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Official Opinion 96-17

Official Opinion 96-17

September 4, 1996
To: 

Deputy Director
Georgia Crime Information Center

Re: 

Updating of crimes and offenses for which the Georgia Crime Information Center is authorized to collect and file fingerprints.

You have requested my opinion concerning whether any of the six new misdemeanor offenses enacted during the 1996 Session of the General Assembly should be designated as offenses for which persons charged with violations are to be fingerprinted. The list of fingerprintable offenses is set forth in O.C.G.A. § 35-3-33(1). In addition, O.C.G.A. § 35-3-33(1)(A)(v) provides that the Attorney General may designate any other offense as one for which those charged with a violation are to be fingerprinted.

The General Assembly, at its 1996 Session, amended the provisions of O.C.G.A. § 27-3-7 relating to the offense of hunting while intoxicated. The amendment provides for testing, presumptions, implied consent, and appeal. As most hunting involves the use of firearms or other dangerous weapons, the violation of this statute would appear to be a fingerprintable offense pursuant to O.C.G.A. § 35-3-33(1)(A)(ii). However, to the extent that a violation of O.C.G.A. § 27-3-7 might not involve the use of firearms or other dangerous weapons, I hereby designate this offense as one for which those charged with a violation are to be fingerprinted.

The General Assembly also enacted O.C.G.A. § 40-4-7, effective as of January 1, 1997, which makes it a misdemeanor to sell, ship, or manufacture a passenger car, truck chassis, passenger

car engine, or passenger car transmission without an identification number, or to fail to keep records of the sale of a passenger car, truck chassis, passenger car engine, or passenger car transmission. This statute had been previously codified, with substantially the same language, as O.C.G.A. § 40-4-6. Since the proper identification of passenger cars and components is important to the reduction of auto thefts and dealing in stolen passenger cars and components, I am designating this offense as one for which those charged are to be fingerprinted.

At its 1996 Session, the General Assembly amended provisions of the Fair Business Practices Act of 1975 relating to the disclosure of information by consumer reporting agencies. Official Code of Georgia Annotated § 10-1-393(b)(29)(A) provides that any person who "knowingly and willfully obtains information relative to a consumer from a consumer reporting agency under false pretenses shall be guilty of a misdemeanor." Official Code of Georgia Annotated § 10-1-393(b)(29)(B) provides that an "officer or employee of a consumer reporting agency who knowingly and willfully provides information concerning an individual from the agency's files to a person not authorized to receive that information shall be guilty of a misdemeanor." I hereby designate the violation of O.C.G.A. § 10-1-393(b)(29) as an offense for which those charged are to be fingerprinted.

Official Code of Georgia Annotated § 2-11-53, which is part of the Georgia Seed Law amended by the 1996 Session of the General Assembly, provides that it is a misdemeanor to use "any evidence of certification . . . on any package of seeds or plants, unless such seeds or plants have been duly inspected and certified." This does not appear to be an offense for which fingerprinting is required, and I am not, at this time, designating this offense as one which requires fingerprinting.

Official Code of Georgia Annotated § 12-6-150 et seq., known as the Ginseng Protection Act of 1979, was amended by the General Assembly at its 1996 Session. Official Code of Georgia Annotated § 12-6-152 states as follows:

It shall be unlawful for any person to harvest ginseng in this state except from August 15 through December 31 and with the written permission of the owner of the property on which the ginseng is located. It shall also be unlawful for any person to harvest ginseng that has fewer than three prongs. Further, it shall also be unlawful for any person to fail to plant, immediately after harvest, the ripe berries of the harvested ginseng at the same location at which such ginseng was harvested.

Official Code of Georgia Annotated § 12-6-153 provides that it is unlawful "for any person disposing of any ginseng harvested in Georgia to fail to report such disposition by January 31 of each year to the Department of Natural Resources." Official Code of Georgia Annotated § 12-6-154 states that it is unlawful "for any ginseng dealer or grower to fail to register with the department." These offenses under the Ginseng Protection Act do not appear to be offenses for which fingerprinting is required, and I am not, at this time, designating them as offenses which require fingerprinting.

Official Code of Georgia Annotated § 27-4-132.1 was enacted by the General Assembly at its 1996 Session. The statute makes it a misdemeanor to take by cast net more than a stated amount of shrimp. This does not appear to be an offense for which fingerprinting is required, and I am not, at this time, designating this offense as one which requires fingerprinting.

You have also asked me to review the prior designation of O.C.G.A. § 42-8-38 as a fingerprintable offense. Official Code of Georgia Annotated § 42-8-38 provides for the arrest and hearing of a probationer for violating the terms of probation. You have inquired about the possibility of modifying the designation to include as fingerprintable only those instances in which an adverse action is taken against a probationer. In order to promote consistency in the treatment of offenders, I am not, at this time, modifying the designation of O.C.G.A. § 42-8-38 as an offense for which fingerprinting is required.

Likewise, you have asked me to review the prior designation of O.C.G.A. § 17-6-12 as a fingerprintable offense. Official Code of Georgia Annotated § 17-6-12 provides for the arrest for the failure of a person released on his or her own recognizance to appear at trial. You have inquired about the possibility of modifying the designation to include as fingerprintable only those instances involving a failure to appear for an offense which is fingerprintable. However, the failure of a person to appear at his or her trial makes that person a fugitive. Roberts v. State, 208 Ga. App. 64, 65 (1993). Because O.C.G.A. § 35-3-33(1)(A)(iv) specifically states that fingerprints shall be obtained from persons arrested as fugitives from justice, it appears that fingerprinting is mandatory for persons arrested for failing to appear. I am not, therefore, modifying the designation of O.C.G.A. § 17-6-12 as an offense for which fingerprinting is required.

I trust that my revisions of the specific designations of those additional offenses for which the Georgia Crime Information Center is authorized to gather information will assist you in discharging your duties pursuant to the Georgia Crime Information Act of 1973, as well as aid you in obtaining from the various law enforcement agencies of this state the information which is needed in order for GCIC to carry out its mandate from the General Assembly.

Prepared by:

KYLE A. PEARSON
Assistant Attorney General