Which of twelve new misdemeanors created by the Georgia General Assembly in 2001 should be added to the Georgia Crime Information Center's fingerprintable-offense list?

Plain-English summary

The Deputy Director of the Georgia Crime Information Center asked the AG to review twelve new misdemeanors created by the General Assembly in 2001 and decide which should be added to the GCIC's fingerprintable-offense list. Under O.C.G.A. § 35-3-33(1)(A)(v), the AG has the authority to designate any offense as one for which arrestees must be fingerprinted at the GCIC level. The AG designated five: aggressive driving (§ 40-6-397, a misdemeanor of a high and aggravated nature involving intent to annoy, harass, intimidate, or injure another driver); unlawful hunting/trapping/fishing and violation of a hunting/fishing suspension (§§ 27-1-3(i) and (j)) (consistent with the prior designation of all § 27-1-3 through 27-1-39 offenses in 1995 Op. Att'y Gen. 95-15); disturbing archeological sites (§ 12-3-621); malpractice or malfeasance in office (§ 45-11-4(b)); and tampering with evidence (§ 16-10-94). The AG declined to designate seven other offenses, including campaign activities at a polling place, unlicensed water well contracting, ticket resale, electrical contractor licensing violations, unlawful shrimp trawls, and hunting on another's land without permission (the last reflecting a 1987 reversal of an earlier 1984 designation that was found counter-productive).

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context

The opinion is one in the AG's annual or semi-annual update of the GCIC fingerprintable-offense list. The Georgia Crime Information Act, O.C.G.A. § 35-3-1 et seq., requires GCIC to keep records of arrests for serious offenses. Felonies are automatically tracked. For misdemeanors, statute specifies some categories and the AG has discretionary authority under § 35-3-33(1)(A)(v) to add others by designation.

The five designated offenses share a public-protection or accountability rationale:

• O.C.G.A. § 40-6-397 (aggressive driving) is a "misdemeanor of a high and aggravated nature" involving intentional dangerous driving aimed at another person. The AG treated the raised charge level as an indicator of seriousness warranting GCIC tracking.
• O.C.G.A. § 27-1-3(i) and (j) are wildlife-violation offenses. Subsection (i) treats taking wildlife in violation of Title 27 as theft by taking and hunting/trapping/fishing in violation as criminal attempt, both as misdemeanors. Subsection (j) makes it a misdemeanor to hunt, fish, trap, possess, or transport wildlife in violation of a suspension. The 1995 AG opinion (95-15) had already designated misdemeanors under §§ 27-1-3 through 27-1-39 as fingerprintable, so the AG continued that pattern.
• O.C.G.A. § 12-3-621 (disturbing archeological sites) protects an irreplaceable cultural resource. Designation lets GCIC track repeat offenders at the state level.
• O.C.G.A. § 45-11-4(b) (malpractice, malfeasance, or misfeasance in office) is a category of public-official misconduct. The AG designated it as fingerprintable because it directly implicates the integrity of public office.
• O.C.G.A. § 16-10-94 (tampering with evidence) directly affects the integrity of criminal investigations and proceedings. Designation aids in tracking related arrests.

The seven non-designated offenses were largely regulatory or sport-related:

• O.C.G.A. § 21-2-414(g) (campaign activities at polling place) had previously been left undesignated in 1995 and 1998 opinions; the AG continued that pattern.
• O.C.G.A. § 12-5-133 (unlicensed water well contracting), O.C.G.A. § 43-14-14 (electrical contractor licensing), and O.C.G.A. § 43-4B-25 (ticket resale by non-brokers) were treated as regulatory licensing offenses that did not warrant statewide tracking.
• O.C.G.A. § 27-4-133(a.1) (unlawful shrimp trawls with foot-rope length over 220 feet) was a specialized commercial-fishing regulatory offense.
• O.C.G.A. § 27-3-1(c) (hunting on another's land without permission) had been designated by a predecessor AG in 1984 (1984 Op. Att'y Gen. 84-44), but a 1987 opinion (1987 Op. Att'y Gen. 87-21) reversed the designation after concluding that the time required for transportation and fingerprinting was counter-productive. The AG continued the 1987 reversal.

For GCIC at the time

The GCIC database needed to be updated to track arrests for the five newly designated offenses. The previous designations under § 27-1-3 (from 1995) and the de-designation of § 27-3-1(c) (from 1987) remained in effect.

For local arresting agencies and county jails at the time

Booking practices for the five newly designated misdemeanors (aggressive driving, wildlife violations, archeological-site disturbance, public-official misconduct, evidence tampering) had to include fingerprinting and submission to GCIC.

For prosecutors and defense attorneys at the time

A defendant arrested for one of the five newly designated misdemeanors generated a GCIC criminal-history record. That collateral consequence was material for plea bargaining and disposition. Defendants arrested under the seven non-designated misdemeanors did not get a GCIC-level entry.

