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Title: Legal Updates 2007 Butch Beach, Division Director Georgia


1
Legal Updates 2007
  • Butch Beach, Division Director
  • Georgia Police Academy Division
  • Georgia Public Safety Training Center
  • Butch.beach_at_gpstc.state.ga.us
  • 478.993.4450

2
Legislative Updates
3
Code Section 10-1-350
  • Amends Chapter 1 of Title 10 relating to
    secondary metals recyclers.
  • Amends definitions to read
  • (3) Nonferrous metals means stainless steel
    beer kegs and metals not containing significant
    quantities of iron or steel, including, without
    limitation, copper, brass, aluminum, bronze,
    lead, zinc, nickel, and alloys thereof.

4
Code Section 10-1-354
  • (a) If the secondary metals recycler contests the
    identification or ownership of the regulated
    metal property, the party other than the
    secondary metals recycler claiming ownership of
    any regulated metal property in the possession of
    a secondary metals recycler may, provided that a
    timely report of the theft of the regulated metal
    property was made to the proper authorities,
    bring an action in the superior or state court of
    the county in which the secondary metals recycler
    is located. The petition for such action shall
    include a description of the means of
    identification of the regulated metal property
    utilized by the petitioner to determine ownership
    of the regulated metal property in the possession
    of the secondary metals recycler.

5
10-1-354
  • (b) When a lawful owner recovers stolen regulated
    metal property from a secondary metals recycler
    who has complied with the provisions of this
    article, and the person who sold the regulated
    metal property to the secondary metals recycler
    is convicted of theft by taking, theft by
    conversion, a violation of this article, theft by
    receiving stolen property, or criminal damage to
    property in the first degree, the court shall
    order the defendant to make full restitution,
    including, without limitation, attorneys fees,
    court costs, and other expenses to the secondary
    metals recycler or lawful owner, as appropriate.

6
10-1-354
  • (c) When a lawful owner recovers stolen regulated
    metal property from a secondary metals recycler
    who has knowingly and intentionally not complied
    with the provisions of this article, and the
    secondary metals recycler is convicted of theft
    by taking, theft by conversion, theft by
    receiving stolen property, or a violation of this
    article, the court shall order the defendant to
    make full restitution, including, without
    limitation, attorneys fees, court costs, and
    other expenses to the lawful owner."

7
10-1-357
  • (a) Any person selling regulated metal property
    to a secondary metals recycler in violation of
    any provision of this article shall be guilty of
    a misdemeanor unless the value of the regulated
    metals property, in its original and undamaged
    condition, in addition to any costs which are, or
    would be, incurred in repairing or in the attempt
    to recover any property damaged in the theft or
    removal of such regulated metal property, is in
    an aggregate amount which exceeds 500.00, in
    which case such person shall be guilty of a
    felony and, upon conviction, shall be punished by
    a fine of not more than 5,000.00 or by
    imprisonment for not less than one nor more than
    five years, or both.

8
10-1-357
  • (b) Any secondary metals recycler knowingly and
    intentionally engaging in any practice which
    constitutes a violation of this article shall be
    guilty of a misdemeanor unless the value of the
    regulated metals property, in its original and
    undamaged condition, in addition to any costs
    which are, or would be, incurred in repairing or
    in the attempt to recover any property damaged in
    the theft or removal of such regulated metal
    property, is in an aggregate amount which exceeds
    500.00, such secondary metals recycler shall be
    guilty of a felony and, upon conviction, shall be
    punished by a fine of not more than 5,000.00 or
    by imprisonment for not less than one nor more
    than five years, or both."

9
10-1-358 (New Section)
  • The General Assembly finds that this article is a
    matter of state-wide concern. This article
    supersedes and preempts all rules, regulations,
    codes, ordinances, and other laws adopted by any
    county, municipality, consolidated government, or
    other local governmental agency regarding the
    sale or purchase of regulated metal property."

10
16-8-12
  • Code Section 16-8-12 of the Official Code of
    Georgia Annotated, relating to penalties for
    violation of Code Sections 16-8-2 through 16-8-9,
    is revised in subsection (a) by striking "or" at
    the end of paragraph (7), by replacing the period
    with " or" at the end of paragraph (8), and by
    adding a new paragraph to read as follows
  • "(9) Notwithstanding the provisions of paragraph
    (1) of this subsection, if the property of the
    theft was ferrous metals or regulated metal
    property, as such terms are defined in Code
    Section 10-1-350, and the aggregate amount of
    such property, in its original and undamaged
    condition, exceeds 500.00, by imprisonment for
    not less than one nor more than five years, a
    fine of not more than 5,000.00, or both."

11
15-11-21(c)
  • "(c) The judge may direct that hearings in In any
    case or class of cases involving alleged
    delinquent, unruly, or deprived children, the
    judge shall determine whether such case shall be
    conducted in the first instance by the judge or
    by the associate juvenile court judge in the
    manner provided by this article. If a party so
    requests, the hearing shall be conducted by the
    judge except for detention hearings or probable
    cause hearings, which shall be conducted by the
    associate juvenile court judge if directed to do
    so by the judge."

12
15-11-55
  • Said article is further amended by revising Code
    Section 15-11-55, relating to the disposition of
    a deprived child, as follows
  • "15-11-55.
  • (a) If the child is found to be a deprived child,
    the court may make any of the following orders of
    disposition best suited to the protection and
    physical, mental, and moral welfare of the child
  • (1) Permit the child to remain with his or her
    parents, guardian, or other custodian, including
    a putative father, subject to conditions and
    limitations as the court prescribes, including
    supervision as directed by the court for the
    protection of the child

13
15-11-55
  • (C) Any public agency authorized by law to
    receive and provide care for the child provided,
    however, that for the purpose of this Code
    section, the term 'public agency' shall not
    include the Department of Juvenile Justice or
  • (D) An individual in another state with or
    without supervision by an appropriate officer
    under Code Section 15-11-89.

