Should clerks of court withhold the Peace Officers' Annuity and Benefit Fund contribution from $15 seat-belt fines?

Plain-English summary

The Executive Director of the Georgia Superior Court Clerks Cooperative Authority asked whether the standard withholding for the Peace Officers' Annuity and Benefit Fund (POPTF), which is a percentage of fines collected in criminal and quasi-criminal cases, applied to the $15 seat-belt fine under O.C.G.A. § 40-8-76.1.

The answer is no, but for a structural reason rather than a "no extra fees" reason. Two layers of analysis stack here. The first layer (which the AG flagged but said does not control) is that § 40-8-76.1(e)(2) flatly bars "any additional penalty, fee, or surcharge" on top of the $15 fine. POPTF withholding is not "additional," however, because it is taken from the fine, not added to it.

The second layer (which does control) is that § 40-8-76.1(e)(1) declares the violation "shall not be guilty of any criminal act and shall not be guilty of violating any ordinance." The POPTF withholding statute, O.C.G.A. § 47-17-60(a), only triggers on fines and bond forfeitures in "criminal or quasi-criminal" cases. Because the seat-belt statute legislatively re-classified the violation as neither criminal nor a quasi-criminal ordinance violation, the POPTF withholding rule never engages. No trigger means no withholding.

The opinion's footnote 1 distinguishes the child-restraint fine under § 40-8-76. That statute also caps additional fees, but it does NOT include the "not a criminal act" reclassification language. So POPTF withholding still applies to child-restraint fines.

Currency note

This opinion was issued in 2008. 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.

Common questions

Q: What is the Peace Officers' Annuity and Benefit Fund?
A: It is a state-administered retirement and benefit fund for Georgia peace officers, funded in part by a percentage of fines and bond forfeitures collected by every Georgia court in criminal and quasi-criminal cases. The withholding schedule in O.C.G.A. § 47-17-60(a) is a sliding scale: $3 for fines $4-$25, $4 for fines $25-$50, $5 for fines $50-$100, and 5% for fines over $100.

Q: Why does POPTF withholding apply to most traffic fines but not seat-belt fines?
A: Most traffic violations are misdemeanors or quasi-criminal ordinance violations. Both fit within § 47-17-60(a)'s "criminal or quasi-criminal" trigger. The Georgia legislature deliberately took seat-belt violations out of that category in § 40-8-76.1(e)(1) by saying violators "shall not be guilty of any criminal act and shall not be guilty of violating any ordinance." That move is what removes seat-belt fines from the withholding regime.

Q: What is a "quasi-criminal" violation?
A: The opinion cites Muller v. English (1996) and DeKalb County v. Gerard (1993) to define the term. It covers willful failures to comply with statutes or local ordinances, including municipal-ordinance violations that are punishable by fine but lack a true criminal-mens-rea requirement. Most local code violations are quasi-criminal, which is why ordinary city-ordinance fines do generate the POPTF withholding.

Q: What about the additional penalty under O.C.G.A. § 15-21-73?
A: Footnote 1 to the opinion notes that for child-restraint violations under O.C.G.A. § 40-8-76, additional fees and surcharges are barred by the statute itself, but POPTF withholding still applies because the child-restraint statute does not have the "not a criminal act" decriminalization clause. The conclusion in the opinion's text addresses only seat belts; the footnote handles child restraints separately.

Q: What if no fine is imposed at all?
A: Footnote 3 cites Rawls v. State, 210 Ga. App. 408 (1993), and 2005 Op. Att'y Gen. U05-4 for the rule that the additional penalties under § 15-21-73 do not apply if no fine is imposed. The same logic applies to POPTF withholding under § 47-17-60(a): the statute taxes a percentage of fines collected, so no fine means no withholding.

Q: Does the seat-belt violation affect a driver's license points?
A: No. § 40-8-76.1(e)(1) also says "[a] violation of this Code section shall not be a moving traffic violation for purposes of Code Section 40-5-57." That keeps the violation off the driver's license points record entirely.

Background and statutory framework

The 2008-4 opinion sits at the intersection of two state revenue streams that ride on top of court fines: the POPTF withholding (which feeds peace-officer retirement) and the additional penalty under O.C.G.A. § 15-21-73 (a separate criminal-fines surcharge). Both schemes treat fines as the underlying base. The legislature has carved out specific exceptions when it wants particular fines to remain narrow, and the seat-belt statute is the most aggressive carve-out: it reclassifies the underlying conduct out of the criminal/quasi-criminal universe entirely.

