GA Code § 17-4-23 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 4 - Arrest of Persons|Article 2 - Arrest by Law Enforcement Officers Generally|§ 17-4-23. Procedure for Arrests by Citation for Motor Vehicle Violations; Issuance of Warrants for Arrest for Failure of Persons Charged to Appear in Court; Bond

    A law enforcement officer may arrest a person accused of violating any law or ordinance enacted by local law governing the operation, licensing, registration, maintenance, or inspection of motor vehicles or violating paragraph (2), (3), or (5) of subsection (a) of Code Section 3-3-23 by the issuance of a citation, provided that such offense is committed in his or her presence or information constituting a basis for such arrest was received by the arresting officer from a law enforcement officer observing such offense being committed, except that, when such offense results in an accident, an investigating officer may issue citations regardless of whether the offense occurred in the presence of a law enforcement officer.   A law enforcement officer may arrest a person accused of any misdemeanor violation of Code Section 16-7-21, 16-8-14, 16-8-14.1, or 16-13-30 by the issuance of a citation, provided that such offense is committed in his or her presence or information constituting a basis for such arrest was received by the arresting officer or an investigating officer from another law enforcement officer or other individual observing or aware of such offense being committed. When an arrest is made for such offense, prior to releasing the accused on citation, the arresting law enforcement officer shall review the accused's criminal record as such is on file with the Federal Bureau of Investigation and the Georgia Crime Information Center within the Georgia Bureau of Investigation and ensure that the accused's fingerprints are obtained.   The arresting officer shall issue a citation to the accused which shall enumerate the specific charges and the date upon which he or she is to appear and answer the charges or a notation that he or she will be later notified of the date upon which he or she is to appear and answer the charges. When an arresting officer makes an arrest concerning the operation of a motor vehicle based on information received from another law enforcement officer who observed the offense being committed, the citation shall list the name of each officer and each officer must be present when the charges against the accused are heard.     If the accused fails to appear as specified in the citation, the judicial officer having jurisdiction of the offense may issue a warrant ordering the apprehension of the accused and commanding that he or she be brought before the court to answer the charge contained within the citation and the charge of his or her failure to appear as required. The accused shall then be allowed to make a reasonable bond to appear on a given date before the court.   Notwithstanding subsection (b) of this Code section, when an accused was issued a citation for a violation of Code Section 16-7-21, 16-8-14, 16-8-14.1, or 16-13-30, and the accused fails to appear as specified in the citation, the judicial officer having jurisdiction of the offense, absent a finding of sufficient excuse to appear at the time and place specified in the citation, shall issue a warrant ordering the apprehension of the accused and commanding that he or she be brought before the court to answer the charge contained within the citation and the charge of his or her failure to appear as required. The accused shall then be allowed to make a reasonable bond to appear on a given date before the court.    (Ga. L. 1969, p. 759, § 1; Ga. L. 1975, p. 874, §§ 1-4; Ga. L. 2015, p. 1212, § 2/SB 160; Ga. L. 2018, p. 550, § 2-3/SB 407.)    