14
15-11-55
  • Except for dispositions pursuant to paragraph (1)
    of subsection (a) of Code Section 15-11-66 and
    Code Section 15-11-67, before transferring
    temporary legal custody in an order of
    disposition under this paragraph a reasonably
    diligent search for a parent or relative of the
    child or other persons who have demonstrated an
    ongoing commitment to the child shall be
    conducted by the court and the Department of
    Human Resources. Such search shall be completed
    within 90 days from the date on which the child
    was removed from the home, the results of such
    search documented in writing and filed with the
    court at the time of the first review. During
    such 90 day period, the child may be placed in
    the temporary legal custody of the Department of
    Human Resources or any other appropriate entity
    or person or

15
15-11-55
  • (d)(e) A juvenile court shall not be required to
    make an order of disposition pursuant to this
    Code section regarding a child who is discharged
    from a facility in which the child was
    hospitalized or habilitated pursuant to Chapter
    3, 4, or 7 of Title 37 unless the child is to be
    discharged into the physical custody of any
    person who had such custody when the court made
    its most recent finding that such child was
    deprived.

16
15-11-55
  • (e)(f) If a child is found to be a deprived child
    and the deprivation is found to have been the
    result of alcohol or other drug abuse by a parent
    or guardian, as specified in subsection (b) of
    Code Section 15-11-54, and the court orders
    transfer of temporary legal custody of the child,
    as provided in paragraph (2) of subsection (a) of
    this Code section, the court is authorized to
    further order that legal custody of the child may
    not be transferred back to the childs custodian
    or guardian whose abuse of alcohol or another
    drug resulted in the childs deprivation unless
    such person undergoes substance abuse treatment
    and random substance abuse screenings and those
    screenings remain negative for a period of no
    less than six consecutive months."

17
49-5-3
  • Article 1 of Chapter 5 of Title 49 of the
    Official Code of Georgia Annotated, relating to
    children and youth services, is amended by
    revising paragraph (12) of Code Section 49-5-3,
    relating to definitions, as follows
  • "(12) 'Legal custody' means a legal status
    created by court order embodying the following
    rights and responsibilities
  • (A) The right to have the physical possession of
    the child or youth
  • (B) The right and the duty to protect, train, and
    discipline him the child
  • (C) The responsibility to provide him the child
    with food, clothing, shelter, education, and
    ordinary medical care and

18
15-18-14.1
  • To provide that investigators appointed to assist
    the district attorney of the Appalachian Judicial
    Circuit may be authorized by the district
    attorney to make arrests to provide a procedure
    for such written authorization to provide for
    related matters to repeal conflicting laws and
    for other purposes.

19
15-18-14.1
  • a) Subject to meeting the qualifications required
    by Code Section 15-18-14.1 of the Official Code
    of Georgia Annotated, any investigator appointed
    by the district attorney of the Appalachian
    Judicial Circuit may be authorized to make
    arrests, to execute and return all criminal
    warrants and processes, and to serve as a peace
    officer.
  • (b) The authorization of any action listed in
    subsection (a) of this section by any such
    investigator shall be in writing and signed by
    the district attorney, and filed with each
    superior court clerk in the circuit.

20
15-18-14.1
  • (c) Any investigator appointed by the district
    attorney of the Appalachian Judicial Circuit
    shall be subject to the requirements of Chapter 8
    of Title 35, the "Georgia Peace Officer Standards
    and Training Act," and Code Section 15-18-21.

21
16-9-109
  • To amend Titles 16 and 35 of the Official Code of
    Georgia Annotated, relating to crimes and
    offenses and law enforcement officers and
    agencies, respectively, so as to provide the
    Georgia Bureau of Investigation with the
    authority to investigate certain offenses against
    minors, including subpoena power to change
    provisions relating to the "Computer Pornography
    and Child Exploitation Act of 1999" to provide
    for a definition to provide for an effective
    date to provide for related matters to repeal
    conflicting laws and for other purposes.

22
16-9-109
  • Title 16 of the Official Code of Georgia
    Annotated, relating to crimes and offenses, is
    amended by revising Code Section 16-9-109,
    relating to disclosure by service providers
    pursuant to investigations, as follows

23
16-9-109
  • "16-9-109.
  • (a) Any law enforcement unit, the Attorney
    General, or any district attorney who is
    conducting an investigation of a violation of
    this article or an investigation of a violation
    of Code Section 16-12-100, 16-12-100.1,
    16-12-100.2, or 16-5-90 or Article 8 of this
    chapter involving the use of a computer, cellular
    telephone, or any other electronic device used in
    furtherance of the act may require the disclosure
    by a provider of electronic communication service
    or remote computing service of the contents of a
    wire or electronic communication that is in
    electronic storage in an electronic
    communications system for 180 days or less
    pursuant to a search warrant issued under the
    provisions of Article 2 of Chapter 5 of Title 17
    by a court with jurisdiction over the offense
    under investigation. Such court may require the
    disclosure by a provider of electronic
    communication service or remote computing service
    of the contents of a wire or electronic
    communication that has been in electronic storage
    in an electronic communications system for more
    than 180 days as set forth in subsection (b) of
    this Code section.

24
16-9-109
  • (b)(1) Any law enforcement unit, the Attorney
    General, or any district attorney may require a
    provider of electronic communication service or
    remote computing service to disclose a record or
    other information pertaining to a subscriber to
    or customer of such service, exclusive of the
    contents of communications, only when any law
    enforcement unit, the Attorney General, or any
    district attorney
  • (A) Obtains a search warrant as provided in
    Article 2 of Chapter 5 of Title 17
  • (B) Obtains a court order for such disclosure
    under subsection (c) of this Code section or
  • (C) Has the consent of the subscriber or customer
    to such disclosure.

25
16-9-109
  • (2) A provider of electronic communication
    service or remote computing service shall
    disclose to any law enforcement unit, the
    Attorney General, or any district attorney the
  • (A) Name
  • (B) Address
  • (C) Local and long distance telephone connection
    records, or records of session times and
    durations
  • (D) Length of service, including the start date,
    and types of service utilized
  • (E) Telephone or instrument number or other
    subscriber number or identity, including any
    temporarily assigned network address and
  • (F) Means and source of payment for such service,
    including any credit card or bank account number
    of a subscriber to or customer of such service
    when any law enforcement unit, the Attorney
    General, or any district attorney uses a subpoena
    authorized by Code Section 16-9-108, 35-3-4.1, or
    45-15-17 or a grand jury or trial subpoena when
    any law enforcement unit, the Attorney General,
    or any district attorney complies with paragraph
    (1) of this subsection.

