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Howard J. Weintraub
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Howard Weintraub’s Answers

44 total


  • Can you still be prosecuted for a marijuana charge if in the police report it says that the case was not approved and is closed?

    Also if your complient to an officer is he allowed to throw you and use force?

    Howard’s Answer

    In answering your question, please be advised that I am licensed to practice law in Georgia and Washington, D.C. and that I am not licensed to practice law in Maryland. The technical answer is yes: prosecutors can independently have their investigators work a case and develop evidence not discovered by the police during their handling of the case. If this independent investigation reaches the conclusion that prosecution is warranted then the case can go forward.However, the probability of this matter coming before the desk of a prosecutor when the initial police report concluded that the case was not worthy of "being approved for prosecution and the case was closed" is very unlikely. As to your second question regarding the alleged excessive nature of the police conduct, I suggest you consult an attorney in Maryland with the expertise in litigation involving police misconduct.

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  • Can i be charged with conspiracy if the person i supposedly conspired with testifies that i had nothing to do with it?

    what constitutes conspiracy in distribution of cocaine?

    Howard’s Answer

    In answering your question, please be advised that I practice in Georgia and I am not licensed to practice in the State of Virginia. The prosecutors do not have to have a cooperating codefendant/coconspirator as a witness in order to convict you of conspiracy. Although plea deals for reduced terms of imprisonment often are entered into with a member or members of a drug conspiracy in exchange for that person's testimony against other participants in the conspiracy, there is no requirement that a conviction for conspiracy be predicated upon testimony of one of the coconspirators. Furthermore, when it comes down to your alleged coconspirator testifying that you were not involved, invariably this does not happen as the coconspirator's interest in obtaining the best deal for himself will not come about if he exonerates you. Keep this in mind when people are now telling you how they supposedly will exonerate you, etc. In response to your second question of what constitutes a conspiracy to distribute cocaine, the existence of such a conspiracy would be evidence of an agreement by two or more persons to commit the unlawful act of distributing cocaine; and evidence that the charged coconspirator knew the unlawful purpose of the plan and willfully joined in it; and evidence that during the conspiracy, at least one of the conspirators knowingly engaged in at least one overt act with the purpose of carrying out or accomplishing some object of the conspiracy to distribute the cocaine. All three of these evidentiary matters must be proven beyond a reasonable doubt before a person could be convicted of that conspiracy to distribute cocaine.

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  • What happens after you enter a plea of not guilty to a DUI charge?

    If I am charged with a DUI, and enter a plea of not guilty, what happens after that? Do I get another court date?

    Howard’s Answer

    Following your arrest for DUI, you will have what is logically called your "initial court appearance". Depending upon the jurisdiction where you are being prosecuted, the timing of this court appearance varies. For illustrative purposes as to what happens to you during this court proceeding and thereafter, let me discuss the procedure in Atlanta Municipal Court, which is the Court that handles the DUI cases made throughout the neighborhoods of Atlanta, including Buckhead, Midtown and Downtown. On the bottom of your DUI arrest citation, the trooper or police officer will write the date when you are to appear in Atlanta Municipal Court for your "initial appearance". At this proceeding, you will be called upon to tender a plea of guilty or a plea of not guilty. In response to your question of what happens after you have entered your plea of not guilty, your case will be rescheduled to provide you and your attorney (in my opinion everyone charged with a DUI should be represented by counsel throughout their DUI prosecution) with the opportunity to engage in discovery with the State. This will enable you to receive a copy of the police/trooper DUI Incident Report, a copy of your Intoxilyzer 5000 breath testing machine's analysis of the two breath samples you provided by blowing into the machine (or a copy of the breath testing machine slip indicating you supposedly refused to blow into the machine), access to receiving a copy of, or viewing, the law enforcement video recording of your encounter with the arresting law enforcement officer (assuming of course that the vehicle belonging to the officer or trooper was equipped with a video camera), and the sentencing recommendation of the prosecutor should you later plead guilty or are found guilty following a trial. The rescheduling of your case will also enable your attorney to decide whether he/she should file approriate motions on your behalf with the Court, including a motion to suppress the evidence obtained by the arresting officer/trooper, including the result of the chemical analysis of your breath, blood or urine, the results of the field sobriety tests, the observations of you made by the arresting officer/trooper, and any statements you may have made. After this process is completed, you and your attorney will then have had ample time for the two of you to decide what would be the best course of action for you to take: (1) Do you decide to keep your case in Atlanta Municipal Court. If so, can the DUI be reduced to a lesser charge. If not, do you plead guilty to the DUI, do you request a trial before the Judge (as a jury trial would only be available in Fulton County State Court), or do you "bind" your case over to Fulton County State Court for other alternatives, such as trying to persuade another prosecutor to reduce your DUI or to have either a trial before the Judge sitting without a jury or a jury trial. So, in summary, you will receive other court dates following the tendering of your plea of not guilty wherein you will have ample opportunity with your attorney to decide your best course of action.