The 2018 amendment,  effective July 1, 2018, substituted the present provisions of subsection (a) for the former provisions, which read: "A law enforcement officer may arrest a person accused of violating any law or ordinance governing the operation, licensing, registration, maintenance, or inspection of motor vehicles or violating paragraph (2), (3), or (5) of subsection (a) of Code Section 3-3-23 by the issuance of a citation, provided that the offense is committed in his presence or information constituting a basis for arrest concerning the operation of a motor vehicle or a violation of paragraph (2), (3), or (5) of subsection (a) of Code Section 3-3-23 was received by the arresting officer from a law enforcement officer observing the offense being committed, except that, where the offense results in an accident, an investigating officer may issue citations regardless of whether the offense occurred in the presence of a law enforcement officer. The arresting officer shall issue to such person a citation which shall enumerate the specific charges against the person and the date upon which the person is to appear and answer the charges or a notation that the person will be later notified of the date upon which the person is to appear and answer the charges. Whenever an arresting officer makes an arrest concerning the operation of a motor vehicle based on information received from another law enforcement officer who observed the offense being committed, the citation shall list the name of each officer and each must be present when the charges against the accused person are heard."; in subsection (b), deleted "person" following "If the accused" near the beginning, substituted "accused" for "person" near the middle of the first sentence and near the beginning of the second sentence, inserted "or she" in the middle of the first sentence, and inserted "or her" near the end of the first sentence; and added subsection (c).   Cross references.   - Uniform traffic citation and complaint form, and prosecution of traffic offenses generally, T. 40, C. 13.   Law reviews.   - For article on the 2018 amendment of this Code section, see 35 Ga. St. U.L. Rev. 45 (2018). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018).   JUDICIAL DECISIONS    Construed with § 40-13-2.1. - Having elected to issue a citation, a deputy cannot make a custodial arrest of a driver when the driver refuses to sign the citation. Instead, a deputy shall follow the procedures set forth in O.C.G.A. § 40-13-2.1(a). The language of that statute makes clear that once a deputy or officer issues a citation, the deputy or officer is obligated to follow the procedures set forth in the statute. State v. Torres, 290 Ga. App. 804, 660 S.E.2d 763 (2008).   When physical arrest permitted.    - Georgia traffic offender may only be physically arrested if, following citation for the offense, the offender fails to appear in court under O.C.G.A. § 17-4-23(b), if the arresting officer has personal knowledge that the offender was intoxicated to the extent that the offender was incapable of driving safely, or if one of the other factors of O.C.G.A. § 17-4-20 is present. Young v. City of Atlanta, 631 F. Supp. 1498 (N.D. Ga. 1986).    Because an officer was authorized to arrest the defendant for weaving, a decision to impound the vehicle the defendant was driving was not unreasonable, and an inventory search of the vehicle was authorized; thus, the trial court did not err in denying the defendant's motion to suppress the evidence seized as a result of the search. Lopez v. State, 286 Ga. App. 873, 650 S.E.2d 430 (2007).    Trial court did not err by refusing to suppress the defendant's blood-test results based on not being under arrest prior to being read Georgia's Implied Consent notice because although the defendant's recollection differed from that of the law-enforcement officer, and although defense counsel cross-examined the officer extensively as to alleged inconsistencies in the chronology of events, the officer testified that the officer issued citations to the defendant before reading Georgia's Implied Consent notice. Chernowski v. State, 330 Ga. App. 702, 769 S.E.2d 126 (2015).   Probable cause to arrest.    - Officer need not personally be aware of all the facts which would support a probable cause determination so long as it can be established by evidence that the officer's actions were the end result of a chain of information-sharing, one link of which is an officer in possession of probable cause. Waldrop v. State, 205 Ga. App. 864, 424 S.E.2d 31, cert. denied, 205 Ga. App. 901, 424 S.E.2d 31 (1992).    