Which misdemeanor offenses enacted by the Georgia legislature in 2004 require fingerprinting at booking and which don't?

Plain-English summary

This is the companion opinion to Op. Att'y Gen. 2005-7, issued the same day to the same recipient (the GCIC Deputy Director). Where 2005-7 covered new 2003-session misdemeanors, this opinion covers ten new 2004-session misdemeanors plus one felony (counterfeit cigarettes) plus two older statutes that GCIC had not previously gotten a designation on.

AG Thurbert Baker designated 12 of the 13 reviewed offenses as fingerprintable. The pattern follows the same general principles as in 2005-7: offenses involving violence, fraud, repeat-offender risk, or economic-crime patterns get fingerprinted; ordinary regulatory or motorist-conduct violations don't.

Designated as fingerprintable:

1. O.C.G.A. § 2-10-62, eleven prohibited acts on a state farmers' market, including "deceptive or dishonest trade practices" and destroying "the physical properties of the market."
2. O.C.G.A. § 16-5-20(f), simple assault against a public school employee while engaged in official duties or on school property (high and aggravated misdemeanor).
3. O.C.G.A. § 16-5-23(i), simple battery against a public school employee while engaged in official duties or on school property (high and aggravated misdemeanor).
4. O.C.G.A. § 16-5-70(e)(3), cruelty to children in the third degree (misdemeanor on first/second conviction; felony on third). Designated for uniformity with the felony version.
5. O.C.G.A. § 16-8-62(f), knowingly operating the recording function of an audiovisual recording device while a motion picture is being exhibited, without consent of the venue and the licensor (high and aggravated misdemeanor on first conviction; felony on second).
6. O.C.G.A. § 16-11-107.1, knowingly and intentionally harassing or attempting to harass an assistance dog; allowing one's dog to harass an assistance dog. Replaces the old O.C.G.A. § 30-1-6 framework which was already fingerprintable.
7. O.C.G.A. § 16-17-2(d), making, offering, arranging, or acting as agent in payday-style loans of $3,000 or less without satisfying statutory criteria (high and aggravated misdemeanor; felony after three prior convictions).
8. O.C.G.A. § 40-6-17(b), possessing, using, selling, or purchasing a traffic-control device preemption emitter (the strobe-light devices that change traffic signals to green) by anyone other than law enforcement, fire, or EMS.
9. O.C.G.A. § 46-7-91(b), holding oneself out as a household goods carrier for hire without a valid certificate of authority.
10. O.C.G.A. § 48-7-127, engaging in certain unlawful tax practices (the Department of Revenue's tax-practitioner regulation).
11. O.C.G.A. § 48-11-30, sale or possession for sale of counterfeit cigarettes (felony; statutorily fingerprintable under § 35-3-33(a)(1)(A)(i)).
12. O.C.G.A. § 50-3-1(b)(1), defacing a public monument, plaque, marker, or memorial.

Not designated as fingerprintable:

• O.C.G.A. § 40-6-275, duty to remove a motor vehicle from a public road after a traffic accident with no apparent serious personal injury or death. The 2004 amendment substituted "public roads" for "expressways and multilane highways" and made any violation a misdemeanor under § 40-6-1. The AG declined to designate it: failing to clear a no-injury accident from the road is not the kind of offense that warrants the GCIC fingerprint footprint.

The film-piracy designation (§ 16-8-62(f)) is the most distinctive of this batch, reflecting the entertainment industry's concerns about the rise of camcorded movie copies in the early 2000s. The traffic-control preemption emitter designation (§ 40-6-17(b)) similarly responds to a then-novel device problem: civilians acquiring Opticom-style emitters that could change traffic signals to green for the user.

Currency note

This opinion was issued in 2005. 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.

The fingerprintable-offense designations are session-by-session AG decisions; for current designations, consult the most recent AG opinion in the GCIC fingerprintable series and the current version of O.C.G.A. § 35-3-33.

Common questions

Q: Why are simple assault and simple battery on a school employee fingerprintable when ordinary simple assault and simple battery against private adults sometimes are not?
A: Both versions are high-and-aggravated misdemeanors under §§ 16-5-20(f) and 16-5-23(i). The school-employee context made them targeted offenses with raised penalties. Fingerprinting helps law enforcement track repeat patterns, particularly with parents, students, or others who may have multiple school-incident contacts.

