If you have been charged with a crime in Atlanta, you need an experienced Atlanta criminal defense lawyer that will aggressively pursue your defense. Ben Sessions of The Sessions Law Firm, LLC, understands how cases are prosecuted in Atlanta and he understands what it takes to deliver results. Many clients do not know what to expect in the form of a defense to their criminal charges. Most reputable criminal defense lawyers know that what is appropriate in any given case can vary. However, beginning the process of determining what is appropriate should begin as soon as possible.
What Are You Paying for When You Hire a Criminal Defense Attorney?
If You’re Looking for An Experienced Atlanta Criminal Defense Lawyer with A Track Record of Success, Contact the Sessions Law Firm.
Ben Sessions of The Sessions Law Firm has a proven record of success in defending criminal charges in Atlanta, Georgia. Ben Sessions has developed a reputation among other lawyers as a go-to criminal defense attorney in complex and difficult criminal cases. If you are looking for a lawyer that understands the courts in and around Atlanta and understands what is required to deliver exceptional results in difficult cases, call The Sessions Law Firm today.
Selecting a Criminal Defense Lawyer: The Importance of a Limited Caseload
I rarely talk about how what types of things people should look for in selecting a criminal defense lawyer. The reason why I rarely talk about this is simple: people are so bad at choosing lawyers, particularly criminal defense lawyers, that I figure it is just a waste of breath. Generally speaking, people are suckers for radio personalities, flashy websites, and “larger than life” personalities. The market for criminal defense lawyers is really no different. A radio personality, flashy website, and larger-than-life personality aren’t exactly in the top 5 of the traits I would look for in a successful advocate and criminal defense trial attorney. Yet, these people seem to dominate the market for criminal defense lawyers.
Lawyers, particularly criminal defense lawyers, need to be real people. Criminal defense lawyers deal with real problems. Frequently, our clients are alleged to have caused serious harm to other people. Frequently, we, as criminal defense lawyers, need to be able to stand in front of 6 or 12 jurors or a Judge and have those people rely upon our (criminal defense attorneys) view of the world — to trust us when we say the government’s evidence isn’t enough or to rely upon the evidence that we put forward in mitigation. The problem is that being a hell of an advertiser doesn’t have anything to do with those skills that are the most important for a criminal defense lawyer.
Here is the other problem, though. The criminal defense law practice is still a business. Lawyers all want to make more money, and most lawyers operate under the assumption that in order to make money, they need more clients. However, there is a limit at which more clients means less essential service to existing clients. It’s a struggle that has always existed.
One of the constant struggles that most good criminal defense lawyers face is when to turn away a potential client. That is the management of caseload, and it directly influences the ability of the lawyer to devote more time to the existing clients that he/she has. With fewer clients, the lawyer will presumably commit more time and effort to the case.
Frequently Asked Criminal Law Questions & Problems
- Can I withdraw my guilty plea?
- Is there a strategy behind the order in which criminal defense motions are presented?
- What is the “open fields doctrine” and how does it affect the admissibility of evidence in my criminal case?
- How do I decide whether to take my case to trial?
- Does the jury determine if I actually consented to the search?
- What does “venue” mean in a Georgia criminal case and why is it so important?
- Do you have the right to a bond if not indicted within 90 days?
- If you do not reside in Georgia, be careful before entering a plea in Georgia.
Your Atlanta Criminal Defense Attorney at The Sessions Law Firm Will Act with The Urgency that You Expect and Give Your Defense the Attention that It Deserves.
One of the problems that many people encounter with criminal defense lawyers is that the lawyers give them real attention prior to being retained, but after the lawyer is hired, there does not really seem to be any sense of urgency. Criminal defense attorney Ben Sessions understands how important it is to get to work on your defense as soon possible. The urgency and dedication that we give to each of our clients’ cases translated to exceptional (and, frequently, early) success in the defense of criminal charges.
If you face a criminal charge in Georgia, you must understand the importance of investigating your criminal case prior to formal indictment. Many criminal defendants make the mistake of waiting until a case has been formally indicted before they retain a qualified criminal defense attorney. Don’t make this mistake.
