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A Criminal Defense Law Firm

Hands Free Law

Since 2011, Georgia has seen the highest increase in auto insurance rates in the nation. Along with an increasing population in Metro Atlanta, traffic accidents and fatalities have drastically increased over the last few years. According to the Governor’s Office of Highway Safety, Cobb County alone saw an increase of over 10,000 traffic accidents from 2014 to 2016. In an effort to make our roads safer, the Georgia Hands-Free Law was put into effect on July 1st of this year.

Georgia’s Hands-Free Law follows in the footsteps of similar laws that are currently in effect in 16 other states, as well as Washington, D.C. According to the US Department of Transportation, states with similar laws have shown an average of a 16% reduction in motor vehicle accidents within the first two years, followed by an even greater reduction the following years.

While it is too soon to tell what the net effect of the Hands-Free Law will be, a recent study by AAA shows that 98% of Georgia drivers surveyed knew about the new law, but 75% had seen another driver holding their phone while driving since the law went into effect.

Under the new Hands-Free Law, drivers cannot hold their phones or have it supported by any part of the body while driving. Drivers may use Bluetooth or speakerphone to talk on the phone while driving, and are also able to use their phone’s voice-to-text function to send messages while driving, as long as they are not touching their phones. Streaming music is allowed, as long as it is set up before driving. Watching or recording videos is not allowed, with the exception of using GPS navigation. Touching your phone to do anything other than accept a call is not permitted, even if stopped at a red light.
Violations of the Hands-Free Law carry the following penalties:
• 1st offense–$50 fine and 1 point on license
• 2nd offense–$100 fine and 2 points on license
• 3rd and subsequent offenses–$150 fine and 3 points on license

A quick search of the Georgia Department of Driver Services website will tell you how many points you have on your license. Drivers who have 15 or more points on their license in a two year period will have their license suspended. While this may seem like there is a lot of room to make mistakes, a single speeding ticket can carry up to 6 points. Thankfully, Georgia allows for a reduction of up to 7 points every five years with completion of an approved Defensive Driving course.

If you receive a citation for violating the Hands Free law, there is hope. If you can show the court that you purchased a phone mount or other acceptable Bluetooth device after receiving the citation, your charge may be dropped. However, drivers are only permitted to use this “Get Out of Jail Free” card once.

Our attorneys have years of experience in local traffic courts and are often able to get the charges or points reduced for our clients. If you have any questions about the new law, or need help with a traffic citation please give us a call at (770) 795-7751 or email info@semraulawfirm.com to schedule a free consultation.

For a full description of the law, please visit http://www.headsupgeorgia.com/handsfree-law/.

Semrau & Burns Welcomes New Intern, Jennifer Smith

Hi there! I am the new paralegal intern here at Semrau & Burns. My name is Jennifer Smith, and I am incredibly excited to be here. Every since watching The New Detectives and Forensic Files as a little girl, I have known I wanted to do something in the legal field. Watching The Practice and countless episodes of Law & Order with my parents made me realize that perhaps I would prefer the legal side of things better than the forensic side. While the reality of the legal system is not as glamorous or as fast as it seems on TV, the justice system plays an important role in keeping our rights as citizens safe.
I started at Georgia State University in 2007 as a Criminal Justice major with a concentration in Pre-Law. During my time there, I focused my studies on female and juvenile offenders and was especially interested in rehabilitation programs that help reduce recidivism rates. I left school to join the workforce but never gave up on my plan for a career in the legal field. When I turned 30, I decided to make a big change in my life, so I enrolled in the Paralegal Studies Certificate program at Kennesaw State University’s College of Continuing and Professional Education. I have learned a lot there about what my role as a paralegal will be and also about the legal system in general. A tour of Cobb County courthouses led me to search for an opportunity in Marietta. Luckily, I happened upon this internship at Semrau & Burns. On my first day, I have already been to State Court with Mr. Burns and learned about what a criminal defense attorney does on a daily basis. I can’t wait to see and learn more over the next six weeks.

Final Day at the Semrau Law Firm

Hello Everyone! Today is my last day as an intern at the Semrau Law Firm. This past month has been filled with incredible experiences and I couldn’t be more pleased with how everything went!

Before I arrived for my first day, I had no idea what to expect. I figured I might be making a ton of copies, running errands and other tasks like that. What I experienced was nothing like that at all! Throughout the past month I was able to learn the ins and outs of handling a case, experiencing various court processes, memorizing many different types of laws, as well as the general life of being a defense attorney.

This past month did not only involve me sitting back and watching. I was able to perform many tasks as well. When Scott began asking me to perform certain tasks, I was honestly a bit nervous. I had no idea what I was doing. Scott helped me through every obstacle and I was able to learn so much more because of that!

