18 Ordinances

18. ORDINANCES

NOTE - Atty. Gen. Op. U92-3 states that OCGA 15-10-2(4) grants magistrate court jurisdiction over ordinance violations including traffic cases and that OCGA 36-1-20(c) should not be read to eliminate that jurisdiction.

18.1 GENERAL

18.11 Maximum Sentence:

A. Lesser of:

1. $1000.00 or 6 months (of which only 60 days may be served in jail) or both, or

2. maximum punishment provided by ordinance [OCGA 15-10-60(a); 36-1-20(b)].

B. Ordinance fines carry several surcharges:

1. POST and indigent defense fee [OCGA 15-21-73] of 10% of fine up to $50.00, plus additional 10% of fine on offenses after 6/16/2004, plus

2. plus 5% victims' assistance fee [ OCGA 15-21-131],

3. plus 10% of the fine for the county jail fund, if applicable [OCGA 15-2193].

4. Traffic law violations, including ordinances adopting traffic laws (see 18.14), carry an additional 5% penalty [OCGA 15-21-179].

C. Ordinances adopting state traffic offenses may carry additional surcharges.

D. Defendant must be given credit for time served due to the particular charges before the court, including all time served under a bench warrant for failure to appear for those charges [Allen, 244 Ga. App. 377, 535 SE2d 347 (2000)].

18.12 Soil Erosion - Soil erosion ordinances have a civil enforcement mechanism, including fines up to $2500 per day, not covered here [see OCGA 12-7-1 et seq.]

18.13 Suspended Sentences with Conditions - Trial court may suspend service of the sentence to allow payment of the fine or of restitution to the victim, performance of community service in lieu of a fine or incarceration, or completion of other conditions relating to the underlying offense (e.g., compliance with ordinance). Imposition and service of the suspended sentence for failure to fulfill the conditions

of the sentence must commence before expiration of a year from the date of sentencing. [OCGA 15-10-60(b)] (See 18.9, below).

18.14 Adoption of traffic offenses as ordinance violations - Counties and cities may adopt any violations of OCGA Title 40, Chapter 6 by reference as ordinance violations [OCGA 40-6-372], except vehicular homicide [OCGA 40-6-393], cases arising out of the same conduct as a vehicular homicide charge, or hit and run with death or serious injury [OCGA 40-6-270(b)].

A. Local law enforcement or prosecutor may choose whether to prosecute as state offense or ordinance violation [OCGA 40-6-376(a)].

B. Defendant may transfer to appropriate state tribunal, whereupon ordinance court conducts committal hearing unless waived [OCGA 40-6-372].

C. Court may also bond over case to state tribunal on own motion or state's motion [Johnson, 257 Ga. App. 162, 570 SE2d 627 (2002)].

18.15 Transfer for jury trials - Upon request for jury, transfer to State Court (if no State Court, to Superior Court) [OCGA 15-10-61]:

A. Defendant may file a jury demand in writing before trial; however, an oral request may trigger right [Haygood, 221 Ga.App. 477, 471 SE2d 552 (1996)]. One may nevertheless wish to have the defendant sign a written demand to make clear to the higher court that the defendant instigated the transfer.

B. There appears to be a constitutional right to a jury trial in ordinances which are also state misdemeanors (such as traffic offenses) [Geng, 276 Ga. 428, 430, 578 SE2d 115 (2003); Clark, 157 Ga. App. 486, 277 SE2d 738 (1981)],

1. Where a constitutional right exists, "a valid waiver of right to trial by jury cannot be found on the sole ground that defendant failed to request one" [Marot, 259 Ga.App. 19, 576 SE2d 33 (2002) (minor traffic offenses)]; and constitutional law requires that defendant must personally, knowingly, and intelligently participate in waiver of right to trial by jury [Balbosa, 275 Ga. 574, 571 SE2d 368 (2002)];

2. For when waiver of jury trial may be withdrawn [see Bennett, 262 Ga.App. 800, 586 SE2d 704 (2003)].

18.2 CITATIONS AND ACCUSATIONS:

18.21 Prosecution may proceed upon either citation or accusation.

18.22 Accusation must be drawn by county attorney or other attorney designated by county governing authority. Such attorney shall prosecute the case at trial [OCGA 15-10-62].

18.23 Citation does not require a prosecuting attorney at trial.

18.24 Citation/Accusation Requirements [OCGA 15-10-62, -63]:

A. Personal service on the accused (copy to defendant, original to court).

B. Service by agent of county authorized by county governing authority to issue citations.

C. State time and place of trial.

D. State the offense and date of offense.

E. Bear identifying number by which it is filed with court.

F. State name of accused.

G. State date of service.

H. Be signed by county agent who completed and served it.

18.25 When provided for by local law, a citation or accusation for a violation of an ordinance concerning the condition of real property may be served by "tack and mail" service. [OCGA 15-10-62 (c)]

18.3 ARRESTS

18.31 No accused shall be arrested on county ordinance violation before trial unless offense is public drunkenness, loitering, or disorderly conduct [OCGA 15-10-62].

18.32 Bench warrant may issue for failure to appear at trial, with allowance of bond for later appearance [OCGA 15-10-62(b)].

WARNING - The warrantless arrest by the police officer must be followed by a warrant or other judicial order finding probable cause if the Defendant cannot promptly make an unconditional bond (see 11.22). The fact that a citation is sufficient to try the ordinance violation does not make the citation sufficient to hold the Defendant for extended pre-trial detention [Gerstein v. Pugh,420 U.S. 103 (1975)].

In no event should the Defendant be detained more than 48 hours without a judicial determination of probable cause [Riverside County v. McLaughlin, 500 U.S. 44 (1991)].

18.4 BONDS - [OCGA 15-10-63.1]:

18.41 Cash bonds may be allowed by written order of Chief Magistrate setting up a bond schedule.

18.42 Chief Magistrate shall designate officer(s) authorized to accept cash bonds allowed by schedule.

18.43 Cash bonds are not to be accepted by officer at time of or in conjunction with issuance of a citation.

18.44 Court clerk shall issue officer(s) authorized to accept bond a triplicate pre-numbered receipt book for cash bond.

18.45 Receipt should contain:

1. Name of the accused

2. Date of citation/arrest

3. Offense

4. Amount of bond given

5. Name of officer who received bond.

18.46 Filing of receipts - a copy of the receipt shall be given at once to the accused. The original and second copies should be delivered to the court on or before next business day after issuance.

18.47 Defendant's request for cash bond:

A. A person accused by citation (not arrested) may give a cash bond for trial appearance.

B. At failure to appear at trial, Court may:

1. Treat as guilty plea and forfeit bond as fine upon call of case,

OR

2. Enter as order of bond forfeiture and issue bench warrant. (Amount of forfeited bond credited against any subsequent fines).

18.5 CALENDAR CALL - CHECKLIST:

1. State nature of court and calendar.

2. State right to representation by counsel and to request continuance to secure same, and right to present evidence to court to urge appointment of counsel for indigent (see NOTE below and Appendix C5.2).

3. State right to remain silent and not testify.

4. Right to request transfer for jury trial in state/superior court.

5. Advise that any statement made may be considered as evidence and that testimony is taken under oath.

6. Advise that have right to ask questions of witnesses who testify at trial.

7. State that are presumed innocent unless or until Prosecution proves guilt beyond reasonable doubt.

8. State maximum penalty for conviction of violation.

9. State that at call of calendar, name and offense are read and accused may enter plea of Guilty/Not Guilty/Guilty with explanation (that Court will consider...