Which of the new misdemeanor crimes the Georgia legislature created in 2021 should require fingerprinting at arrest?

Plain-English summary

The 2021 GCIC fingerprintable-offense review is notable for the breadth of new misdemeanor categories the legislature added that year. AG Chris Carr designated 8 of the 11 reviewed misdemeanors as fingerprintable.

The biggest cluster of designations targeted the new reckless stunt driving regime in O.C.G.A. § 40-6-390.1, which made it a misdemeanor of high and aggravated nature to drag race or lay drags in reckless disregard for safety. The first three convictions were misdemeanors with progressively higher fines and longer jail terms, and the fourth or subsequent conviction in a 10-year period escalated to a felony. The AG designated the misdemeanor variants fingerprintable. The companion offense in § 16-11-43.1 (knowingly promoting or organizing an illegal drag racing or laying drags exhibition) and § 40-5-57.2(d) (driving on a license suspended for reckless stunt driving) were also designated.

Two non-consensual-image distribution offenses under § 16-11-90 were designated. Subsection (b)(1)(B) reached the person who electronically transmits or posts a nude or sexually explicit image of another without consent (when it serves no legitimate purpose and constitutes harassment or causes financial loss). Subsection (b)(2)(B) reached the person who knowingly causes such transmission or posting. Both are misdemeanors of high and aggravated nature for first offense and felonies on the second.

The new ballot-marker recording offense in § 21-2-568.2 was designated, addressing concerns about people photographing or recording the face of an electronic ballot marker while a vote was being cast.

The substance-abuse-provider referral kickback offense in § 26-5-80(b) was designated for the misdemeanor tier (fewer than 10 patients). The graduated structure escalated to felony at 10 or more patients.

The confidential state secrets offense in § 42-5-36(f) was designated, addressing disclosure of certain confidential information about penal institutions and inmates.

Not designated: The third-party gift card records offense (§ 10-1-310(e)) was treated as primarily regulatory. The 2021 amendment to § 21-2-414 (which became the controversial provision in SB 202 prohibiting giving food or water to electors near polling places) was not designated, consistent with the AG's position in 1995, 1998, and 2001 that polling-place campaign-conduct misdemeanors should not be fingerprintable. The new bicyclist-passing three-foot rule in § 40-6-56 was also not designated, as a routine traffic offense.

What this means for you

If you're a Georgia driver thinking about street racing or "stunting"

Reckless stunt driving under § 40-6-390.1 is a misdemeanor of high and aggravated nature with mandatory imprisonment of 10 days to 6 months for a first offense. A fourth conviction in 10 years is a felony. The AG designated all the misdemeanor tiers fingerprintable, so an arrest creates a permanent state and federal record. The takeaway: do not engage in this conduct.

If you're a victim of non-consensual image distribution

Both transmission (§ 16-11-90(b)(1)(B)) and causing transmission (§ 16-11-90(b)(2)(B)) of nude or sexually explicit images without consent are now fingerprintable misdemeanors of high and aggravated nature, escalating to felony for second offense. Report incidents promptly. Save URLs, screenshots, and any communications.

If you operate a substance-abuse treatment facility or refer patients

§ 26-5-80(b) prohibits paying or receiving any remuneration to induce or in return for patient referrals. Misdemeanor for fewer than 10 patients (designated fingerprintable). Felony at 10+ patients. Fee splitting, kickbacks, and patient brokering are all in scope. Review your referral practices.

If you're a poll worker or voter advocate

The 2021 amendment to § 21-2-414 added the food-and-water-giveaway prohibition near polling places. The AG declined to designate it fingerprintable. That does not mean the conduct is safe; the underlying misdemeanor remains. The AG's non-designation just means an arrest on that charge alone will not generate a fingerprint card to GCIC.

If you work in a Georgia jail or prison

§ 42-5-36(f) makes it a misdemeanor to divulge or cause to be divulged any confidential state secret as defined elsewhere in § 42-5-36. The AG designated this fingerprintable. Confidentiality matters; understand what counts as a state secret in your facility.

