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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Criminal Law
Satisfied Customers: 11688
Experience:  Licensed Texas General Practice Attorney
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My son is 19. He is mentally handicapped. Yesterday he took

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My son is 19. He is mentally handicapped. Yesterday he took Baking soda to school and tried to buy tobacco with it. The other boy turned him in to the principal. He ended up in jail all day and was released on his own OR. There were 2 chunks about 3/8" in sz. He does not work. We can not afford an attorney. What do we do and if he gets jail time - what can he get for this?
Submitted: 4 years ago.
Category: Criminal Law
Expert:  ScottyMacEsq replied 4 years ago.
Chat Conversation Started
ScottyMacEsq : Thank you for using JustAnswer. I am researching your issue and will respond shortly.
ScottyMacEsq : Has he been charged with anything? Basically, why was he arrested?
Customer :

let me look on the yellow paper they gave him and see if there's anything on there

Customer :

ant read it but in the remarks area it says he attempted to trade/sell 2 hard rock like substances as 'crack cocaine'

Customer :

are you there?

ScottyMacEsq : Yes, I'm here.
ScottyMacEsq : What does he say in regards XXXXX XXXXX situation?
Customer :

about what he did?

ScottyMacEsq : Yes. Did he say that he was representing these to be cocaine?
Customer :

He admitted right away to the principal and the police that he wanted it to look like drugs and was going to try to trade it for tobacco

Customer :

he said cocaine or crack

Customer :

where it say offence on here it says: Poss/?/Distri. w/intent imitation controlled substance

Customer :

16-13.30.1

ScottyMacEsq : Basically, someone can be arrested and prosecuted for drug laws, even though they were not real drugs. They can also be prosecuted for criminal fraud. Now the court is going to look at the equities of the situation.
ScottyMacEsq : The law states: (a) Any person who knowingly manufactures, distributes, or possesses with intent to distribute an imitation controlled substance as defined in paragraph (12.1) of Code Section 16-13-21 is guilty of a misdemeanor of a high and aggravated nature.
Customer :

is this considered a felony?

ScottyMacEsq : If you are convicted of a misdemeanor of high and aggravated nature you will face up to one year in prison and fines up to $5,000.
ScottyMacEsq : No, it's a misdemeanor, but the highest one there is.
ScottyMacEsq : Now generally speaking the court is not going to do this, especially if there is no record, and because of his handicap.
Customer :

he has no $.

Customer :

he has no record though

ScottyMacEsq : If he is charged (the DA has to charge him with the crime) at that point you can petition the court for representation. You will have to file an affidavit of indigence (called a pauper's affidavit) and the court will appoint an attorney for you.
ScottyMacEsq : That's good for him. Think about criminal trials in two stages: (1) guilt and innocence stage and (2) punishment stage. The guilt and innocence stage is focused solely upon whether he did the crime or not. IF it is determined that he did, then it goes to stage 2, punishment. That looks at the equities of the situation, and how hard we should treat him. Someone with no record, with mitigating factors, etc..., is going to get a much easier sentence (probably probation and no fine).
Customer :

since he is 19 they will be expecting HIM to file this and NOT we, the parents?

ScottyMacEsq : The DA might even consider deferred prosecution or adjudication on this matter (which means that if he keeps out of trouble, this will go away after a certain period of time).
ScottyMacEsq : Ultimately, if you don't have a guardianship over him, then he will have to do this, but you can help him out. Now in court, his attorney is going to have to represent him (rather than you) but in all other things you can assist him in this matter.
Customer :

we don't have any kind of guardianship.

ScottyMacEsq : In this instance, then, you will need to guide him, but he has ultimate say over how he handles things. Now you can fill out the affidavit for him, but he'll have to sign.
ScottyMacEsq : At that point, the court will grant him an attorney, and the attorney will handle all the legal matters.
ScottyMacEsq : But your son will have ultimate say over whether he should take any deals that the prosecution offers, etc...
Customer :

do we do this aff. now? He is mentally 10 yrs. old

ScottyMacEsq : No. In this instance, you should wait until he is charged with something.
Customer :

he don't understand a bit of this.

