Are unlicensed drivers and drivers with suspended licenses fingerprintable in Georgia after the 2008 amendments?

Plain-English summary

Georgia's 2008 Senate Bill 350 substantially upgraded the penalties for two driving offenses: O.C.G.A. § 40-5-20 (driving without a valid license) and § 40-5-121 (driving while license suspended, disqualified, or revoked). Under the amendments, a fourth conviction within five years for either offense became a felony, and the statutes added language calling for fingerprinting "upon conviction."

The Deputy Director of the Georgia Crime Information Center (GCIC) asked the Attorney General to designate these offenses as ones for which charged persons must be fingerprinted at arrest. The reason is operational: if first, second, and third arrests are not fingerprinted and entered into the criminal history database, a person's actual offense count is invisible, and the felony enhancement never bites. The AG agreed and designated both offenses for fingerprinting at arrest under O.C.G.A. § 35-3-33(a)(1)(A)(v).

The opinion carved out two exceptions. Drivers caught operating with merely expired (but otherwise valid) licenses are not fingerprintable, and licensed drivers who simply do not have their physical card on them at the time of stop are not fingerprintable. The AG had previously made those carve-outs in other opinions and reaffirmed them here. The designation only catches genuinely unlicensed drivers and drivers operating while their privilege is suspended, disqualified, or revoked.

A footnote also addresses the statutory reference to fingerprinting "after conviction." The AG observed that uniform Georgia practice is to fingerprint at arrest, not after conviction, and concluded that arrest-time fingerprinting under existing GCIC rules satisfies the legislative intent of capturing offenses for recidivism tracking, making the post-conviction language effectively superfluous.

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: Why does fingerprinting matter for these offenses?
A: Because Senate Bill 350's felony enhancement only triggers on the fourth conviction within five years. If first, second, and third arrests are not entered into the GCIC criminal history database, prosecutors cannot prove the recidivist element. The system has to capture the early offenses or the felony enhancement never works in practice.

Q: What's the difference between driving without a license and driving on a suspended license?
A: Driving without a license under O.C.G.A. § 40-5-20 means the person never had a valid license, has not gotten one, or moved to Georgia and failed to obtain a Georgia license within 30 days. Driving while suspended under § 40-5-121 means the person's privilege was at one point active but has been suspended, revoked, or disqualified by court order or administrative action. Both became fingerprintable in 2008.

Q: What about a driver with a license but no physical card?
A: Not fingerprintable under this opinion. The AG had earlier carved out drivers who can produce in court a license issued to them and valid at the time of arrest. The statutory language in § 40-5-20(a) reflects that carve-out. Georgia treats this as the failure-to-display offense, not a true unlicensed-driving offense.

Q: What about an expired license?
A: Also not fingerprintable. The 2008 statute and the AG's designations exclude drivers operating with merely expired licenses from the felony-enhancement scheme. The policy goal is to catch repeat unlicensed driving, not paperwork lapses.

Q: When does fingerprinting actually happen, at arrest or after conviction?
A: At arrest. Georgia practice is uniform on this. The 2008 statute referred to fingerprinting "upon conviction," but the AG noted in footnote 1 that arrest-time fingerprinting under existing GCIC rules already captures these offenses, so the post-conviction reference is functionally redundant.

Q: Was this designation later expanded or changed?
A: The 2009 annual GCIC update opinion (2009 Op. Att'y Gen. 2009-1) confirmed and re-recorded these designations. Subsequent amendments to Title 40 may have changed the felony-enhancement architecture; readers should verify the current state of § 40-5-20 and § 40-5-121.

Background and statutory framework

The annual GCIC fingerprinting opinions are operational. They tell GCIC, sheriffs, and police departments which misdemeanor offenses require fingerprint capture at arrest. The 2008-6 opinion is unusual in two ways. First, it was issued mid-year (August), not as part of the annual roll-up that came in early 2009 (2009 Op. Att'y Gen. 2009-1). Second, it focuses tightly on two specific offenses where the General Assembly itself signaled in the statutory text that fingerprinting was intended.

Senate Bill 350 (2008 Ga. Laws 834) was a substantial overhaul of Georgia's response to repeat unlicensed driving. Before SB 350, driving without a license was a misdemeanor traffic offense. After SB 350, it became a felony on the fourth conviction within five years. The same upgrade applied to driving while suspended. Georgia was at the time tightening enforcement against drivers who repeatedly ignored licensing requirements and racked up multiple stops with no consequence.

The fingerprint designation gives the new felony enhancement a database to operate on. Without it, the criminal history record would not show the predicate offenses, prosecutors would have to prove them by other means, and the felony enhancement would functionally fail.

The opinion's treatment of the "fingerprinting upon conviction" language is a practical one. Rather than reading the statute to require a new post-conviction fingerprinting step (different from existing arrest-time procedures), the AG read it as confirming the legislature's intent that fingerprints be captured, while noting that the existing arrest-time process already accomplishes that.

Citations and references

Statutes:
- O.C.G.A. § 35-3-33(a)(1)(A)(v), AG authority to designate fingerprintable offenses
- O.C.G.A. § 40-5-20, driving without a valid license (DESIGNATED, fourth-offense felony)
- O.C.G.A. § 40-5-20(a), exclusion for expired licenses and licensed drivers without card
- O.C.G.A. § 40-5-29, license-not-on-person exclusion
- O.C.G.A. § 40-5-121, driving while suspended, disqualified, or revoked (DESIGNATED, fourth-offense felony)
- O.C.G.A. § 40-5-121(a): fingerprinting language

Legislation:
- Senate Bill 350 (2008 Ga. Laws 834): felony recidivism upgrade

Source

• Landing page: https://law.georgia.gov/opinions/2008-6
• Original PDF: not linked from landing page

Original opinion text

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," [1] 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. Prepared by: JOSEPH DROLET Senior Assistant Attorney General [1] 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.