Common questions

Q: What is "laying drags"?
A: Under § 40-6-251, intentionally causing a vehicle to make a sudden, unnecessary spinning of the tires that makes the tires squeal and produces smoke. The 2021 reckless stunt driving statute paired drag racing and laying drags as covered conduct.

Q: Why does Georgia treat both "transmitting" and "causing transmission" as separate misdemeanors?
A: To reach intermediaries and accomplices. The person who actually clicks "send" and the person who hands the device to the person who clicks "send" can both be charged. The two-subsection structure closes a gap that would otherwise let conspirators avoid liability.

Q: Why didn't the AG designate the food/water giveaway offense?
A: Consistency with prior practice. The AG had declined to designate misdemeanors under § 21-2-414 in 1995, 1998, and 2001, treating them as polling-place-conduct misdemeanors not appropriate for fingerprint-level enforcement. The 2021 amendment expanded the prohibitions, but the AG kept the same non-designation posture.

Q: How does the substance-abuse referral kickback rule interact with federal anti-kickback statutes?
A: Federal law (the Eliminating Kickbacks in Recovery Act of 2018) addresses kickbacks for referrals to recovery homes, clinical treatment facilities, and labs. § 26-5-80(b) is Georgia's parallel provision. Conduct that violates one may also violate the other.

Q: What is the bicyclist three-foot rule?
A: § 40-6-56 requires that when passing a bicyclist, the motorist either change lanes (if a non-adjacent lane is available and safe) or maintain at least three feet of clearance. Violation is a misdemeanor with up to a $250 fine. Not designated fingerprintable, but it is enforceable.

Background and statutory framework

The 2021 list reflects the General Assembly's response to several converging concerns: street racing and "stunting" had become a public-safety issue across many Georgia jurisdictions, prompting the new § 40-6-390.1 and the related § 16-11-43.1 promoter offense. Non-consensual image distribution had become widespread enough to warrant a comprehensive update of the existing § 16-11-90 statute. Election security concerns drove the recording-the-ballot-marker provision and the food/water giveaway provision (the latter part of the broader SB 202).

The AG's pattern of designating the substantive offenses (drag racing, image distribution, ballot recording) but declining the procedural/regulatory ones (gift card records, bicyclist passing) reflects the standard analytical posture: fingerprinting at arrest is appropriate when the underlying conduct involves criminal harm, not regulatory non-compliance.

Citations and references

Statutes:
- O.C.G.A. § 35-3-33 (Crime Information Center fingerprintable-offense provisions)
- O.C.G.A. § 16-11-90 (non-consensual image distribution)
- O.C.G.A. § 21-2-414 (polling-place conduct, including 2021 food/water giveaway provision)
- O.C.G.A. § 21-2-568.2 (ballot marker recording)
- O.C.G.A. § 26-5-80 (substance abuse provider referral kickbacks)
- O.C.G.A. §§ 40-6-186, 40-6-251, 40-6-390.1 (drag racing, laying drags, reckless stunt driving)
- O.C.G.A. § 42-5-36 (confidential state secrets)

