2008 Legislative Bills

The following are summaries of bills we are tracking this legislative session which may be of interest:

• House Bills
• House Resolutions
• Senate Bills
• Senate Resolutions

House Bills

HB 902 | Repealing § 17-10-17 and § 17-10-18

Purpose: To repeal § 17-10-17 and § 17-10-18.

Effect: No increased sentences for those convicted of hate crimes

Rationale: The current statute encourages disparate treatment of persons accused of committing the same crimes; imposes enhanced penalties based on whether the crime was motivated by bias or prejudice. Calls for increased punishment of these offenders is unnecessary and unconstitutional based on Botts v. State 278 Ga. 538 (2004), which declared the code section unconstitutionally vague, violative of state and federal due process and explained that it “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.”

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HB 903 | Amending §17-6-1 and §17-10-1

Purpose: To require persons who are not lawfully present in the United States and who are charged with a felony to have bail set by a superior court judge.

Effect: Persons unlawfully present in the U.S. must appear in superior court for bail hearing; magistrate judge may not set bail for person in U.S. unlawfully

§ 17-6-1. Before whom offenses are bailable; when person charged with misdemeanor may be bailed

Unlawfully present in U.S., must appear before superior court judge for bail;

If a detained person has not petitioned for bail, the superior court should notify the prosecuting attorney (changed from district attorney).

In the event that a person is detailed in a municipal jail for a period of 30 days because bail may only be set by a superior court judge, the municipal court shall notify the superior court in writing within 48 hours.

HB 908 |

Purpose: To repeal certain provisions relating to residency and employment restrictions for certain sexual offenders; to change a definition; to provide for restrictions on where sexual offenders and sexually dangerous predators may reside, work, volunteer, or loiter; to provide for definitions; to provide for punishment; to provide for exemptions from certain residency and employment restrictions; to provide for civil causes of action; to provide for applicability.

Effect:  Guidance is provided for measuring the distance of a sex offender’s place of business from a prohibited area. Provides exemption for violation occurring when prohibited place establishes within 1,000 ft. of previously owned and occupied residence.

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HB 910 | Amending §40-5-58

Purpose: To change certain provisions relating to notification of habitual violator status.

Effect: Removes requirement to give notice to those who are classified as habitual violators other than the revocation of his or her driver’s license immediately upon conviction of the offense that renders him as such. Before probationary license can be reinstated, no earlier than a two year period after habitual violator classification, driver may have to undergo approved substance abuse and/or driving courses.

§ 40-5-58. Determination of habitual violators; revocation of license; probationary license

As used in this Code section, "habitual violator" means any person who has been arrested and convicted within the United States three or more times within a five-year period of time, as measured from the dates of previous arrests for which convictions were obtained to the date of the most recent arrest for which a conviction was obtained. Only applicable to crimes enumerated in §40-5-54 and § 40-6-31 through 35.

HB 980 | Amending OCGA § 15-12-68
Grand juries; witnesses; unsworn testimony; provisions

Includes law enforcement officers in definition of “witnesses” required to take oath before grand jury and requires that failure to properly swear them will cause testimony to be disallowed for all purposes, including actions taken by the grand jury.

HB 997 | Amending OCGA § 17-4-70
Witness Identification Accuracy Enhancement Act, Enact

Creates law requiring that after July 1, 2011, all photographic lineups and physical lineups be conducted by peace officers, as defined in Code Section 35-1-15, who have successfully completed proper in-service training but failure to do so alone will not preclude evidence from being admissible at trial.

HB 1020 | Creating OCGA § 17-16-11
Civil and criminal cases; minors; certain sexually explicit or obscene evidence

Restricts access by defendant and attorney during discovery of sexually explicit evidence in cases involving minors by mandating material be kept in custody of a law enforcement agency, prosecuting attorneys’ office or the court and not allowing copying.

HB 1040 | Amending OCGA § 15-11-30.1
Juvenile courts; deprived child; permanent guardian; grant jurisdiction

Grants jurisdiction to juvenile courts to appoint permanent guardian to deprived child after certain requirements are met, such as obtaining consent from child if 14 yrs. or older, and sets forth guidelines for petition thereby requesting.

HB 1052 | Amending OCGA § 17-7-170
Demand for trial; speedy trial; lengthen time frame

Changes time within which speedy trial must occur before acquittal to either "six months from the date demand for trial is made" or at "the next succeeding regular court term thereafter, whichever period is longer."

HB 1119 | Amending O.C.G.A § 40-5-2
Drivers' licenses; driving without a license; provisions

Any court with jurisdiction over traffic offense to report identifying information of persons found to have been driving without a license to the GA Crime Information Center; ant person convicted of such shall be punished as if driving with suspended license.

