2021 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 8 - Equipment and Inspection of Motor Vehicles
Article 1 - Equipment Generally
Part 4 - Horns, Exhaust Systems, Mirrors, Windshields, Tires, Safety Belts, Energy Absorption Systems
§ 40-8-76.1. Use of Safety Belts in Passenger Vehicles

1. As used in this Code section, the term "passenger vehicle" means every motor vehicle, including, but not limited to, pickup trucks, vans, and sport utility vehicles, designed to carry 15 passengers or fewer and used for the transportation of persons; provided, however, that such term shall not include motorcycles; motor driven cycles; or off-road vehicles or pickup trucks being used by an owner, driver, or occupant 18 years of age or older in connection with agricultural pursuits that are usual and normal to the user's farming operation; and provided, further, that such term shall not include motor vehicles designed to carry 11 to 15 passengers which were manufactured prior to July 1, 2015, and which, as of such date, did not have manufacturer installed seat safety belts.
2. Each occupant of the front seat of a passenger vehicle shall, while such passenger vehicle is being operated on a public road, street, or highway of this state, be restrained by a seat safety belt approved under Federal Motor Vehicle Safety Standard 208.
3. The requirement of subsection (b) of this Code section shall not apply to:
   1. A driver or passenger frequently stopping and leaving the vehicle or delivering property from the vehicle, if the speed of the vehicle between stops does not exceed 15 miles per hour;
   2. A driver or passenger possessing a written statement from a physician that such person is unable, for medical or physical reasons, to wear a seat safety belt;
   3. A driver or passenger possessing an official certificate or license endorsement issued by the appropriate agency in another state or country indicating that the driver is unable for medical, physical, or other valid reasons to wear a seat safety belt;
   4. A driver operating a passenger vehicle in reverse;
   5. A passenger vehicle with a model year prior to 1965;
   6. A passenger vehicle which is not required to be equipped with seat safety belts under federal law;
   7. A passenger vehicle operated by a rural letter carrier of the United States Postal Service while performing duties as a rural letter carrier;
   8. A passenger vehicle from which a person is delivering newspapers; or
   9. A passenger vehicle performing an emergency service.
4. The failure of an occupant of a motor vehicle to wear a seat safety belt in any seat of a motor vehicle which has a seat safety belt or belts shall not be considered evidence of negligence or causation, shall not otherwise be considered by the finder of fact on any question of liability of any person, corporation, or insurer, shall not be any basis for cancellation of coverage or increase in insurance rates, and shall not be evidence used to diminish any recovery for damages arising out of the ownership, maintenance, occupancy, or operation of a motor vehicle.
5. 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 Driver Services.
   3. Each minor eight years of age or older who is an occupant of a passenger vehicle shall, while such passenger vehicle is being operated on a public road, street, or highway of this state, be restrained by a seat safety belt approved under Federal Motor Vehicle Safety Standard 208. In any case where a minor passenger eight years of age or older fails to comply with the requirements of this paragraph, the driver of the passenger vehicle shall be guilty of the offense of failure to secure a seat safety belt on a minor and, upon conviction thereof, may be fined not more than $25.00. The court imposing such a fine shall forward a record of the court disposition of the case of failure to secure a seat safety belt on a minor to the Department of Driver Services.
6. Probable cause for violation of this Code section shall be based solely upon a law enforcement officer's clear and unobstructed view of a person not restrained as required by this Code section. Noncompliance with the restraint requirements of this Code section shall not constitute probable cause for violation of any other Code section.

(Code 1981, §40-8-76.1, enacted by Ga. L. 1988, p. 31, § 1; Ga. L. 1990, p. 588, § 1; Ga. L. 1993, p. 516, § 1; Ga. L. 1994, p. 1005, § 1; Ga. L. 1996, p. 469, § 3; Ga. L. 1997, p. 143, § 40; Ga. L. 1998, p. 1579, § 1; Ga. L. 1999, p. 276, § 1; Ga. L. 2000, p. 862, § 1; Ga. L. 2000, p. 951, § 5B-4; Ga. L. 2004, p. 716, § 2; Ga. L. 2005, p. 334, § 19-4/HB 501; Ga. L. 2010, p. 817, § 1/SB 458; Ga. L. 2011, p. 253, § 2/SB 88; Ga. L. 2015, p. 940, § 1/HB 325.)