Trial court properly granted the defendant's motion to suppress evidence obtained after the defendant's car was impounded during a traffic stop because, even though the officer had reasonable articulable suspicion to initiate the traffic stop based on criminal database search results that the defendant's car was not insured, once the defendant provided proof of insurance in an acceptable manner, the officer did not have probable cause to arrest the defendant or issue the defendant a citation; and, without probable cause to issue the citation, the officer had no basis for impounding the defendant's vehicle. State v. Lewis, 344 Ga. App. 630, 811 S.E.2d 436 (2018).   Depositing driver's license in lieu of bail.   - Any person arrested for a traffic violation, except a violation for which a license may be suspended for a first offense, may deposit that person's driver's license with the arresting officer in lieu of bail or incarceration. Young v. City of Atlanta, 631 F. Supp. 1498 (N.D. Ga. 1986).    Municipal officer had authority to arrest the defendant under O.C.G.A. § 17-4-23(a) because, after observing the defendant operating the defendant's motorcycle, the officer had a reasonable suspicion that defendant had been driving under the influence and the defendant admitted that the defendant had been driving. Duprel v. State, 301 Ga. App. 469, 687 S.E.2d 863 (2009), overruled on other grounds by Zilke v. State, 299 Ga. 232, 787 S.E.2d 745 (2016).   Discretion to issue citations.    - Use of the term "may arrest" in O.C.G.A. § 17-4-23 merely provides law enforcement officers with the discretion to issue citations rather than make custodial arrests for traffic offenses and does not restrict the officers' arrest authority to the issuance of citations. United States v. Wilson, 853 F.2d 869 (11th Cir. 1988), cert. denied, 488 U.S. 1041, 109 S. Ct. 866, 102 L. Ed. 2d 990 (1989).    O.C.G.A. § 17-4-23 gives a police officer the option to issue a citation but does not restrict the power given to police in O.C.G.A. § 17-4-20 to make custodial arrests for crimes committed in the officers' presence. Brock v. State, 196 Ga. App. 605, 396 S.E.2d 785 (1990); Polk v. State, 200 Ga. App. 17, 406 S.E.2d 548 (1991); Edwards v. State, 224 Ga. App. 332, 480 S.E.2d 246 (1997).    O.C.G.A. § 17-4-23 gives the officer the option of issuing a citation rather than going through the time-consuming ordeal of a custodial arrest, but does not mandate a citation. Baker v. State, 202 Ga. App. 73, 413 S.E.2d 251 (1991).   Option of issuing citation is not a restriction on police.    - Although O.C.G.A. § 17-4-23(a) gives a police officer the option of issuing a citation, the statute does not restrict the power given to police in O.C.G.A. § 17-4-20 to make custodial arrests for crimes committed in the officers' presence. Consequently, after a driver is arrested for a traffic violation, a police officer can lawfully search the interior of the driver's car. State v. Lowe, 263 Ga. App. 1, 587 S.E.2d 169 (2003).   Authority of DOT enforcement officer.    - Department of Transportation enforcement officer has authority to enforce travel restrictions in high occupancy vehicle lanes. Edge v. State, 226 Ga. App. 559, 487 S.E.2d 117 (1997), overruled on other grounds by Zilke v. State, 299 Ga. 232, 787 S.E.2d 745 (2016).   Listing names of officers on citation.    - Interest protected by the requirement that certain law enforcement witnesses be identified on the traffic citation is a criminal defendant's "reasonable pretrial" access to evidence. Minicucci v. State, 214 Ga. App. 468, 448 S.E.2d 34 (1994).    Failure to list the names of law enforcement officers on a traffic citation did not entitle the defendant to dismissal of the citation since the defendant did not claim unfair surprise from the testimony of the unlisted officers nor seek a continuance or mistrial. Minicucci v. State, 214 Ga. App. 468, 448 S.E.2d 34 (1994).   Failure to observe driving under the influence.    - When a citizen reported that the defendant was driving erratically, but no officer observed the defendant driving, defendant's arrest for driving under the influence of alcohol to the extent that it was less safe to drive was invalid; under O.C.G.A. § 17-4-23(a), an officer had to observe the defendant operating a motor vehicle, and neither the exception for arrest if an accident occurred nor O.C.G.A. § 17-4-20(a), allowing custodial arrests when an offense was committed within an officer's knowledge, applied as there was no accident and no transcript of the trial court proceedings was furnished to the appellate court to determine whether the defendant was subjected to a custodial arrest. State v. Cooper, 271 Ga. App. 771, 611 S.E.2d 90 (2005).   