Common questions

Q: Why did the AG designate aggressive driving but not unlawful shrimp trawls?
A: Aggressive driving involves intent to annoy, harass, intimidate, or injure another person, and the legislature classified it as a misdemeanor of a high and aggravated nature. Unlawful shrimp trawls is a commercial-regulatory offense without public-safety or integrity concerns at that level.

Q: Why is malpractice in office on the fingerprintable list?
A: Public-official misconduct directly implicates the integrity of public office. Tracking related arrests at the statewide GCIC level supports oversight and accountability for officials moving across jurisdictions.

Q: Why was § 27-3-1(c) (hunting on another's land without permission) un-designated in 1987?
A: The 1987 opinion (1987 Op. Att'y Gen. 87-21) found that the practical burden of transporting arrestees to fingerprinting facilities was counter-productive given the offense profile. The AG continued that reversal.

Q: Does designation affect the underlying penalties or charges?
A: No. Fingerprintable designation only affects what GCIC records about the arrest. The substantive offense, its classification, and its penalties are unchanged.

Background and statutory framework

The AG's designation authority under O.C.G.A. § 35-3-33(1)(A)(v) is one of two sources for the GCIC fingerprintable-offense list (the other being statutory designation). The AG's annual review keeps the list current as the General Assembly creates new misdemeanors. The recurring opinions in this series (one annually most years) follow a consistent pattern: serious public-safety, integrity, or fraud offenses get designated; specialized regulatory or low-stakes offenses generally do not.

The pattern of historical changes (designation, then de-designation, sometimes re-designation) reflects the practical realities of fingerprinting in the field. The 1987 de-designation of § 27-3-1(c) recognized that some misdemeanors do not warrant the time and resources required for fingerprinting at the time of arrest.

Citations and references

Statutes:
- O.C.G.A. § 35-3-33(1)(A)(v) (AG designation authority)
- O.C.G.A. § 40-6-397 (aggressive driving)
- O.C.G.A. § 27-1-3 (wildlife violations)
- O.C.G.A. § 12-3-621 (archeological sites)
- O.C.G.A. § 45-11-4(b) (malpractice in office)
- O.C.G.A. § 16-10-94 (tampering with evidence)
- Other 2001 misdemeanors discussed: O.C.G.A. §§ 21-2-414(g), 12-5-133, 43-4B-25, 43-14-14, 27-4-133(a.1), 27-3-1(c)

Prior AG opinions:
- 1995 Op. Att'y Gen. 95-15 (Title 27 wildlife designations)
- 1984 Op. Att'y Gen. 84-44 (original § 27-3-1(c) designation)
- 1987 Op. Att'y Gen. 87-21 (de-designating § 27-3-1(c))

