Official Opinion 2008-6
Fingerprinting in regard to 2008 legislative amendments to O.C.G.A. § 40‑5‑20 and O.C.G.A. § 40‑5‑121.
You have requested, in your letter of July 14, 2008, my opinion whether certain violations of O.C.G.A. § 40‑5‑20 and O.C.G.A. § 40‑5‑121 should be designated as offenses for which persons charged with violations are to be fingerprinted.
As you have noted, Senate Bill 350, passed by the 2008 session of the Georgia General Assembly, greatly increased certain penalty provisions under these code sections, creating felony violations for the fourth offense of certain violations of both code sections. O.C.G.A. § 40‑5‑20 (Supp. 2008) now provides as follows:
(a) No person, except those expressly exempted in this chapter, shall drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license under this chapter for the type or class of vehicle being driven. Any person who is a resident of this state for 30 days shall obtain a Georgia driver’s license before operating a motor vehicle in this state. Any violation of this subsection, except the violation of driving with an expired license, or a violation of Code Section 40-5-29 if such person produces in court a license issued to such person and valid at the time of such person’s arrest, shall be punished as provided in Code Section 40-5-121. Any court having jurisdiction over traffic offenses in this state shall report to the department the name and other identifying information of any individual convicted of driving without a license.
O.C.G.A. § 40‑5‑20(a) (Supp. 2008) (emphasis indicates 2008 amending language).
Code section 40‑5‑121, which before the 2008 amendments provided enhanced penalties for “driv[ing] a motor vehicle on any public highway of this state at a time when his privilege to do so is suspended, disqualified, or revoked . . . ,” has been amended to include the offense of driving “without being licensed as required by subsection (a) of Code Section 40‑5‑20 . . . .” O.C.G.A. § 40‑5‑121(a) (Supp. 2008). The 2008 amendments also add a fingerprint requirement, to be “taken upon conviction,”and provide that “[f]or the fourth or subsequent conviction within five years . . . such person shall be guilty of a felony . . . .” Id.
What was previously treated in the statute as a misdemeanor traffic offense – driving without a valid license – now has been amended by the General Assembly to provide for an enhanced penalty, including felony status for a fourth or subsequent offense, for violations unless the driver’s license is simply expired or the driver is licensed but does not have the license in his immediate possession. Thus, if the operator of a vehicle is unlicensed, i.e., is not a person with an expired license or a licensed driver who simply does not have the license in his or her possession, the enhanced penalties apply. Such unlicensed persons charged with this offense rather than the excepted offenses should be fingerprinted. As you point out in your request letter, without designating these offenses as fingerprintable a fourth or subsequent conviction would never appear on an offender’s criminal history record, making it a practical impossibility for an offender ever to be charged with a felony. This does not change my previous designations in regard to persons charged with driving on expired licenses and persons who are licensed but simply do not have driver’s licenses on their persons.
Persons violating O.C.G.A. § 40‑5‑121 for driving while suspended, disqualified, or revoked should also be fingerprinted. Again, the felony status required for fourth and subsequent convictions by the General Assembly mandates this result for any person driving with a revoked or suspended license. It is also clear from the legislation that the intent of the General Assembly is for fingerprints to be taken for violations of both of these offenses. Inasmuch as such fingerprinting currently occurs under Georgia law, regulation, and practice at the time of arrest rather than after conviction, this should render the language calling for taking fingerprints “after conviction” superfluous since the intent of the General Assembly to capture these designated offenses in order to treat repeat offenders more harshly will be carried out.
I trust that the designations of these offenses for which persons charged with violations are to be fingerprinted will aid you in discharging your duties pursuant to the Georgia Crime Information Act.
Senior Assistant Attorney General
 The uniform practice throughout the State is for fingerprinting to occur at the time of arrest, not following conviction. Georgia law already requires that the Georgia Crime Information Center “[o]btain and file fingerprints . . . on persons who . . . [h]ave been or are hereafter arrested or taken into custody in this state” for certain offenses, including felonies and offenses designated by the Attorney General. O.C.G.A. § 35‑3‑33(a). However, as discussed further in this opinion, fingerprinting at the time of arrest according to common law enforcement practice should suffice to comply with the General Assembly’s directive that fingerprinting occur in order to track offenses and offenders.