Source

• Landing page: https://law.georgia.gov/opinions/2021-1

Original opinion text

Generally, under Georgia law, in addition to the determination of fingerprintable offenses which the General Assembly may mandate 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. See, e.g., 2020 Op. Att'y Gen. 2020-4; 2020 Op. Att'y Gen. 2020-1; 2019 Op. Att'y Gen. 2019-3; 2018 Op. Att'y Gen. 2018‑3, 2017 Op. Att'y Gen. 2017‑1, 2015 Op. Att'y Gen. 2015‑2, 2014 Op. Att'y Gen. 2014‑2, 2013 Op. Att'y Gen. 2013‑4, 2012 Op. Att'y Gen. 2012‑6. The offenses under review from the 2021 Session of the General Assembly include: O.C.G.A. § 10-1-310(e) (knowingly fail to enter/maintain/allow inspection of or falsify/destroy third party gift card records); O.C.G.A. § 16-11-43.1 (knowingly promote or organize illegal drag racing or laying drags); O.C.G.A. § 16-11-90(b)(1)(B) (knowingly and without consent electronically transmit or post nude/sexually explicit photo or video); O.C.G.A. § 16-11-90(b)(2)(B) (knowingly and without consent cause electronic transmission or posting of nude/sexually explicit photo or video); O.C.G.A. § 21-2-414 (restrictions on campaign activities/giving food or water/public opinion polling); O.C.G.A. § 21-2-568.2 (prohibiting use of electronic devices to photograph or record electronic ballot markers or ballots); O.C.G.A. § 26-5-80(b) (pay/solicit/receive remuneration for referring patient/patronage to substance abuse provider); O.C.G.A. § 40-5-57.2(d) (operating motor vehicle on license suspended for reckless stunt driving); O.C.G.A. § 40-6-56 (procedure for passing bicyclist); O.C.G.A. § 40-6-390.1 (reckless stunt driving, 1st, 2nd, 3rd offense); and O.C.G.A. § 42-5-36(f) (divulge/cause to be divulged a confidential state secret). The first misdemeanor offense is O.C.G.A. § 10-1-310(e). This Code section provides that it shall be a misdemeanor for any third party card dealer or employee to falsify or fail to properly maintain records of stored value card transactions or to fail to open for inspection by law enforcement such records or stored value cards in his or her possession. An offense arising from a violation of this Code section does not 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. § 16-11-43.1. This Code section provides that any person who knowingly promotes or organizes an exhibition of illegal drag racing, in violation of Code Section 40-6-186, or of laying drags, in violation of Code Section 40-6-251, shall be guilty of a misdemeanor of a high and aggravated nature. I hereby designate misdemeanor offenses arising under O.C.G.A. § 16-11-43.1 as offenses for which those charged are to be fingerprinted. The third misdemeanor offense is O.C.G.A. § 16-11-90(b)(1)(B). This Code section provides that any person who, knowingly and without consent of the depicted person, electronically transmits or posts, by means not falling within subsection (A), a photograph or video which depicts nudity or sexually explicit conduct, when the transmission or post is harassment or causes financial loss and serves no legitimate purpose to the depicted person, shall be guilty of a misdemeanor of a high and aggravated nature. Upon a second or subsequent violation of O.C.G.A. § 16-11-90(b)(1)(B), the person shall be guilty of a felony. I hereby designate misdemeanor offenses arising under O.C.G.A. § 16-11-90(b)(1)(B) as offenses for which those charged are to be fingerprinted. The fourth misdemeanor offense is O.C.G.A. § 16-11-90(b)(2)(B). This Code section provides that any person who knowingly and without consent of the depicted person causes the electronic transmission or posting, by means not falling within subparagraph (A), of a photograph or video which depicts nudity or sexually explicit conduct, when the transmission or post is harassment or causes financial loss and serves no legitimate purpose to the depicted person, shall be guilty of a misdemeanor of a high and aggravated nature. Upon a second or subsequent violation of O.C.G.A. § 16-11-90(b)(2)(B), the person shall be guilty of a felony. I hereby designate misdemeanor offenses arising under O.C.G.A. § 16-11-90(b)(2)(B) as offenses for which those charged are to be fingerprinted. The fifth misdemeanor offense is O.C.G.A. § 21-2-414. This Code section makes it a misdemeanor to engage in certain campaign activities and public opinion polling within a specified vicinity of a polling place, including soliciting votes or petition signatures, distributing or displaying campaign material, and setting up tables or booths. As noted in your letter, the 2021 amendment to O.C.G.A. § 21-2-414(a) adds to this list of prohibited conduct, making it a misdemeanor to give, offer, or participate in the