26
16-9-109
  • (3) Any law enforcement unit, the Attorney
    General, or any district attorney receiving
    records or information under this subsection
    shall not be required to provide notice to a
    subscriber or customer. A provider of electronic
    communication service or remote computing service
    shall not disclose to a subscriber or customer
    the existence of any search warrant or subpoena
    issued pursuant to this article nor shall a
    provider of electronic communication service or
    remote computing service disclose to a subscriber
    or customer that any records have been requested
    by or disclosed to any law enforcement unit, the
    Attorney General, or any district attorney
    pursuant to this article.

27
16-9-109
  • (c) A court order for disclosure issued pursuant
    to subsection (b) of this Code section may be
    issued by any superior court with jurisdiction
    over the offense under investigation and shall
    only issue such court order for disclosure if any
    law enforcement unit, the Attorney General, or
    any district attorney offers specific and
    articulable facts showing that there are
    reasonable grounds to believe that the contents
    of an electronic communication, or the records or
    other information sought, are relevant and
    material to an ongoing criminal investigation. A
    court issuing an order pursuant to this Code
    section, on a motion made promptly by a provider
    of electronic communication service or remote
    computing service, may quash or modify such
    order, if compliance with such order would be
    unduly burdensome or oppressive on such provider.

28
16-9-109
  • (d)(1) Any records supplied pursuant to this part
    shall be accompanied by the affidavit of the
    custodian or other qualified witness, stating in
    substance each of the following
  • (A) The affiant is the duly authorized custodian
    of the records or other qualified witness and has
    authority to certify the records

29
16-9-109
  • (B) The copy is a true copy of all the records
    described in the subpoena, court order, or search
    warrant and the records were delivered to the
    attorney, the attorneys representative, or the
    director of the Georgia Bureau of Investigation
    or the directors designee
  • (C) The records were prepared by the personnel of
    the business in the ordinary course of business
    at or near the time of the act, condition, or
    event

30
16-9-109
  • (D) The sources of information and method and
    time of preparation were such as to indicate its
    trustworthiness
  • (E) The identity of the records and
  • (F) A description of the mode of preparation of
    the records.

31
16-9-109
  • (2) If the business has none or only part of the
    records described, the custodian or other
    qualified witness shall so state in the
    affidavit.
  • (3) If the original records would be admissible
    in evidence if the custodian or other qualified
    witness had been present and testified to the
    matters stated in the affidavit, the copy of the
    records shall be admissible in evidence. When
    more than one person has knowledge of the facts,
    more than one affidavit shall be attached to the
    records produced.

32
16-9-109
  • (4) No later than 30 days prior to trial, a party
    intending to offer such evidence produced in
    compliance with this subsection shall provide
    written notice of such intentions to the opposing
    party or parties. A motion opposing the admission
    of such evidence shall be filed within ten days
    of the filing of such notice, and the court shall
    hold a hearing and rule on such motion no later
    than ten days prior to trial. Failure of a party
    to file such motion opposing admission prior to
    trial shall constitute a waiver of objection to
    such records and affidavit. However, the court,
    for good cause shown, may grant relief from such
    waiver."

33
16-12.100.2
  • Said title is further amended by revising Code
    Section 16-12-100.2, relating to computer
    pornography and child exploitation prevention, as
    follows
  • "16-12-100.2.
  • (a) This Code section shall be known and may be
    cited as the 'Computer or Electronic Pornography
    and Child Exploitation Prevention Act of 2007.'
  • (b) As used in this Code section, the term

34
16-12.100.2
  • (1) 'Child' means any person under the age of 16
    years.
  • (2) 'Electronic device' means any device used for
    the purpose of communicating with a child for
    sexual purposes or any device used to visually
    depict a child engaged in sexually explicit
    conduct, store any image or audio of a child
    engaged in sexually explicit conduct, or transmit
    any audio or visual image of a child for sexual
    purposes. Such term may include, but shall not be
    limited to, a computer, cellular phone, thumb
    drive, video game system, or any other electronic
    device that can be used in furtherance of
    exploiting a child for sexual purposes

35
16-12.100.2
  • 3) 'Identifiable child' means a person
  • (A) Who was a child at the time the visual
    depiction was created, adapted, or modified or
    whose image as a child was used in creating,
    adapting, or modifying the visual depiction and
  • (B) Who is recognizable as an actual person by
    the persons face, likeness, or other
    distinguishing characteristic, such as a unique
    birthmark or other recognizable feature or by
    electronic or scientific means as may be
    available.

36
16-12.100.2
  • The term shall not be construed to require proof
    of the actual identity of the child.
  • (4) 'Sadomasochistic abuse' has the same meaning
    as provided in Code Section 16-12-100.1.
  • (5) 'Sexual conduct' has the same meaning as
    provided in Code Section 16-12-100.1.
  • (6) 'Sexual excitement' has the same meaning as
    provided in Code Section 16-12-100.1.

37
16-12.100.2
  • (7) 'Sexually explicit nudity' has the same
    meaning as provided in Code Section 16-12-102.
  • (8) 'Visual depiction' means any image and
    includes undeveloped film and video tape and data
    stored on computer disk or by electronic means
    which is capable of conversion into a visual
    image or which has been created, adapted, or
    modified to show an identifiable child engaged in
    sexually explicit conduct.

38
16-12.100.2
  • (c)(1) A person commits the offense of computer
    or electronic pornography if such person
    intentionally or willfully
  • (A) Compiles, enters into, or transmits by
    computer or other electronic device
  • (B) Makes, prints, publishes, or reproduces by
    other computer or other electronic device
  • (C) Causes or allows to be entered into or
    transmitted by computer or other electronic
    device or

39
16-12.100.2
  • (D) Buys, sells, receives, exchanges, or
    disseminates
  • any notice, statement, or advertisement, or any
    childs name, telephone number, place of
    residence, physical characteristics, or other
    descriptive or identifying information for the
    purpose of offering or soliciting sexual conduct
    of or with an identifiable child or the visual
    depiction of such conduct.
  • (2) Any person convicted of violating paragraph
    (1) of this subsection shall be punished by a
    fine of not more than 10,000.00 and by
    imprisonment for not less than one nor more than
    20 years.