HB 1136 | Revising in its entirety O.C.G.A § 17-7-130
Mental incompetency plea; proceedings in cases; change, reorganize and clarify provisions

Provides that defendants charged with a nonviolent offense and found mentally incompetent to stand trial have charges dismissed under certain circumstances; removes the requirement that a mentally incompetent defendant charged with a misdemeanor offense be committed to the Department of Human Resources for a period of one year prior to charges being dismissed.

HB 1213 | Amends O.C.G.A. § 16-6-22.a
Incest; crime; include additional related persons

Further defines the crime to include victims of either sex and changes the required act from “intercourse” to “penetration.”

HB 1214 | Amends O.C.G.A. § 16-12-100
Offenses; minors; certain forfeiture provisions; change and enlarge

Makes it a felony to electronically furnish obscene material to minors unless the victim is between 14 and 17 years of age and the defendant is no more than three years older, in which case it shall be aggravated misdemeanor punishable by 1 – 10 years imprisonment and up to $10K fine. 

HB 1171 | Amends O.C.G.A. § 16-13-31 – 31.1

A second or subsequent offense of trafficking or selling cocaine, illegal drugs, marijuana or meth punishable by life sentence.

HB 1172 | Amends O.C.G.A. § 17-6-1

Persons not lawfully in the U.S. must appear before a Superior Court Judge to have bail set; if detained in municipal jail for 30 days before having bail set, the municipal court must notify the superior court in writing within 48 hours of discovery.

HB 1173 | Amends O.C.G.A. § 48-7-27

Government funds paid to a person for the death of a loved one due to a criminal act may be included as an exemption in calculating Georgia taxable net income (in addition to the other sources of income enumerated in O.C.G.A. § 48-7-27).
HB 1212 (02/13/08 - House Second Readers)
Amends O.C.G.A. § 48-7-27
Adds a fourth judge to the Superior Court for the Flint Judicial Circuit.

HB 1214 | Amends O.C.G.A. § 16-12-100 – 100.4

Property owned by sexual offender and used in connection with the felony offense no longer taken by state; if at time of offense the victim was between 14 and 17 and the defendant was no more than three years older than the victim then the crime is a misdemeanor, no longer a felony.

HB 1224 | Amends O.C.G.A. § 15-11-65

Remedies for delinquent child who violates probation repealed and replaced. If he or she fails to respond to graduated sanctions disposition, will be ordered to complete a 14- or 30-day probation sanctions program, which may not be repeated.

HB 1225 | Amends O.C.G.A. § 15-11-46.1

Detention of a child prior to adjudication shall only be imposed when it is found that less restrictive interim placement alternatives are not appropriate. There must be a prudent assessment of risk, to be developed by DJJ and administered at intake at an RYDC. The assessment must prove the need by clear and convincing evidence and detention may be imposed if the child poses a threat of flight, danger to himself or others, or danger of bodily harm as evidenced by recent behavior. A judge may reject the assessment and detention with a consideration of factors such as the nature of the crime, history, etc.

HB 1293 | Amends O.C.G.A. § 17-10-35.1

Regarding review of pretrial proceedings in a case in which the death penalty is sought, the Supreme Court must issue and order granting or denying such within 45 days of the date on which the case was received (previously 20 days).

HB 1297 | Amends O.C.G.A. §§ 15-24-2, 17-5-56, 17-5-70 – 73, and 17-15-12.

In a sexual assault case in which the death penalty is imposed, evidence that includes biological material shall be maintained for ten years after judgment becomes final or ten years from May 27, 2003, whichever is later. Victims can have a free forensic medical examination regardless of whether they cooperate with law enforcement in pursuing the underlying crime and cannot be forced to submit to a polygraph or other truth-telling device as a condition to investigation or prosecution of the crime.

House Resolutions:

Senate Bills:

SB 37 | Amending § 17-10-1

Purpose: To allow a change of sentence under certain circumstances; to provide for an effective date.

Effect: If a person was convicted of certain misdemeanors prior to July 1, 2006, the sentencing court at any date after sentencing, may reduce, suspend or probate the sentence.

§ 17-10-1. Determinate sentences

(2) If a person was convicted prior to July 1, 2006, of the offense of:

(A) Misdemeanor Sodomy
(B) Misdemeanor Child molestation
(C) Misdemeanor Aggravated Child Molestation
(D) Misdemeanor Enticement of a child for indecent purposes

at any date after which sentence was imposed, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. Prior to entering any order correcting, reducing, or modifying any sentence, the court shall afford notice and an opportunity for a hearing to the prosecuting attorney. Any order modifying a sentence which is entered without notice and an opportunity for a hearing as provided in this subsection shall be void.

