Which of the new misdemeanor crimes the Georgia legislature created in 2017 should require fingerprinting at arrest?

Plain-English summary

Georgia's 2017 legislative session was unusually quiet for new misdemeanors that warranted fingerprinting. The Deputy Director of the Georgia Crime Information Center asked the Attorney General about just two: a violation of the Narcotic Treatment Programs Enforcement Act under O.C.G.A. § 26-5-58, and the new prohibition under O.C.G.A. § 42-4-13(d.1) on giving an inmate tobacco or any product containing tobacco.

The AG declined to designate the narcotic-treatment-program violation. Article 2 of Chapter 5 of Title 26 sets the licensing and operating requirements for governing bodies seeking to apply for and operate a narcotic treatment program (a methadone or other opioid-treatment clinic). The opinion treated violations of those requirements as primarily regulatory, not warranting fingerprinting at this time.

The AG did designate the inmate-tobacco offense as fingerprintable, but with an important qualification. The AG had previously designated offenses related to providing inmates with alcoholic beverages and certain other items without the jailer's consent (§ 42-4-13(d)(1)(B) and § 42-4-13(e)) as fingerprintable. The new tobacco offense fit the same pattern. The AG designated it fingerprintable for non-incarcerated offenders (i.e., visitors, contractors, family members who slip an inmate cigarettes). For incarcerated offenders, an extra designation was unnecessary because § 35-3-33(a)(1)(C) already requires fingerprinting of persons confined in prisons, penitentiaries, or other prison institutions.

This was AG Chris Carr's first annual GCIC opinion under his tenure (he took office on November 1, 2016). The careful split between non-incarcerated and incarcerated offenders, and the explicit cross-reference to § 35-3-33(a)(1)(C) to avoid redundancy, set a more granular pattern than some prior years' opinions.

Currency note

This opinion was issued in 2017. 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 is giving tobacco to an inmate a crime?
A: Many Georgia jails and prisons are tobacco-free. Tobacco becomes contraband once an inmate is in custody. Smuggling tobacco to inmates undermines order and can become a profit center for organized contraband. The 2017 amendment in § 42-4-13(d.1) made it a stand-alone misdemeanor.

Q: Why did the AG limit the designation to non-incarcerated offenders?
A: For an inmate already in custody, § 35-3-33(a)(1)(C) already requires fingerprinting because the person is confined. Adding an extra designation under § 35-3-33(a)(1)(A)(v) would have been redundant. The designation matters most when a non-incarcerated person (a visitor, work crew member, or staff person) is arrested for trying to bring tobacco into a facility.

Q: Why didn't the AG designate the narcotic-treatment-program violation?
A: The opinion gave only the standard explanation that the offense did not "at this time, appear to be" one for which fingerprinting was required. Narcotic-treatment-program licensing is highly regulated by federal DEA rules and state Department of Behavioral Health and Developmental Disabilities oversight, so a separate fingerprinting trigger was probably seen as unnecessary.

Q: What other items are inmates not allowed to receive?
A: Existing § 42-4-13 prohibits providing inmates with alcoholic beverages (subsection (d)(1)(B)) and other unauthorized items (subsection (e)). The 2017 amendment added tobacco. All three are now fingerprintable for non-incarcerated offenders.

Q: Did this opinion change anything for incarcerated people?
A: No. § 35-3-33(a)(1)(C)'s automatic fingerprinting of incarcerated persons remained the operative rule. The new tobacco offense did not need a separate designation to apply to inmates.

Background and statutory framework

Georgia's Crime Information Act in O.C.G.A. § 35-3-33 specifies who is fingerprinted. Subsection (a)(1)(A)(v) gives the AG authority to designate misdemeanors. Subsection (a)(1)(C) automatically requires fingerprinting of "[p]ersons confined in prisons, penitentiaries, or other prison institutions of this state."

The structural distinction in § 35-3-33 lets the AG focus designations on conduct by non-incarcerated people, who otherwise wouldn't be fingerprinted on the underlying offense. For someone already in custody, the fingerprinting has happened or will happen for separate reasons.

The 2017 amendment in § 42-4-13(d.1) was the General Assembly's response to the spread of tobacco-free jail and prison policies. By creating a stand-alone misdemeanor for tobacco smuggling, the law gave law enforcement a clean charging tool for visitors and other outsiders.

Article 2 of Chapter 5 of Title 26 (O.C.G.A. § 26-5-40 et seq.) is the Narcotic Treatment Programs Enforcement Act. It governs methadone clinics and other opioid-treatment programs in Georgia, working alongside federal SAMHSA/DEA regulations. Section 26-5-58 is the misdemeanor catchall for violating any provision of the Act.

Citations and references

Statutes:
- O.C.G.A. § 35-3-33 (Crime Information Center provisions; auto-fingerprinting of incarcerated persons)
- O.C.G.A. § 26-5-40 through 26-5-58 (Narcotic Treatment Programs Enforcement Act)
- O.C.G.A. § 42-4-13 (jail contraband, including new tobacco subsection)

Source

• Landing page: https://law.georgia.gov/opinions/2017-3

Original opinion text

You have requested, in your letter of August 16, 2017, my opinion concerning whether any of the following misdemeanor offenses enacted during the 2017 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. § 26-5-58 (violation of the Narcotic Treatment Programs Enforcement Act); and O.C.G.A. § 42-4-13(d.1) (obtaining, procuring, or giving an inmate tobacco or any product containing tobacco). The first misdemeanor offense is O.C.G.A. § 26-5-58. This Code section provides that it shall be a misdemeanor to violate any provision of Article 2 of Chapter 5, Title 26. Article 2 (O.C.G.A. § 26-5-40 et. seq.) establishes the requirements for governing bodies that seek to apply for and operate a narcotic treatment program. 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 second misdemeanor offense is O.C.G.A. § 42-4-13(d.1). This Code section provides that it shall be a misdemeanor for any person to obtain for, to procure for, or to give to an inmate tobacco or any product containing tobacco without the knowledge and consent of the jailer. This office previously designated offenses related to providing an inmate with alcoholic beverages and other items without the consent of the jailer as offenses for which those charged are to be fingerprinted. See O.C.G.A. §§ 42-4-13(d)(1)(B), 42-4-13(e). In order to promote consistency in the treatment of offenders, I hereby designate misdemeanor offenses arising under O.C.G.A. § 42-4-13(d.1), specifically committed by offenders not already incarcerated within the facility, as offenses for which those charged are to be fingerprinted. To the extent the person charged is already incarcerated, it is unnecessary to designate this offense as one that requires fingerprinting, as O.C.G.A. § 35-3-33(a)(1)(C) already requires that persons confined in prisons, penitentiaries, or other prison institutions 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: Rebecca Dobras Assistant Attorney General