40
16-12.100.2
  • (d)(1) It shall be unlawful for any person
    intentionally or willfully to utilize a computer
    on-line service or Internet service, including
    but not limited to a local bulletin board
    service, Internet chat room, e-mail, on-line
    messaging service, or other electronic device, to
    seduce, solicit, lure, or entice, or attempt to
    seduce, solicit, lure, or entice a child or
    another person believed by such person to be a
    child to commit any illegal act described in Code
    Section 16-6-2, relating to the offense of sodomy
    or aggravated sodomy Code Section 16-6-4,
    relating to the offense of child molestation or
    aggravated child molestation Code Section
    16-6-5, relating to the offense of enticing a
    child for indecent purposes or Code Section
    16-6-8, relating to the offense of public
    indecency or to engage in any conduct that by its
    nature is an unlawful sexual offense against a
    child.

41
16-12.100.2
  • (2) Any person who violates paragraph (1) of this
    subsection shall be guilty of a felony and, upon
    conviction thereof, shall be punished by
    imprisonment for not less than one nor more than
    20 years and by a fine of not more than
    25,000.00 provided, however, that, if at the
    time of the offense the victim was 14 or 15 years
    of age and the defendant was no more than three
    years older than the victim, then the defendant
    shall be guilty of a misdemeanor of a high and
    aggravated nature.

42
16-12.100.2
  • (e)(1) A person commits the offense of obscene
    Internet contact with a child if he or she has
    contact with someone he or she knows to be a
    child or with someone he or she believes to be a
    child via a computer on-line service or Internet
    service, including but not limited to a local
    bulletin board service, Internet chat room,
    e-mail, or on-line messaging service, and the
    contact involves any matter containing explicit
    verbal descriptions or narrative accounts of
    sexually explicit nudity, sexual conduct, sexual
    excitement, or sadomasochistic abuse that is
    intended to arouse or satisfy the sexual desire
    of either the child or the person, provided that
    no conviction shall be had for a violation of
    this subsection on the unsupported testimony of a
    child.

43
16-12.100.2
  • (2) Any person who violates paragraph (1) of this
    subsection shall be guilty of a felony and, upon
    conviction thereof, shall be punished by
    imprisonment for not less than one nor more than
    ten years or by a fine of not more than
    10,000.00 provided, however, that, if at the
    time of the offense the victim was 14 or 15 years
    of age and the defendant was no more than three
    years older than the victim, then the defendant
    shall be guilty of a misdemeanor of a high and
    aggravated nature.

44
16-12.100.2
  • (f)(1) It shall be unlawful for any owner or
    operator of a computer on-line service, Internet
    service, local bulletin board service, or other
    electronic device that is in the business of
    providing a service that may be used to sexually
    exploit a child to intentionally or willfully to
    permit a subscriber to utilize the service to
    commit a violation of this Code section, knowing
    that such person intended to utilize such service
    to violate this Code section. No owner or
    operator of a public computer on-line service,
    Internet service, local bulletin board service,
    or other electronic device that is in the
    business of providing a service that may be used
    to sexually exploit a child shall be held liable
    on account of any action taken in good faith in
    providing the aforementioned services.

45
16-12.100.2
  • (2) Any person who violates paragraph (1) of this
    subsection shall be guilty of a misdemeanor of a
    high and aggravated nature.
  • (g) The sole fact that an undercover operative or
    law enforcement officer was involved in the
    detection and investigation of an offense under
    this Code section shall not constitute a defense
    to prosecution under this Code section.
  • (h) A person is subject to prosecution in this
    state pursuant to Code Section 17-2-1, relating
    to jurisdiction over crimes and persons charged
    with commission of crimes generally, for any
    conduct made unlawful by this Code section which
    the person engages in while

46
16-12.100.2
  • (1) Either within or outside of this state if, by
    such conduct, the person commits a violation of
    this Code section which involves a child who
    resides in this state or another person believed
    by such person to be a child residing in this
    state or
  • (2) Within this state if, by such conduct, the
    person commits a violation of this Code section
    which involves a child who resides within or
    outside this state or another person believed by
    such person to be a child residing within or
    outside this state.
  • (i) Any violation of this Code section shall
    constitute a separate offense."

47
16-13-26
  • To amend Chapter 13 of Title 16 of the Official
    Code of Georgia Annotated, relating to controlled
    substances, so as to change certain provisions
    relating to Schedule II controlled substances to
    change certain provisions relating to Schedule V
    controlled substances to change certain
    provisions relating to the definition of
    "dangerous drug" to provide an effective date
    to repeal conflicting laws and for other
    purposes.

48
17-7-130
  • To amend Part 2 of Article 6 of Chapter 7 of
    Title 17 of the Official Code of Georgia
    Annotated, relating to issues of insanity and
    mental incompetency in pretrial proceedings, so
    as to provide for definitions to provide that
    the committing court may have discretion to allow
    evaluation in the community for certain
    defendants to provide that the committing court
    can order an evaluation of the defendant to
    provide for the committing court to conduct a
    civil commitment hearing on the defendant to
    provide for related matters to repeal
    conflicting laws and for other purposes.

49
17-7-130
  • (a) As used in this Code section, the term
  • (1) 'Committing court' means the court which has
    jurisdiction over the criminal charges against
    the defendant.
  • (2) 'Inpatient' shall have the same meaning as in
    paragraph (9.1) of Code Section 37-3-1.

50
17-7-130
  • (3) 'Nonviolent offense' means any offense other
    than
  • (A)(i) Murder
  • (ii) Rape
  • (iii) Aggravated sodomy
  • (iv) Armed robbery
  • (v) Aggravated assault
  • (vi) Hijacking of a motor vehicle or an aircraft
  • (vii) Aggravated battery
  • (viii) Aggravated sexual battery

51
17-7-130
  • (ix) Aggravated child molestation or
  • (x) Aggravated stalking
  • (xi) Arson in the first degree and in the second
    degree
  • (xii) Stalking
  • (xiii) Fleeing and attempting to elude a police
    officer
  • (xiv) Any sexual offense against a minor or
  • (xv) Any offense which involves the use of a
    deadly weapon or destructive device and
  • (B) Those felony offenses deemed by the
    committing court to involve an allegation of
    actual or potential physical harm to another
    person.

52
17-7-130
  • (4) 'Outpatient' shall have the same meaning as
    in paragraph (12.1) of Code Section 37-3-1,
    provided that the court determines that the
    defendant meets the criteria for release on bail
    or other pre-trial release pursuant to Code
    Section 17-6-1.

