2013 CUMULATIVE UPDATE TO THE

GEORGIA

PROBATE COURT

CRIMINAL BENCHBOOK

David Hobby, Judge

Ben Hill County Probate Court

INTRODUCTION TO 2012 UPDATE

The 2012 update to the Probate Judges Criminal/Traffic Benchbook contains an update

to several chapters of the Benchbook, and also a new chapter on Motions and an overview of

the changes in the Evidence Code that the traffic judge will most often encounter. New laws of

interest passed in 2012 and signed by the Governor are included in Chapter 2, and the court

decisions relating to the Traffic Benchbook are set forth in the affected chapter. A new section

(7.8.7) has been added dealing with pleas in absentia. A new section has been added regarding

handling citations for driving on suspended registration and a form letter for use when

insurance coverage must be determined is also included (form 18-72). This form is courtesy of

Hon. Michael Greene, Judge, Municipal Court of Americus.

The DDS has updated its Handbook, which can be downloaded from its website. The link

is provided in the resources section of the Benchbook.

INTRODUCTION TO 2013 UPDATE

The 2013 Update has been combined with the 2012 update. The additions for 2013 are

italicized. Important statutory changes for 2013 include the revision of the expungement laws

and reducing the BAC limit for hunting and boating to .08. The JQC has become very active, and

areas of its’ concern are addressed in Ch. 1 updates. A section has been added to the Evidence

Appendix which sets out in succinct terms some common evidentiary issues which Judges will

often encounter.

Contents of Combined 2012 & 2013 updates CHAPTER 1 - JUDICIAL ETHICS ............................................................................................................... 7

1.12 ANOTHER JUDGE RESIGNS .................................................................................................... 7

1.13 JQC Focus Issues 2013 ............................................................................................................... 10

USE OF ELECTRONIC SOCIAL MEDIA ....................................................................................................... 10

PUBLIC ACCESS TO THE COURTS ..................................................................................................... 10

ASSESSMENT OF COURT COSTS ........................................................................................................ 10

CHAPTER 2 – STATUTORY AUTHORIZATIONS ..................................................................................... 11

2.3 CRIMINAL JURISDICTION OF PROBATE COURTS ........................................................... 11

2.3.5 Multiple Violations ................................................................................................................. 11

2.3.6 No Waiver of Jurisdictional Requirement ............................................................................... 11

2.5.1 New Laws of Interest for 2012 ............................................................................................... 11

2.6 NEW STATUTORY LAWS OF INTEREST FOR 2013 ................................................................ 14

CHAPTER 3 – CITATIONS, SUMMONS AND ARRESTS ......................................................................... 16

3.3 UNIFORM TRAFFIC CITATION ............................................................................................. 16

3.3.8 Research Reference ................................................................................................................. 16

3.5 ARREST ..................................................................................................................................... 16

3.5.2 Warrantless Arrest................................................................................................................... 16

3.5.2.1 Requirements for Warrantless Arrest ...................................................................................... 16

3.5.4.2 FAILURE TO APPEAR ........................................................................................................... 16

CHAPTER 4 – PRETRIAL RELEASE AND BONDS .................................................................................. 17

4.2.7 BOND CONDITIONS ............................................................................................................. 17

4.3.4 TRANSFER OF BOND ............................................................................................................ 17

CHAPTER 6 – CRITERIA FOR CONVICTION OF SELECTED TRAFFIC OFFENSES ......................... 18

6.0 COMMON TRAFFIC OFFENSES ............................................................................................ 18

6.2 Speeding. Code Section 40-6-181 ............................................................................................... 18

6.2.3 Officer Opinion ....................................................................................................................... 18

6.3.1 RECKLESS DRIVING ............................................................................................................. 18

6.5 DRIVING WITHOUT A VALID OPERATOR’S LICENSE .................................................... 18

6.5.2 Driving without a license. code section 40-5-20 ..................................................................... 18

6.5.3 Required notice for suspensions ............................................................................................. 19

6.5.4 Foreign driver’s licenses ......................................................................................................... 19

6.8 FLEEING OR ATTEMPTING TO ELUDE. CODE SECTION 40-6-395 ................................ 19

6.8.2 Statute Change ......................................................................................................................... 19

6.13 Failure to Use Turn Signal. Code Section 40-6-123. .................................................................. 19

6.14 Driving on Suspended, Canceled or Revoked Registration. OCGA 40-6-15. .............................. 20

6.15 OPEN CONTAINER. Code Section 40-6-253 ........................................................................... 21

CHAPTER 7 – ARRAIGNMENT AND PLEAS ........................................................................................... 22

7.8 ARRAIGNMENT PROCEDURE, GUILTY PLEAS AND WAIVER OF RIGHTS ..................... 22

7.8 (a) OATHS .................................................................................................................................... 22

7.8.1 Knowing and Voluntary Waiver of Rights ............................................................................. 22

7.8.2 FACTUAL BASIS FOR THE PLEA ........................................................................................ 22

7.8.3 Procedure When No Prosecuting Attorney is Present ............................................................. 23

7.8.6 Guilty Pleas ............................................................................................................................. 23

7.8.7 Withdrawal of Guilty Pleas ..................................................................................................... 23

7.8.8 Pleas in absentia ...................................................................................................................... 24

7.9.1 RIGHT TO COUNSEL ............................................................................................................ 24

7.9.5 FAILURE TO APPEAR FOR ARRAIGNMENT .................................................................. 24

7.9.5.1.1 License suspension ................................................................................................................ 25

7.9.5.2 Other Appearance Bonds ....................................................................................................... 25

CHAPTER 11 - DISCOVERY ..................................................................................................................... 26

11.7 DISCOVERY IN DUI CASES ...................................................................................................... 26

11.7.1 REQUEST FOR INTOXILYZER SOURCE CODES ............................................................... 26

11.8 LEO PERSONNEL FILE ............................................................................................................... 26

CHAPTER 11A MOTIONS ...................................................................................................................... 27

11A.1 Introduction ............................................................................................................................... 27

11A.2 MOTIONS TO SUPPRESS ...................................................................................................... 28

11A.3 MOTIONS IN LIMINE .............................................................................................................. 29

11A.4 OTHER MOTIONS .................................................................................................................... 29

11A.4.1. DEMURRERS ......................................................................................................................... 29

11A.4.2. MOTIONS TO COMPEL ....................................................................................................... 30

11A.4.3. MOTIONS FOR CONTINUANCE ........................................................................................ 30

11A.4.4. MOTIONS TO WITHDRAW PLEA ...................................................................................... 30

CHAPTER 12 - TRIAL PROCEDURE........................................................................................................ 32

12.1.1 Public Access to the Courts ...................................................................................................... 32

12.3 SPEEDY TRIAL .......................................................................................................................... 32

12.4 OATH .......................................................................................................................................... 32

12.5 CONTINUANCES ....................................................................................................................... 32

12.6 RULE OF SEQUESTRATION .................................................................................................... 32

CHAPTER 13 - SENTENCING ................................................................................................................... 33

13.1 PUNISHMENT ............................................................................................................................. 33

13.1.2 Misdemeanor and Civil Punishment .......................................................................................... 33

13.6 G COSTS ........................................................................................................................................ 33

13.6 D.1. MERGER ................................................................................................................................. 33

13.6. D.2 RESENTENCING .................................................................................................................... 33

13.7.3 Title 40 offenses .......................................................................................................................... 33

CHAPTER 14 - CONTEMPT ...................................................................................................................... 35

14.5.2 CASES ..................................................................................................................................... 35

CHAPTER 15 - PROBATION REVOCATION ............................................................................................ 36

15. REVOCATION OF PROBATION/SUSPENDED SENTENCE .................................................... 36

15.2 Procedure for Hearing .................................................................................................................... 36

D. No Double Jeopardy Protection ..................................................................................................... 36

15.3 GROUNDS FOR REVOCATION................................................................................................. 36

b. Failure to Pay Restitution and Fines ............................................................................................... 36

15.4 C. NOTICE ...................................................................................................................................... 36

CHAPTER 16 - APPEALS .......................................................................................................................... 37

16.4 HABEAS CORPUS .......................................................................................................................... 37

CHAPTER 17 - COURT OPERATION ....................................................................................................... 38

17.9 Public Access to the Courts ........................................................................................................ 38