A Qualified Georgia Criminal Defense Attorney Should Begin Investigating Your Criminal Case Prior to Formal Indictment
In our experience, early efforts to investigate possible criminal charges can be very beneficial. Often times, many criminal charges can be avoided simply by taking some early steps and communicating with the prosecution. We are frequently in a much better position to defend against criminal charges when we have more information. The earlier that we begin investigating possible criminal charges, the more information we can collect.
Investigating Your Criminal Case Prior to Formal Indictment Allows for More Strategic Planning
At The Sessions Law Firm, one of the things that we pride ourselves on and that differentiates our criminal defense attorneys in Georgia from others is our effort to develop a strategic plan unique to your case. Many lawyers that handle criminal cases in Georgia unfortunately do so in a “one size fits all” manner. There are certainly some aspects of every criminal case that should be routine, but the overall theme and theory of defense must be individually tailored to the case. The criminal defense attorneys at The Sessions Law Firm understand the difference, and we will develop a plan unique to your case.
Does Your Criminal Defense Attorney Understand how To Effectively Use a Speedy Trial Demand?
One of the things my clients are constantly telling me, and voicing frustration about is that they feel like they have no control over what is going on in case they have no control over when their cases are set for trial, they have no control over sort of the pace of the litigation. How things sort of go on pause for a long period of time and then suddenly accelerate and they don’t have any control over the speed at which they accelerate. That’s really frustrating thing and something that for a lot of people can make them feel very hopeless in the process. Lawyers a lot of times are very fearful of using the right to the statutory speedy trial and you need to recognize that statutory speedy trial demands in a lot of ways, are allowing you to exercise some degree of control of your case. No, you can’t control when the judge will call your case in but it does allow you to actually create some pace there, to say to the State, we’re not going to let you control the pace of this litigation, we’re actually going to push the issue. We’re going to force you to go to trial and appear at a time that may actually be uncomfortable for them. That’s something that they’re not used to it all.
In a lot of ways, that sort of change of pace can be a tremendous advantage to you, particularly if you’re in a jurisdiction like Fulton or Cobb where we have relatively short term support, and they’re not anticipating that you might follow statutory speedy trial demand, for example, in a vehicular homicide case. So, you can move things along in a way that they are not used to, in a way that might give you a very real strategic advantage. So, think about that, in addition to that, the idea of actually getting closure sooner rather than later for a lot of my clients is something that they would absolutely welcome. No one welcomes the idea of having a case hanging over their heads for two three four years, and that’s not at all uncommon for defendants in a vehicle homicide case in Fulton County to have that sort of anxiety, that sort of stress hanging out over their heads for that period of time. So, certainly that’s another reason why it is you should consider that option, don’t take that tool off the table in your case without really giving it some thought. Lawyers should certainly be less scared of using it because it is in fact a tool and one that can be extremely powerful if you’re using it in the right way.
Preliminary Hearings in Georgia Criminal Cases
Some people mistakenly believe that preliminary hearings in Georgia criminal cases refers to every pre-trial hearing in the case. Preliminary hearings in Georgia criminal cases can be instrumental to the development of the defense in your case. What the preliminary hearing does is allow you an early opportunity to preview the State’s case and evidence against you.
The decision made by a judge at preliminary hearings in Georgia criminal cases is governed by the following:
(a) The duty of a court of inquiry is simply to determine whether there is sufficient reason to suspect the guilt of the accused and to require him to appear and answer before the court competent to try him. Whenever such probable cause exists, it is the duty of the court to commit.
(b) Any court, other than a superior court or a state court, to which any charge of a violation of Code Section 16-11-126 is referred for the determination required by this Code section shall thereafter have and exercise only the jurisdiction of a court of inquiry with respect to the charge and with respect to any other criminal violation arising from the transaction on which the charge was based and shall not thereafter be competent to try the accused for the charge or for any other criminal violation arising from the transaction on which the charge was based, irrespective of the jurisdiction that the court otherwise would have under any other law.
What Is the Motion Hearing in Your Criminal Case?