Q: What's payday lending under § 16-17-2(d)?
A: At the time, Georgia had a comprehensive ban on small loans (under $3,000) outside the Industrial Loan Act framework. § 16-17-2(d) made unlicensed small lending a high-and-aggravated misdemeanor (and a felony after three convictions). The 2002-3 AG opinion had already addressed the substance of this ban; the 2005-8 opinion designated the misdemeanor version as fingerprintable.

Q: What are traffic-control preemption emitters?
A: Devices that mimic the strobe-pattern signals that emergency vehicles use to change traffic lights from red to green. Sold to civilians (and used by some) to "clear" intersections during regular driving. § 40-6-17(b) restricted them to authorized emergency personnel. Fingerprinting helps track the relatively small population of unauthorized users.

Q: Why was the duty to move your vehicle off the road not fingerprintable?
A: The AG didn't elaborate, but the offense is essentially traffic-administrative: it doesn't involve fraud, injury, repeat-offender patterns, or organized criminal activity. The resource cost of fingerprinting every fender-bender driver who didn't pull over fast enough doesn't pay off in investigative value.

Q: What was the policy push behind the camcording statute (§ 16-8-62(f))?
A: The motion picture industry was lobbying nationally for state-level film piracy laws to address the rise of unauthorized camcorder copies of theatrical releases. Georgia's statute mirrored model legislation pushed by the MPAA. Designating it fingerprintable on the first offense (as a high-and-aggravated misdemeanor) helped track repeat camcorders, particularly given the felony escalation on second conviction.

Q: What about counterfeit cigarettes: why was that included?
A: O.C.G.A. § 48-11-30 was a felony, not a misdemeanor, so it was already fingerprintable as a matter of statute under O.C.G.A. § 35-3-33(a)(1)(A)(i). The AG noted this for completeness in response to GCIC's request, but the designation was confirmatory rather than discretionary.

Background and statutory framework

This opinion's structure parallels Op. Att'y Gen. 2005-7. Both responded to the GCIC Deputy Director's request to designate which newly enacted misdemeanors warrant fingerprinting at booking. The AG's authority comes from O.C.G.A. § 35-3-33(a)(1)(A)(v), which lets the AG designate offenses beyond the felonies that are automatically fingerprintable under § 35-3-33(a)(1)(A)(i).

The 12-out-of-13 designation rate, like the 11-out-of-12 rate in 2005-7, suggests the AG's working presumption was that newly enacted misdemeanors should be fingerprintable unless there was a specific reason not to. The reasons for non-designation (here, § 40-6-275) tend to be that the offense is purely administrative, regulatory, or low-stakes traffic conduct without significant repeat-offender or criminal-pattern implications.

A few of the 2004 offenses reflect specific policy moments:
- The school-employee assault/battery elevations (§§ 16-5-20(f), 16-5-23(i)) responded to concerns about teacher safety in the 1990s and early 2000s.
- The cruelty-to-children-in-the-third-degree offense (§ 16-5-70(e)(3)) created a graduated structure for child cruelty, distinguishing accidentally exposing a child to family violence from more serious abuse.
- The assistance-dog harassment statute (§ 16-11-107.1) replaced the older guide-dog statute (§ 30-1-6), broadening protection to all assistance animals.
- The payday lending misdemeanor (§ 16-17-2(d)) was part of Georgia's comprehensive payday-lending ban, which positioned the state as one of the strictest in the country on small-dollar consumer lending.
- The traffic-control preemption emitter ban (§ 40-6-17(b)) responded to civilian use of emergency-vehicle signal-changing technology.
- The household goods carrier statute (§ 46-7-91(b)) was part of the state's PSC regulation of intra-state moving companies, designed to crack down on rogue movers.
- The defacing-public-monuments statute (§ 50-3-1(b)(1)) gave its own specific coverage to monument vandalism, distinct from generic property damage offenses.

The opinion's careful one-paragraph treatment of each offense, with the AG's rationale clearly stated, provides a useful template for other states' fingerprintable-offense designation processes.