- Safety belts required as equipment and safety restraints for children under age eight, § 40-8-76.

- Ga. L. 1998, p. 1579, § 2, not codified by the General Assembly, provides that the 1998 amendment to this Code section shall be applicable to offenses committed on or after July 1, 1998.

Ga. L. 2004, p. 716, § 3, not codified by the General Assembly, provides: "It shall be the duty of the Governor's Office of Highway Safety to implement and coordinate a program to inform parents and other citizens of Georgia of the provisions of subsection (b) of Code Section 40-8-76 and paragraph (3) of subsection (e) of Code Section 40-8-76.1 as amended by this Act. Such program shall be carried out prior to January 1, 2005. The Governor's Office of Highway Safety shall solicit the cooperation and assistance of the Georgia State Patrol, Department of Motor Vehicle Safety, Georgia Sheriffs Association, Georgia Association of Chiefs of Police, Incorporated, Peace Officers' Association of Georgia, Medical College of Georgia, Georgia Hospital Association, Georgia Association of Educators, Professional Association of Georgia Educators, Georgia Parent-Teacher Association, and other appropriate organizations in educating the citizens of the state and in implementing, coordinating, and carrying out such provisions."

- For article, "Federal Automotive Safety Standards and Georgia Products Liability Law: Conflict or Coexistence?," see 26 Ga. St. B.J. 107 (1990). For survey article on product liability law, see 59 Mercer L. Rev. 331 (2007) and 60 Mercer L. Rev. 303 (2008). For article, "The Seat-Belt Defense in Georgia," see 65 Mercer L. Rev. 19 (2013).

JUDICIAL DECISIONS

Section constitutional under state and federal provisions.

- O.C.G.A. § 40-8-76.1 works no violation of federal due process or trial by jury by precluding evidence that the driver's failure to wear a seat belt was the proximate cause of the driver's injuries, nor does the statute work violations of state constitutional "right of access" to the courts (Ga. Const. 1983, Art. I, Sec. I, Para. XII) or equal protection of the laws (Ga. Const. 1983, Art. I, Sec. I, Para. II). C.W. Matthews Contracting Co. v. Gover, 263 Ga. 108, 428 S.E.2d 796 (1993).

- Defendant who filed a motion to suppress evidence found in the defendant's automobile after being stopped for failing to fasten the defendant's seat belt could not show the absence of a rational relation between the classification drawn by O.C.G.A. § 40-8-76.1 and the public safety purpose thereof; thus, the trial court's denial of the defendant's motion based on an equal protection challenge to that statute was not error. Farley v. State, 272 Ga. 432, 531 S.E.2d 100 (2000).

Seat belt law is a prospective statute only, applying to incidents on or after September 1, 1988. Payne v. Joyner, 197 Ga. App. 527, 399 S.E.2d 83 (1990).

- Victim's failure to wear a seat belt can play no role in determining whether the defendant is guilty of vehicular homicide. Whitener v. State, 201 Ga. App. 309, 410 S.E.2d 796, cert. denied, 201 Ga. App. 905, 410 S.E.2d 796 (1991).

- Even though O.C.G.A. § 40-8-76.1 does not require shoulder strap safety belts, the officer's observation that the defendant was not wearing the defendant's car's shoulder strap safety belt supported probable cause for stopping the defendant for violating subsection (b). Davis v. State, 232 Ga. App. 320, 501 S.E.2d 836 (1998).

When the officer testified that the officer had a clear and unobstructed view of the driver of the vehicle not wearing a seat belt, this view was sufficient to establish probable cause for the stop, and once the vehicle was lawfully stopped, the officer was allowed to ask for the driver's consent to search the car. State v. Millsap, 243 Ga. App. 519, 528 S.E.2d 865 (2000).

O.C.G.A. § 40-8-76.1 was amended in order to provide that minors in pickup trucks were required to use seatbelts; as subsection (a) of O.C.G.A. § 40-8-76.1 specifically included pickup trucks that contained minors, the driver of a pickup truck could be stopped and ticketed for the failure to require a minor occupant to wear a seatbelt. State v. McDuff, 252 Ga. App. 183, 555 S.E.2d 213 (2001).