53
17-7-130
  • (b) Whenever a plea is filed that a defendant in
    a criminal case is mentally incompetent to stand
    trial, it shall be the duty of the court to cause
    the issue of the defendants mental competency to
    stand trial to be tried first by a special jury.
    If the special jury finds the defendant mentally
    incompetent to stand trial, the court shall
    retain jurisdiction over the defendant but shall
    transfer the defendant to the Department of Human
    Resources provided, however, that if the
    defendant is charged with a misdemeanor offense
    other than as included in subparagraph (A) of
    paragraph (3) of subsection (a) of this Code
    section or a nonviolent offense, the court may,
    in its discretion, retain jurisdiction over the
    defendant, and may allow evaluation to be done on
    an outpatient basis by the Department of Human
    Resources. If the court allows outpatient
    evaluation and the defendant is in custody, the
    court may release the defendant in accordance
    with the provisions of Code Section 17-6-1,
    et.seq.

54
17-7-130
  • (c) Within 90 days after the Department of Human
    Resources has received actual custody of a
    defendant or, in the case of an outpatient, a
    court order requiring evaluation of a defendant
    pursuant to subsection (b) of this Code section,
    the defendant shall be evaluated and a diagnosis
    made as to whether the defendant is presently
    mentally incompetent to stand trial and, if so,
    whether there is a substantial probability that
    the defendant will attain mental competency to
    stand trial in the foreseeable future. If the
    defendant is found to be mentally competent to
    stand trial, the department shall immediately
    report that finding and the reasons therefore to
    the committing court and the defendant shall be
    returned to the court as provided for in
    subsection (f) of this Code section.

55
17-7-130
  • (d) If the defendant is found to be mentally
    incompetent to stand trial by the Department of
    Human Resources and there is not a substantial
    probability that the person will attain
    competency in the foreseeable future, the
    department shall return the physical custody of
    the defendant to a law enforcement officer of the
    jurisdiction of the court which committed the
    defendant unless in the opinion of the
    departments attending physician, and with
    concurrence of the court, such detention by law
    enforcement would be detrimental to the
    well-being of the defendant, in which case the
    defendant may be held by the department until the
    date of the defendants hearing. The department
    shall report to the committing court the finding
    regarding competency, the reasons therefor, and
    its opinion as to whether the defendant currently
    meets criteria for commitment as an inpatient or
    as an outpatient pursuant to Chapters 3 or 4 of
    Title 37.

56
17-7-130
  • The law enforcement officer of the jurisdiction
    of the court which committed the defendant shall
    retain custody of the defendant and the
    committing court may order an independent
    evaluation of the defendant by a court appointed
    licensed clinical psychologist or psychiatrist,
    who shall report to the court in writing as to
    the current mental and emotional condition of the
    defendant. Based on consideration of all evidence
    and all reports, the committing court may

57
17-7-130
  • (1) Refer the case to the probate court for
    commitment proceedings pursuant to Chapter 3 or 4
    of Title 37, if appropriate and if the charges
    are dismissed for any reason or
  • (2) Retain jurisdiction of the defendant and
    conduct a hearing at which it shall hear evidence
    and consider all psychiatric and psychological
    reports submitted to the court and determine
    whether the state has proved by clear and
    convincing evidence that the defendant meets the
    criteria for involuntary civil commitment as an
    inpatient or as an outpatient pursuant to Chapter
    3 or 4 of Title 37, whichever is applicable. The
    burden of proof in such hearings shall be upon
    the state.

58
17-7-130
  • (A) If the defendant does not meet the criteria
    for inpatient or outpatient civil commitment, the
    defendant shall be released in accordance with
    the provisions of Code Section 17-6-1 et. seq.
  • (B) If the defendant is found to meet the
    criteria for involuntary civil commitment as an
    inpatient or outpatient, the judge may issue an
    order committing the defendant.
  • (i) If the defendant so committed is charged with
    a misdemeanor offense, the committing court may
    civilly commit the defendant for a period not to
    exceed one year. Following the commitment period,
    the charges against the defendant shall be
    dismissed by operation of law.

59
17-7-130
  • (ii) A defendant who is so committed and is
    charged with a felony may only be released from
    that inpatient or outpatient commitment by order
    of the committing court in accordance with the
    procedures specified in paragraphs (1) through
    (3) of subsection (f) of Code Section 17-7-131
    except that the burden of proof in such release
    hearing shall be on the state and if the
    committed person cannot afford a physician or
    licensed clinical psychologist of the defendants
    choice, the person may petition the court and the
    court may order such cost to be paid by the
    county.

60
17-7-130
  • The Department of Human Resources shall report
    annually to the committing court on whether the
    civilly committed defendant continues to meet
    criteria for involuntary commitment as an
    inpatient or an outpatient pursuant to Chapter 3
    or 4 of Title 37. The committing court shall
    review the case and enter an appropriate order,
    either to renew the inpatient or outpatient civil
    commitment, to change the commitment either from
    inpatient to outpatient or from outpatient to
    inpatient, or in the event charges are dismissed,
    transfer the jurisdiction of the case to the
    probate court for further proceedings pursuant to
    Title 37, if appropriate.

61
17-7-130
  • (e) If the defendant is found to be mentally
    incompetent to stand trial but there is a
    substantial probability that the person will
    attain competency in the foreseeable future, by
    the end of the 90 day period, or at any prior
    time, the department shall report that finding
    and the reasons therefor to the committing court
    and shall retain custody over the defendant for
    the purpose of continued treatment for an
    additional period not to exceed nine months
    provided, however, that if the defendant is
    charged with a misdemeanor offense or a
    nonviolent offense, the court shall retain
    jurisdiction over the defendant, but may, in its
    discretion, allow continued treatment to be done
    on an outpatient basis by the Department of Human
    Resources.

62
17-7-130
  • The department shall monitor the defendants
    outpatient treatment for an additional period not
    to exceed nine months. If, by the end of the
    nine-month period or at any prior time if the
    defendants condition warrants, the defendant is
    still found not to be competent to stand trial,
    irrespective of the probability of recovery in
    the foreseeable future, the department shall
    report that finding and the reasons therefor to
    the committing court. The committing court shall
    then follow the procedures in subsection (d) of
    this Code section for further commitment or
    release.