17.10 ASSESSMENT OF COURT COSTS ............................................................................................. 38

17.10.1 Probate Judges Retirement Fund surcharge .............................................................................. 38

17.11 EXPUNGEMENT/ RESTRICTED ACCESS TO CRIMINAL HISTORY INFORMATION -

OCGA 35-3-37 ........................................................................................................................................ 39

CHAPTER 18 - FORMS .............................................................................................................................. 40

18-46.1 CERTIFICATE OF ELIGIBILITY FOR IGNITION INTERLOCK LIMITED DRIVING

PERMIT 40

18-43.1 2/5 DUI DRIVERS’ LICENSE SUSPENSIONS AND INTERLOCK REQUIREMENTS . 43

18-71 INSURANCE COVERAGE LETTER ................................................................................ 46

APPENDIX B. EVIDENCE ......................................................................................................................... 47

II. Changes in the New Evidence Code ................................................................................................. 47

1. INTRODUCTION ................................................................................................................................. 47

2. APPLICABILITY .................................................................................................................................. 47

3. CONFESSIONS AND PRE-TRIAL HEARINGS................................................................................. 48

4. DETERMINING ADMISSIBILITY OF RELEVANT EVIDENCE .................................................... 48

5. CHARACTER EVIDENCE .................................................................................................................. 48

6. CHARACTER WITNESSES ............................................................................................................... 49

7. IMPEACHMENT .................................................................................................................................. 49

8. IMPEACHMENT – PRIOR CONVICTIONS ...................................................................................... 49

9. IMPEACHMENT – PRIOR INCONSISTENT STATEMENT ............................................................ 50

10. IMPEACHMENT – REHABILITATION ............................................................................................ 50

11. INDEPENDENT CRIMES AND ACTS .............................................................................................. 50

12. STATEMENTS AGAINST INTEREST ............................................................................................. 50

13. HEARSAY ........................................................................................................................................... 51

14. BEST EVIDENCE RULE ................................................................................................................... 51

15. AUTHENTICATION OF DOCUMENTS – NON PUBLIC ............................................................... 51

16. AUTHENTICATION OF THINGS ..................................................................................................... 52

17. SEQUESTRATION OF WITNESSES ................................................................................................ 52

III. COMMON EVIDENTIARY ISSUES ................................................................................................. 52

CHAPTER 1 - JUDICIAL ETHICS

1.12 ANOTHER JUDGE RESIGNS

The following is a news article concerning the resignation of a Superior Court Judge

during a JQC investigation. Though this is only a news article and may not be totally accurate, it

is none the less informative. The JQC investigation was focused on “whether the judge allowed

her social or professional relationship to influence her judicial conduct or judgment on behalf of

Stringer.” The judge had contacted another judge before whom Stringer’s case was pending, to

apparently request special consideration for her friend.

1.13 JQC Focus Issues 2013

USE OF ELECTRONIC SOCIAL MEDIA

Judges’ use of electronic social media (ESM) such as Facebook, Twitter, Tumblr, etc. is

growing as an area of trouble. Two Superior Court judges resigned in 2012 because of their

conduct on ESM.

At present, Georgia does not have a specific canon regarding ESM usage by judges, but

judges are advised to be very cautious of their online activity and ever mindful of the appearance

of impropriety. Of course, commenting on a case or communicating with parties or witnesses

online is forbidden, nor should a judge give advice online of any kind relating to his court.

Judges need to be aware of who they “friend” as such may be the basis for a conflict complaint.

PUBLIC ACCESS TO THE COURTS

Another area of concern to the JQC is courts that prevent public access to their courts.

Not only may a judge incur JQC punishment, but also civil lawsuits such as currently is pending

in federal court against the Superior Court Judges of the Cordele Circuit.

The judge is responsible for insuring access is open to the court. If space limitations are

an issue, the judge must make other arrangements, such as moving court to a larger venue,

holding court more frequently, or other reasonable actions as may be appropriate.

Though dress codes are permissible, before a defendant can be denied access based

thereon, a procedure for advance notice should be in existence. Suggestions include having the

officer hand out a copy of the dress code at the time of issuance of the citation, sending a letter

to the defendant prior to the court date, or keeping a jacket handy.

Likewise, denying access to a defendant because they have a small child is not

permissible. The court needs to make reasonable accommodations for these persons, such as

taking their case first.

ASSESSMENT OF COURT COSTS

One other problem mentioned by Mr. Jefferson Davis, JQC Director, is courts assessing

unauthorized costs. Courts can only add on as court costs or fees those EXPLICITLY authorized

by statute. The JQC is of the opinion that if there is not a state statute authorizing the fee, it

can’t be assessed against a defendant.

CHAPTER 2 – STATUTORY AUTHORIZATIONS

2.3 CRIMINAL JURISDICTION OF PROBATE COURTS

2.3.5 Multiple Violations

b) When 1) all charges in different jurisdictions arise from the same course of conduct,

and 2) there is one court that has jurisdiction over all the charges, and 3) where prosecutor

knows of charges pending in other jurisdiction; then double jeopardy is created when prosecutor

proceeds with case in his jurisdiction. DEAN V. THE STATE, 309 Ga. App. 459 (2011)

2.3.6 No Waiver of Jurisdictional Requirement

a) Jurisdictional issues cannot be waived. Even an unconditional plea of guilty cannot

waive a jurisdictional issue. HILL V. THE STATE, 309 Ga. App. 531 (2011)

2.5.1 New Laws of Interest for 2012

1. HB 827 amended 40-6-395 relating to a fleeing or attempting to elude a police officer by

deleting the provision in (b)(5)(A) that previously required that in order for fleeing to constitute a

felony, the state had to prove the person was attempting to escape arrest for any offense, other

than a violation of Chapter 6 of Title 40. This change shall only apply to offenses committed on

or after July 1, 2012.

2. 40-6-395 was amended by HB351 to increase the add-on fee in criminal or traffic cases

to $3.00 for the Probate Courts Retirement Fund. Effective July 1, 2012.

3. 40-5-39 was added to require an endorsement “C” on limousine chauffeurs license, rather

than have a separate chauffeur permit card. Effective July 1, 2012.

4. HB 1176 revised OCGA15-10-260 to grant Magistrate Courts jurisdiction (doesn’t affect

Probate Courts jurisdiction) over possession of marijuana less than one ounce; furnishing alcohol

beverages and purchase and possession of alcoholic beverages by a minor pursuant to OCGA 3-

3-23; and criminal trespass per OCGA 16-7-21. Effective July 1, 2012.

5. 15-18-80 relating to the pretrial intervention and diversion program was amended by HB

1176 by increasing the maximum program fee from $300.00 to $1,000.00. This fee may be

waived in whole or part, or made payable in monthly increments upon a showing of good cause

to the prosecuting attorney. This shall apply to offenses which occur on or after July 1, 2012.

6. 15-21-100 was amended by HB 1176 relating to the fine surcharge for the County Drug

Abuse Treatment and Education Fund to impose as an additional penalty a sum equal to 50

percent of the original fine for violation of:

1) Code Section 3-3-23.1

2) Code Section 40-6-391; or

3) Code Section 40-6-393 or 40-6-394 if offender also charged with a violation of Code

Section 40-6-391.

This should apply to offenses that occur on or after July 1, 2012.

7. O.C.G.A. 35-3-34 relating to disclosure and dissemination of criminal records to private

persons and businesses was amended by HB1176 as follows:

(D) The center shall not provide records of arrests, charges or dispositions when access has been

restricted pursuant to Code Section 35-3-37. The effect of this amendment will require most

criminal histories to be automatically restricted from the public unless a conviction resulted from

the arrest. The records are not expunged and are still available to law enforcement and judicial

officials. Effective July 1, 2013.

8. SB236 amended Code Section 40-5-57.1 (b) adding (2)(A) and (B) which provides upon

a second conviction within 5 years of an < 21 driver, his/her license shall be suspended for 18

months; and (C) upon a third conviction within 5 years, he/she shall be considered a habitual

violator and such person’s license shall be revoked.

9. SB236 amended Code Section 40-5-64 relating to issuance of limited driving permits for

certain offenders, as follows:

(a)(2) Any person whose license has been suspended as a result of a second conviction of 40-6-

391 may apply for a limited driving permit after a 120 day suspension, provided he provides

either a certificate of eligibility from a drug court program or proof of enrollment in clinical

treatment as provided in Code Section 40-5-63.1.