Citations and references

Statutes:
- O.C.G.A. § 35-3-33(a)(1)(A) (fingerprintable offense framework)
- O.C.G.A. § 2-10-62 (farmers' market prohibited acts)
- O.C.G.A. §§ 16-5-20(f), 16-5-23(i) (simple assault/battery on school employees)
- O.C.G.A. § 16-5-70(e)(3) (cruelty to children in the third degree)
- O.C.G.A. § 16-8-62(f) (film piracy)
- O.C.G.A. § 16-11-107.1 (assistance dog harassment)
- O.C.G.A. § 16-17-2(d) (payday-style small loans without authority)
- O.C.G.A. § 30-1-6 (replaced guide dog statute)
- O.C.G.A. §§ 40-6-1, 40-6-17(b), 40-6-275 (traffic provisions)
- O.C.G.A. § 46-7-91(b) (household goods carrier)
- O.C.G.A. § 48-7-127 (unlawful tax practices)
- O.C.G.A. § 48-11-30 (counterfeit cigarettes felony)
- O.C.G.A. § 50-3-1(b)(1) (defacing public monument)

Source

• Landing page: https://law.georgia.gov/opinions/2005-8
• Original PDF: not linked from landing page

Original opinion text

You have requested my opinion concerning whether any of the following ten misdemeanor offenses and one felony offense enacted during the 2004 Session of the General Assembly should be designated as offenses for which persons charged with violations are to be fingerprinted. Additionally, you have identified two statutes which the Georgia Crime Information Center has no record of being addressed. Those offenses include: O.C.G.A. § 2-10-62 (prohibited acts on a farmers' market); O.C.G.A. § 16-5-20(f) (simple assault against an employee of a public school system); O.C.G.A. § 16-5-23(i) (simple battery against an employee of a public school system); O.C.G.A. § 16-5-70(e)(3) (cruelty to children in the third degree); O.C.G.A. § 16-8-62(f) (film piracy prohibited); O.C.G.A. § 16-11-107.1 (harassment of assistance dog by humans or other dogs); O.C.G.A. § 16-17-2(d) (prohibition on loans of less than $3,000.00); O.C.G.A. § 40-6-17(b) (prohibited use of traffic-control device preemption emitter); O.C.G.A. § 40-6-275 (duty to remove vehicle from public roads; removal of incapacitated vehicle from state highway); O.C.G.A. § 46-7-91(b) (holding oneself out as household goods carrier without valid certificate of authority); O.C.G.A. § 48-7-127 (unlawful tax practices); O.C.G.A. § 48-11-30 (sale or possession of counterfeit cigarettes); and O.C.G.A. § 50-3-1(b)(1) (defacing public monument, plaque, marker, or memorial). In addition to the list of fingerprintable offenses mandated by statute, O.C.G.A. § 35-3-33(a)(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. § 2-10-62. That Code section provides that it shall be a misdemeanor for any person on a farmers' market to engage in eleven prohibited acts. Among those acts prohibited are "deceptive or dishonest trade practices" and the destruction of "the physical properties of the market." O.C.G.A. § 2-10-62(1) and (4). I hereby designate offenses arising under O.C.G.A. § 2-10-62 as offenses for which those charged are to be fingerprinted. The second misdemeanor offense is O.C.G.A. § 16-5-20(f). That Code section provides it shall be a misdemeanor of a high and aggravated nature for any person to commit the offense of simple assault against an employee of a public school system of this state while such employee is engaged in official duties or on school property. I hereby designate offenses arising under O.C.G.A. § 16-5-20(f) as offenses for which those charged are to be fingerprinted. The third misdemeanor offense is O.C.G.A. § 16-5-23(i). That Code section provides it shall be a misdemeanor of a high and aggravated nature for any person to commit the offense of simple battery against an employee of a public school system of this state while such employee is engaged in official duties or on school property. I hereby designate offenses arising under O.C.G.A. § 16-5-23(i) as offenses for which those charged are to be fingerprinted. The fourth misdemeanor offense is O.C.G.A. § 16-5-70(e)(3). That Code section provides that it shall be a misdemeanor, upon a first and second conviction, for any person to commit the offense of cruelty to children in the third degree. A third or subsequent conviction of cruelty to children in the third degree is a felony offense for which those charged are to be fingerprinted. Additionally, cruelty to children in the first or second degree is a felony offenses for which those charged are to be fingerprinted. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 16-5-70(e)(3) as offenses for which those charged are to be fingerprinted. The fifth misdemeanor offense is O.C.G.A. § 16-8-62(f). That Code section provides that upon a first conviction it shall be a misdemeanor of a high and aggravated nature for any person knowingly to operate the recording function of an audiovisual recording device while a motion picture is being exhibited, without the consent of the owner, operator, or lessee of the exhibition facility and of the licensor of the motion picture being exhibited. A second or subsequent conviction is a felony offense for which those charged are to be fingerprinted. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 16-8-62(f) as offenses for which those charged are to be fingerprinted. The sixth misdemeanor offense is O.C.G.A. § 16-11-107.1. That Code section provides that it shall be a misdemeanor for any person knowingly and intentionally to harass or attempt to harass an assistance dog; to continue knowingly and intentionally to harass an assistance dog after receiving notice that his or her behavior is interfering with the use of an assistance dog; and knowingly and intentionally to allow his or her dog to harass an assistance dog. Upon a second or subsequent violation it shall be a misdemeanor of a high and aggravated nature to continue knowingly and intentionally to harass an assistance dog after receiving notice that his or her behavior is interfering with the use of an assistance dog; and knowingly and intentionally to allow his or her dog to harass an assistance dog. That Code section further provides that it shall be a misdemeanor of a high and aggravated nature for a person knowingly and intentionally to allow his or her dog to cause death or physical harm to an assistance dog. In 2004, the General Assembly replaced O.C.G.A. § 30-1-6 (assaulting, beating, harassing, or injuring guide or dogs assisting disabled persons) with O.C.G.A. § 16-11-107.1. This office had previously designated O.C.G.A. § 30-1-6 as an offense for which those charged are to be fingerprinted. At this time I designate offenses arising under § 16-11-107.1 as offenses for which those charged are to be fingerprinted. The seventh misdemeanor offense is O.C.G.A. § 16-17-2(d). That Code section provides that it shall be a misdemeanor of a high and aggravated nature for any person to engage, aid or abet in any business which consists of making, offering, arranging, or acting as an agent in the making of loans of $3,000.00 or less unless certain criteria are met. If a person has been convicted of violating this Code section on three prior occasions, then all subsequent convictions are felony offenses for which those charged are to be fingerprinted. I hereby designate offenses arising under O.C.G.A. § 16-17-2(d) as offenses for which those charged are to be fingerprinted. The eighth misdemeanor offense is O.C.G.A. § 40-6-17(b). That Code section provides that it shall be a misdemeanor for any person other than law enforcement, fire department, or emergency personnel to use, possess with the ability to use, sell, or purchase a traffic-control device preemption emitter. I hereby designate offenses arising under O.C.G.A. § 40-6-17(b) as offenses for which those charged are to be fingerprinted. The ninth misdemeanor offense is O.C.G.A. § 40-6-275. That Code section provides that it shall be a misdemeanor for a driver not to remove a motor vehicle involved in a traffic accident from a public road where there is no apparent serious personal injury or death. In 2004 the General Assembly amended this Code section by substituting the language "public roads" for "expressways and multilane highways" in subsection (b). Additionally, the General Assembly provided that any violation shall be punished as a misdemeanor pursuant to O.C.G.A. § 40-6-1. This office had not previously designated O.C.G.A. § 40-6-275 as an offense for which those charged are to be fingerprinted. An offense arising from a violation of this Code section does not, at this time, appear to be an offense for which fingerprinting is required and I am not, at this time, designating this offense as one for which those charged are to be fingerprinted. The tenth misdemeanor offense is O.C.G.A. § 46-7-91(b). That Code section provides that it shall be a misdemeanor for any person, firm, or corporation to hold himself or itself out as a household goods carrier for hire without having a validly issued certificate. I hereby designate offenses arising under O.C.G.A. § 46-7-91(b) as offenses for which those charged are to be fingerprinted. The eleventh misdemeanor offense is O.C.G.A. § 48-7-127. That Code section provides that it shall be a misdemeanor for any person to engage in certain unlawful tax practices. I hereby designate offenses arising under O.C.G.A. § 48-7-127 as offenses for which those charged are to be fingerprinted. The twelfth offense is O.C.G.A. § 48-11-30. That Code section provides for felony penalties for the sale or possession for sale of counterfeit cigarettes. Pursuant to O.C.G.A. § 35-3-33(a)(1)(A)(i) this is a fingerprintable offense. I hereby designate offenses arising under O.C.G.A. § 48-11-30 as offenses for which those charged are to be fingerprinted. The thirteenth misdemeanor offense is O.C.G.A. § 50-3-1(b)(1). That Code section provides that it shall be a misdemeanor to deface a public monument, plaque, marker, or memorial. I hereby designate offenses arising under O.C.G.A. § 50-3-1(b)(1) as offenses for which those charged are to be fingerprinted. 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 DIAMANDIS Assistant Attorney General