63
17-7-130
  • f)(1) If the defendant found to be mentally
    incompetent to stand trial is at any time found
    by the Department of Human Resources to be
    mentally competent to stand trial, the committing
    court shall be notified. A defendant who is an
    inpatient and is found by the Department of Human
    Resources to be mentally competent to stand trial
    shall be discharged into the custody of a law
    enforcement officer of the jurisdiction of the
    court which committed the defendant to the
    department unless the charges which led to the
    commitment have been dismissed, in which case the
    defendant shall be discharged.

64
17-7-130
  • In the event a law enforcement officer does not
    appear and take custody of the defendant within
    20 days after notice to the appropriate law
    enforcement official in the jurisdiction of the
    committing court, the presiding judge of the
    committing court, and the prosecuting attorney
    for the court, the department shall itself return
    the defendant to one of the committing courts
    detention facilities and the cost of returning
    the defendant shall be paid by the county in
    which the committing court is located. All
    notifications shall be sent by certified mail or
    statutory overnight delivery, return receipt
    requested. With the concurrence of the
    appropriate court and upon the recommendation of
    the departments attending physician, any
    defendant discharged as competent to stand trial
    may be held by the department instead of at the
    courts detention facilities whenever, in the
    attending physicians opinion, such detention in
    the courts facilities would be detrimental to
    the well-being of the defendant so committed.
    Such alternative detention shall continue only
    until the date of the defendants trial.

65
17-7-130
  • (2)A defendant who is an outpatient and is found
    by the Department of Human Resources to be
    mentally competent to stand trial may remain in
    the community under conditions of bond or other
    conditions ordered by the committing court, if
    any, until the date of the persons trial.
  • (g) Any person found by the Department of Human
    Resources to be mentally competent to stand trial
    returned to the court as provided in subsection
    (f) of this Code section shall again be entitled
    to file a special plea as provided for in this
    Code section.

66
17-7-130
  • (h) If a defendant is found to be mentally
    incompetent to stand trial, whether or not
    committed pursuant to this Code section, the
    state may file at any time a motion for rehearing
    on the issue of the defendants mental
    competency. The court shall grant said motion
    upon a showing by the state that there are
    reasonable grounds to believe that the
    defendants mental condition has changed. If this
    motion is granted, the case shall proceed as
    provided in subsection(b) of this Code section."

67
17-8-58
  • (b) Failure to object in accordance with
    subsection (a) of this Code section shall
    preclude appellate review of such portion of the
    jury charge, unless such portion of the jury
    charge constitutes plain error which affects
    substantial rights of the parties. Such plain
    error may be considered on appeal even if it was
    not brought to the courts attention as provided
    in subsection (a) of this Code section."

68
17-8-58
  • (a) In any case, except cases in which the death
    penalty is imposed or cases involving a serious
    violent felony as defined in subsection (a) of
    Code Section 17-10-6.1, in which a sentence of 12
    or more years, or several consecutive sentences
    which total 12 or more years, has been fixed and
    imposed by a judge, without a jury, the defendant
    shall have the right to have the sentence or
    sentences reviewed by a panel of three superior
    court judges to determine whether the sentence or
    sentences so imposed are excessively harsh.
    Consideration shall be given in the review to the
    nature of the crime for which the defendant has
    been convicted and to the defendants prior
    criminal record

69
17-8-58
  • (a) Any party who objects to any portion of the
    charge to the jury or the failure to charge the
    jury shall inform the court of the specific
    objection and the grounds for such objection
    before the jury retires to deliberate. Such
    objections shall be done outside of the jurys
    hearing and presence.

70
17-10-6
  • If, in the opinion of the panel, the sentence
    imposed by the trial judge is too harsh or severe
    in light of all of the circumstances surrounding
    the case and the defendant, and in light of the
    defendants past history, the panel shall have
    the authority to issue an order reducing the
    sentence originally imposed by the trial judge.
    The panel shall not have the authority, however,
    to reduce any sentence to probation or to suspend
    any sentence. The panel shall not be required to
    file written opinions but shall file a copy of
    any order or remittitur reducing a sentence with
    the superior court which originally imposed the
    sentence.

71
17-10-6
  • (d) The reduction of a sentence or the refusal to
    reduce a sentence by the panel shall not be
    reviewable.

72
35-3-4.1
  • (2) A provider of electronic communication
    service or remote computing service shall
    disclose to the bureau the
  • (A) Name
  • (B) Address
  • (C) Local and long distance telephone connection
    records, or records of session times and
    durations
  • (D) Length of service, including the start date,
    and types of service utilized
  • (E) Telephone or instrument number or other
    subscriber number or identity, including any
    temporarily assigned network address and

73
35-3-4.1
  • (F) Means and source of payment for such service,
    including any credit card or bank account number
    of a subscriber to or customer of such service.
  • (b) Upon failure of a person without lawful
    excuse to obey a subpoena, the director,
    assistant director, or the deputy director for
    investigations, through the Attorney General or
    district attorney, may apply to a superior court
    having jurisdiction for an order compelling
    compliance. Such person may object to the
    subpoena on grounds that it fails to comply with
    this Code section or upon any constitutional or
    other legal right or privilege of such person.
    The court may issue an order modifying or setting
    aside such subpoena or directing compliance with
    the original subpoena.

74
35-3-4.1
  • (c) The Attorney General may request that a
    natural person who refuses to produce relevant
    matter on the ground that the production of
    records may incriminate such person be ordered by
    the court to provide such records. With the
    exception of a prosecution for perjury, a natural
    person who complies with the court order to
    provide such records asserting a privilege
    against self-incrimination to which he or she is
    entitled by law shall not be prosecuted or
    subjected to any penalty or forfeiture for or on
    account of any transaction, matter, or thing
    concerning which he or she may testify or produce
    evidence, documentary or otherwise.

75
35-3-4.1
  • (d)(1) Information obtained pursuant to a
    subpoena enforced by this Code section shall not
    be made public or, except as authorized in
    paragraph (2) of this subsection, disclosed by
    the director, assistant director, deputy director
    for investigations, or the Directors employees
    beyond the extent necessary for the enforcement
    of this Code section.

76
35-3-4.1
  • (2) The director, assistant director, deputy
    director for investigations, or the directors
    employees shall be authorized to provide to any
    federal, state, or local law enforcement agency
    any information acquired under this Code section
    in furtherance of a criminal investigation in
    violation of Code Section 16-12-100, 16-12-100.1,
    or 16-12-100.2.

77
35-3-4.1
  • (e) As used in this Code section, the terms
    'electronic communication service' and 'remote
    communication service' shall have the same
    meaning as set forth in Code Section 16-9-92."