Generally, within 10 days after your arraignment, your criminal defense attorney will file what are called motions in your case. Motions are a vital part of your defense and can be the difference in a great result or a poor one. So, let’s talk about what happens at a motions hearing.
After you’ve been arraigned in your criminal case, your lawyer should be filing motions. Those motions are motions for discovery motions eliminated preclude the state from doing certain things at trial and motions to suppress. That means it’s colluding. Certain pieces of evidence from the trial case. Generally speaking you want to have motions challenging what you perceive to be the strongest parts of the state’s case. You want to try to nitpick everything as well as you can through through the process of filing motions and litigating motions and certainly you want to kind of keep your eye on what you perceive to be the most valuable parts of their case. That’s what motions really are for. Um, as you lead up to the trial vocation, we’re going to have calendar calls and you’re going to have motion hearing dates and most clients are really stressed out whenever they’re looking at, sorry, pop up there.
Um, what it is that’s going to happen at their motion hearing at the motion hearing, you’re going to have the state present obviously and there probably, unless you have just some, for example, do mirror issues which are just based on documents. If you actually have motions to suppress, you’re going to have actual witnesses there. During those those evidentiary hearings. It’s very rare that our clients actually have to testify. In fact the only real time that they might testify where it might be advantageous and those motions hearings are described, for example, how they were coerced into consenting to a search or giving a statement to the police at a station if there was something that was really exceptional that happened there in the course of those, those events. But generally speaking, when you show up to a motion hearing, you’re just going to be sitting there beside your lawyer.
Um, I’m going to do all the arguing, I’m going to do all that, the presentation of evidence I need to the state’s witnesses, and then we’re going to talk to the judge about why it is that the evidence should or should not be admitted in the trial of the case. And that’s what motion hearings really are about. They’re trying to determine whether or not first the state’s case should go forward and then what evidence will or will not be admissible in the trial. The case. Do you have any questions about motions and questions about your case in general? Feel free to call me. My name is Ben sessions. My phone number is (470) 225-7710 again, (470) 225-7710 thank you.
All judges are motivated to clear their dockets. Some judges are motivated to obtain convictions in criminal cases. All prosecutors are motivated to close cases as quickly as possible and to obtain convictions.
Strategic Motions Practice in Georgia Criminal Cases Is Essential to Success in Your Case
Strategic motions practice in Georgia criminal cases can literally bring both of these goals to a screeching halt. Some motions can stop the criminal conviction train. Some motions can stop the criminal case from going forward, and time is very frequently on our side.
However (and unfortunately), many so-called criminal defense attorneys do not think critically about their motion practice in Georgia criminal cases. Because judges and prosecutors simply want to move cases from their docket, once a lawyer fails to adequately challenge the admissibility of certain pieces of evidence, many judges won’t allow subsequent challenges to the admissibility of questionable evidence, and they know that if the evidence goes unchallenged, a guilty plea can frequently be extorted from the defendant.
Criminal defendants’ rights are forfeited when proper motions are not timely filed within 10 days from the date of arraignment. Don’t allow your future to rest upon the courtesy of the prosecutor or judge because motions were not properly filed in your case.
Your Criminal Defense Attorney Must Understand How To Strategically Use Pre-Trial Motions
Trust Is The Most Important Part of Choosing A Criminal Defense Attorney
One of the most difficult decisions for any client is when to go from, I’m going to defend this case, maintain my not guilty plea to changing their mind and ultimately give in and entering a guilty plea or some other sort of alternative plea to the charge. Um, that is rightfully the most difficult decision that a client has to make. It is probably something that needs to be considered throughout the entirety of the case. I have clients that come in and say, Ben, I’m never going to enter a guilty plea. And I certainly will respect that. I’m going to follow those wishes and we’re going to go to trial on the case unless the prosecutor ultimately dismisses it beforehand. But in most of my client’s cases, they’re looking to both mitigate their risk and look to develop the best possible defense they can going forward. Um, Corona virus obviously presents some real unusual set of circumstances for us because the way in which prosecutors and judges ultimately get a client to, or a defendant to make a decision as to whether or not they’re going to get a trial or enter a guilty plea is by trial calendars.