10. SB236 amended Code Section 42-8-111, relating to Court ordered installation of ignition

interlock devices, as follows:

Upon a second or subsequent conviction for violating Code Section 40-6-391 within 5 years, the

court shall issue a certificate of eligibility for an ignition interlock devise, limited driving permit

or probationary license, subject to the following conditions:

1) Person must install in each vehicle registered in his name a certified ignition interlock device

for a period of not less than eight months;

2) Upon successful completion of eight months of use of the ignition interlock device, said

device may be removed and the limited driving permit renewed for an additional six months.

3) Person shall participate in a substance abuse treatment program or a drug court program for a

period of not less than 120 days.

The court may, in its discretion, decline to issue a certificate of eligibility for an IID limited

driving permit or probationary license for any reason. The court may exempt a person from any

or all ignition interlock device requirements upon a determination that it would cause an undue

financial hardship.

(C) The court shall include in the record of conviction submitted to DDS a copy of the certificate

of eligibility for an IID limited driving permit or probationary license or documentation of the

court’s decision to decline to issue such certificate.

11. SB236 amended Code Section 42-8-112, relating to proof of compliance required for

reinstatement of certain drivers’ licenses and for obtaining probationary license as follows:

(a)(1) in any case where court has issued a certificate of eligibility for an IID limited driving

permit or probationary license to a person whose license is suspended pursuant to (b)(2)(C) of

Code Section 40-5-57.1 or paragraph (2) of subsection (a) of Code Section 40-5-63, DDS shall

not issue an IID limited driving permit until the expiration of 120 days from the date of the

conviction.

12. SB236 amendments shall become effective January 1, 2013.

13. HB 795 amended OCGA 40-1-1 (3) relating to the definitions of “all-terrain vehicle.”

Also amended were paragraphs 8.1 and 8.2 relating to the definitions of Class I, II, and III all-

terrain vehicles.

A new definition was added for “Recreational off-highway vehicles.” OCGA 40-7-3 was

amended relating to defining “off-road vehicle.”

Effective May 1, 2012.

14. HB 869 extensively revised Title 27 relative to salt water fishing. Effective May 1, 2012.

15. HB 985 amended Title 40 relating to extensions of temporary license plates (OCGA 40-

2-8), and amended OCGA 40-2-74.1 relating to special motor vehicle decals for persons with

disabilities. Effective July 1, 2012.

16. SB 309 amended OCGA 27-2-4.3 to authorize issuance of special hunting privileges to

persons with a terminal illness. Effective July 1, 2012.

17. SB 319 amended Title 12 relating to the use of boats in the waters of state parks, historic

areas and recreational areas. Effective July 1, 2012.

18. SB 364 amended OCGA 27-2-23 relating to the issuance of a new one day salt water

shore fishing license and relating to commercial crabbing licenses and to provide penalties for

the unlawful taking of crabs from the traps of another. Effective July 1, 2012.

19. HB 865 enacted the “Georgia Motor Common and Contract Carrier Act of 2012”, which

transfers the function of regulating motor carriers and limousine carriers from the Georgia Public

Service Commission to the Georgia Department of Public Safety. Effective July 1, 2012.

2.6 NEW STATUTORY LAWS OF INTEREST FOR 2013

OCGA 40-1-8 (b)(2)(A) modified the age for operating a motor carrier . For intrastate

operations, the age remains at 18, but for interstate operation, the minimum age is 21. Section

(h) was added to require seatbelt usage in motor carriers.

OCGA 40-5-63 (a)(2) provides for the mandatory use of ignition interlock devices

following a second conviction for DUI for one year, unless waived due to financial hardship.

Effective July 2013.

OCGA 40-5-21.1 (c) was added to authorize the issuance of a temporary driving permit

to any noncitizen applicant whose Georgia driver’s license has expired, or will expire within 30

days. Effective January 1, 2014. (Information only. Temporary driver’s license are issued by

DDS)

OCGA 15-21-179 was amended to authorize the continuation of the surcharge for

“Joshua’s Law.” Effective May 6, 2013.

OCGA 40-5-76 provides that a drug court or mental health court may restore a

defendant’s suspended driver’s license or issue a limited driving permit. This applies to offenses

which occur on or after July 1, 2013. (Note: This is for your information. The statute only

applies to drug and mental health courts.)

OCGA 15-9-150 allows a probate judge in a county where there is no state court to

request the district attorney of the circuit to prosecute criminal cases subject to the jurisdiction

of the probate court. If the district attorney is unable to assist the probate court, he or she shall

notify the probate court in writing. The probate judge may then request approval of the county

commission for appointment of a prosecuting attorney. Effective May 6, 2013.

OCGA 17-6-72 (d)(1) was amended to streamline the provisions related to remission of a

percentage of the bond amount to a surety after the production of the principal in court. Effective

May 7, 2013.

OCGA 35-3-37 regarding “Expungement”/ Restricted Access to Criminal History

Information became effective July 1, 2013.

Expungement of arrest records as we know it is no longer in existence. New OCGA 35-3-

37 replaced the old expungement procedure effective July 1, 2013. The term “expungement” is

no longer used in the revised code section. The code now uses the term “record restriction”.

This change will affect the information returned for non-criminal justice purposes, but

will not change the criminal history information availability for criminal justice purposes.

GCIC will now restrict records with no disposition if a misdemeanor arrest after 2 years.

(Longer time frames apply to felonies, violent felonies and felony sexual arrests). TER (time

expired restriction) will appear on the criminal history when a record has been restricted due to

time.

The restricted access to an individual’s criminal history record information shall be

restricted for the types of dispositions as set forth in (h) of this code section.

Subsection (m) provides a method for an individual to petition the court which had

original jurisdiction to seal all information relating to the charges. If the court determines that

the request satisfies the criteria set forth in this subsection, the court must within 60 days restrict

access to all criminal history information, including indexes, regarding the charges.

OCGA 27-3-7 was amended to lower the blood alcohol concentration level to be

considered intoxicated while hunting from .10 to .08, and changed the implied consent warning

accordingly.

OCGA 52-7-12 was amended to lower the blood alcohol concentration level to be

considered intoxicated while operating a boat from .10 to .08 and also added toxic vapors as an

intoxicating substance. This applies to all offenses occurring after May 15, 2013.

OCGA 52-7-12 (l) was added, to be effective January 1, 2014, which creates a separate

offense of endangering a child by operating a moving vessel or personal watercraft under the

influence if there is a child under 14 in a moving vessel, or being towed on water skis, or an

aquaplane, or a surfboard or similar device.

CHAPTER 3 – CITATIONS, SUMMONS AND ARRESTS

3.3 UNIFORM TRAFFIC CITATION

3.3.8 Research Reference

a) A thorough discussion of issues affecting the UTC can be found at §14.1 et.seq in The

Georgia DUI Trial Practice Manual by William C. Head and Frank T. Gomez, 2012 edition.

3.5 ARREST

3.5.2 Warrantless Arrest

3.5.2.1 Requirements for Warrantless Arrest

a) A LEO may arrest without a warrant when an offense is committed in his presence or within

his immediate knowledge. This is true even if the arrest is outside his jurisdiction. TAYLOR V.

WALDO, 309 Ga. App. 108 (2011). This also applies to campus police officers. SULLIVAN

V. STATE, 308 Ga. App. 114 (2011). The same requirements apply to the issuance of citations.

3.5.4.2 FAILURE TO APPEAR

The penalty for failure to appear for a traffic offense is found at OCGA 40-13-63. This

statute provides for a maximum fine of $200.00 OR by confinement in jail for period not to

exceed 3 days.

This fine can’t just be added to the citation, there must be a separate charging instrument

and opportunity for the defendant to be heard. There is also a “willfulness” element to the

offense.

Of course, the judge could consider the failure to appear in the setting of the fine for the cited

offense, as long as it does not exceed the statutory maximum.