78
35-3-4.1
  • Said title is further amended by revising Article
    1 of Chapter 3, relating to general provisions
    relating to the Georgia Bureau of Investigation,
    by adding a new Code section to read as follows
  • "35-3-4.1.
  • (a)(1) In any investigation of a violation of
    Code Section 16-12-100, 16-12-100.1, or
    16-12-100.2 involving the use of a computer or an
    electronic device in furtherance of an act
    related to a minor, the director, assistant
    director, or deputy director for investigations
    shall be authorized to issue a subpoena, with the
    consent of the Attorney General, to compel the
    production of electronic communication service or
    remote communication service records or other
    information pertaining to a subscriber or
    customer of such service, exclusive of contents
    of communications.

79
36-60-25
  • Chapter 60 of Title 36 of the Official Code of
    Georgia Annotated, relating to general provisions
    applicable to counties and municipal
    corporations, is amended by adding a new Code
    Section 36-60-25 to read as follows

80
36-60-25
  • (a) Each county and municipal corporation may
    require the owner or operator of a taxicab or
    vehicle for hire to obtain a certificate of
    public necessity and convenience or medallion in
    order to operate such taxicab or vehicle for hire
    within the unincorporated areas of the county or
    within the corporate limits of the municipal
    corporation, respectively, and may exercise its
    authority under Code Section 48-13-9 to require
    such owners or operators to pay a regulatory fee
    to the county or municipal corporation.

81
36-60-25
  • The General Assembly finds and declares that any
    county or municipality exercising the powers
    granted in this Code section is legitimately
    concerned with the qualifications and records of
    drivers of taxicabs and other vehicles for hire
    with the location, accessibility, and insured
    state of companies operating taxicabs and other
    vehicles for hire and with the safety and
    comfort of taxicabs and other vehicles for hire.
    Without limitation, each such county or
    municipality may exercise the powers granted in
    this Code section by ordinance to the same extent
    as the ordinances reviewed by the Georgia Court
    of Appeals in the case of Hadley v. City of
    Atlanta, 232 Ga. App. 871, 875 (1998), and each
    certificate of public convenience and necessity
    issued under those ordinances shall remain in
    full force and effect.

82
36-60-25
  • (b) Each certificate of public necessity and
    convenience or medallion issued at any time by a
    county or municipal corporation shall be fully
    transferable pursuant to a purchase, gift,
    bequest, or acquisition of the stock or assets of
    a corporation to any person otherwise meeting the
    requirements of the applicable local ordinance.
    Each such certificate of public necessity and
    convenience or medallion may be used as
    collateral to secure a loan and each lending
    institution making such a loan shall have all
    rights of secured parties with respect to such
    loan."

83
43-47-8.1/ 40-2-39.1
  • House Bill 144 Curbstoning
  • Two code sections 43-47-8.1 is the licensing
    statute and subjects the violator to licensing
    board jurisdiction 40-2-39.1 will allow criminal
    sanctions
  • (a)(1) An owner or lessee of any real property
    shall not authorize more than five used motor
    vehicles within any 12 month period displayed or
    parked on such real property for the purpose of
    selling or advertising the sale of such used
    motor vehicles by the owner or lessee of such
    vehicles.
  • (2) An owner or lessee of any real property shall
    not authorize more than two used motor vehicles
    at the same time displayed or parked on such real
    property for the purpose of selling or
    advertising the sale of such used motor vehicles
    by the owner or lessee of such vehicles.

84
43-47-8.1/ 40-2-39.1
  • (3) An owner or lessee of any used motor vehicle
    shall not display or park such used motor vehicle
    on the real property of another for the purpose
    of selling or advertising the sale of such used
    motor vehicle if the display or parking of such
    vehicle will cause the owner or lessee of the
    real property to be in violation of paragraph (1)
    or (2) of this subsection.

85
43-47-8.1/ 40-2-39.1
  • (b) The provisions of subsection (a) of this Code
    section shall not apply
  • (1) If the owner or lessee of the vehicle
    displayed or parked is employed by the owner or
    lessee of the real property on which the vehicle
    is displayed or parked
  • (2) If the owner or lessee of the vehicle
    displayed or parked is conducting business with
    the owner or lessee of the real property on which
    the vehicle is parked or displayed at the time
    such vehicle is displayed or parked or
  • (3) If the real property on which a vehicle is
    parked is a parking lot for which a fee is
    charged for the use of such parking lot, the
    owner or lessee of the parked vehicle has paid
    the fee for the use of such parking lot, and such
    vehicle is legitimately parked on the property
    for purposes other than displaying, selling, or
    advertising the sale of such vehicle.

86
40-3-36
  • Code Section 40-3-36 of the Official Code of
    Georgia Annotated, relating to cancellation of
    certificates of title for scrap motor vehicles,
    is amended by revising subsections (a) and (b) as
    follows

87
40-3-36
  • "(a)(1) Any registered owner or authorized agent
    of a registered owner who in any manner sells or
    disposes of any motor vehicle as scrap metal or
    parts only or who scraps, dismantles, or
    demolishes a motor vehicle shall within 72 hours
    mail or deliver the certificate of title to the
    commissioner for cancellation.
  • If the owner has not obtained a title or lost it,
    they may sign a statement that will allow the
    transfer of the vehicle to a licensed parts
    dealer or scrap metal processor.
  • The department shall promulgate a form for the
    statement that shall include

88
40-3-36
  • (A) A statement that the vehicle shall never be
    titled again it must be dismantled or scrapped
  • (B) A description of the vehicle including the
    year, make, model, vehicle identification number,
    and color
  • (C) The name, address, and drivers license
    number of the owner
  • (D) A certification that the owner
  • (i) Never obtained a title to the vehicle in his
    or her name or
  • (ii) Was issued a title for the vehicle, but the
    title was lost or stolen
  • (E) A certification that the vehicle
  • (i) Is worth 750.00 or less
  • (ii) Is at least 12 model years old and
  • (iii) Is not subject to any secured interest or
    lien.

