Which 2011 Georgia misdemeanors did the Attorney General designate as fingerprintable?

Plain-English summary

The annual GCIC update opinion for 2011 misdemeanors. Fifteen new misdemeanor offenses from the 2011 session were reviewed. The AG designated nine and declined to designate six.

Designated: O.C.G.A. § 16-11-200 (transporting seven or fewer illegal aliens, first offense, from HB 87 the Illegal Immigration Reform and Enforcement Act of 2011); § 16-11-201 (concealing/harboring/shielding seven or fewer illegal aliens while violating another criminal offense); § 16-11-202 (knowingly inducing/enticing/assisting an illegal alien to enter Georgia while violating another criminal offense); § 16-13-64(b) (negligent use, release, or disclosure of electronic database prescription information); § 27-2-31(a)(4)(B) (releasing trapped or transported feral hogs into unfenced areas, high-and-aggravated misdemeanor); § 27-3-9(b)(4) (taking big game other than deer within 200 yards of bait, high-and-aggravated misdemeanor); § 35-3-164 (unlawful dissemination of DNA data bank information; the original opinion text labels the designation paragraph as § 31-41-6(c), apparently a typographical error); § 40-1-23 (Transportation of Hazardous Materials Act violations); § 50-36-1(o)(2) (agency head willfully violating immigration verification requirements, high-and-aggravated misdemeanor); § 50-36-2 (knowingly accepting identification documents that are not secure and verifiable under the Secure and Verifiable Identity Document Act).

Not designated: § 10-1-202.1 (denatonium benzoate aversive agent in antifreeze), § 24-12-21(b) (disclosure of AIDS confidential information, although this is fact-sensitive and could conceivably be designated later), § 27-3-9(c) (failure to comply with conservation ranger order to remove dove bait or erect signs), § 31-41-6 (Georgia Lead Poisoning Prevention Act misdemeanors), § 40-1-8 (driving in violation of an out-of-service order).

Currency note

This opinion was issued in 2011. 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.

Note especially that the 2011 immigration enforcement statutes (HB 87) were partially enjoined by federal courts on preemption grounds in Georgia Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. 2011), and limited by the Eleventh Circuit in subsequent rulings. The fingerprintable designations remain on the books, but the underlying offenses' enforceability has been constrained.

Common questions

Q: Why are the immigration offenses limited to "seven or fewer" persons?
A: Because the Georgia statutes were structured to align with federal categories. Transporting eight or more illegal aliens was made a felony under separate state and federal provisions. The misdemeanor versions targeting six-or-fewer (or seven-or-fewer in the codified version) covered the smaller-scale conduct. Designating these misdemeanor offenses as fingerprintable supports tracking repeat offenders who may approach the felony threshold over time.

Q: Why are the immigration offenses gated by "violating another criminal offense"?
A: Sections 16-11-201 and 16-11-202 both require that the person be "acting in violation of another criminal offense" at the time of the harboring or inducement. This is a specific narrowing element added in the 2011 statute, designed to focus enforcement on conduct that already violates other Georgia law. Pure good-Samaritan-type behavior (giving someone a ride without independently committing another offense) does not trigger these provisions.

Q: What does the prescription data breach statute (§ 16-13-64(b)) cover?
A: It penalizes anyone authorized to access Georgia's electronic prescription database who negligently uses, releases, or discloses the data in a manner that violates the prescription privacy provisions. This is a regulatory offense aimed at pharmacy and law-enforcement personnel who have legitimate access. Designation reflects the privacy stakes involved.

Q: Why is dove baiting (§ 27-3-9(c)) not designated when other game baiting is?
A: § 27-3-9(b)(4) (taking big game within 200 yards of bait) was designated. § 27-3-9(c), the dove-specific provision, was not. The dove provision is narrower: it only catches owners who fail to comply with a conservation ranger's order to remove bait or post signs. The AG appears to have treated this as more of a regulatory non-compliance offense than a baiting-fraud offense.

Q: What is § 35-3-164?
A: It governs misuse of Georgia's DNA data bank. Negligent or unauthorized dissemination is a misdemeanor; intentional dissemination for unauthorized purposes is a high-and-aggravated misdemeanor. Designation reflects the privacy and forensic-integrity stakes. Note: the opinion's eleventh-offense paragraph appears to contain a typographical error, citing "§ 31-41-6(c)" instead of "§ 35-3-164." The opinion's designation language and surrounding context make clear that § 35-3-164 is the intended target.

Q: Why was the lead-poisoning-prevention offense (§ 31-41-6) not designated?
A: It targets training and lead-based paint activities in violation of state lead abatement rules. The AG treats it as a regulatory environmental compliance offense. Like other regulatory training-and-licensing offenses across these annual update opinions, it falls outside the AG's typical designation pattern.