CHAPTER 4 – PRETRIAL RELEASE AND BONDS

4.2.7 BOND CONDITIONS

Judges may impose bond conditions that are rationally related to a purpose other than

punishment. The defendant is not subjected to double jeopardy thereby. ALDEN V. STATE, 314

Ga. App. 439 (2012). In ALDEN, the defendant was given a bond in the amount of $15,000.00;

placed on home confinement; required to have an ignition interlock installed; required to wear a

“Secure Continuous Alcohol Monitor” and submit to a drug and alcohol evaluation and follow

any treatment recommendations.

4.3.4 TRANSFER OF BOND

If the charges are transferred to another court, such as when the defendant requests a

jury trial or the offense is a felony due to the frequency, the bondsman should be notified at the

time of transfer to the other court.

CHAPTER 6 – CRITERIA FOR CONVICTION OF SELECTED TRAFFIC OFFENSES

6.0 COMMON TRAFFIC OFFENSES

.

6.2 Speeding. Code Section 40-6-181

40-6-1

Even if the speeding fine is limited by Code Section 40-6-1, the defendant may still be

sentenced to 12 months jail or probation. JONES V. THE STATE, 308 Ga. App. 99, (2011)

6.2.3 Officer Opinion

a) Officer’s estimate of speed is sufficient to support a jury’s verdict. MILLER V. THE

STATE, 307 Ga. App. (2011). Therefore, not necessary that radar or laser devices be used to

establish speeding violation.

6.3.1 RECKLESS DRIVING

CASES: A conviction of reckless driving may be based on speeding alone (herein doing

32 mph over the speed limit, in a construction zone, after ingesting alcohol). However, the

conviction of speeding and reckless driving should be merged for sentencing. TRAVIS V.

STATE, 314 Ga. App. 280 (2012).

6.5 DRIVING WITHOUT A VALID OPERATOR’S LICENSE

6.5.2 Driving without a license. code section 40-5-20

a) Code section 40-5-20(a) is a safe harbor provision that allows a defendant to produce

a driver’s license that was valid AT THE TIME defendant was driving. COLOTL V. THE

STATE, Ga. App. A11A0997.

b) Violations of 40-5-20 are punished as provided in Code Section 40-5-121 (driving on

a suspended license), except for driving on an expired license, or driving without a license on the

person (40-5-29).

6.5.3 Required notice for suspensions

On any suspension arising from a conviction, notice is by operation of law and no further

notice is required. (e.g. DUI, No Insurance, Suspended Registration, Driving While License

Suspended, Leaving the Scene of Accident, Attempting to Elude, Racing on Highways and

Streets and Failure to Appear.) For suspensions based on a child support obligation, Safety

Responsibility Act, school suspensions, notice must be given to the driver before he could be

charged with driving on a suspended license. This notice may be either actual (certified mail) or

constructive (the driver knew about the suspension from another source such as an officer

informing the driver previously).

6.5.4 Foreign driver’s licenses

a) Georgia requires, in accord with the 1943 Convention on the Regulation of Inter-

American Automotive Traffic, an international drivers license and that the driver show that the

foreign license fulfills the requirements of the laws of that issuing country, that the foreign

drivers license was issued by a government agency authorized to issue such licenses, and if the

foreign license is offered as proof of these requirements, it must show on its face that it was valid

and authorized the driver to operate the type or class of vehicle being driven. The driver must

provide a translated copy of the license to satisfy these requirements. MEDINA V. THE STATE,

Ga. App. A11A1322 (2011).

6.8 FLEEING OR ATTEMPTING TO ELUDE. CODE SECTION 40-6-395

6.8.2 Statute Change

a) Effective July 1, 2012, the purpose of the fleeing is no longer an element of the

offense for felony prosecution.

6.13 Failure to Use Turn Signal. Code Section 40-6-123.

A turn signal is not required if changing lanes or making a turn without a signal is

reasonably safe. An officer may pull over a motorist for failing to signal when traffic conditions

require the use of such signal. Morgan v. State, 309 Ga. App. 740 (2011).

A driver, while waiting at a traffic light to turn green, who decided to turn right despite

not being in a dedicated turn lane, who utilizes a right turn signal, checked for traffic, then

turned right, is not guilty of making an illegal turn, nor would conduct provide reasonable

suspicion for a stop. STATE V. MINCHER, 313 Ga App. 875 (2012).

6.14 Driving on Suspended, Canceled or Revoked Registration. OCGA 40-6-15.

Most suspended registrations usually result from a lapse in insurance. (It will also result

from a second or subsequent DUI wherein the defendant is ordered to surrender any license

plate to vehicles registered in his name.) Current Department of Revenue (DOR) rules provide

that when a notice of termination of insurance is received from the insurance company, the

DOR will wait 30 days for new insurance coverage information to be transmitted. If no

information is received within that 30 day period, or information is received but displays that

for a period of 10 days there was no insurance coverage, a $25 lapse fee will be assessed by

DOR, and notice sent to the address on the vehicle registration. If payment is not made within

30 days of the letter’s date, the vehicle’s registration will be suspended. A notice will again be

sent to the vehicle owner advising of the suspension and assessing a reinstatement fee of $60

in addition to the initial $25 fee. (These rules may be found on the Department of Revenue

website at http://motor.etax.dor.ga.gov/motor/insurance/InsurancePenalties.aspx).

When the driver appears in court with his reinstatement receipt, the judge can

determine approximately how long the vehicle’s registration was suspended by the amount

paid. If only $25 was paid, the registration was never actually suspended, it was in a “pending

suspension” status, and the citation should therefore be dismissed.

If a fee of $85 was paid, the vehicle owner had been mailed two notices regarding this

matter. The vehicle’s registration had in fact been suspended.

It should be noted that erroneous suspensions do sometimes occur, usually when an

owner changes insurance companies, and the new insurer makes an error in the VIN number,

thereby causing the vehicle to appear uninsured on the DOR records. The citation should be

dismissed if that is the case. A sample letter to submit to the insurance company in included in

the updated forms herein.

A related statute which may be used for plea negotiations (not by the judge) is OCGA

40-2-8. This code section applies to any person owning or operating any vehicle without a

current registration. The penalty is the standard misdemeanor sentence, with no minimum fine

nor suspension of driver’s license.

This code section as noted also applies to “any person owning… any vehicle….” This

code section could therefore be used against the owner of an unregistered vehicle when

someone else is actually driving the vehicle. (The “knowingly drives” element of OCGA 40-6-15

is difficult to prove in this situation.)

6.15 OPEN CONTAINER. Code Section 40-6-253

a) State may show by circumstantial evidence (herein beer in the ice chest area of SUV)

that each defendant had equal access to the cooler. Therefore, State was able to support its theory

that all of the defendants were guilty of joint constructive possession of open containers.

Davenport v. State, 308 Ga. App. 140 (2011).

CHAPTER 7 – ARRAIGNMENT AND PLEAS

7.8 ARRAIGNMENT PROCEDURE, GUILTY PLEAS AND WAIVER OF RIGHTS

7.8 (a) OATHS

The failure of a defendant to be sworn in prior to his plea is not grounds for reversal

unless an objection to his unsworn testimony was made at the time the testimony was given.

BROWN V. STATE, 290 Ga 321 (2012).

7.8.1 Knowing and Voluntary Waiver of Rights

a) i) If a defendant who pleads guilty can show he was not specifically advised of each of

his three “BOYKIN RIGHTS”, his plea will be reversed. TYNER V. THE STATE, No.

S11A0253 decided June 20, 2011.

ii) Waiver forms may be used as some evidence to show that the Court did specifically

advise the defendant of his BOYKIN RIGHTS. BROWN V. THE STATE, S11A0949, decided

Nov. 7, 2011.

iii) The three “Boykin Rights” are:

1. The right to a jury trial

2. The right to confront witnesses against the defendant

3. The right against self-incrimination

b) Judges should not engage in plea negotiations. To do so may cause a defendant to

feel he is being coerced into pleading guilty, which would render his plea involuntary, requiring

a reversal of his guilty plea. EALEY V. THE STATE, 310 Ga. App. 893 (2011)

7.8.2 FACTUAL BASIS FOR THE PLEA

The failure of the trial court to establish on the record a factual basis for a guilty plea is

not grounds for relief in a Habeas action. BROWN V. STATE, 290 Ga. 50 (2012).