Source

• Landing page: https://law.georgia.gov/opinions/2001-11

Original opinion text

You have requested my opinion concerning whether any of the following twelve misdemeanor offenses enacted during the 2001 Session of the General Assembly should be designated as offenses for which persons charged with violations are to be fingerprinted: O.C.G.A. § 40-6-397 (aggressive driving); O.C.G.A. § 21-2-414(g) (campaign activities at a polling place); O.C.G.A. § 27-1-3(i) (unlawful hunting, trapping, and fishing); O.C.G.A. § 27-1-3(j) (violation of suspension of right to hunt or fish); O.C.G.A. § 12-3-621 (disturbing archeological sites); O.C.G.A. § 12-5-133 (acting as a well water contractor without a license); O.C.G.A. § 45-11-4(b) (malpractice, malfeasance, or misfeasance in office); O.C.G.A. § 43-4B-25 (reselling of tickets); O.C.G.A.§ 43-14-14 (violation of electrical contractors licensing and certification laws); O.C.G.A. § 16-10-94 (tampering with evidence); O.C.G.A. § 27-4-133(a.1) (unlawful shrimp trawls); and O.C.G.A. § 27-3-1(c) (hunting on land of another without permission). In addition to the list of fingerprintable offenses mandated by statute, O.C.G.A. § 35-3-33(1)(A)(v) provides that the Attorney General may designate any other offense as one for which those charged with violations are to be fingerprinted. The first misdemeanor offense is O.C.G.A. § 40-6-397. That Code section provides that "any person convicted of aggressive driving shall be guilty of a misdemeanor of a high and aggravated nature." Aggressive driving is defined as operating "any motor vehicle with the intent to annoy, harass, molest, intimidate, injure, or obstruct another person." I hereby designate the violation of O.C.G.A. §40-6-397 as an offense for which those charged are to be fingerprinted. The second misdemeanor offense is O.C.G.A. § 21-2-414(g). That Code section makes it a misdemeanor to violate the provisions of Title 21, Chapter 2, Article 11, regarding restrictions on campaign activities and public opinion polling within the vicinity of a polling place. In 1995 and 1998, this office designated misdemeanors arising under violations of O.C.G.A. § 21-2-414 as offenses for which those charged are not to be fingerprinted. That designation remains unchanged. The third misdemeanor offense is O.C.G.A. § 27-1-3(i). That Code section provides that "[a] person who takes any wildlife in violation of this title commits the offense of theft by taking. A person who hunts, traps, or fishes in violation of this title commits the offense of criminal attempt. Any person who violates any provision of this Code section shall be guilty of a misdemeanor." The fourth misdemeanor offense is O.C.G.A. § 27-1-3(j). That Code section makes it a misdemeanor to hunt, fish, trap, possess or transport wildlife in violation of the suspension of the right to do so. My predecessor previously designated misdemeanors arising under O.C.G.A. §§ 27-1-3 through 27-1-39 as fingerprintable offenses. See 1995 Op. Att'y Gen. 95-15. Therefore, I hereby designate the violation of O.C.G.A. § 27-1-3 (i) and O.C.G.A. § 27-1-3(j) as offenses for which those charged are to be fingerprinted. The fifth misdemeanor offense is O.C.G.A. § 12-3-621. That Code section makes it a misdemeanor to violate subsection (a) or (b) of Title 12, Chapter 3, Article 9, regarding destroying, defacing, marring, or harming archeological, aboriginal, prehistoric, or historic sites, and notification of the state archeologist before disturbing or investigating such sites. I hereby designate the violation of O.C.G.A. § 12-3-621 as an offense for which those charged are to be fingerprinted. The sixth misdemeanor offense is O.C.G.A. § 12-5-133. That Code section provides that any person who "engages in or follows the business or occupation of, or advertises, holds himself or herself out, or acts, temporarily or otherwise, as a water well contractor without first having secured the required license or renewal thereof or any person who otherwise violates any provisions of this part shall be guilty of a misdemeanor." An offense resulting from the violation of this Code section does not appear to be an offense for which fingerprinting is required, and I am not, at this time, designating this offense as one which requires fingerprinting. The seventh misdemeanor offense is O.C.G.A. § 45-11-4(b). That Code section provides that a public officer may be charged under Title 45, Chapter 11 for "(1) Malpractice, misfeasance, or malfeasance in office; (2) Using oppression or tyrannical partiality in the administration or under the color of his or her office; (3) When required by law, willfully refusing or failing to preside in or hold his or her court at the regular terms thereof, or when it is his or her duty under the law to do so; (3) Using any other deliberate means to delay or avoid the due course or proceeding of law; or (4) Willfully and knowingly demanding more cost than he or she is entitled to by law in the administration and under color of his or her office." I hereby designate the violation of O.C.G.A. § 45-11-4(b) as an offense for which those charged are to be fingerprinted. The eighth misdemeanor offense is O.C.G.A. § 43-4B-25. That Code section makes it a misdemeanor for any person other than a ticket broker to resell or offer for resale any ticket of admission or other evidence of the right of entry for any entertainment event to which the general public is admitted for a price in excess of the face value of the ticket. An offense resulting from the violation of this Code section does not appear to be an offense for which fingerprinting is required, and I am not, at this time, designating this offense as one which requires fingerprinting. The ninth misdemeanor offense is O.C.G.A. § 43-14-14. That Code section makes it a misdemeanor to violate Title 43, Chapter 14, regarding licensing and certification of electrical contractors, plumbers, conditioned air contractors, low-voltage contractors, and utility contractors. An offense resulting from the violation of this Code section does not appear to be an offense for which fingerprinting is required, and I am not, at this time, designating this offense as one which requires fingerprinting. The tenth misdemeanor offense is O.C.G.A. § 16-10-94. That Code section makes it a misdemeanor to destroy, alter, conceal, or disguise physical evidence or make, devise, prepare, or plant false evidence with the intent to prevent the apprehension or cause the wrongful apprehension of any person or to obstruct the prosecution or defense of any person regarding a misdemeanor. I hereby designate the violation of this Code section as an offense for which those charged are to be fingerprinted. The eleventh misdemeanor offense is O.C.G.A. § 27-4-133(a.1). That Code section makes it a misdemeanor to trawl for shrimp for human consumption with any trawl or trawls having a total foot-rope length greater than 220 feet. An offense resulting from the violation of this Code section does not appear to be an offense for which fingerprinting is required, and I am not, at this time, designating this offense as one which requires fingerprinting. The twelfth misdemeanor offense is O.C.G.A. § 27-3-1(c). That Code section makes it a misdemeanor to violate subsection (a) or (b) of Title 27, Chapter 3, Article 1, Part 1, regarding requirement of permission to hunt on lands of another. My predecessor had designated this as an offense for which those charged are to be fingerprinted in 1984. See 1984 Op. Att'y Gen. 84-44. However, it was later determined that the time necessary for transportation and fingerprinting of those arrested under this Code section was counter-productive. See 1987 Op. Att'y Gen. 87-21. Therefore, an offense resulting from the violation of this Code section does not appear to be an offense for which fingerprinting is required, and I am not, at this time, designating this offense as one which requires fingerprinting. I trust that my revisions of the specific designations of those 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. Prepared by: KATHERINE EVANS Assistant Attorney General