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  • The best course of action for a person charged with possession of marijuana; student needs to keep financial aid as well as DL

    Less than an ounce was found in attic and trunk of car @ home. Searched under suspicion of burglary 2 BLOCKS FROM HOME!!

    Howard’s Answer

    You need to hire an attorney so that he can advise you whether the State can use the marijuana against you inasmuch as the discovery of the marijuana by law enforcement may have been the product of an illegal search and seizure. In making this determination, several factors need to be reviewed by your attorney: (1) Were the searches authorized by a search warrant or were they based upon the homeowner, you or another person providing consent for the searches and seizures. The basis of the activity: that is, a warrant or consent, will then require your attorney to review many factors to render an opinion as to the legality of the police conduct. Assuming that your attorney reaches the opinion that the discovery of the marijuana was lawful and that you can be prosecuted for possession of marijuana, you and your attorney need to review what defenses are available to you regarding the charge of possession of the marijuana. In this regard, how will the State prove that you were in knowing possession of the contraband? Who else lived in the house? Who had access to the attic and the vehicle? Who is the owner of the house? Who is the owner of the vehicle? Did you make any admissions to the police? If so, were you at the time of the making of the admissions in custody, so that you should have been advised of your constitutional right to remain silent. The concept of custody can come into play even if there has not been a formal arrest. Finally, if your attorney decides that a plea would be approriate, then you and your attorney need to review the various sentencing options that are available to you. In this regard, see O.C.G.A. Section 16-13-2; the Georgia First Offender Act under O.C.G.A. Section 42-8-60; and Pretrial Diversion with the right of expungement of your arrest.

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  • How much time for aggravated assault false imprisonment and three counts of child endangerment

    I am going up against these three crimes an needed to know how much time I am looking at max.

    Howard’s Answer

    The crime of aggravated assault carries a maximum penalty of 20 years of imprisonment, unless it involves an assault with intent to rape a child under the age of 14, where the penalty is imprisonment for not less than 25 nor more than 50 years. The crime of false imprisonment carries a maximum penalty of 10 years of imprisonment. Keep in mind that the sentencing and punishment provisions of O.C.G.A. Section 17-10-6.2 will apply if the aggravated assault and/or the false imprisonment are deemed to be "sexual offenses" under Section 17-10-6.2. Therefore, if the victim of either of these offenses is under the age of 14 and the assault is with the intent to rape this child or if the child is under the age of 14 and is not the child of the defendant for purposes of analysis under the false imprisonment statute, you will be subject to the sentencing and punishment provisions of Section 17-10-6.2. The crime of cruelty to children in the first degree carries a maximum penalty of 20 years of imprisonment, whereas the crime of cruelty to children in the second degree carries a maximum penalty of 10 years of imprisonment. The crime of cruelty to children in the third degree is punished as a misdemeanor, which carries a punishment of up to 12 months in jail, unless the conviction constitutes a third or subsequent offense of cruelty to children in the third degree, which then constitutes a felony with a maximum of 3 years of imprisonment. The degree of the offense of cruelty to children depends upon the facts of each case. As you can see, these are very serious offenses and you need to retain the services of a good criminal defense attorney as soon as is possible.

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  • I am being charged with Theft by Receiving a firearm .what am i facing. how can i clear this

    its my first time going to court for anything . the fire arm was stolen by a kid an i seen him playing with it so i took it from him an gave it to the parents..

    Howard’s Answer

    In order for you to be found guilty of being in possession of stolen property the State has to prove that you knew, or had reason to know, that the property (in your case a firearm) was indeed stolen. The facts of your question indicate no such knowledge on your part. Inasmuch as your story (if such is what actually transpired) demonstrates no culpable knowledge, such veresion of the facts, coupled with your lack of any criminal record, should make valuable points for a presentation by your attorney to the prosecutor to dismiss the charge. I strongly urge you to undergo a non-stipulated polygraph examination by a reputable and qualified polygraphist, which examination should be set up by your attorney. Should the examination support your story, your attorney will then use the test result to advocate on your behalf with the prosecutor. If you have not retained an attorney you should do so now and have him fight for you. If my office can be of assistance to you, do not hesitate to contact us. Good luck to you.