7.8.3 Procedure When No Prosecuting Attorney is Present

a) The factual basis for the plea may be satisfied by reading the UTC into the record, and

the defendant testifying in response to the Court’s questioning that he had received and

understood the charges against him. STALEY V. THE STATE, 309 Ga. App. 520 (2011).

7.8.6 Guilty Pleas

3.a. See 7.8.1 (a) i) & ii) above regarding Boykin Rights

7.d. see 7.8.2 & 3 above regarding establishing a factual basis for a plea.

7.8.7 Withdrawal of Guilty Pleas

a) The trial court lacks jurisdiction to allow a withdrawal of a plea after the term of court

has expired in which the defendant was sentenced pursuant to his plea. LOYD V. THE STATE,

288 Ga. 481 (2011).

b) A proceeding to withdraw a guilty plea is a critical stage of a criminal prosecution,

and the right to counsel applies. Trial court therefore has an obligation to provide counsel for

indigents, or obtain a valid waiver. FORD V. THE STATE, Ga. App. A11A1391 decided Oct.

14, 2011.

c) 1. A defendant has an absolute right to withdraw a plea before sentence is

pronounced;

2. Trial Court has jurisdiction to hear a motion to withdraw a plea only if motion filed

in same term of court in which the defendant is sentenced;

3. If, however, defendant files a motion to withdraw plea based on a void sentence,

and the sentence is void, he stands in the position of having pled guilty but not sentenced and

may withdraw his plea by right. (See c. 1. above). SPENCER V. THE STATE, 309 Ga. App. 630

(2011).

After sentence is pronounced, whether to allow the withdrawal of a guilty plea lies within

the trial court’s sound discretion. CRUZ v. STATE, 315 Ga. App. 843 (2012) citing BLASS V.

STATE, 293 Ga. App. 346 (2008).

7.8.8 Pleas in absentia

Pleas in absentia are pleas made without the defendant appearing in court. The issue for

the judge is if the plea is knowingly and voluntarily made and that the other legal requirements

for a valid plea have been satisfied. There is generally no issue as to not guilty pleas, but pleas

of guilty and nolo are a different matter.

Some judges will require the absent defendant to obtain local counsel for serious traffic

cases, have the defendant complete all the court forms, then have the attorney appear in court and

submit all the completed forms on the record and also specifically state compliance with all the

legal requirements.

Any fine the defendant will have to pay should be submitted before the plea is accepted,

or the court will have little ability to enforce. Additional sentence provisions such as community

service, defensive driving, etc. should also be completed before the plea is accepted.

Some judges are using SKYPE to take pleas for more serious traffic violations (as does

Judge Leslie Jones, Athens Clarke County Judge).

7.9.1 RIGHT TO COUNSEL

5. Judges must not only advise of rights to counsel at trial, but at sentencing.

FULLWOOD V. STATE, 290 Ga 335 (2012).

6. A defendant’s motion to withdraw a plea is a critical stage of the criminal prosecution,

and the defendant therefore has the right to an attorney. The trial court has an obligation to

provide counsel or obtain a constitutionally valid waiver of counsel. Douglas v. State, ___ Ga.

App. ____(2012), A12A1263.

7. Regarding defendants who elect to represent themselves at trial, the trial court is not

required to address with a defendant the six factors suggested in Bradley v. State, 298 Ga. App.

384 (2009). What is required is that the record show that the defendant was made aware of the

dangers of self-representation and nevertheless made a knowing and intelligent waiver. Cox v.

State, 317 Ga. App. 654(2012). (Form 18-66 in the Benchbook can be utilized).

7.9.5 FAILURE TO APPEAR FOR ARRAIGNMENT

The penalty for failure to appear for a traffic offense is found at OCGA 40-13-63. This

statute provides for a maximum fine of $200.00 OR by confinement in jail for period not to

exceed 3 days.

This fine can’t just be added to the citation, there must be a separate charging instrument

and opportunity for the defendant to be heard. There is also a “willfulness” element to the

offense.

Of course, the judge could consider the failure to appear in the setting of the fine for the

cited offense, as long as it does not exceed the statutory maximum.

7.9.5.1.1 License suspension

5. For speeding or other non-serious traffic offenses at arraignment, most judges

will send a DPS suspension notice if the driver had a valid driver’s license, but not issue a bench

warrant. If the defendant fails to appear for a bench trial or motion hearing, a bench warrant is

issued. (The defendant can post a cash bond to have the bench warrant lifted).

If the charge is for a serious traffic violation, a bench warrant is issued if the driver fails

to appear for arraignment.

It is good practice if a defendant appears in court and his case is continued, or pleads not

guilty or for any other reason will be returning to court, to serve the defendant with a written

notice of the new court date and have him sign it before leaving the courtroom.

7.9.5.2 Other Appearance Bonds

4. Failure to serve notice of an execution hearing within 10 days of the principal’s

INITIAL failure to appear in court relieves the bonding company on the appearance bond. DON

JOHNSON BONDING COMPANY, INC. V. THE STATE OF GEORGIA, 309 Ga. App. 6

(2011)

Sureties may now also be notified by e-mail. O.C.G.A. 17-6-71.

An updated notice form follows:

bond forfeiture hearing and notice.docx

CHAPTER 11 - DISCOVERY

11.7 DISCOVERY IN DUI CASES

a) For discovery issues related to DUI prosecutions, see The Georgia DUI Trial Practice

Manual, 2012 edition, Chapter 11.00 et. seq.

11.7.1 REQUEST FOR INTOXILYZER SOURCE CODES

Defense counsel will often try to obtain the source code for the INTOXILYZER 5000.

This machine is manufactured in Kentucky, so the attorney must utilize the Uniform Act to

Secure the Attendance of Witnesses from Without a State, OCGA 24-10-94. The Georgia

Supreme Court set forth the procedure in DAVENPORT v. State, 289 Ga. 399 (2011). The court

of appeals attempted to apply those standards in SPANN V. STATE, 318 Ga. App. 740 (2012)

and CRONKITE V. STATE, 317 GA. APP. 57 (2012) Cronkite is on appeal to the Georgia

Supreme Court, so for now the correct procedure is still uncertain.

11.8 LEO PERSONNEL FILE

A defendant may not discover the personnel file of an investigating law enforcement

officer without a showing of need and relevancy. WISE V. STATE, A12A 2509, ____Ga. App.

______, (March 28, 2013).

CHAPTER 11A

MOTIONS

11A.1 Introduction

The filing of motions is the procedure for submitting matters to the judge for a ruling

prior to the trial. Motions may be filed by either the State or the defendant, and may address any

issue reasonably related to the trial.

URPC 15.4 states that all motions, demurrers and special pleas shall be made and filed at

or before the time set by law, unless time therefore is extended by the judge in writing prior to

trial. O.C.G.A. 17-7-110 provides that all pretrial motions be filed within 10 days after

arraignment, unless the time for filing is extended by the court.

A copy of any motion filed should be served by the filing party on the other party. The

judge shall decide when the matter shall be heard. URPC 15.4(B). The defendant has a right to

be present at any hearing on motions which may occur. The defendant should also be advised of

the necessity of a court reporter to preserve issues for appeal, and his right to procure a court

reporter if he so desires.

The two motions which the probate judge will usually encounter are motions in limine

and motions to suppress. The purpose of both motions is to exclude from evidence at trial

certain testimony and/or physical items.

At the hearing on these motions, the judge should first have the defendant’s attorney (or

defendant if pro se) summarize the basis for his motion. The State would then undertake its

burden to show that no constitutional or legal violation occurred that would render the proffered

evidence inadmissible.

The hearing proceeds much like a bench trial. The State will present witnesses, after

which each witness testifies, the defendant may cross-examine. At the conclusion of the State’s

case, the defendant may present witnesses. After each of the defendant’s witnesses testify, the

State may cross-examine that witness. At the conclusion of all the evidence, the judge may

allow closing arguments, in his discretion. The State has the option of presenting its closing

argument last.

The judge may request briefs from the parties, and is under no duty to decide the matter

at the hearing, but instead may wait until he has an opportunity to review the briefs from the

parties. The judge should set specific time deadlines for the filing of the briefs, usually granting

the moving party 10 days to file its brief, and the respondent10 days after the movant’s brief is

filed.

If either party is dissatisfied with the judge’s ruling, they can appeal to Superior Court.