A few projects I was able to complete included: Updating the website, updating the blog, requesting documents from various clerks, writing my own motion for the transfer of a case to juvenile court, taking pictures of a crime scene, and questioning a client and witness. These types of tasks were incredible experiences and I never would have guessed I would be able to them!

One incredible experience that really stood out to me was an indecent exposure case I was able to help Scott with. This particular case involved a client who was seen urinating in a Gatorade bottle in his car. The catch is the witness claimed he was doing a little more than urinating. Scott gave me quite a few tasks involving this case.

First, I gave our client a call and asked him to give me a detailed description of what happened. Later that day, I was asked to go to the park where the alleged act took place and take pictures. This was very interesting because I was able to imagine what happened much better than if I never knew what the parking lot looked like.

The next day, I was able to call the witness and ask him what happened from his perspective. To be honest, when I was asked to do this, I was beyond nervous. But it ended up being a fascinating experience and I am so grateful I was able to do it! My final task involving this case was contacting out client and asking a few more detailed questions. It was enjoyable to have direct contact with the people in this case. Instead on watching what happened I was able to engage in many aspects of the case myself!

It seems to be a common occurrence for lawyers to tell aspiring lawyers not to go to law school. While other lawyers have told me this a few times, it has not deterred my decision of becoming a lawyer. My plan is to finish my criminal justice degree and continue to law school. One day I hope to be able to be a public defender and help indigent defendants who need my help.

Finally, I would like to thank everyone at the Semrau Law Firm as well as everyone else in the building. I was blown away by this opportunity and I am so thankful I was able to experience it!

First off, I would like to thank Scott. He put a ton of creativity and effort into making my internship as educational and interesting as possible. He blew my expectations out of the water and then some. I would also like to thank Mike. He taught me so much throughout this month and he gladly answered my excess of questions. Another person who really made my experience more enjoyable was Tomeca. She is the go-to person when you need help with something, I was very impressed by her knowledge and I am so thankful I had her to help me!

I would also like to thank everyone else in the office. Cleve, Pam, Rebecca, and Lawrence. You all were a pleasure to be around and I am very thankful to have met you all!

This past month has been one of the most interesting experiences of my life. Words cannot express how pleased I am with everything I have learned and I will never forget this opportunity. Thank you again The Semrau Law Firm!

Know Your Rights: Drivers Hand Over Phone to Police in Routine Traffic Stop

iphone passcodeWhile growing up, most of us were told to always obey authority. If someone of authority, whether it was a parent, teacher, or police officer told you to do something, you were supposed to do it.

When you see those blue flashing lights behind you and you are pulled over, most people are going to feel nervous, whether or not they are doing something wrong. This gut-wrenching feeling gives the officer leverage to take advantage of the situation and perhaps coerce you to consent to something you wouldn’t normally consent to.

Due to the texting and driving laws put in place in 2010, frequent stops are being made to combat this violation. “The law prohibits drivers from using a cell phone, text messaging device, personal digital assistant (PDA), computer, or similar wireless device to write, send, or read text data while driving.” During these stops, an officer might ask to see your phone to check for recent texts. http://www.drivinglaws.org/georgia.php

Last Spring, the United States Supreme Court ruled that police must have a search warrant to see what is on your phone, unless the owner consents to a search. While it is common knowledge that an officer needs a warrant to search your home, it is not well known that this law applies to your cell phone. An individual driving through Snellville stated: “I handed it over to him, cause that’s what I thought I was supposed to do,” said Jonathan Wicknig. http://www.wsbtv.com/news/news/local/know-your-rights-drivers-willingly-hand-over-incri/nk8RP/

Most drivers either do not know, or are too nervous to refuse an officer’s request to search their phone during a traffic stop. In Snellville, police recorded several interactions of them asking drivers to look through their phone to see if they had been texting. Not one person refused the request.

The Semrau Law Firm has handled cases involving this law. One of our clients was involved in an accident where they were looking at their phone. The individual saw that they received a text message. He looked at the phone briefly and looked back up at the road. Just before him was an overturned car. Our client hit the breaks but ended up running into a man that was out of his car at the scene. He died as a result. Our client was charged with vehicular homicide and texting while driving.

Scott challenged the texting while driving law and was able to get his client 12-months probation and he didn’t even lose his license! This fiasco could have turned out to be a nightmare for our client. Instead, Scott was able to provide quality legal assistance and saved him a world of hurt. Our firm handles many cases involving texting and driving. If you are charged with a texting while driving or similar offense, give us a call!