And right now we don’t have any trial calendars that are going on. Um, and so some of the incentives that clients otherwise would have had, the pressure that they would have had is kind of taken off of them. And that’s really important to know, because whenever you’re going through this, and let’s say for example, that you had multiple DUI offenses in your criminal history, um, you might be able to get a really good resolution of your case that involves very little jail time, um, or minimal jail time that you would yeah, not I’ve gotten in normal times if juries were actually being in pain to try your case because prosecutors and judges know that, Hey, if I’m going to incentivize this person to move forward with their case to resolve it in a quick manner, um, I need to give them some real reasons to do that.
Usually that involves taking jail time, significantly off the table. Um, on the other hand, let’s say for example, that you have a first DUI offense and there’s no real risk of really great jail time. If you go forward and push the case on down the road, there probably is very little incentive for you to actually enter a guilty plea during this time. It is to your benefit in almost every set of circumstances. If it’s the first DUI offense to hold off, obviously there are some exceptions to that. Um, and you need to talk to your lawyer and making that decision, but in your garden, variety, no accident, no prior criminal history, no prior drug or alcohol related offense on your record, if you’re charged with a DUI during this time, your case is pending during the COVID coronavirus shutdown, there really is very little incentive for you to resolve a case to a guilty pleas, to the DUI, um, kicking the can down the road, seeing how things unfold in six, 12, 18 months, however long it takes us to actually get to a jury trial, um, is probably going to be to your benefit.
Georgia Criminal Indictments
The fundamental rules governing the technical requirements of Georgia criminal indictments are stated in OCGA § 17-7-54:
(a) Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct. The form of every indictment shall be substantially as follows:
Georgia, _____ County.
The grand jurors selected, chosen, and sworn for the County of _____, to wit: _____, in the name and behalf of the citizens of Georgia, charge and accuse (name of the accused) of the county and state aforesaid with the offense of _____; for that the said (name of the accused) (state with sufficient certainty the offense and the time and place of committing the same), contrary to the laws of said state, the good order, peace, and dignity thereof.
(b) If there should be more than one count, each additional count shall state:
And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse (name of the accused) with having committed the offense of _____; for that the said (name of the accused) (state with sufficient certainty the offense and the time and place of committing the same) contrary to the laws of said state, the good order, peace, and dignity thereof.
It is critical that any challenge to the form of a Georgia criminal indictment or accusation be filed within 10 days from the date of arraignment or such challenge to the indictment will be waived.
The Requirement of an Indictment in Georgia Felony Cases
Felony charges in Georgia must generally be brought by an indictment. OCGA § 17-7-70.1 provides some of the exceptions to the Georgia criminal indictment requirement:
(a)(1) In felony cases involving violations of the following:
(A) Code Sections 16-8-2, 16-8-14, 16-8-18, 16-9-1, 16-9-20, 16-9-31, 16-9-33, 16-9-37, 16-10-52, and 40-5-58;
(B) Article 1 of Chapter 8 of Title 16, relating to theft;
(C) Chapter 9 of Title 16, relating to forgery and fraudulent practices;
(D) Article 3 of Chapter 10 of Title 16, relating to escape and other offenses related to confinement; or
(E) Code Section 16-11-131, relating to possession of a firearm by a convicted felon or first offender probationer,
in which defendants have either been bound over to the superior court based on a finding of probable cause pursuant to a commitment hearing under Article 2 of this chapter or have expressly or by operation of law waived a commitment hearing, the district attorney shall have authority to prefer accusations, and the defendants shall be tried on such accusations according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury.
Drug Charges That We Defend
It is no secret that the overwhelming majority of criminal cases in Georgia and throughout the United States are drug-related. We defend clients charged with the following types of drug charges:
Setting of Bond in Georgia Criminal Cases
For most people charged with a criminal offense in Georgia, the first consideration that must be is: how can I obtain a bond so that I can get out of jail? In Georgia, the setting of bond in criminal cases can vary widely from one county to the next. What is a reasonable bond in one county may be one-half of the cost in an adjacent county. Further, there are some jurisdictions that make getting a bond very difficult. Experienced criminal defense attorneys understand the nuances relating to the jurisdiction in which your case is pending SETTING OF BOND: WHICH COURT WILL SET BOND IN YOUR GEORGIA CRIMINAL CASE?