11A.2 MOTIONS TO SUPPRESS

As noted above, motions to suppress seek to exclude from evidence physical or tangible

items. These motions are based on a violation of the defendant’s constitutional rights, most often

his 4th

amendment right against unreasonable searches and seizures.

Motions to Suppress must be in writing and filed within 10 days of the date of

arraignment, O.C.G.A. 17-7-110, or such later time as the judge orders in writing. The motion

must allege a violation of the defendant’s constitutional rights and state the facts that support

such violation. The motion must be filed by the defendant whose constitutional rights are

alleged to have been violated. A co-defendant can’t file a motion to suppress alleging a violation

of another defendant’s constitutional rights. “Failure of a defendant to file a motion to suppress

constitutes a waiver of defendant’s constitutional guarantees with respect to the search and

seizure.” RUFFIN V. THE STATE, 201 Ga. App. 792(1991).

The judge should conduct a pre-trial hearing, following the procedure outlined above.

While written findings of fact and conclusions of law are not required (SHIRLEY V. THE

STATE, 166 Ga. App. 456 (1983)), the judge should make on the record explicit legal findings

as to the areas of defendant’s challenges and the State’s legal contentions including, if

applicable:

1. Articulable suspicion if a Terry stop;

2. Probable cause if a search incident to arrest or warrant;

3. Consent or other exceptions to warrant requirements. (State Court Benchbook

Chapter 4, Section 4.17).

11A.3 MOTIONS IN LIMINE

Motions in limine are frequently used to prevent certain testimonial evidence from being

introduced at trial, but these motions may also be used to exclude blood alcohol test results. The

basis for the motion is either that the evidence was obtained in violation of a rule of law (as

compared to a constitutional violation when a motion to suppress is utilized) or that the possible

testimonial evidence is too prejudicial or irrelevant.

Motions in limine differ from motions to suppress in that motions in limine do not have

to be in writing but may be made orally and they may be made at any time. If a motion to

suppress is filed alleging matters which should have been asserted by a motion in limine, the

court may reclassify the motion as necessary and still entertain the motion. STATE V.

JOHNSON, 249 Ga. 413(1982).

The hearing on the motion should follow the procedure outlined above. The burden of

proof and appeal rights are the same as those for a motion to suppress.

11A.4 OTHER MOTIONS

11A.4.1. DEMURRERS

Demurrers, also called Motions to Quash, are challenges to the sufficiency of the

charging document – the UTC in Probate Courts. These may be either a special demurrer or a

general demurrer. A general demurrer attacks the sufficiency of the charging document whereas

a special demurrer challenges the form of the charging document. The Probate Judge is most

likely to encounter a special demurrer, e.g. the defendant alleging the UTC does not reasonably

inform of the charges against him because the UTC alleges two different violations.

Special demurrers must be in writing and filed within 10 days of arraignment. General

demurrers should be in writing and filed within 10 days of arraignment, but may be made orally

at any time if the situation so requires. See Daniel, Georgia Criminal Trial Practice, Sections 14-

37 and 14-38.

11A.4.2. MOTIONS TO COMPEL

These motions are most often filed by the defendant’s attorney seeking discoverable

evidence from the prosecutor. In these matters, the Judge is simply deciding whether or not the

defendant is entitled to the requested evidence under the laws relating to discovery. See O.C.G.A

and Chapter 11 of this Benchbook.

11A.4.3. MOTIONS FOR CONTINUANCE

These motions are in the sound discretion of the Judge, except when based on a conflict

the attorney may have with other court appearances, or if the attorney had filed an appropriate

request for leave. The conflict situation is to be resolved by applying the provisions of URPC

6.11.

The leave of absence is governed by URPC 6.9.

Request for continuance by a pro se defendant in order to obtain an attorney should be

carefully evaluated by the Judge to determine if the request is actually being made just to delay

the court proceeding. The Judge should err on the side of granting a continuance. If denied, the

Judge needs to state into the record all the factors on which he based his decision that the

defendant was interposing the motion for continuance simply to delay the court proceeding. The

appellate courts will closely examine the Judge’s basis for his decision.

11A.4.4. MOTIONS TO WITHDRAW PLEA

A defendant has the right to withdraw his plea prior to sentence being pronounced. After

sentencing, the defendant may file a motion to withdraw his plea only if filed in the same term of

court as the sentence was rendered.

After the term of court has expired, the court no longer has jurisdiction to hear a motion

to withdraw plea.

The judge should grant a timely filed motion to withdraw plea when such is necessary to

correct a manifest injustice. URPC 15.6.12.

An excellent resource for additional information on MOTIONS can be found in the State Court

Benchbook, Volume I, Chapter 4, at: http://www.statecourt.georgiacourts.gov/.

CHAPTER 12 - TRIAL PROCEDURE

12.1.1 Public Access to the Courts

Defendants have a constitutional right to a public trial. Holding a trial at a courtroom at

the jail and allowing access to be determined by jail officials violates a defendant’s right to a

public trial if access is unreasonably denied. PURVIS V. THE STATE, 288 Ga. 865 (2011).

12.3 SPEEDY TRIAL

The Court of Appeals in State v. Takyi, 314 Ga. App. 444 (2012) held that a delay of 18

months from the time of a defendant’s arrest for DUI was presumptively prejudicial, but noted

there are numerous other factors to consider. The court then set out the analysis for considering

a motion to dismiss on the grounds that an accused’s constitutional speedy trial right has been

violated.

12.4 OATH

Failure of a defendant to be sworn in prior to his plea is not grounds for reversal unless

an objection to his unsworn testimony was made at the time the testimony was given. BROWN V.

STATE, 290 Ga 321 (2012)

12.5 CONTINUANCES

“All applications for continuance are addressed to the sound legal discretion of the court

and shall be granted or refined as the ends of justice require.” WILLIAMS V. STATE, ____Ga.

App. _________, 2012 no. A12A1623, citing OCGA 17-8-22.

a) A request for a continuance due to the absence of a witness is governed by the eight

requirements of Code section 17-8-25. BAILEY V. THE STATE, 309 Ga. App. 473(2011)

12.6 RULE OF SEQUESTRATION

When the rule of sequestration is violated, the violation goes to the credibility rather than

the admissibility of the witness’s testimony. HAWKINS V. STATE, 316 Ga. App. 415 (2012).

CHAPTER 13 - SENTENCING

13.1 PUNISHMENT

13.1.2 Misdemeanor and Civil Punishment

5. The trial court may order not less than 20 hours nor more than 250 hours as a condition

of probation when the judge determines community service is appropriate. The maximum

community service hours are not for each citation, but per case (incident). JONES V. THE

STATE, 308 Ga. App. 99, 2011).

13.6 G COSTS

A defendant should only be assessed as costs those specifically provided for by statute.

Effective July 1, 2012, a surcharge in the amount of 50% of the base fine shall be added

to the sentence for violation of Code Section 3-3-23.1, 40-6-391, or code section 40-6-393 or 40-

6-394 if offender was also charged with a violation of 40-6-391. These funds are to be paid into

the “County Drug Abuse Treatment and Education Fund.” OCGA 15-21-100 and 15-21-101.

13.6 D.1. MERGER

When a defendant is convicted of speeding and reckless driving, and the basis for the

reckless driving charge is the speeding, the two should be merged for sentencing. LUCKEY V.

STATE, 313 Ga. App. 502 (2012).

13.6. D.2 RESENTENCING

No sentence on any count can be increased on resentence (even if the total sentence is the

same or less). HUDSON V. STATE, 318 Ga. App. 54 (2012).

Judges must not only advise of right to counsel at trial, but at sentencing. FULLWOOD

V. STATE, 290 Ga 335 (2012).

13.7.3 Title 40 offenses

40-6-391.

The confiscation of tags of vehicles registered to the defendants is mandated by OCGA

40-2-136. The statute also provides a hardship waiver, which is requested by the defendant

directly to DDS and does not involve the court.

40-6-1

Even if the speeding fine is limited by Code Section 40-6-1, the defendant may still be

sentenced to 12 months jail or probation. JONES V. THE STATE, 308 Ga. App. 99, (2011)

CHAPTER 14 - CONTEMPT

14.5.2 CASES

a.) APOIAN V. STATE, 313 Ga. App. 800 (2012)

Failure to respond to a subpoena is not the type of conduct subject to summary contempt

proceeding. The defendant is entitled to reasonable notice, opportunity to call witnesses and

present evidence and opportunity to retain counsel.

