your driver's license for whatever that offense was-that obviously will help you with insurance. You can plead nolo contendere once every five years.

What is pre-trial diversion?

Answer: Pre-trial diversion is a program that's available in most courts for some charges. And basically what diversion means is if the court will instruct the defendant to do certain things: it may be community service, it may be going to a certain class, completing-I've seen judges make you write papers. If you do what the judge asks you to do and you bring proof that you did what he told you to do, then whatever the charge is will be diverted and that means it's dismissed. So pre-trial diversion is a very good program if you can get it because the charge gets completely dismissed. You haven't plead guilty or not guilty, you never even got that far. It's just you made an agreement with the court, you did what the court asked and they dismissed the charge. It's very common in first lifetime misdemeanor marijuana cases, it's common in first lifetime shoplifting cases. Most courts have some form of diversion for some charges.

What is probable cause in Georgia?

Answer: Probable cause is a standard set up in the law where a police officer has to have a certain level of fact showing that you are committing a crime or are about to commit a crime and it's called probable cause. There's probable cause to arrest, there's probable cause to get a warrant. In an arrest situation, he has to reasonably believe that you've committed a crime or have committed a crime. Probable cause is the standard that he would have to explain to a judge in court that his arrest and his suspicions were reasonable at the time that he had the suspicions. If the arresting officer or the police are attempting to get a warrant to search your house or your car or your bag or whatever, they have to explain to a magistrate what their probable cause is to believe that a crime has [been] or is about to be committed.

What is search and seizure?

Answer: Search and seizure is the Fourth Amendment to the U.S. Constitution and the comparable Georgia Constitution. It's the Fourth Amendment that states an arresting officer or a police agency cannot randomly seize you and search you. When a police officer puts on his blue lights and stops your car-whether it's for speeding or suspected DUI or whatever reason-that is a seizure within the meaning of the Fourth Amendment. If a police officer yells at you in a parking lot to come over and see him, then that is a seizure within the meaning of the Fourth Amendment. There are different levels of things; you can be seized but not searched in certain situations, it's a higher standard. So search and seizure is the Fourth Amendment safeguard against over-aggressive police conduct.

What is the difference between a bench trail and a jury trial?

Answer: A bench trial is where the judge sits as the finder of fact. In other words, the judge is sitting as the jury in a bench trial, and he or she will decide your guilt or innocence based upon the facts presented. The jury trial is pretty obvious: it's either six jurors in a misdemeanor case or 12 jurors in a felony. In a jury trial, it's got to be a unanimous verdict-all six or 12 members of the jury have to agree. So, often there's an advantage to having a jury trial because you do have to have six or 12 people that all have to agree, where within a bench trial you only have one person deciding your guilt or innocence.