The legislative move makes sense in the context of federal seat-belt enforcement policy. Section 40-8-76.1 was adopted to satisfy federal requirements for primary seat-belt enforcement (necessary to qualify for federal highway grant money), but Georgia wanted to keep the consequences light. The "not a criminal act" reclassification keeps insurance points off and surcharges away. The 2008-4 opinion just follows that logic through the POPTF statute.

The opinion's textual reasoning is tight. Three statutory provisions: § 40-8-76.1(e)(1) (decriminalization), § 40-8-76.1(e)(2) (no additional fees), and § 47-17-60(a) (POPTF withholding triggered by fines in criminal or quasi-criminal cases). The AG holds that (e)(2) does not actually defeat the withholding because the withholding is taken from the fine rather than added to it. But (e)(1) does defeat the withholding because it removes the underlying case from the trigger category.

Citations and references

Statutes:
- O.C.G.A. § 40-8-76.1(e)(1), seat-belt violation is not a criminal act or ordinance violation
- O.C.G.A. § 40-8-76.1(e)(2), no additional penalty, fee, or surcharge on the seat-belt fine
- O.C.G.A. § 40-8-76, child-restraint requirements (different regime)
- O.C.G.A. § 47-17-60(a), POPTF withholding schedule
- O.C.G.A. § 15-21-73: additional penalties on criminal fines

Cases:
- Muller v. English, 221 Ga. App. 672 (1996), willful failure to comply is quasi-criminal
- DeKalb County v. Gerard, 207 Ga. App. 43 (1993), local ordinance violation is quasi-criminal
- Rawls v. State, 210 Ga. App. 408 (1993), no fine, no additional penalty

Prior AG opinions:
- 1972 Op. Att'y Gen. 72-29, POPTF contributions made in all criminal and quasi-criminal cases
- 1963-65 Op. Att'y Gen. p. 609, broad construction of withholding requirement
- 2005 Op. Att'y Gen. 05-4, additional penalty rule
- 2005 Op. Att'y Gen. U05-4: no fine no penalty

Source

• Landing page: https://law.georgia.gov/opinions/2008-4
• Original PDF: not linked from landing page