CHAPTER 15 - PROBATION REVOCATION

15. REVOCATION OF PROBATION/SUSPENDED SENTENCE

15.2 Procedure for Hearing

D. No Double Jeopardy Protection

Revocation of a defendant’s probation does not preclude indictment and trial on same

incident. Defendant is not subject to double jeopardy. MORGAN V. THE STATE, 308 Ga.

App. 69 (2011).

15.3 GROUNDS FOR REVOCATION

b. Failure to Pay Restitution and Fines

In order for a trial court to revoke a defendant’s probation based solely on the failure of

defendant to pay, the court is required to make a finding as to the defendant’s willfulness.

JOHNSON V. THE STATE, 307 Ga. App. 570 (2011)

15.4 C. NOTICE

Judgment revoking a defendant’s probation must be based on the grounds upon which

the defendant was given notice of prior to the revocation hearing. DILLARD V. STATE, 319 Ga.

App. 299 (2012), A12A2113.

CHAPTER 16 - APPEALS

16.4 HABEAS CORPUS

Appeals: Habeas Corpus. Time limitations for filing

A person convicted of a misdemeanor traffic offense must file their petition for habeas corpus

relief within 180 days from the date of their conviction. OCGA 40-13-33.

A person convicted of any other misdemeanor must file their petition for habeas corpus relief

within 1 year from the date of their conviction. OCGA 9-14-42.

CHAPTER 17 - COURT OPERATION

17.9 Public Access to the Courts

The judge is responsible for insuring access is open to the court. If space limitations are

an issue, the judge must make other arrangements, such as moving court to a larger venue,

holding court more frequently, or other reasonable actions as may be appropriate.

Though dress codes by courts are permissible, before a defendant can be denied access

based thereon, a procedure for advance notice should be in existence. Suggestions include

having the officer hand out a copy of the dress code at the time of issuance of the citation,

sending a letter to the defendant prior to the court date, or keeping a jacket handy.

Likewise, denying access to a defendant because they have a small child is not

permissible. The court needs to make reasonable accommodations for these persons, such as

taking their case first.

The recent JQC opinion regarding open courts is attached hereto as Exhibit 2.

17.10 ASSESSMENT OF COURT COSTS

Courts can only add on as court costs or fees those EXPLICITLY authorized by statute.

If there is not a state statute authorizing the fee, it can’t be assessed against a defendant.

17.10 SURCHARGES AND FEES

Effective July 1, 2012, a surcharge in the amount of 50% of the base fine shall be added

to the sentence for violation of Code Section 3-3-23.1, 40-6-391, or code section 40-6-393 or 40-

6-394 if offender was also charged with a violation of 40-6-391. These funds are to be paid into

the “County Drug Abuse Treatment and Education Fund.” OCGA 15-21-100 and 15-21-101.

17.10.1 Probate Judges Retirement Fund surcharge

Effective July 1, 2012 (as authorized by HB351), a flat fee surcharge of $3.00 per

citation will be added to the fine. This will apply to all moneys collected after July 1, not just

cases made after July 1. (memo from David Bundrick, Deputy Legislative Counsel, dated June

12, 2012).

17.11 EXPUNGEMENT/ RESTRICTED ACCESS TO CRIMINAL

HISTORY INFORMATION - OCGA 35-3-37

Expungement of arrest records as we know it is no longer in existence. New OCGA 35-3-

37 replaced the old expungement procedure effective July 1, 2013. The term “expungement” is

no longer used in the revised code section. The code now uses the term “record restricted”.

This change will affect the information returned for non-criminal justice purposes, but

will not change the criminal history information availability for criminal justice purposes.

GCIC will now restrict records with no disposition if a misdemeanor arrest after 2 years.

(Longer time frames apply to felonies, violent felonies and felony sexual arrests) TER (time

expired restriction) will appear on the criminal history when a record has been restricted due to

time.

The restricted access to an individual’s criminal history record information shall be

restricted for the following type of disposition as set forth in (h) of said code section.

Subsection (m) provides a method for an individual to petition the court which had

original jurisdiction, to seal all information relating to the charges. If the court determines that

said request satisfies the criteria set forth in this subsection, the court must within 60 days

restrict access to all criminal history information, including indexes, regarding the charges.

CHAPTER 18 - FORMS

18-46.1 CERTIFICATE OF ELIGIBILITY FOR IGNITION INTERLOCK

LIMITED DRIVING PERMIT

(next page)

Ben Hill County Probate

111 S. Sheridian Street Ignition Interlock Court Order Fitzgerald, GA 31750 State of Georgia

Ph: (229)426-5137 Ben Hill County

Fax: (229-426-5486

State of Georgia Case No.

vs Citation No.

_____________________ Lic. No.

Charge: DUI 2nd Offense

Certificate of Eligibility for Ignition

Interlock Limited Driving Permit

Whereas the above-named defendant is subject to a driver's license suspension imposed pursuant

O.C.G.A. § 40-5-63(a)(2) for a second conviction for a violation of O.C.G.A § 40-6-391 within five (5)

years as calculated between the incident dates; and

The court having determined the following (please initial only one box):

The Defendant is authorized to obtain an ignition interlock limited

driving permit, if eligible, because he/she has served at least 120 days

of the license suspension required for such conviction and is enrolled

in a drug or DUI court program in this Court;

The Defendant is authorized to obtain an ignition interlock limited

driving permit, if eligible, because he/she has served at least 120 days

of the license suspension required for such conviction and he/she is

enrolled in clinical treatment as provided in O.C.G.A. § 40-5-63.1 and

40-5-1 (16.2);

The Defendant is not authorized to obtain an ignition interlock limited

driving permit until further order from this Court;

The Court waived the ignition interlock requirement because such

would subject the Defendant to undue financial hardship.

The Court finds as follows:

So Ordered, this ______ day of _______________, 2013.

Probate Court Judge

18-43.1 2/5 DUI DRIVERS’ LICENSE SUSPENSIONS AND INTERLOCK

REQUIREMENTS

(next page)

18-70 PRO SE DEFENDANTS SUBPOENA

INFORMATION

18-71 INSURANCE COVERAGE LETTER

(for use in driving with suspended registration cases)

______________________, 20 _______

The Honorable J. Michael Greene

119 South Lee Street

Americus, GA 31709

Dear Judge Greene:

This letter is to state that vehicle:

_____________________________________________________________________________

(Make, Model, and Year)

_____________________________________________________________________________

(VIN)

was legally covered by Georgia minimum insurance, which was in full force and effect, on the ____ day of

__________________, 20_____ at _______ AM / PM, by the following policy:

_____________________________________________________________________________

(Company and Agent)

_____________________________________________________________________________

(Policy Number and Effective Dates)

The reason that the Department of Driver Services’ computer showed the vehicle to be uninsured was:

Unknown or _______________________________________________________________________________.

Sincerely,

_____________________________________

Name and Title

_____________________________________

Company

APPENDIX B. EVIDENCE

II. Changes in the New Evidence Code

1. Introduction

Georgia has a new evidence code, effective January 1, 2013. The new code is

substantially identical to the federal rules of evidence, with a few exceptions. Many of the

current evidence rules are contained in the new rules without change. This paper will discuss the

changes as they may affect the probate judge handling criminal/traffic matters. This paper does

not attempt to review the new rules that affect only civil matters, nor the current rules that are not

changed except to give context to the new rules.

The reader is referred to Courtroom Handbook on Georgia Evidence, 2012 edition, by

Paul S. Milich, for more detailed analysis of all the rules of evidence. This handbook has been

the primary reference for this paper.

An important duty of the judge is to insure that only appropriate evidence is considered at

trials and hearings. The rules of evidence were promulgated in order to achieve this result.

2. Applicability

O.C.G.A. 24-1-2 states that the rules of evidence shall apply in bench trials, criminal

commitment and probable cause hearings (except that hearsay is admissible in probable cause

hearings), suppression hearings, hearings on release on bond motion, probation revocation

hearings and sentencing hearings (except that in sentencing hearings, hearsay and character

evidence are fully admissible).

The rules of evidence do not apply in bond revocation hearings.