Recent Appeal Handled by the Semrau Law Firm Results in a 10-Year Reduction of a Client’s Incarceration

Facing 15 years in prison is anything but insignificant, especially if it is for the possession of a meager amount of drugs. Georgia has a stringent recidivism policy that carries very serious sentences.

The Semrau Law Firm handled a case recently where a client was facing a 30-year sentence (15 years of incarceration followed by 15 years of probation) for possession with intent to distribute 12 MDMA (ecstasy) pills.

15 years in prison sounds like an insane punishment for $100 dollars worth of ecstasy, right? Our client was four years into his prison sentence when turned to us for help.

Due to prior felony and misdemeanor convictions, our client fell under Georgia’s recidivism statute. The recidivism statute has three elements: (1) If you have a felony conviction from anywhere in the United States and you are convicted of another felony in Georgia, you must receive the maximum sentence provided by law. The good news is that some or the entire sentence may be probated (2) If you have three felony convictions in the United States and you receive a subsequent felony in Georgia, you must serve the maximum sentence without the possibility of parole. (3) If you have a serious violent felony conviction anywhere in the United States and you receive another serious violent felony in Georgia, you must be sentenced to life in prison without the possibility of parole. To see the entire law, click here: http://www.georgiadefenders.com/repeatoffender.htmprison-cell

Our client had two prior felony drug convictions, one for the sale of cocaine and another for possession with the intent to distribute cocaine. This was our client’s third drug felony and he was destined for a lengthy sentence.

Four years into his sentence, our client contacted us for help. He previously hired another attorney, but the attorney was ineffective.

Scott Semrau argued that the client would like to withdraw his guilty plea due to incorrect information provided to him and the court. Scott stated that his client was misinformed by his previous attorney. He was told that if he proceeded to trial and was found guilty, the only sentence the court could possibly give would be life in prison without parole. Due to this incorrect statement, the defendant pleaded guilty.

Once the appeal case was heard, our client was released from prison. He was taken off of the recidivism statute and was immediately paroled. Due to the efforts of Scott, our client was able to end his incarceration ten years before his scheduled release!

If you feel as though you have received an unfair sentence or that you were unlawfully incarcerated and you would like to file an appeal or Habeas Corpus, we can help. As you can see, our client hired an inexperienced attorney and the results were unproductive. In these types of situations it is important that you hire an experienced attorney who knows the law.

Recent Speed Limit Increases Across Metro Atlanta

I-75 exit Windy-Hill rd.There has been a recent increase in the speed limit across 95 miles of interstate and highways across Metro Atlanta. These changes have raised the speed limit up to 10 miles per hour in certain areas and affect 7 different counties in the Metro-Atlanta area.

In Cobb County, the speed limit has been raised from 55 miles per hour to 65 miles per hour on I-75 from Howell Mill Rd. up to Windy Hill, which is approximately a 3- mile stretch. These changes were made once the DOT considered average speeds, crash history, and traffic volume.

Among the 6 other counties experiencing a change are Clayton, DeKalb, Fulton, Douglas, Gainesville, Gwinnett, and Rockdale Counties.

If you have been caught speeding, even with the new limits, The Semrau Law Firm handles traffic-ticket cases, including speeding, in ALL Metro-Atlanta courts. While speeding appears to be a minor offense, it can result in hundreds of dollars in fines as well as increased insurance premiums. It’s always a good idea to consult with a lawyer before paying the fine.

To check out the full story, click here: http://www.11alive.com/story/news/traffic/commuter-dude/2015/01/20/faster-speed-limits-in-place-across-metro-atlanta/22062903/

Full Cobb County report here: http://archive.11alive.com/assetpool/documents/150120044529_Cobb%20Co.pdf

Update on the Drug-Sniffing Dog Ruling

Last week, I wrote a post on a court ruling regarding drug-dog usage during traffic stops. In a nutshell, it stated: “Police may not prolong a routine traffic stop to search for evidence of crimes unrelated to the purpose of the original stop.”

So to recap, the main issue is the extra seven or eight minutes it took for the second officer to arrive as well as the drug-sniffing dog. Justice Ruth Bader Ginsburg said, “Absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.”

Justice Ginsburg stated that an officer’s mission during a routine traffic stop, other than issuing a ticket is to check for outstanding warrants and verify proof of registration and insurance. She said that police authority over the stop ends when the mission has been or reasonably should have been completed.

This recent ruling will not outlaw all K-9 interactions. The court has previously ruled that dog sniffs are constitutional, even without reasonable suspicion, as long as the police do not unreasonably lengthen the duration of the stop.