After the defendant's car was legitimately stopped during a police operation to stop vehicles wherein an occupant was not wearing a seatbelt, in violation of O.C.G.A. § 40-8-76.1(b), the court held that the traffic stop was justified and the search of the vehicle thereafter was based on the defendant's consent; accordingly, the denial of the defendant's motion to suppress evidence seized therein pursuant to O.C.G.A. § 17-5-30 was proper. Taylor v. State, 263 Ga. App. 420, 587 S.E.2d 791 (2003), cert. denied, 542 U.S. 941, 124 S. Ct. 2916, 159 L. Ed. 2d 820 (2004).

Police officer's observation that the first defendant, who was driving the vehicle, and the second defendant, who was a front-seat passenger, were violating the seatbelt law by not wearing their seatbelts was a sufficient ground for making a valid investigatory stop of their vehicle, which led to the later finding that the defendants were transporting cocaine. Fernandez v. State, 275 Ga. App. 151, 619 S.E.2d 821 (2005).

Consensual search upon traffic stop for seatbelt violation supported denial of a suppression motion as the search conducted pursuant to the defendant's consent was not a search based solely on the defendant's failure to wear a seatbelt; thus, the trial court did not err by ruling that law enforcement did not violate the Fourth Amendment during an officer's traffic stop for a violation of O.C.G.A. § 40-8-76.1. Blitch v. State, 281 Ga. 125, 636 S.E.2d 545 (2006).

Trial court properly denied the defendant's motion to suppress evidence seized as a result of the stop of the defendant's vehicle; the stop of the defendant's vehicle for a seat belt violation under O.C.G.A. § 40-8-76.1(e)(3), (f) was permissible even if pretextual. Soilberry v. State, 282 Ga. App. 161, 637 S.E.2d 861 (2006), cert. denied, No. S07C0381, 2007 Ga. LEXIS 55 (Ga. 2007).

Defendant's Fourth Amendment rights were not violated because the defendant was properly stopped for driving without a seatbelt in violation of O.C.G.A. § 40-8-76.1, and the officer's search of the passenger area and recovery of the firearm beneath the driver's seat was valid because the arrest was lawful. United States v. Jackson, 249 Fed. Appx. 130 (11th Cir. 2007)(Unpublished).

In a trial for violations of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), denial of a defendant's motion to suppress was not clear error because a police officer had probable cause to stop the defendant based on observing the defendant violate O.C.G.A. § 40-8-76.1 and during the stop developed probable cause to arrest the defendant for drug possession and search the defendant's vehicle. United States v. Price, F.3d (11th Cir. Nov. 18, 2009).

- Although the federal safety standard referred to in O.C.G.A. § 40-8-76.1(b) did not mandate the use of shoulder strap safety belts, a police officer had probable cause to stop the defendant on suspicion that the defendant was violating § 40-8-76.1(b) when the officer observed that the defendant was not wearing a shoulder strap safety belt while driving. Moran v. State, 257 Ga. App. 236, 570 S.E.2d 673 (2002).

Because sufficient evidence existed to support a finding that the arresting officer had a clear and unobstructed view of the defendant not wearing a seat belt as required by O.C.G.A. § 40-8-76.1(f), the officer's subsequent stop of the defendant's vehicle was supported by probable cause, making suppression of the evidence thereafter seized unwarranted; as a result, reconsideration of the court's ruling did not amount to an abuse of discretion. Schramm v. State, 286 Ga. App. 156, 648 S.E.2d 392 (2007).

Inability to see the employment of any restraining device, coupled with the common knowledge that seat belts were not standard equipment in the back of pickup trucks, provided a sufficient basis for a traffic stop to ensure compliance with O.C.G.A. § 40-8-76.1. State v. McDuff, 252 Ga. App. 183, 555 S.E.2d 213 (2001).

- For the exclusion of evidence provision of O.C.G.A. § 40-8-76.1 to apply, it is not required that the occupant was not wearing a seat belt and was charged with not wearing the seat belt. Crosby v. Cooper Tire & Rubber Co., 240 Ga. App. 857, 524 S.E.2d 313 (1999).

Intent of subsection (d) of O.C.G.A. § 40-8-76.1 is to disallow admission of evidence of the failure to wear safety belts; thus, such evidence would not be allowed on the basis that it was relevant and admissible for the limited purposes of reduction of any damages, refutation of an element of plaintiffs' failure to warn claim, and impeachment. Crosby v. Cooper Tire & Rubber Co., 240 Ga. App. 857, 524 S.E.2d 313 (1999).