Q: What is the Secure and Verifiable Identity Document Act?
A: O.C.G.A. § 50-36-2 prohibits any person from knowingly accepting identification documents that are not on the official secure-and-verifiable list when those documents are required by law (for example, in benefits applications or government services). It works alongside the immigration verification requirements. Designation supports tracking repeat acceptances of non-compliant documents.

Background and statutory framework

The 2011 session was dominated by HB 87, the Illegal Immigration Reform and Enforcement Act. That bill created the new immigration offenses (§§ 16-11-200, 201, 202), the agency-head verification interference offense (§ 50-36-1(o)(2)), and the Secure and Verifiable Identity Document Act (§ 50-36-2). Several of these were the subject of preemption challenges in federal court. Georgia Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. 2011), enjoined enforcement of §§ 16-11-200, 201, and 202 on preemption grounds; the Eleventh Circuit later affirmed in part. The Section 50-36-1(o)(2) and § 50-36-2 verification provisions survived federal scrutiny.

The 2011-5 opinion treats the immigration provisions as designable on their own statutory terms, regardless of the federal preemption posture. Designation determines whether arrests get fingerprinted and entered into GCIC; it does not validate the underlying statute's enforceability.

The opinion's designation pattern is consistent with prior years: fraud, public-fund integrity, sensitive-database access, hazardous materials, and immigration enforcement get designated; pure regulatory and small-scale natural resource offenses do not.

Citations and references

Statutes:
- O.C.G.A. § 35-3-33(a)(1)(A)(v), AG authority to designate fingerprintable offenses
- HB 87 (2011 Ga. Laws 794): Illegal Immigration Reform and Enforcement Act
- 9 designated offenses listed above
- 6 non-designated offenses listed above

Source

• Landing page: https://law.georgia.gov/opinions/2011-5
• Original PDF: not linked from landing page