In determining how to obtain a bond, your lawyer must first know which court or judge to approach for the setting of bond. There is no much embarrassing event than approaching a magistrate for a bond and finding out that the magistrate does not have jurisdiction to set the bond amount.
Make sure that you know what court must hear the motion for bond.
(a) The following offenses are bailable only before a judge of the superior court:
(4) Aggravated sodomy;
(5) Armed robbery;
(5.1) Home invasion in the first degree;
(6) Aircraft hijacking and hijacking a motor vehicle;
(7) Aggravated child molestation;
(8) Aggravated sexual battery;
(9) Manufacturing, distributing, delivering, dispensing, administering, or selling any controlled substance classified under Code Section 16-13-25 as Schedule I or under Code Section 16-13-26 as Schedule II;
(10) Violating Code Section 16-13-31 or Code Section 16-13-31.1 (sale of some drugs);
(11) Kidnapping, arson, aggravated assault, or burglary in any degree if the person, at the time of the alleged kidnapping, arson, aggravated assault, or burglary in any degree, had previously been convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary in any degree, or one or more of the offenses listed in paragraphs (1) through (10) of this subsection;
(12) Aggravated stalking; and
(13) Violations of Chapter 15 of Title 16 (this chapter addresses gang activity).
Bond in Misdemeanor Cases in Georgia
(b)(1) All offenses not included in subsection (a) of this Code section are bailable by a court of inquiry. Except as provided in subsection (g) of this Code section, at no time, either before a court of inquiry, when indicted or accused, after a motion for new trial is made, or while an appeal is pending, shall any person charged with a misdemeanor be refused bail.
OCGA § 17-6-1. Subsection (g) of OCGA 17-6-1 addresses the availability of appeal (supersedeas) bonds:
The granting of an appeal bond to a person who has been convicted of any other felony offense or of any misdemeanor offense involving an act of family violence as defined in Code Section 19-13-1, or of any offense delineated as a high and aggravated misdemeanor or of any offense set forth in Code Section 40-6-391, shall be in the discretion of the convicting court.
How Is the Bond Amount Set in Georgia Criminal Cases
Ayala v. State, 262 Ga. 704, 705-06, 425 S.E.2d 282, 284 (1993), is the most important Georgia case addressing the factors that must be addressing in setting pre-trial bond in a criminal case:
A person charged with the offense of murder may obtain bail only before a superior court judge. OCGA § 17-6-1(a)(2). The purpose of a pretrial bond is to prevent punishment before a conviction and to secure the appearance of the person in court for trial. Roberts v. State, 32 Ga.App. 339, 340-41, 123 S.E. 151 (1924). The standards for determining whether to grant release prior to trial are based on the 1968 American Bar Association pretrial release standards. Lane v. State, 247 Ga. 387, 388, n. 2, 276 S.E.2d 644 (1981). The trial court may release a person on bail if the court finds the person:
(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;
(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;
(3) Poses no significant risk of committing any felony pending trial; and
(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.
OCGA § 17-6-1(e). The trial court must explain its reasons for denying bond to assist appellate review. Lane, 247 Ga. at 389, 276 S.E.2d 644. The granting or denial of bail will not be set aside unless there is a manifest and flagrant abuse of discretion. Jernagin v. State, 118 Ga. 307, 308, 45 S.E. 411 (1903).
This court has not addressed whether the state or the defendant has the burden of proof in pretrial bond hearings before a superior court. Neither the Lane opinion nor the law codifying the ABA standards specifies which party has the burden of proof or the evidentiary standard to be applied. See 1982 Ga.Laws 910, § 1.