89
40-3-36
  • (F) An acknowledgment that the owner realizes
    this form will be filed with the department and
    that it is a felony, punishable by imprisonment
    for not fewer than one nor more than three years
    or a fine of not less than 1,000.00 nor more
    than 5,000.00, or both, to knowingly falsify any
    information on this statement
  • (G) The owners signature and the date of the
    transaction
  • (H) The name and address of the business
    acquiring the vehicle

90
40-3-36
  • (I) A certification by the business that 750.00
    or less was paid to acquire the vehicle and
  • (J) The business agents signature and date along
    with a printed name and title if the agent is
    signing on behalf of a corporation.
  • (3) The used motor vehicle parts dealer or scrap
    metal processor shall mail or otherwise deliver
    the statement required under paragraph (2) of
    this subsection to the department within 72 hours
    of the completion of the transaction, requesting
    that the department cancel the Georgia
    certificate of title and registration.

91
40-3-36
  • (2)(4)(A) The registered owner of any motor
    vehicle which is damaged to the extent that its
    restoration to an operable condition would
    require the replacement of the front clip
    assembly, which includes the fenders, hood, and
    bumper the rear clip assembly, which includes
    the quarter panels, the floor panel assembly, and
    the roof assembly, excluding a soft top the
    frame and a complete side, which includes the
    fenders, door, and quarter panel shall mail or
    deliver the certificate of title to the
    commissioner for cancellation.

92
40-3-36
  • (B) A motor vehicle owner who retains possession
    of a damaged vehicle which is a salvage motor
    vehicle as defined in paragraph (11) of Code
    Section 40-3-2 shall surrender the license plates
    and registration for such vehicle, shall not
    operate such vehicle upon the roads of this
    state, and shall not sell, trade, or otherwise
    dispose of such vehicle prior to obtaining a
    salvage certificate of title for such vehicle.

93
40-3-36
  • (C) Any insurance company which acquires a
    damaged motor vehicle by virtue of having paid a
    total loss claim shall mail or deliver the
    certificate of title to the commissioner for
    cancellation. In every case in which a total loss
    claim is paid and the insurance company does not
    acquire such damaged motor vehicle, the insurance
    company paying such total loss claim, the vehicle
    owner, and the lienholder or security interest
    holder, as applicable, shall take the following
    steps to secure a salvage certificate of title
    for such motor vehicle

94
40-3-36
  • (i) If the vehicle owner is in possession of the
    certificate of title, the owner shall deliver the
    certificate of title to the insurance company
    prior to any payment of the claim, and the
    insurance company shall mail or deliver the
    certificate of title, an application for a
    salvage certificate of title, and the form
    provided by the commissioner for issuance of a
    salvage certificate of title

95
40-3-36
  • (ii) If the certificate of title has been lost,
    destroyed, or misplaced, the vehicle owner shall,
    prior to payment of the claim on such vehicle,
    complete an application for a replacement title
    on the form provided by the commissioner and
    deliver such application and form to the
    insurance company and the insurance company shall
    mail or deliver such application and form to the
    commissioner for issuance of a replacement
    original title marked salvage

96
40-3-37
97
40-8-73.1
  • To amend Code Section 40-8-73.1 of the Official
    Code of Georgia Annotated, relating to the
    prohibition against affixing materials which
    reduce light transmission through windows or
    windshields of motor vehicles, so as to provide
    exemptions for certain vehicles to provide for
    an effective date to repeal conflicting laws
    and for other purposes.

98
40-8-73.1
  • "(8) Any vehicle that displays a valid special
    license plate issued to a government official
    under Code Section 40-2-61, 40-2-63, or 40-2-64
  • (9) Any vehicle owned or operated by the state or
    a political subdivision thereof and that displays
    a valid license plate issued pursuant to Code
    Section 40-2-37 or
  • (10) Any vehicle operated in the course of
    business by a person licensed or registered under
    Chapter 38 of Title 43, relating to private
    detective and private security businesses."

99
42-2-8
  • (c) The commissioner shall be authorized to issue
    a warrant for the arrest of an offender, who has
    escaped from the custody of the department upon
    probable cause to believe the offender has
    violated Code Section 16-10-52, relating to
    escape from lawful confinement."

100
40-3-36/43-43-3
  • Code Section 40-3-36 of the Official Code of
    Georgia Annotated, relating to cancellation of
    certificates of title for scrap motor vehicles,
    is amended by revising subsections (a) and (b) as
    follows
  • "(a)(1) Any registered owner or authorized agent
    of a registered owner who in any manner sells or
    disposes of any motor vehicle as scrap metal or
    parts only or who scraps, dismantles, or
    demolishes a motor vehicle shall within 72 hours
    mail or deliver the certificate of title to the
    commissioner for cancellation.

101
40-3-36/43-43-3
  • (2) Notwithstanding any other provision of this
    article to the contrary, if the owner or
    authorized agent of the owner has not obtained a
    title in his or her name for the vehicle to be
    transferred, or has lost the title for the
    vehicle to be transferred, he or she may sign a
    statement swearing that, in addition to the
    foregoing conditions, the vehicle is worth
    750.00 or less and is at least 12 model years
    old. The statement described in this paragraph
    may be used only to transfer such a vehicle to a
    licensed used motor vehicle parts dealer under
    Code Section 43-47-7 or scrap metal processor
    under Code Section 43-43-1. The department shall
    promulgate a form for the statement

102
44-1-13
  • Pursuant to Code Section 44-1-13, all tow trucks
    engaged in nonconsensual towing operations
    between points within the corporate limits of a
    municipality shall remain subject to the
    jurisdiction of the commission and the
    municipality within which such nonconsensual
    towing operations are conducted"

103
44-1-13
  • To amend Code Section 44-1-13 of the Official
    Code of Georgia Annotated, relating to removal of
    improperly parked cars or trespassing personal
    property, procedure, automatic surveillance
    prohibited, and penalty, so as to provide the
    Public Service Commission and the governing
    authority of municipalities concurrent
    jurisdiction on matters related to regulating and
    controlling the towing of certain vehicles under
    certain circumstances to provide for related
    matters to repeal conflicting laws and for
    other purposes.

104
44-1-13
  • Code Section 44-1-13 of the Official Code of
    Georgia Annotated, relating to removal of
    improperly parked cars or trespassing personal
    property, procedure, automatic surveillance
    prohibited, and penalty, is amended by revising
    subsections (b) and (d) as follows

105
44-1-13
  • "(b)(1) The Except as provided in subsection (d)
    of this Code section, the commission shall have
    the authorization to regulate and control the
    towing of trespassing vehicles on private
    property
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