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Official Opinion 98-20

Official Opinion 98-20

December 14, 1998
To: 

Deputy Director for GCIC

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 nine misdemeanor offenses enacted during the 1998 session of the General Assembly should be designated as offenses for which persons charged with violations are to be fingerprinted. These Code Sections are O.C.G.A. § 12-3-10.1; O.C.G.A. § 16-12-120; O.C.G.A. § 16-12-120.1; O.C.G.A. § 26-2-411; O.C.G.A. § 27-2-3.1; O.C.G.A. § 31-41-6; O.C.G.A. § 40-6-255; O.C.G.A. § 46-5-188; and O.C.G.A. § 52-7-12.6(c). In addition to these new misdemeanor offenses, you have requested my opinion regarding several Code Sections in Title 21, the Elections volume of the Official Code of Georgia Annotated, and whether persons charged with violations are to be fingerprinted. Lastly, you have asked me to review the prior designations of O.C.G.A. §§ 17-6-12 and 42-8-38 as fingerprintable offenses. Under O.C.G.A. § 35-3-33(1)(A)(v), the Attorney General may designate any other offense which is not mandated by statute as fingerprintable, as one for which those charged with violations are to be fingerprinted.

The first of the nine misdemeanor offenses is O.C.G.A. § 12-3-10.1. That Code Section makes it a misdemeanor for any person to violate rules and regulations adopted by the Board of Natural Resources and then refuse to cease such violation after notice. That person may be directed to leave the park, historic site or recreational area on which the violation occurs. An offense resulting from the violation of this Code Section 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.

The second misdemeanor offense is O.C.G.A. § 16-12-120. That Code Section makes it a misdemeanor to commit or attempt to commit various acts, such as spitting, littering, or smoking in a public transit bus, rapid rail car, or rapid rail station or intermobile bus station. An offense resulting from a violation of the Act 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.

The third misdemeanor is O.C.G.A. § 16-12-120.1. That Code Section makes it a misdemeanor to alter fare coins, notes, tokens, transfers and transaction cards or to sell or exchange the same without consent for entry into or on any bus, rail, vehicle, or station. An offense resulting from violation of this Act 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.

The next new misdemeanor is O.C.G.A. § 26-2-411. That Code Section makes it a misdemeanor when a person who sells, displays for sale, or offers for sale at retail any fresh or frozen meat, poultry, or seafood in, on, or from a mobile vehicle does not meet certain licensing and inspection requirements. An offense resulting from a violation of this Act 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.

The fifth misdemeanor offense is O.C.G.A. § 27-2-3.1. That Code Section makes it a misdemeanor for any person knowingly to attempt to purchase or obtain a lifetime sportsman license by fraudulent means. An offense resulting from the violations of this Act 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.

The next misdemeanor is O.C.G.A. § 31-41-6. That Code Section makes it a misdemeanor for a “person to engage in training or lead-based paint activities regulated under this chapter except in such a manner as to conform to and comply with this chapter and all applicable regulations and orders established under this chapter.” O.C.G.A. § 31-41-6(e). An offense resulting from the violation of this Act 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.

The seventh misdemeanor is O.C.G.A. § 40-6-255. That Code Section makes it a misdemeanor for a person to drive a motor vehicle away from an establishment at which gasoline is offered for retail sale without paying for that gasoline. I hereby designate the violation of O.C.G.A. § 40-6-255 as an offense for which those charged are to be fingerprinted.

The eighth misdemeanor is O.C.G.A. § 46-5-188. That Code Section makes it a misdemeanor for “[a]ny employee, representative, or agent of a telecommunications company” to forge “a customer’s signature on a letter of agency or otherwise falsif[y] evidence of a customer authorization of a change of a primary local exchange or long distance carrier.” O.C.G.A. § 46-5-188. I hereby designate the violation of O.C.G.A. § 46-5-188 as an offense for which those charged are to be fingerprinted.