3. Confessions and Pre-trial Hearings

O.C.G.A. 24-1-104 provides that preliminary questions concerning the admissibility of

evidence shall be determined by the court. The court shall not be bound by the rules of evidence

except as to privileges. A preponderance of the evidence standard shall be applied.

The laws relating to confessions are mostly constitutional and are not affected by the new

rules.

4. Determining Admissibility of Relevant Evidence

O.C.G.A. 24-4-403 is intended to allow the introduction of more relevant evidence.

Though evidence must be relevant to be admissible, not all relevant evidence is admissible. The

judge should exclude relevant evidence if its probative value is SUBSTANTIALLY outweighed

by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.

The new rules added “substantial” to further limit the exception to admissibility of

otherwise relevant evidence.

5. Character Evidence

O.C.G.A. 24-4-404, 405 apply to the admission of character evidence. Generally, the

character of the defendant is not admissible in evidence by the State. However, the defendant

may introduce evidence of his own character. If the defendant introduces evidence of his good

GENERAL character, the State may introduce any evidence it has regarding the defendant’s bad

character. The new rules allow a defendant to introduce evidence of a SPECIFIC character trait

(e.g. truthfulness), in which case the prosecution could only introduce evidence of the

defendant’s bad character as it related ONLY to that specific character trait.

6. Character Witnesses

O.C.G.A. 24-4-405 and 24-6-608 apply to character witnesses. Under these new rules, a

witness may not only testify as to the general reputation of the defendant in the community, but

now may also testify as to his opinion of the defendant.

The new rules also allow the prosecution to introduce evidence of the defendant’s

character for untruthfulness if the defendant testifies, even though the defendant did not offer any

character evidence.

7. Impeachment

To impeach a witness is to attack his credibility. O.C.G.A. 24-6-621, 622 and 610 do not

substantially change when impeachment of a witness by showing bias, incompetence or

contradiction is allowed, though the terminology has changed. The new rules specifically state

that a witness may not be impeached because of his religious beliefs.

8. Impeachment – Prior Convictions

O.C.G.A. 24-6-309 changes the evaluation standard for admitting a prior conviction of a

testifying defendant. The test to be applied by the judge now is to admit only if the probative

value of admitting the evidence outweighs its prejudicial effect to the accused. “This only

applies to felony convictions that occurred no more than ten years since the date of conviction or

the date of release from confinement, whichever occurred later. Discharges under the first

offender act, pardons or nolo pleas shall not be used to impeach any witness. The pendency of

an appeal shall not render evidence of the conviction inadmissible.

If the witness has been convicted of a crime that involved an act of dishonesty or making

a false statement, the conviction shall be admitted whether a felony or misdemeanor.

To impeach a witness with a prior conviction, the questioner should have a certified copy

of the conviction. Arrests and indictments are not admissible to impeach a witness, only

convictions, nor are juvenile records to be used for impeachment.

9. Impeachment – Prior Inconsistent Statement

O.C.G.A. 24-6-613 makes it slightly easier to impeach a witness with a prior inconsistent

statement, whether it is in writing or oral. No longer must the questioner lay a foundation or give

the witness an opportunity to recall his prior inconsistent statement before being impeached.

10. Impeachment – Rehabilitation

O.C.G.A. 24-6-608(a) provides that when a witness’ truthful character has been

impeached, a questioner may attempt to rehabilitate that witness through testimony of his truthful

character.

11. Independent Crimes and Acts

Generally, “evidence of other crimes, wrongs or acts is not admissible to prove character

as a basis for suggesting the inference that conduct on a particular occasion was in conformity

with it.” Notes of Advisory Committee on Federal Rule 404(b). Georgia rules previously

allowed such evidence to show bent of mind or course of conduct. Such usage will not be

authorized under the new rules O.C.G.A. 24-4-404. Evidence of independent crimes or acts will

still be admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.

The prosecution is required to provide reasonable notice to the defense of its intention to

use such evidence.

12. Statements Against Interest

Previously, this rule only applied if the declarant was deceased. O.C.G.A. 24-8-804 now

applies this rule to allow admissibility of statements against interests whenever the declarant is

unavailable. When used in a criminal proceeding, there must also be corroborating

circumstances.

13. Hearsay

The classic definition of hearsay is “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” O.C.G.A. 24-8-801 (c). Hearsay is inadmissible as evidence, but there are a number of

exceptions by which hearsay evidence may be admitted. O.C.G.A 24-8-801.

Previously at bench trials, the judge was not to consider hearsay evidence, even if not

objected to. O.C.G.A. 24-8-802 now provides that if there is no objection to the hearsay when

offered, the hearsay shall be legal evidence and admissible.

There are numerous exceptions to the hearsay rule which would allow the admissibility

of hearsay evidence. Res gestae is no longer recognized as an exception to the hearsay rules.

Also, hearsay to explain subsequent conduct (which was frequently used) is no longer

admissible.

An excellent flow chart for analyzing hearsay can be found in Courtroom Handbook on

Georgia Evidence, page 374.

14. Best Evidence Rule

The Best Evidence Rule generally required the original of a writing or document be used

if it was to be admitted into evidence. There are, or course, a number of exceptions that continue

under the new rules. O.C.G.A. 24-10-1002 also expands the applicability of the Best Evidence

Rule to also include recordings, photos or video.

15. Authentication of Documents – Non Public

O.C.G.A. 24-9-902 (11) d(12) now allows a party to lay foundations for business records

by a certification or affidavit in lieu of a live witness at trial.

16. Authentication of Things

O.C.G.A. 24-9-902 is basically the same as existing Georgia law, but this code section

does bring together all the authentication rules into one code section and simplifies the admission

of “things” into evidence

17. Sequestration of Witnesses

O.C.G.A. 24-6-616 provides that victims of a criminal offense shall be entitled to be

present at any criminal proceeding, subject to the limitations set forth in O.C.G.A. 17-17-9.

18. Evidentiary matters related to DUI

An excellent resource regarding evidentiary matters related to DUI cases may be found in

the 2012 edition of Courtroom Handbook on Georgia Evidence by Paul Milich at pages 288 –

299.

III. COMMON EVIDENTIARY ISSUES

The following was derived from the presentation of Professor Paul Milich given to the Municipal

Court Judges on June 21, 2013.

1. If a party does not properly object to hearsay, the objection shall be deemed waived, and the

hearsay evidence shall be legal evidence and admissible. The trier of facts may decide on the

weight to be given the hearsay evidence. OCGA 24-8-802.

2. A police officer cannot testify as to statements given to him about an incident, if he has no

personal knowledge and the witnesses are not present to testify. This violates the Confrontation

Clause of the U.S. Constitution.

3. A certified copy of a record from the Georgia Department of Drivers Services showing that

notice of a suspension was sent to a defendant is admissible under the public records exception

to the hearing rule. OCGA 24-8-803(8)(A).

4. An officer who accesses a terminal lawfully connected to the Georgia Crime Information

Center may offer as evidence a printout showing the defendant’s driver’s license was suspended.

OCGA 24-9-924.

5. A report by an officer who is not at trial cannot be admitted as evidence. This violates the

Confrontation Clause. OCGA 24-8-803 (8)(B)

6. A report of an officer who does testify may be admitted if necessary to enable the officer to

fully and accurately testify and it is shown that the report was made when the matter was first in

the witness’s memory. OCGA 24-8-803(5).

7. A witness who testifies at trial may state what he/she said, and be cross-examined as to any

prior inconsistent statement, OCGA 28-8-801 (d)(1)(A). The admission into evidence may be

based on the excited utterance provision. OCGA 24-8-803(2).

8. In a DUI case, evidence as to a defendant’s prior conviction for DUI is not admissible,

subject to 2 exceptions set forth in OCGA 24-4-17:

1) If defendant in this case refused the test and claims he did so for reason that would

be rebutted by the fact that he took the test in a prior instance and was convicted,

then the prior is admissible;

2) Where the defendant claims he was not the driver, a prior DUI is admissible to prove

identity.

9. A witness, including the defendant, may be impeached by good-faith questioning about

specific instances of the conduct of the witness, for the purpose of attacking or supporting the

witness’s character for truthfulness. OCGA 24-6-608(b)

10. In a DUI case, a defense expert of questionable qualifications should be allowed to testify

“for what it’s worth.”