Original opinion text

You have requested, in your letter of October 18, 2011, my opinion concerning whether any of the following misdemeanor offenses enacted during the 2011 Session of the General Assembly should be designated as offenses for which persons charged with violations are to be fingerprinted. Those offenses include: O.C.G.A. § 10-1-202.1 (Addition of Denatonium Benzoate to Certain Antifreeze to Render Unpalatable); O.C.G.A. § 16-11-200 (Transporting or Moving Illegal Aliens); O.C.G.A. § 16-11-201 (Concealing, Harboring, or Shielding an Illegal Alien); O.C.G.A. § 16-11-202 (Inducing an Illegal Alien to Enter State); O.C.G.A. § 16-13-64(b) (Negligent Use, Release, or Disclosure of Electronic Data Base Prescription Information); O.C.G.A. § 24-12-21(b) (Disclosure of AIDS Confidential Information); O.C.G.A. § 27-2-31(a)(4)(B)(i) (Release of Feral Hogs Into Unfenced Area); O.C.G.A. § 27-3-9(b)(4) (Unlawful Enticement of Game); O.C.G.A. § 27-3-9(c) (Unlawful Enticement of Game — Baiting for Doves); O.C.G.A. § 31-41-6 (Georgia Lead Poisoning Prevention Act of 1994); O.C.G.A. § 35-3-164 (Unlawful Dissemination or Use of DNA Data Bank Information); O.C.G.A. § 40-1-8 (Operation of a Vehicle in Violation of an Out-of-Service Order); O.C.G.A. § 40-1-23 (Transportation of Hazardous Materials Act); O.C.G.A. § 50-36-1(o)(2) (Violation of Requirements for Verifying Lawful Presence Within the United States); O.C.G.A. § 50-36-2 (Secure and Verifiable Identity Document Act). 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. § 10-1-202.1. That Code section requires that antifreeze sold in this state that is manufactured after July 1, 2012, containing more than 10 percent ethylene glycol shall include denatonium benzoate at a minimum of 30 parts per million and a maximum of 50 parts per million as an aversive agent to render the antifreeze unpalatable. The requirement applies to manufacturers, packagers, distributors, recyclers, and sellers of antifreeze. Code section 10-1-211 provides that violation of O.C.G.A. § 10-1-202.1 is a misdemeanor. 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. I am not, at this time, designating this offense as one for which those charged are to be fingerprinted. The second misdemeanor offense is O.C.G.A. § 16-11-200. That Code section provides that upon a first offense, it shall be a misdemeanor to transport or move seven or fewer illegal aliens at the same time. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 16-11-200 as offenses for which those charged are to be fingerprinted. The third misdemeanor offense is O.C.G.A. § 16-11-201. That Code section provides that it shall be a misdemeanor for any person who is acting in violation of another criminal offense to conceal, harbor, or shield from detection seven or fewer illegal aliens. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 16-11-201 as offenses for which those charged are to be fingerprinted. The fourth misdemeanor offense is O.C.G.A. § 16-11-202. That Code section provides that it shall be a misdemeanor for any person who is acting in violation of another criminal offense to knowingly induce, entice, or assist an illegal alien to enter this state. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 16-11-202 as offenses for which those charged are to be fingerprinted. The fifth misdemeanor offense is O.C.G.A. § 16-13-64(b). That Code section provides that it shall be a misdemeanor for any person authorized to access electronic data base prescription information to negligently use, release, or disclose such information in a manner or for a purpose that violates Title 16, Chapter 13, Article II, Part II. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 16-13-64(b) as offenses for which those charged are to be fingerprinted. The sixth misdemeanor offense is O.C.G.A. § 24-12-21(b). That Code section provides that persons or legal entities which receive AIDS confidential information or which are responsible for recording, reporting, or maintaining AIDS confidential information shall not intentionally or knowingly disclose that information to another person or legal entity and cannot be compelled by subpoena, court order, or other judicial process to disclose that information to another person or legal entity. That Code section further provides that a person or legal entity which receives AIDS confidential information which is known to have been disclosed in violation of the non-disclosure requirements of that Code section shall not intentionally or knowingly disclose that information or be compelled to do so by subpoena, court order, or other judicial process. Pursuant to O.C.G.A. § 24-12-21(o), it shall be a misdemeanor for any person to violate subsection (b) of O.C.G.A. § 24-12-21. 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 seventh misdemeanor offense is O.C.G.A. § 27-2-31(a)(4)(B). That Code section provides that it shall be a misdemeanor of a high and aggravated nature for any person to release any trapped or transported feral hog into any area that is not fenced to prevent escape of such feral hog onto the land of another. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 27-2-31(a)(4)(B) as offenses for which those charged are to be fingerprinted. The eighth misdemeanor offense is O.C.G.A. § 27-3-9(b)(4). That Code section provides that it shall be a misdemeanor of a high and aggravated nature for any person to take any big game animal, other than deer, within 200 yards of any place where any corn, wheat, or other grains, salts, apples, or other feed or bait has been placed, exposed, deposited, distributed, or scattered so as to constitute a lure, attraction, or enticement for any game bird or game animal. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 27-3-9(b)(4) as offenses for which those charged are to be fingerprinted. The ninth misdemeanor offense is O.C.G.A. § 27-3-9(c). That Code section provides that it shall be a misdemeanor for an owner or other person having lawful possession or control of an area or field baited for doves to fail to comply with an order of a conservation ranger requiring the removal of bait or the erection of signs, or both. 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. § 31-41-6. That Code section provides that it shall be a misdemeanor for any person to engage in certain training or lead-based paint activities prohibited in Chapter 41 of Title 31. 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 eleventh misdemeanor offense is O.C.G.A. § 35-3-164. That Code section provides that it shall be a misdemeanor for any person to disseminate information contained in the DNA data bank without authority. That Code section further provides that any person who disseminates information contained in the data bank, knowing that such dissemination is for a purpose other than as authorized by law, shall be guilty of a misdemeanor of a high and aggravated nature. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 31-41-6(c) as offenses for which those charged are to be fingerprinted. The twelfth misdemeanor offense is O.C.G.A. § 40-1-8. That Code section provides that it shall be a misdemeanor for any person to drive or operate, or cause operation of, a vehicle in violation of an out-of-service order. 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 thirteenth misdemeanor offense is O.C.G.A. § 40-1-23. That Code section provides that it shall be a misdemeanor for any person to violate or fail to comply with any provision of Article 2, Chapter 1 of Title 40, Transportation of Hazardous Materials. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 40-1-23 as offenses for which those charged are to be fingerprinted. The fourteenth misdemeanor offense is O.C.G.A. § 50-36-1(o)(2). That Code section provides that it shall be a misdemeanor of a high and aggravated nature for any agency head to willfully violate the provisions of Chapter 36 of Title 50 requiring verification of lawful presence in the United States or to act so as to intentionally and deliberately interfere with the implementation of the requirements of that Chapter. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 50-36-1(o)(2) as offenses for which those charged are to be fingerprinted. The fifteenth misdemeanor offense is O.C.G.A. § 50-36-2. That Code section provides that it shall be a misdemeanor for any person to knowingly accept identification documents that are not secure and verifiable documents as provided in subsection (b)(3) of that Code section. I hereby designate any misdemeanor offenses arising under O.C.G.A. § 50-36-2 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: ASHLEY L. CULBERSON Assistant Attorney General