giving of money or gifts, including food and drink, to an elector within the vicinity of a polling place. You have asked for an opinion regarding this amendment. In 1995, 1998, and 2001 this office designated misdemeanors arising under O.C.G.A. § 21-2-414 as offenses for which those charged are not to be fingerprinted. See Op. Att'y Gen. 2001-11, Op. Att'y Gen. 98-20, Op. Att'y Gen. 95-16. That designation remains unchanged. The sixth misdemeanor offense is O.C.G.A. § 21-2-568.2. This Code section provides that it shall be a misdemeanor to use photographic or other electronic monitoring or recording devices, cameras, or cellular telephones, except as authorized by law, to photograph or record the face of an electronic ballot marker while a ballot is being voted or while an elector's votes are displayed on such electronic ballot marker, or to photograph or record a recorded ballot. I hereby designate misdemeanor offenses arising under O.C.G.A. § 21-2-568.2 as offenses for which those charged are to be fingerprinted. The seventh misdemeanor offense is O.C.G.A. § 26-5-80(b). This Code section provides that it shall be unlawful to pay, offer to pay, solicit, or receive any remuneration to induce, or in return for, referring a patient to or from a substance abuse provider, or in return for treatment from a substance abuse provider, or to aid or participate in such conduct. A violation of the Code section involving fewer than 10 patients is misdemeanor, a violation involving between 10 and 19 patients is a felony punishable by not more than five years and a fine of not more than $100,000, and a violation involving 20 or more patients is a felony punishable by not more than ten years and a fine of not more than $500,000. I hereby designate misdemeanor offenses arising under O.C.G.A. § 26-5-80(b) as offenses for which those charged are to be fingerprinted. The eighth misdemeanor offense is O.C.G.A. § 40-5-57.2(d). This Code section provides that it shall be unlawful for any person whose driver's license was suspended as a result of a conviction for reckless stunt driving in violation of Code Section 40-6-390.1 to operate a motor vehicle without first obtaining a valid license or limited permit, and that any person convicted of such conduct shall be punished by up to 12 months imprisonment and/or a fine of not less than $750.00 nor more than $5,000.00. I hereby designate offenses arising under O.C.G.A. § 40-5-57.2(d) as offenses for which those charged are to be fingerprinted. The ninth misdemeanor offense is O.C.G.A. § 40-6-56. This Code section provides that when the operator of a motor vehicle approaches a bicyclist, the operator shall make a lane change into a lane not adjacent to the bicyclist or, if a lane change is not possible, is prohibited by law, or is unsafe, shall reduce speed and proceed around the bicyclist with at least three feet of space. The Code section further provides that a failure to do so shall be a misdemeanor punishable by a fine of not more than $250. An offense arising from a violation of this Code section does not 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. § 40-6-390.1. This Code section provides that any person who operates a vehicle while drag racing, in violation of Code Section 40-6-186, or laying drags, in violation of Code Section 40-6-251, in reckless disregard for the safety of persons on a highway or on private property without authorization commits the offense of reckless stunt driving and, upon conviction, shall be guilty of a misdemeanor of a high and aggravated nature punishable by a fine and imprisonment for a period of ten days to six months. A second and third conviction in a ten-year period also amount to a misdemeanor of a high and aggravated nature but are punishable by longer periods of imprisonment and higher fines. A fourth or subsequent conviction in a ten-year period of time amounts to a felony. I hereby designate misdemeanor offenses arising under O.C.G.A. § 40-6-390.1 as offenses for which those charged are to be fingerprinted. The eleventh misdemeanor offense is O.C.G.A. § 42-5-36(f). This Code section identifies the types of information related to penal institutions and inmates which constitute confidential state secrets. Subsection (f) provides that no person shall divulge or cause to be divulged any confidential state secret and provides that any person who violates or conspires to violate this Code section, or causes or procures a violation of this Code section, shall be guilty of a misdemeanor. I hereby designate misdemeanor offenses arising under O.C.G.A. § 42-5-36(f) as offenses for which those charged are to be fingerprinted. Prepared by: Deborah Nolan Gore Assistant Attorney General