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  • I live in ga and I just found out I have a warrant in texas. What can I do?

    Will it show up if i get pulled over here in ga or can my employer find out thru a background check?

    Howard’s Answer

    Depending upon the nature and severity of the charge contained in the warrant, I am of the opinion that this warrant may show up if you are stopped for a routine traffic violation and the officer runs a computer background check on you. Also, there is the issue whether the State of Texas would extradite you from Georgia to Texas, if you were detained in Georgia on the Texas warrant. Much of this depends on the nature of the offense. For example purposes, if the warrant is for a corporate embezzlement of some $500,000.00 as compared to a shoplifting charge of $25.00, the question probably would be answered YES: it may "show up if you get pulled over here in georgia" and Texas probably will seek to extradite you from Georgia to Texas. As to your second question, inasmuch as you have not been arrested and/or convicted of this charge, I do not think your employer would learn about this pending arrest warrant asyour fingerprints have not been enterd into AFIS, which is the Automated Fingerprint Identification System. You need to retain an attorney who can contact the arresting jurisdiction and inquire about the nature of the offense, your chances of being able to turn yourself in (if your attorney deems such to be advisable), the prospect of extradition, and whether an amount of bond can be agreed upon between the State and your attorney.

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  • My son who is disabled was caught in macon georgia shoplifting.The item was valued at 80.00.

    We know nothing about court systems.He has to be in magistrate court on Oct.8th.Do we need an attorney or what should he do? Please Help

    Howard’s Answer

    The maximum penalty for the conviction of a misdemeanor offense of shoplifting is jail time of 12 months and payment of a fine of $1,000, plus court costs. You should hire an attorney and have that attorney try to persuade the solicitor to place your son in a pretrial diversion program, with the special condition that upon successful completion of the terms of the program, you will be able to have the arrest expunged from your son's record. If this is agreed to by the prosecutor, the end result will be no arrest and no conviction on your son's record. It will be as if this unfortunate incident never happened.

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  • Speeding ticket at the bottom of hill or 42mph in a 25mph zone but the street is actually a 30mph zone. What should I do?

    I got the ticket at the bottom of a hill where the posted speed limit is 30mph. The officer was driving in the other direction and had to turn around on a side street in order to follow me home (into my driveway) to give me the ticket. He said I w...

    Howard’s Answer

    My answer assumes that this ticket was issued in Georgia and that you presently have a Georgia driver's license. One method of handling this traffic violation without going to trial would be for you to plead to the offense as it will not result in any points on your driving record inasmuch as the officer wrote the ticket for you exceeding the speed limit by less than 14 miles per hour. See O.C.G.A. Section 40-5-57 (c)(1)(A). Also, based upon my experience, depending upon your driving history and the court you have to appear in, the solicitor may be willing to drop the ticket after you explain your situation and perhaps agree to perform some community service.

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  • False battery charge

    My ex-boyfriend and I got into a fight last night that consisted of me slapping him in the face many times before he pulled me off of him (he's 6'6" and I'm 5'4" so if he had wanted to hurt me, he could have), but my roommate thought he had hit me...

    Howard’s Answer

    Although a victim's wishes will not always be followed by a prosecutor, often a prosecutor will take them into consideration when deciding whether or not to prosecute an offense. However, in domestic violence situations, police officers and prosecutors may be more hesitant to drop the charges as victims in those situations often deny being hurt to protect their significant other. The prosecutor will most likely look at your ex-boyfriend's criminal history before making a determination on whether or not to prosecute. If he has a prior history of this type of behavior, the prosecutor may be less willing to drop the charges despite your pleas to the contrary. Certain jurisdictions in Georgia also have special domestic violence courts that can recommend periods of "monitoring" or anger management classes, the sucessful completion of which may result in a dismissal of the charges against your ex-boyfriend. Depending on where the incident occurred, your ex-boyfriend may be eligible for such treatment. Thus, while there are certainly options that may result in the dismissal of these charges, it is important to have an attorney hired as soon as possible to represent your ex-boyfriend in this matter.

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