Original opinion text

This responds to your request for an official opinion regarding the application of the requirement for withholding and remittance to the Peace Officers' Annuity and Benefit Fund in cases involving violations of the provisions of O.C.G.A. § 40-8-76.1. O.C.G.A. § 40-8-76.1 generally provides for the imposition of a fine of $15.00 for the failure to wear a seat safety belt in a motor vehicle. O.C.G.A. § 40-8-76.1(e) specifically provides in relevant part that: (e)(1) Except as otherwise provided in paragraphs (2) and (3) of this subsection, a person failing to comply with the requirements of subsection (b) of this Code section shall not be guilty of any criminal act and shall not be guilty of violating any ordinance. A violation of this Code section shall not be a moving traffic violation for purposes of Code Section 40-5-57. (2) A person failing to comply with the requirements of subsection (b) of this Code section shall be guilty of the offense of failure to wear a seat safety belt and, upon conviction thereof, may be fined not more than $15.00; but, the provisions of Chapter 11 of Title 17 and any other provision of law to the contrary notwithstanding, the costs of such prosecution shall not be taxed nor shall any additional penalty, fee, or surcharge to a fine for such offense be assessed against a person for conviction thereof. The court imposing such fine shall forward a record of the disposition of the case of failure to wear a seat safety belt to the Department of Motor Vehicle Safety. O.C.G.A. § 40-8-76.1(e) (emphasis added). Clearly, O.C.G.A. § 40-8-76.1(e)(2) specifically prohibits the imposition of any additional penalty, fee, or surcharge to the $15.00 fine for the failure to wear a seat safety belt. See 2005 Op. Att'y Gen. 05-4 n. 2. [1] However, the issue that you have raised is whether amounts that would otherwise be withheld and paid over to the Peace Officers' Annuity and Benefit Fund in accordance with O.C.G.A. § 47-17-60 should be withheld from fines imposed under O.C.G.A. § 40-8-76.1. O.C.G.A. § 47-17-60(a) provides relevantly that: (a) A portion of each fine collected and each bond forfeited and collected in any criminal or quasi-criminal case for violation of state statutes, county ordinances, or municipal ordinances, which case is before any court or tribunal in this state, shall be paid to the secretary-treasurer according to the following schedule: (1) Three dollars for any fine or bond forfeiture of more than $4.00, but not more than $25.00; (2) Four dollars for any fine or bond forfeiture of more than $25.00, but not more than $50.00; (3) Five dollars for any fine or bond forfeiture of more than $50.00, but not more than $100.00; (4) Five percent of any fine or bond forfeiture of more than $100.00. (Emphasis added). The amount that is paid to the Peace Officers' Annuity and Benefit Fund is "[a] portion of each fine collected and each bond forfeited and collected . . . ." Id. [2] Thus, the amount paid to the Peace Officers' Annuity and Benefit Fund is actually withheld from the fine or bond and not added to the fine or bond. O.C.G.A. § 40-8-76.1(e)(2) expressly prohibits "any additional penalty, fee, or surcharge" but does not prohibit withholding amounts from the fine imposed. A prior opinion of this office has recognized that "contributions to the Peace Officers' Annuity and Benefit Fund are to be made in all criminal and quasi-criminal cases when a fine is collected or a bond is forfeited in a prescribed amount." 1972 Op. Att'y Gen. 72-29. Even if not a criminal violation, the willful failure to do an act required by statute or ordinance ordinarily involves conduct of a quasi-criminal nature. Muller v. English, 221 Ga. App. 672, 676 (1996). The violation of a local ordinance is a quasi-criminal matter. DeKalb County v. Gerard, 207 Ga. App. 43, 43 (1993). The language providing that violators "shall not be guilty of any criminal act and shall not be guilty of violating any ordinance" in O.C.G.A. § 40-8-76.1(e)(1) expressly precludes a finding that the violation is of a criminal nature. It also appears to preclude a finding that the violation is of a quasi-criminal nature since a violator "shall not be guilty of violating any ordinance." Thus, O.C.G.A. § 40-8-76.1(e)(1) precludes the collection of the amounts for the Peace Officers' Annuity and Benefit Fund since those amounts are triggered by "fine[s] collected and . . . bond[s] forfeited and collected in any criminal or quasi-criminal case for violation of state statutes, county ordinances, or municipal ordinances . . . ." O.C.G.A. § 47-17-60(a) (emphasis added). As there is no criminal or quasi-criminal violation in cases involving O.C.G.A. § 40-8-76.1(e), the required prerequisite to withholding funds for the Peace Officers' Annuity and Benefit Fund of a "violation of state statutes, county ordinances, or municipal ordinances" is not satisfied. [3] Based on the foregoing, it is my official opinion that the amount required to be withheld and paid over to the Peace Officers' Annuity and Benefit Fund in criminal or quasi-criminal cases for violation of state statutes, county ordinances, or municipal ordinances is not required to be withheld and paid over in cases involving the failure to wear a seat safety belt in a motor vehicle under O.C.G.A. § 40-8-76.1(e). Prepared by: W. Wright Banks, Jr. Senior Assistant Attorney General [1] With regard to the additional penalties under O.C.G.A. § 15-21-73, the same conclusion applies to the $50.00 fine imposed under O.C.G.A. § 40-8-76(b)(2) for the failure to provide for the proper restraint of children under six years of age. O.C.G.A. § 40-8-76(b)(2) provides relevantly that "[n]o court shall impose any additional fees or surcharges to a fine for . . . a violation [of O.C.G.A. § 40-8-76]." However, because O.C.G.A. § 40-8-76 does not include language indicating that a person violating its provisions "shall not be guilty of any criminal act and shall not be guilty of violating any ordinance" as is found in O.C.G.A. § 40-8-76.1(e), the amounts required to be withheld for the Peace Officers' Annuity and Benefit Fund under O.C.G.A. § 47-17-60(a) are required to be withheld in cases involving violations of O.C.G.A. § 40-8-76. [2] The withholding requirement for the Peace Officers' Annuity & Benefit Fund has been broadly construed to include all cases in which "costs are collected, whether as part of a fine, bond, or as a result of a settlement and nolle prosequi." 1963-65 Op. Att'y Gen. p. 609. [3] In a somewhat similar manner, where no fine is imposed, the additional penalties under O.C.G.A. § 15-21-73 do not apply. Rawls v. State, 210 Ga. App. 408, 409 (1993); 2005 Op. Att'y Gen. U05-4.