SB 211 | Amends OCGA § 17-10-17
Criminal Procedure; sentencing of defendants guilty of crimes involving bias/prejudice circumstances and parole

In sentencing crimes involving bias or prejudice, the judge may increase sentences for regular misdemeanors or those of high aggravated nature by 50% and felonies by up to 5 years with no eligibility for parole or early release until 90% of the sentence served.

SB 259 | Amending OCGA § 17-5-22
Warrants; issuance of search warrants by judicial officers

“No-knock” warrants may only be issued with a probable cause determination that if an officer were to knock and announce identity and purpose before entry it would pose a significant and imminent danger to human life or imminent danger of evidence being destroyed.

SB 386 | Creating O.C.G.A § 42-5-52.2
Incarcerated Persons; tested for HIV and hepatitis prior to discharge; provide for notice; counseling

Any person who has been in the custody of a penal institution for one year or longer and who has not previously tested positive for HIV, hepatitis, shall submit to tests for such between 60 and 120 days prior to the expected date of discharge from the facility; if test positive receive counseling.

SB 415 | Amending O.C.G.A § 15-11-45
Juvenile Proceedings; Dept. of Human Resources emergency care/supervision to a child without a court order; reduce allowed time

Changes period that Department of Human Resources can provide emergency supervision to any child without seeking a court order from seven days to 72 hours and now is required to show, by registered letters, phone calls or emails, that before placing the child in foster care the department attempted to place the child with a family member.

SB 421 | Amending O.C.G.A § 16-9-4
False Identification documents; change in penalties based on age.

Providing that a person under the age of 21 who knowingly manufacture, sells, or distributes or uses false identification documents in order to obtain entry into an age restricted facility or being used to purchase a consumable good that is age restricted will be guilty of a misdemeanor.

SB 432 | Amending O.C.G.A § 17-10-1.2
Criminal Procedure; allow victim’s family to provide statement during sentencing procedures

In death penalty cases, evidence by victim’s family can be presented during sentencing as a written statement, an audiotaped or videotaped statement, or a statement made via speakerphone with an attorney´s verification of the speaker´s identity; the authenticating witness shall be subject to cross examination.

SB 438 | Amending O.C.G.A § 40-6-77
Serious injury due to right of way violation resulting in a collision; provide for a penalty for a second offense

Defines “seriously injure;” second or subsequent offense of causing serious injury due to right of way violation resulting in a collision with a motorcyclist, pedestrian, bicyclist, or farmer hauling agricultural products, punishable by a fine of not less than $500.00 nor more than $1,000.00 and imprisonment for not less than ten days nor more than 12 months and suspended license for not less than 30 nor more than 90 days.

SB 442 | Amends O.C.G.A. § 16-10-20
Public Administration, Offenses Against; false statements/writings; within the jurisdiction of the state/political subdivisions; change certain prov.

Adds legislative branch of government to departments/agencies that fraudulent statements made to, concerning a matter within the jurisdiction of the branch, will result in a fine of not more than $1,000.00 or imprisonment of one to five years, or both.

SB 450 | Amends O.C.G.A. § 16-5-91
Crimes Against Persons; increase the penalty for aggravated stalking

Increases minimum sentence from one year to three years if convicted of aggravated stalking.

SB 453 | Amends O.C.G.A. § 6-13-32.5
Controlled Substances; add the state as entity authorized to govern certain criminal activity; designated areas for recreational purposes

Adds state properties to those within 1000 feet of which it is unlawful to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana, formerly properties dedicated by a “municipality” or “county” as recreational.

SB 450 | Amends O.C.G.A. § 16-5-91

Increases the minimum penalty for aggravated stalking from one year to three years.

SB 457 | Amends O.C.G.A. §§ 35-3-50 – 52

Creates the Georgia MethCheck database, administered by the GCIC, which records and stores the identity of people who purchase medications that can be used for meth production such as pseudophedrine, ephedrine, and phenlypropanolamine. Pharmacies to maintain and enter info into the database. By July 1, 2009 pending funding, there will be a real time electronic logbook for all Georgia pharmacies to utilize.

SB 474 | Amends O.C.G.A. §§ 39-5-1 - 7

All ISPs must make available (or suggest) a product to users that will allow them to control more strictly the websites that children in their households access. Local school districts to develop and incorporate curriculum about internet safety for children in grades three and above. State Department of Education to provide model curriculum to school districts.

SB 478 | Amends O.C.G.A. § 15-6-2

Adds a new superior court judge to the Douglas Judicial Circuit, increasing the number to four.

Senate Resolutions: