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Unofficial Opinion 96-7

Unofficial Opinion 96-7

March 19, 1996
To: 

Assistant Solicitor
State Court of Cherokee and Forsyth Counties

Re: 

O.C.G.A. § 40-6-395(b)(5)(A); Interpretation to determine if cases are felonies requiring transfer to superior court.

You have asked for an opinion as to when cases under O.C.G.A. § 40-6-395(b)(5)(A) are felonies, thus requiring transfer to the superior court for prosecution.

Official Code of Georgia Annotated § 40-6-395 regards fleeing or attempting to elude a police officer and impersonating a law enforcement officer. Code Section 40-6-395(a) states:

It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.

Subsection (b)(5)(A) states:

Any person violating the provisions of subsection (a) of this Code section who, while fleeing or attempting to elude a pursuing police vehicle or police officer in an attempt to escape arrest for a felony offense other than a violation of this chapter, operates his or her vehicle in excess of 30 miles an hour above the posted speed limit, strikes or collides with another vehicle or a pedestrian, flees in traffic conditions which place the general public at risk of receiving serious injuries, or leaves the state shall be guilty of a felony punishable by a fine of $5,000.00 and imprisonment for not less than one year nor more than five years.

There are three elements required by O.C.G.A. § 40-6-395(b)(5)(A) to have a felony. First, Subsection (a) of 40-6-395 must be violated. A driver must willfully fail or refuse to stop his vehicle or otherwise flee or attempt to elude the police when given a visual or audible signal to bring the vehicle to a stop.

Second, the driver must be trying to escape arrest for a felony offense other than a violation of Chapter 6 of Title 40, the Uniform Rules of the Road. If the driver is fleeing to avoid arrest for a violation of a uniform rule of the road which is a felony, Code Section 40-6-395(b)(5)(A) would not apply. However, if the driver is fleeing because he committed a felony other than those specified in the Uniform Rules of the Road, Subsection (b)(5)(A) would apply.

Finally, the driver must perform one of four prohibited acts. He must (1) drive in excess of thirty miles an hour above the posted speed limit; (2) strike or collide with another vehicle or pedestrian; (3) flee in traffic conditions which place the general public at risk of receiving serious injuries; or (4) leave the state.

If each of the three elements are satisfied, the case is a felony and should be transferred to superior court for prosecution.

Prepared by:

LAURA JONES FRENCH
Assistant Attorney General