There is a controversial tactic that police around the country like to use. If an officer pulls over a driver for a routine traffic stop and “suspects” possible illegal activity, he will ask to search the vehicle. If the suspect refuses, the officer will then request a drug dog to sniff around the vehicle.

An article on this issue http://alerts.motorists.org/ says that there may be a catch to this practice. “Here’s how the scheme works: A police officer pulls over a driver for a routine traffic stop, becomes “suspicious” of possible illegal activity (usually drug related) and asks if he can search the vehicle. If the motorist refuses, the officer calls for a trained dog to sniff around the exterior of the vehicle. Invariably, the dog alerts to something, which gives the officer probable cause to search the vehicle. The problem, though, is that drug dogs are not very reliable and can be trained to alert to their master’s cue, even though no drugs are present.”

Civil forfeiture is nothing short of influential. In 2012, police in the United States seized a record $4.2 billion in civil forfeitures. The Rodriguez case will probably not put an end to this. Officers will most likely work around this ruling and request for a dog earlier in the stop than usual to keep the duration of the encounter to a “reasonable” level.

Whenever you are pulled over for a traffic stop and an officer asks to search your car, politely refuse. If he places a call for a drug-dog, politely object. Keep track of the time for the traffic stop to make sure the encounter is not “prolonged”. Always ask if you are being detained and if you are free to leave. Keep asking frequently until you are free to leave. It is important that you assert your rights through this process. It may not stop the officer from searching you, but it may protect you if the situation were to appear in court.

Police May Not Prolong Traffic Stops to Wait for a Drug-Sniffing Dog to Arrive

K-9 UnitOn April 21st, The Supreme Court ruled that police are no longer allowed to stall a traffic stop in order to wait for a K-9 unit to arrive. The Supreme Court stated that when police use more time than needed for a routine traffic stop in order wait for a Drug-Dog, this constitutes an unreasonable seizure.

This ruling stemmed from the case: Rodriguez vs. United States. This particular case began when a Nebraska police officer pulled over Mr. Rodriguez for a routine traffic stop. He issued Rodriguez a written warning.

After the stop was complete, the officer had a Drug-Sniffing Dog circle the vehicle. After the written traffic warning was issued, about eight minutes elapsed from then until the dog arrived. During the search, the dog detected a large bag of methamphetamine.

Mr. Rodriguez later filed to have the evidence suppressed. The lower courts referred to a 2005 ruling, which stated that Dogs are allowed at traffic stops, as long as the stops are brief. There also must be “reasonable suspicion” in order to detain an individual. To get the full story, click the link below.

In a previous post, we discussed this same issue. Our client was pulled over in South Georgia with 2.6 pounds of marijuana in the car. The main topic here is that once the purpose of a traffic stop has been completed, any continued detention amounts to a second detention. In order for a second detention to be legal, there must be “reasonable suspicion” for that detention.

Have you ever had your car searched during a traffic stop by a Canine Unit? This new ruling may help. Do you feel as though the “reasonableness” of the search wasn’t warranted? You need an experienced attorney to argue that in court. If you have ever been arrested from a search that stemmed from a traffic stop, we can help!

Intern’s First-Hand Experience Regarding The Implied Consent Notice to Searches

Field-Sobriety Step TestA few days ago, I had the privilege of watching a motion for a DUI case. The reason I watched this particular motion is because attorneys are now filing motions involving the Implied-Consent Notice. The defense used this law to help construct their argument.

In my previous post, I discussed the Implied-Consent Notice, which states: Implied consent notice for suspects age 21 or over: “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol
or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense
and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?” The full law can be seen here: http://law.justia.com/codes/georgia/2010/title-40/chapter-5/article-3/40-5-67-1

Just because you were asked to take a field-sobriety test and/or a breath test and you said, “yes” to taking the test(s) doesn’t mean that you voluntarily consented to the test(s). In these situations it is very important that you have an experienced attorney to argue the topic of voluntary consent if applicable.

The alleged act took place in the beginning of January between midnight and 1:30 in the morning. It was raining heavily outside and the temperature was cold. The defendant was driving home from a sports grille and the police noticed him and another car driving on the wrong side of the road. The officers approached the second car and pulled him over.

The defendant was questioned in the driveway of a residence and was asked where he was coming from, where he lived and whether or not he had alcohol to drink. The officer who pulled over the man stated that he did not detect an odor of alcohol, though his superior did. His superior also testified that his speech appeared to be “elongated and he overthought what he was going to say” Eventually, the officer asked the suspect if he would take a field sobriety test. The suspect agreed and proceeded to take a few tests.