Because of the phrasing of the statutory language, we conclude that the defendant has the burden of coming forward initially with evidence to show that he or she poses no significant risk of fleeing, threatening the community, committing another crime, or intimidating a witness. This burden of production means that a person charged with murder must present evidence at the bond hearing on factors that indicate roots in the community.2 These factors include the defendant’s length and character of residence in the community, employment status and history, past history of responding to legal process, and prior criminal record. See Lane, 247 Ga. at 388, n. 2, 276 S.E.2d 644. Once the defendant meets the burden of production, the state may present *706 evidence to rebut it. Placing the burden of production on the defendant is fair because the accused is the best source of information on his or her community ties.
Ayala v. State, 262 Ga. 704, 705-06, 425 S.E.2d 282, 284 (1993).
A Complete Investigation Should Be Undertaken Even You Believe That You Should Enter A Guilty Plea To Charges
There is hardly any obligation of a criminal defense attorney that is more important than properly investigating your Georgia criminal case. If you face a criminal charge, beginning a thorough investigation as soon as possible is critical. In some jurisdictions in Georgia, it can be years before criminal cases get to trial. If your criminal defense attorney waits until prior to trial interview witnesses and investigate your case, evidence will like be stale, if it is even available.
Most good criminal defense attorneys understand that engaging in drastic, proactive mitigation tasks should be a basic part of ever felony case involving injury to another party. Likewise, investigating the actual facts of the case should be a part of every case, even if the defendant expresses a willingness to plead guilty.
A good guide for the duty and obligation of criminal defense lawyers to investigate pending cases is found in the ABA Criminal Justice Standards. ABA Criminal Justice Standards 4-4.1(a) provides:
Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.
One of the critical points in the ABA’s standard is that the lawyer is to investigate the case even if the client has made admissions regarding the charges or expressed a willingness to plead guilty.
Georgia Medicaud Fraud Law: Who Does It Apply To?
As used in this Code section, the term:
- “Agent” means any person who has been delegated the authority to obligate or act on behalf of a provider.
- “Convicted” means that a judgment of conviction has been entered by any federal, state, or other court, regardless of whether an appeal from that judgment is pending.
- “Indirect ownership interest” means any ownership interest in an entity that has an ownership interest in the provider entity. The term includes an ownership interest in any entity that has an indirect ownership interest in the provider entity.
- “Managing employee” means a general manager, business manager, administrator, director, or other individual who exercises operational or managerial control over, or who directly or indirectly conducts, the day-to-day operation of the institution, organization, or agency.
- “Payment” includes a payment or approval for payment, any portion of which is paid by the Georgia Medicaid program, or by a contractor, subcontractor, or agent for the Georgia Medicaid program pursuant to a managed care program operated, funded, or reimbursed by the Georgia Medicaid program.
- “Person” means any person, firm, corporation, partnership, or other entity.
- “Person with an ownership or control interest” means a person who:
- (A) Has ownership interest totaling 5 percent or more in a provider;
- (B) Has an indirect ownership interest equal to 5 percent or more in a provider;
- (C) Has a combination of direct and indirect ownership interests equal to 5 percent or more in a provider;
- (D) Owns an interest of 5 percent or more in any mortgage, deed of trust, note, or other obligation secured by the provider entity if that interest equals at least 5 percent of the value of the property or assets of the provider;
- (E) Is an officer or director of a provider that is organized as a corporation; or
- (F) Is a partner in a provider entity that is organized as a partnership.
- “Provider” means an actual or prospective provider of medical assistance under this chapter. The term “provider” shall also include any managed care organization providing services pursuant to a managed care program operated, funded, or reimbursed by the Georgia Medicaid program.
Georgia Medicaid Fraud: What Is It That Is Illegal?
It shall be unlawful:
- For any person or provider to obtain, attempt to obtain, or retain for himself, herself, or any other person any medical assistance or other benefits or payments under this article, or under a managed care program operated, funded, or reimbursed by the Georgia Medicaid program, to which the person or provider is not entitled, or in an amount greater than that to which the person or provider is entitled, when the assistance, benefit, or payment is obtained, attempted to be obtained, or retained, by:
- Knowingly and willfully making a false statement or false representation;
- Deliberate concealment of any material fact; or
- Any fraudulent scheme or device; or
- For any person or provider knowingly and willfully to accept medical assistance payments to which he or she is not entitled or in an amount greater than that to which he or she is entitled or knowingly and willfully to falsify any report or document required under this article.