The last newly enacted misdemeanor is O.C.G.A. § 52-7-12.6(c). That Code Section makes it a misdemeanor when any person operates “a vessel or personal watercraft on any of the waters of this state at a time when such person’s privilege to do so has been suspended.” O.C.G.A. § 52-7-12.6(c). I hereby designate the violation of O.C.G.A. § 52-7-12.6(c) as an offense for which those charged are to be fingerprinted.

As noted, you have also requested my opinion concerning whether 24 misdemeanors under separate Code Sections of the Elections title should be designated as an offense for which those charged with violations are to be fingerprinted. Of those 24 Code Sections, the following 22 Code Sections do not appear to be offenses for which fingerprinting is required, and I am not, at this time, designating these offenses as those which require fingerprinting. The offenses which do not require fingerprinting are found in O.C.G.A. § 21-2-414; O.C.G.A. § 21-2-560; O.C.G.A. § 21-2-562(b); O.C.G.A. § 21-2-568; O.C.G.A. § 21-2-573; O.C.G.A. § 21-2-576; O.C.G.A. § 21-2-577; O.C.G.A. § 21-2-578; O.C.G.A. § 21-2-579; O.C.G.A. § 21-2-583; O.C.G.A. § 21-2-584; O.C.G.A. § 21-2-585(a); O.C.G.A. § 21-2-586(a); O.C.G.A. § 21-2-588; O.C.G.A. § 21-2-589; O.C.G.A. § 21-2-591; O.C.G.A. § 21-2-592; O.C.G.A. § 21-2-593; O.C.G.A. § 21-2-596; O.C.G.A. § 21-2-597; O.C.G.A. § 21-2-601; and O.C.G.A. § 21-2-602.

Official Code of Georgia Annotated § 21-2-567 makes it a misdemeanor for any person to use or threaten to use force or violence, or in any other manner to intimidate any other person to vote or refrain from voting in any election, or to vote or refrain from voting for or against a particular candidate or question, or to place or refrain from placing his or her name upon a register of electors. I hereby designate the violation of O.C.G.A. § 21-2-567 as an offense for which those charged are to be fingerprinted.

Also, O.C.G.A. § 21-2-590 makes it a misdemeanor for any poll officer knowingly to permit any unregistered person to vote, or to refuse to permit any duly registered person to vote, or to render or knowingly permit another person to render an elector assistance in violation of the elections code. I hereby designate the violation of O.C.G.A. § 21-2-590 as an offense for which those charged are to be fingerprinted.

Lastly, you have asked me to review the former designations of O.C.G.A. §§ 17-6-12 and 42-8-38 as fingerprintable offenses. Official Code of Georgia Annotated § 17-6-12 provides for the arrest of a person released on his or her own recognizance who fails to appear at trial. You have noted in your request for an opinion that, in your experience, courts view arrests for “failure to appear” as part of the original arrest charges, not a new arrest. You also indicate that the result of this arrest for “failure to appear” is that there is a lack of information for the criminal record which relates to the disposition of these cases, and this leaves the criminal history database with incomplete information. Based upon your experience in this area, it is my opinion and I now modify the designation under O.C.G.A. § 17-6-12 so that only those instances involving “failure to appear” for an offense which is itself a fingerprintable offense should be submitted as a fingerprintable arrest.

You have also asked that I reconsider O.C.G.A. § 42-8-38 which provides for the arrest of a probationer for violating the terms and conditions of his or her probation. You have noted that your experience with this offense indicates that probation officers often times initiate arrest warrants for technical violations of a person’s terms of probation. The result, especially of these technical violations, is that the probation is often not revoked or modified after the probationer is brought into compliance. When the probation is not revoked or modified, the criminal history database is left with no disposition for this arrest. It is my opinion, based upon your experience, to modify the designation to include fingerprinting only in those instances in which an adverse action is taken against the probationer such that the adverse action actually alters the terms of his or her probation.

I trust that this review and the opinions regarding the specific designations of those offenses for which persons charged with violations are to be fingerprinted will aid you in discharging your duties pursuant to the Georgia Crime Information Act.

Prepared by:

CAROL A. CALLAWAY
Senior Assistant Attorney General