He was first given a Horizontal Gaze Nystagmus (a test that looks for impairment in the suspect’s eyes), which he had no issues with. Following, he was given a Walk-and-Turn test, a One-Leg-Stand test as well as an Alphabet test. He had issues with each but none of the issues indicated obvious impairment. The suspect was then given a Breathalyzer test and he blew positive for alcohol intoxication.

After the positive reading the man was placed under arrest. He was then read the Implied Consent Notice. The suspect agreed and was taken to the station to be evaluated.

The defense brought up a few arguments, including the topic of voluntary consent. The attorney emphasized the fact that the weather was awful. It was pouring rain as well as a very cold temperature. His client was soaked and beyond cold, and the Implied Consent Notice was read in the rain, therefore he was unable to give voluntary consent due to his discomfort. He also mentioned that due to the heavy rain outside, it would be difficult to detect an odor of alcohol as well as having proper visibility.

The defense pointed out that there was nothing out of the ordinary about this traffic stop, his client was compliant and kept his composure. He also mentions that his client had no previous criminal record.

The defense also argued that the notice is misleading. The attorney stated that “consent” is not described very well in the notice. Another great point brought up is that the defendant was handcuffed and surrounded by police officers during the reading of the Implied Consent Notice. He states that his client was in a fragile situation and was intimidated, therefore being unable to consent. It was argued that he merely submitted to authority.

As you can see, the defense brought up many valid points throughout this motion. Due to the circumstances, his client was not able to consent freely and voluntarily to the tests. Scott and Michael have filed many motions regarding this same issue. During situations like these, it is very important to have an experienced attorney representing you. There are many questions such as the ones above that need to be addressed in court.

Recent DUI Case Creates New Defense

Georgia Implied Consent NoticeAre you or have you ever been under the impression that you are required to submit to a blood or breath test to determine alcohol intoxication? This is a very common misconception and has been the subject of debate recently. The law is also considered deceptive and unclear to some. In the recent case of Williams vs. State of Georgia, this issue brought up many questions whether the law is constitutional.

In September of 2012, a man appeared to be driving erratically and swayed into the oncoming lane several times. The Gwinnett Police were called and the individual was pulled over. The officer claims he appeared to be confused, his speech was slow, slurred and he also mumbled when he spoke. The officer asked the man to exit his car and he did so slowly and unsteadily. When asked about the medications he was taking, the suspect stated that he had two prescriptions for pain medication. He was asked to perform a field sobriety test and he agreed.

His performance was less than perfect on most of the tests, but he did not indicate impairment. This person appeared to have balance issues, but he stated that it was due to an equilibrium problem. The officer placed the man under arrest and immediately read him the implied consent notice. The implied consent notice states “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.02 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?” After reading the consent, the officer told him it was a yes or no question and he responded “yes”. The officer then had the individual transported to have his blood drawn.

The defendant later filed a motion to suppress the results of the blood test. The trial court denied the request. To read the whole story, click the link below:

The fourth amendment prohibits unreasonable searches and seizures. A blood test is a search; therefore, the court must prove the reasonableness of the search. There are two exceptions to this: (1) If the suspect consents to the search (the consent must be freely and voluntarily given) or (2) In the event of an emergency. It is up to the state to prove whether the consent was freely and voluntarily given and that the suspect was not “giving in” to the display of authority. An experienced attorney will exploit these conditions and make sure that those conditions are followed.

There are a few questionable ways in which the law is phrased, which may come off as deceptive. After the appellant was arrested, he was told that he is required to submit to testing. If he refuses, his driver’s license will be suspended for a minimum of one year and his refusal will be used against him in trial. However, he is not informed that a test showing impairment will be used against him in trial as well.

The law also states that a positive test for impairment may be used to suspend your license for a year. This might confuse the suspect into believing that if they have a positive result, they may not be as likely to lose their driver’s license. Lastly, the law does not let the suspect know that the chemical test of impairment must be consented to freely and voluntarily, the average person will not even know that this is a requirement.

The appellant was in handcuffs at the time and had been informed that he had been arrested. This adds to the intimidation factor and may affect proper consent. The appellant was also not read his Miranda rights.

So in conclusion, if you are instructed to submit to a blood, breath, or urine test under Georgia’s implied-consent law and you agree, this DOES NOT prove that you voluntarily consented to the test. It is up to the state to prove that your consent was freely and voluntarily given. A seasoned attorney will use these rules in their defense and raise the question whether you properly consented to the test.

This is a recent case, but DUI attorneys are already filing motions trying to use this case to their client’s benefit. The Semrau law firm has filed several such motions and I will update the blog as those motions are heard.