O.C.G.A. § 40-8-76.1(d), which prohibits the use of evidence of the failure of an occupant of a motor vehicle to wear a seat safety belt as evidence of negligence or causation or to diminish any recovery for damages in any civil action, is not a statute that merely confers waivable rights on a party. Rather, O.C.G.A. § 40-8-76.1(d) provides the substantive law which courts must apply to any case involving an automobile. Denton v. Daimlerchrysler Corp., 645 F. Supp. 2d 1215 (N.D. Ga. 2009).

- When a stop for a seat belt violation was made, O.C.G.A. § 40-8-76.1 did not preclude an officer from conducting a reasonable inquiry and investigation to insure both the officer's safety and that of others, and evidence gathered as a result of the stop could be used as probable cause to arrest the driver for driving under the influence and other offenses. Temples v. State, 228 Ga. App. 228, 491 S.E.2d 444 (1997); Holt v. Leiter, 232 Ga. App. 376, 501 S.E.2d 879 (1998).

When any one of the traffic violations observed by a police officer would have provided probable cause to effectuate a traffic stop, the trial court's denial of a motion to suppress evidence found during a subsequent search of the defendant's person, based upon an allegedly improper traffic stop, was not clearly erroneous. Tukes v. State, 236 Ga. App. 77, 511 S.E.2d 534 (1999).

Nothing in O.C.G.A. § 40-8-76.1(f) prevents an officer who stops a motorist for failing to wear a seat belt from conducting a reasonable investigation to ensure the officer's safety and if, during that investigation, the officer sees evidence of an unrelated crime, the officer may arrest the motorist for the unrelated crime notwithstanding the fact that the motorist originally was stopped for failing to wear a seat belt. Edwards v. State, 239 Ga. App. 44, 518 S.E.2d 426 (1999).

- Even though the probable cause for the initial stop cannot itself be used as probable cause for arrests based on other violations, once a stop for a seat belt violation is made, O.C.G.A. § 40-8-76.1 does not prevent an officer from making an arrest for additional offenses based upon separate probable cause. Davis v. State, 232 Ga. App. 320, 501 S.E.2d 836 (1998).

- Trial court erred in dismissing the defendant's charge for DUI, O.C.G.A. § 40-6-391(k), on double jeopardy grounds under O.C.G.A. § 16-1-7(b) based on the prior disposal online of a separate seat belt citation; there was no showing that the solicitor had actual knowledge of the DUI charge at the time the seat belt charge was handled. State v. Garlepp, 338 Ga. App. 788, 790 S.E.2d 839 (2016).

- Even though a sport utility vehicle had design characteristics of an off-road vehicle, it was designed and intended primarily for use on public roads and, therefore, the General Assembly intended for seat safety belts to apply to it as a passenger vehicle in order to promote safety. Crosby v. Cooper Tire & Rubber Co., 240 Ga. App. 857, 524 S.E.2d 313 (1999).

- Because the trial court erroneously instructed the jury on the use of evidence a married couple's failure to wear their seatbelts as evidence of negligence or causation or to diminish any recovery, and such likely prejudiced the couple, a new trial was warranted. King v. Davis, 287 Ga. App. 715, 652 S.E.2d 585 (2007).

Cited in Katz v. White, 190 Ga. App. 458, 379 S.E.2d 186 (1989); Scott v. Chapman, 203 Ga. App. 58, 416 S.E.2d 111 (1992); Heard v. State, 291 Ga. App. 550, 662 S.E.2d 310 (2008); Hughes v. State, 293 Ga. App. 404, 667 S.E.2d 163 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Payments to Peace Officers' Annuity and Benefit Fund.

- Amount required to be withheld and paid over to the Peace Officers' Annuity and Benefit Fund is not required to be withheld and paid over in cases involving the failure to wear a seat safety belt under O.C.G.A. § 40-8-76.1(e). 2008 Op. Att'y Gen. No. 2008-4.

RESEARCH REFERENCES

Am. Jur. 2d.

- 8 Am. Jur. 2d, Automobiles and Highway Traffic, §§ 542, 568, 569.

- 61 C.J.S., Motor Vehicles, §§ 1061, 1071, 1105, 1106, 1110, 1365.