ScottyMacEsq : And by "charged" I mean actually indicted. You should check regularly with the DA and the police department to see if he is charged.
Customer :

ok

ScottyMacEsq : This might be a situation where a guardianship could come in handy. When an adult does not have the capacity to care for him or herself, the court will grant to someone else guardianship over that person.
ScottyMacEsq : You should speak with a guardianship attorney if that is a route that you want to go with.
ScottyMacEsq : But without a guardianship, then he has control over his own life (for better or for worse).
Customer :

will his attorney take into consideration that he don't understand and work according to that? How is he going to explain anything to him and he wilnot be able to understand anything

ScottyMacEsq : Like I said, as a parent you should advise him on what to do, etc... And you can work with the attorney. You should be there all the time that he works with his attorney. The attorney will take into consideration that he doesn't understand, and will use you to "interpret" things for him.
ScottyMacEsq : That is, communicate it best to your son.
Customer :

the court will appiont someone for this matter as guardian seeing he has no one now?

Customer :

we can't afford an attorney or guardian ship

ScottyMacEsq : The court may appoint someone, but it does not have to. I'm not sure about Georgia, but a criminal court might not even have the jurisdiction to do so.
ScottyMacEsq : One moment...
ScottyMacEsq : You can go to this site: http://www.gaprobate.org/forms_pdf.php
ScottyMacEsq : There are forms that can be used to apply for guardianship.
ScottyMacEsq : You can do this without an attorney.
ScottyMacEsq : These forms have instructions on them, so you can find out what to do.
Customer :

what is this?

ScottyMacEsq : They have to be filed in the probate court of your county.
ScottyMacEsq : For instance, form 11 is a petition for emergency guardian.
ScottyMacEsq : That way you could handle your son's affairs with the authority to sign on his behalf, if you were to get the guardianship.
Customer :

would that be the one for us to use?

ScottyMacEsq : To be honest I'm not sure. But I would think so.
Customer :

I DO NOT want ot be responsible for his actions though. Is this going to effect me and wil I be responsible for the $ if he gets a fine of some sort?

ScottyMacEsq : You're not going to be responsible for his actions. You will have the authority to act on his behalf, but if he gets a fine, it is not going to go to you. It still stays with him. That is, they cannot come after you for the payment out of your own funds.
Customer :

if I had guardinship - will be they be looking at me to pay for an attorney for him?

ScottyMacEsq : Now if he has any assets, such as a bank account, you could have the authority to pay the fine for him out of his assets (that is what a guardian is) but the guardian is not personally liable for it.
Customer :

no, he has no $ at all

Customer :

so for now should I fild this form and just wait to see if he is charged with something before we can do anything else?

Customer :

"file" this form

ScottyMacEsq : Personally, I would wait and see if charges are filled first.
ScottyMacEsq : In order for him to be charged, the police are going to have to make a determination that there is enough evidence to charge him for this crime.
ScottyMacEsq : And then they send it up to the DA.
ScottyMacEsq : The DA is going to have to determine whether he wants to prosecute or not.
ScottyMacEsq : This is called prosecutorial discretion, in that the DA does not have to prosecute every case that comes across his desk.
Customer :

so should I file the guradianship form now or later?

ScottyMacEsq : Like I said, I would wait. If he gets charged, that would be cause for the court to grant an emergency guardianship. But at this point it is just speculative.
ScottyMacEsq : But if he does get charged, you can file for emergency guardianship, and at that point also file (with the criminal court) an application of indigence. The court is not going to expect you to pay for your son. What a guardianship is is a control over another's "estate", which can be his "person" (ability to control medical, custody, etc...) and his "financial estate" (his assets and obligations). It is not liability for his debts, or obligating yourself personally.
ScottyMacEsq : So you can fill out the affidavit on his behalf, and truthfully state that he has no money.
ScottyMacEsq : If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. Thank you, XXXXX XXXXX good luck to you!
ScottyMacEsq, Lawyer
Category: Criminal Law
Satisfied Customers: 11688
Experience: Licensed Texas General Practice Attorney
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