- Any person violating paragraph (1) or (2) of subsection (b) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished for each offense by a fine of not more than $10,000.00, or by imprisonment for not less than one year nor more than ten years, or by both such fine and imprisonment. In any prosecution under this Code section, the state has the burden of proving beyond a reasonable doubt that the defendant intentionally committed the acts for which he or she is charged.
- Any person committing abuse shall be liable for a civil monetary penalty equal to two times the amount of any excess benefit or payment. This penalty shall be collected on the same terms as a penalty imposed pursuant to subsection (d) of this Code section, except as to the amount specified in items (1) and (2) of that subsection, but shall not be imposed cumulatively with a penalty under such subsection.
- Abuse is defined as a provider knowingly obtaining or attempting to obtain medical assistance or other benefits or payments under this article to which the provider knows he or she is not entitled when the assistance, benefits, or payments are greater than an amount which would be paid in accordance with those provisions of the department’s policies and procedures manual which are adopted pursuant to public notice, and the assistance, benefits, or payments directly or indirectly result in unnecessary costs to the medical assistance program. Isolated instances of unintentional errors in billing, coding, and costs reports shall not constitute abuse. Miscoding shall not constitute abuse if there is a good faith basis that the codes used were appropriate under the department’s policies and procedures manual and there was no deceptive intent on the part of the provider.
- (d) In addition to any other penalties provided by law, each person violating subsection (b) of this Code section shall be liable to a civil penalty equal to the greater of (1) three times the amount of any such excess benefit or payment or (2) $1,000.00 for each excessive claim for assistance, benefit, or payment. Additionally, interest on the penalty shall be paid at the rate of 12 percent per annum from the date of payment of any such excessive amount, or from the date of receipt of any claim for an excessive amount when no payment has been made, until the date of payment of such penalty to the department.
- (e)(1) Whenever the commissioner proposes to recover an amount provided for in subsection (d) of this Code section, he shall give 30 days’ written notice of his intended actions. The notice shall inform the person in violation of subsection (b) of this Code section of his right to a hearing, the method by which he may obtain a hearing, and that he may be represented by an authorized representative, such as legal counsel, relative, friend, or other spokesman, or that he may represent himself.
- (2) All hearings held by virtue of this subsection shall be conducted in the same manner as any other contested case within the department and shall be subject to the rules and regulations regarding hearings within the department. As in all contested cases within the department, the person against whom the commissioner is proceeding under this subsection shall have the right to appeal any adverse administrative decision to the superior court of the county of his residence or to the Superior Court of Fulton County once he exhausts all administrative remedies within the department.
- (3) If the person against whom the commissioner is proceeding under this subsection fails to request a hearing or fails to exhaust all administrative remedies within the department, then his case shall be treated as an unappealed administrative decision. In any unappealed administrative decision where the aggrieved party fails to request a hearing or fails to exhaust all administrative remedies, the commissioner shall issue an order to the person against whom the commissioner is proceeding, directing payment of any amount found to be due pursuant to subsection (d) of this Code section within ten days after service of the order. Upon failure to comply with the commissioner’s order, the commissioner may issue a certificate to the clerk of the superior court of the county of residence of the person who is the subject of the order. A copy of such certificate shall be served upon the person against whom the order was entered. Thereupon, the clerk shall immediately enter upon his record of docketed judgments the name of the person so indebted, that the debt is owed to the state, a designation of the statute under which such amount is found to be due, the amount due, and the date of the certification. Such entry shall have the same force and effect as the entry of a docketed judgment in the superior court. Such entry on the docket by the commissioner shall be without prejudice to the right of the aggrieved party to contest such entry by affidavit of illegality or as otherwise provided by law.