Juvenile charged under delinquency petition.    - When a juvenile was found guilty of reckless driving in a proceeding on a juvenile delinquency petition in the juvenile court, the fact that the police officer who drew up the traffic citation, and later the petition, did not personally observe the juvenile's driving, as required by O.C.G.A. § 17-4-23, did not require reversal because the court action was based on the petition, not on the reckless driving citation. In re J.J.H., 218 Ga. App. 557, 462 S.E.2d 449 (1995).   Officer's presence at trial.    - Defendant's argument that the citation the police officer issued to defendant for hit and run had to be dismissed because the officer was not present at the defendant's bench trial had to be rejected as the statute the defendant cited for that proposition, O.C.G.A. § 17-4-23(a), only applied when the officer relied on information supplied by another officer, and not if the information was supplied by a citizen, as it was in the defendant's case. Davis v. State, 261 Ga. App. 539, 583 S.E.2d 214 (2003).    Cited in State v. Swift, 232 Ga. 535, 207 S.E.2d 459 (1974); Hyatt v. State, 134 Ga. App. 703, 215 S.E.2d 698 (1975); Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975); Parks v. State, 150 Ga. App. 446, 258 S.E.2d 66 (1979); Baxter v. State, 154 Ga. App. 861, 270 S.E.2d 71 (1980); Thompson v. State, 175 Ga. App. 645, 334 S.E.2d 312 (1985); Williams v. State, 190 Ga. App. 361, 378 S.E.2d 886 (1989); Dickerson v. State, 193 Ga. App. 605, 388 S.E.2d 736 (1989), overruled on other grounds by Zilke v. State, 2016 Ga. LEXIS 422 (Ga. 2016); Lufburrow v. State, 206 Ga. App. 250, 425 S.E.2d 368 (1992); Sanders v. State, 247 Ga. App. 170, 543 S.E.2d 452 (2000).   OPINIONS OF THE ATTORNEY GENERAL   Defendant in traffic case charged by uniform traffic citation.   - If a defendant in a traffic case charged by a uniform traffic citation fails to appear for trial in a probate court, a warrant may be issued regardless of whether that citation contains an affidavit of the arresting officer. Secondly, the uniform traffic citation is valid as an accusation without an affidavit and therefore tolls the statute of limitations for the prosecution of traffic violations. 1990 Op. Att'y Gen. No. U90-2.   Park ranger may regulate traffic.   - Park ranger may legally be invested with power by the commissioner of natural resources to regulate traffic within a state park. 1971 Op. Att'y Gen. No. U71-2.   Warrant for failure to appear for traffic violation.   - Named probate court may issue a warrant ordering apprehension of an individual charged with violating traffic laws of this state who fails to appear in court on the date and at the time specified in the citation upon which he or she was arrested. 1980 Op. Att'y Gen. No. U80-58.   What costs applicable to traffic cases in probate courts.    - Cost applicable to traffic cases brought in probate courts pursuant to O.C.G.A. § 40-13-21, or when the judge of the probate court issues a warrant in traffic cases pursuant to O.C.G.A. § 17-4-23, are those enumerated in former paragraph (a)(27) of § 15-9-60 for public safety patrol trials, plus costs allowed for other services actually performed. 1981 Op. Att'y Gen. No. U81-36.   RESEARCH REFERENCES   Am. Jur. 2d.   - 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 921 et seq.   C.J.S.   - 8 C.J.S., Bail: Release and Detention Pending Proceedings, § 136 et seq. 61A C.J.S. (Rev), Motor Vehicles, §§ 1504 et seq., 1514 et seq., 1522 et seq.   ALR.   - Right of motorist stopped by police officers for traffic offense to be informed at that time of his federal constitutional rights under Miranda v. Arizona, 25 A.L.R.3d 1076.   What amounts to violation of drunken-driving statute in officer's "presence" or "view" so as to permit warrantless arrest, 74 A.L.R.3d 1138.   Issuance or service of state-court arrest warrant, summons, citation, or other process as tolling criminal statute of limitations, 71 A.L.R.4th 554.   Authority of public official, whose duties or functions generally do not entail traffic stops, to effectuate traffic stop of vehicle, 18 A.L.R.6th 519.   Adequacy of defense counsel's representation of criminal client regarding search and seizure issues - Pretrial motions - Suppression motions where no warrant involved, 71 A.L.R.6th 1.