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Unofficial Opinion 2005-4

Unofficial Opinion 2005-4

July 12, 2005
To: 

City Attorney

Re: 

The additional monetary penalties provided in O.C.G.A. § 15 21 73 may not be added to the civil monetary penalties imposed pursuant to O.C.G.A. § 40 6 20.

You have requested my opinion on whether the additional monetary penalties imposed pursuant to O.C.G.A. § 15 21 73 can be added to the civil monetary penalty authorized under O.C.G.A. § 40 6 20.

In 2001 the legislature amended O.C.G.A. § 40 6 20 to provide for the use of traffic-control signal monitoring devices. 2001 Ga. Laws 770. These devices work in “conjunction with a traffic-control signal to produce recorded images of motor vehicles being operated in disregard or disobedience of a CIRCULAR RED or RED ARROW signal.” O.C.G.A. § 40 6 20(f)(1)(C). For enforcement purposes, the “driver of a motor vehicle shall be liable for a civil monetary penalty of not more than $70.00 if such vehicle is found, as evidenced by recorded images produced by a traffic-control signal monitoring device, to have been operated in disregard or disobedience of a CIRCULAR RED or RED ARROW signal.” O.C.G.A. § 40 6 20(f)(3)(A). Any court having jurisdiction over a violation of O.C.G.A. § 40 6 20(a) or any ordinance adopting its provisions shall be authorized to impose the civil monetary penalty “of not more than $70.00” provided by O.C.G.A. § 40 6 20(f)(3)(A). O.C.G.A § 40 6 20(f)(6).

The cardinal rule of statutory construction is to ascertain the intention of the legislature. In attempting to discern the intent of the legislature, certain presumptions are utilized. One of those presumptions is that the legislature was aware of the state of the law at the time it enacted the legislation in question. Davis v. State, 246 Ga. 761-62 (1980). It is clear that the legislature has chosen not to treat this civil monetary penalty as a “fine.” While the legislature has provided for the imposition of fines throughout Title 40, it has specifically prescribed here that a civil monetary penalty, and not a fine, be imposed for a violation. Evidence of the legislature’s intent to distinguish between a civil monetary penalty and a fine is also found in the 2003 amendments to O.C.G.A. § 40 14 21 (traffic-control signal monitoring device use) and O.C.G.A. § 40 14 24 (traffic-control signal monitoring device reporting) where “civil monetary penalty” was substituted for “fine.” 2003 Ga. Laws 597, §§ 3-4. This distinction is relevant to an analysis of O.C.G.A. § 15 21 73(a)(1).

Legislative intent may further be determined by examining related laws since the legislature is presumed to know all pertinent laws existing at the time legislation is enacted. Spence v. Rowell, 213 Ga. 145, 150 (1957). Code section 15 21 73(a)(1) provides for additional penalties for certain offenses; among these offenses are “civil traffic violations.” Civil traffic violations were included among offenses subject to additional penalties during the 2004 legislative special session. H.B. 1EX, § 5, 2004 Gen. Assem. Extra. Sess., 2005 Ga. Laws ES3. However, the legislature did not change the condition precedent to the additional penalty that the court impose a fine. Under O.C.G.A. § 15 21 73(a)(1), the imposition of a fine is a prerequisite to the imposition of any additional penalty. Because O.C.G.A. § 40 6 20(f)(3)(A) permits the imposition of a civil monetary penalty only, the condition precedent of having a fine imposed under O.C.G.A. § 15 21 73(a)(1) cannot be met and the additional penalty cannot be imposed.

Moreover, the limitation found in O.C.G.A. § 40 6 20(f)(4) clearly indicates that an additional penalty cannot be assessed. This subsection provides that the civil monetary penalty shall not be considered “a moving traffic violation,” shall be deemed “non-criminal,” and “shall not be deemed a conviction.” This proviso prohibits the assessment of points, the reporting of a violation on a person’s driving record, and the use of a violation for any insurance purpose. The language of this subsection further supports the conclusion that the penalties under O.C.G.A. § 15 21 73 should not be assessed.

Because O.C.G.A. § 15 21 73 can only apply to a case where there is a “conviction,” and because a violation of O.C.G.A. § 40 6 20, for which a civil penalty is imposed, is specifically deemed not to be a conviction, O.C.G.A. § 15 21 73 cannot apply. Accord 1983 Op. Att’y Gen. 83-80 (if sentence imposes neither costs nor traditional fine, no penalty can be imposed under O.C.G.A. § 15 21 73; further, O.C.G.A. §15 21 73 requires “conviction”).

Therefore, it is my unofficial opinion that the additional monetary penalties provided in O.C.G.A. § 15 21 73 may not be added to the civil monetary penalties imposed pursuant to O.C.G.A. § 40 6 20.

Prepared by:

KATHERINE DIAMANDIS
Assistant Attorney General