- (f) The department may refuse to accept a statement of participation, deny a request for reinstatement, refuse to exercise its option to renew a statement of participation, suspend or withhold those payments arising from fraud or willful misrepresentation under the Medicaid program, or terminate the participation of any provider other than a natural person if that provider or any person with an ownership or control interest or any agent or managing employee of such provider has been:
- (1) Convicted of violating paragraph (1) or (2) of subsection (b) of this Code section;
- (2) Convicted of committing any other criminal offense related to any program administered under Title XVIII, XIX, or XX of the Social Security Act of 1935,1 as amended; or
- (3) Excluded or suspended from participation in the medicare program for fraud or abuse.
- In making a decision pursuant to this subsection, the department shall consider the facts and circumstances of the specific case, including but not limited to the nature and severity of the crime or violation and the extent to which it adversely affected medical assistance recipients and the program.
- (g) The department shall refuse to accept a statement of participation, deny a request for reinstatement, refuse to exercise its option to renew a statement of participation, or terminate the participation of any provider who is a natural person if that provider or any agent or managing employee of such provider has been convicted of:
- (1) Violating subsection (b) of this Code section; or
- (2) Committing any other criminal offense related to any program administered under Title XVIII, XIX, or XX of the Social Security Act of 1935, as amended.
- (h) The department shall reinstate a provider whose participation in the medical assistance program was terminated pursuant to subsection (f) or (g) of this Code section if the conviction upon which the termination was based is reversed or vacated or if the decision of the administrative law judge is reversed in accordance with the department’s rules and regulations.
- (i) It shall be the duty of the department to identify and investigate violations of this article and to turn over to the prosecuting attorney, for prosecution, any information concerning any recipient of medical assistance who violates this article.
- (j) As necessary to enforce the provisions of this article, the department or its duly authorized agents may submit to the state revenue commissioner the names of applicants for medical assistance or other benefits or payments provided under this article, as well as the relevant income threshold specified therein. If the department elects to contract with the state revenue commissioner for such purposes, the state revenue commissioner and his or her agents or employees shall notify the department whether or not each submitted applicant’s income exceeds the relevant income threshold provided. The department shall pay the state revenue commissioner for all costs incurred by the Department of Revenue pursuant to this subsection. No information shall be provided by the Department of Revenue to the department without an executed cooperative agreement between the two departments. Any tax information secured from the federal government by the Department of Revenue pursuant to express provisions of Section 6103 of the Internal Revenue Code may not be disclosed by the Department of Revenue pursuant to this subsection. Any person receiving any tax information under the authority of this subsection is subject to the provisions of Code Section 48-7-60 and to all penalties provided under Code Section 48-7-61 for unlawful divulging of confidential tax information.
Our Criminal Defense Attorney Understand The Importance Of Investigation Your Georgia Criminal Case
Investigating your Georgia criminal case is a step that cannot be recreated later. If you are facing a criminal charge or investigation in Georgia, contact the criminal defense attorneys at The Sessions Law Firm.
Speedy Trial Rights in Your Criminal Case
It is not always the case that the passage of time helps your defense, particularly if your criminal defense lawyer is continuously asking for continuances. Many criminal defense lawyers in Georgia mistakenly tell people that the passage of time always helps the defense. This is dangerous advice, and the advice is even more dangerous if a defense lawyer is seeking a continuance from the court to put age on the case. Not every defense gets better with age, and asking for a continuance can actually hurt viable defenses to the charge.
Every criminal defendant in Georgia (and the United States) has a constitutional right to a speedy trial. However, in determining whether the right to a speedy trial has been violated, one of the considerations that the trial court will have is whether the defendant (and his attorney) have contributed to or caused the delay.
SPEEDY TRIAL ATTORNEY THAT KNOWS HOW TO PROTECT YOUR RIGHTS
In addition to the constitutional right to a speedy trial, in Georgia, criminal defendants have the right to demand a speedy trial pursuant to statute. This is an important right and, in some cases, it may be the only viable opportunity to win the case. If the State fails to bring your case to trial within the designated period of time and you have requested a statutory speedy trial, your case will be dismissed. So, before you follow advice that an older case will always be better for you, recognize that delaying the case may forfeit some of your best possible defenses.
Contact an attorney at Sessions Law Firm by calling (470) 225-7710. We can determine the best way for you to proceed with our free consultation.