2021 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 13 - Prosecution of Traffic Offenses
Article 2 - Arrests, Trials, and Appeals
§ 40-13-21. General Powers and Jurisdiction of Probate and Municipal Courts; Assistance of the District Attorney or Solicitor

1. The probate courts and municipal courts of the incorporated towns and cities of this state, acting by and through the judges or presiding officers thereof, shall have the right and power to conduct trials, receive pleas of guilty, and impose sentence, in the manner required by law, upon defendants violating any and all criminal laws of this state relating to traffic upon the public roads, streets, and highways of this state where the penalty for the offense does not exceed that of the grade of misdemeanor.
2. The probate court shall have jurisdiction to issue warrants, try cases, and impose sentence thereon in all misdemeanor cases arising under the traffic laws of this state in all counties of this state in which there is no city, county, or state court, provided the defendant waives a jury trial. Notwithstanding any provision of law to the contrary, all municipal courts are granted jurisdiction to try and dispose of misdemeanor traffic offenses arising under state law except violations of Code Section 40-6-393 and to impose any punishment authorized for such offenses under general state law, whether or not there is a city, county, or state court in such county, if the defendant waives a jury trial and the offense arises within the territorial limits of the respective jurisdictions as now or hereafter fixed by law.
3. In any traffic misdemeanor trial, a judge of the probate court, upon his or her own motion, may request the assistance of the district attorney of the circuit in which the court is located or solicitor-general of the state court of the county to conduct the trial on behalf of the state. If, for any reason, the district attorney or solicitor-general is unable to assist, the district attorney or solicitor-general may designate a member of his or her staff to conduct the trial on behalf of the state.

(Ga. L. 1937-38, Ex. Sess., p. 558, §§ 1-3; Ga. L. 1953, Nov.-Dec. Sess., p. 83, § 2; Ga. L. 1962, p. 3146, § 2; Ga. L. 1971, p. 2299, § 1; Ga. L. 1982, p. 2107, § 44; Ga. L. 1987, p. 3, § 40; Ga. L. 1989, p. 354, § 1; Ga. L. 1989, p. 604, § 1; Ga. L. 1992, p. 909, § 1; Ga. L. 1992, p. 980, § 1; Ga. L. 1996, p. 748, § 21.)

- Provisions regarding jurisdiction of recorder's, mayor's, and other police courts to try traffic offenses, § 40-5-124.

- Ga. L. 1996, p. 748, § 27, not codified by the General Assembly, provides: "Notwithstanding any other provision of law, an Act approved February 11, 1854 (Ga. L. 1854, p. 281), which abolished the office of solicitor of the City Court of Savannah, now the State Court of Chatham County, and transferred responsibility for the prosecution of criminal cases in said court to the solicitor general (now the district attorney) for the Eastern Judicial Circuit is confirmed. It shall be the duty of said district attorney to prosecute all criminal actions in said state court until otherwise specifically provided by law."

Ga. L. 1996, p. 748, § 28, not codified by the General Assembly, provides: "The provisions of this Act shall not affect the powers, duties, or responsibilities of the district attorney as successor to the office of solicitor general under the constitution, statutes, and common law of this state as provided by Code Section 15-18-1."

Ga. L. 1996, p. 748, § 29, not codified by the General Assembly, provides: "Except as otherwise authorized in this Act, on and after July 1, 1996, any reference in general law or in any local Act to the solicitor of a state court shall mean and shall be deemed to mean the solicitor-general of such state court."

Ga. L. 1996, p. 748, § 30, not codified by the General Assembly, provides: "The provisions of paragraph (3) of Code Section 15-18-62, relating to the qualifications for the office of solicitor-general of a state court, shall apply to any person elected or appointed to such office after July 1, 1996. Any person holding such office on July 1, 1996, may continue to hold such office for the remainder of the term to which such person was elected or appointed notwithstanding the fact that such person has not been a member of the State Bar of Georgia for three years if such person is otherwise qualified to hold the office of solicitor-general."

- For survey article on criminal law and procedure for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 117 (2003). For note on the 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 196 (1989).

JUDICIAL DECISIONS

Constitutionality.

- In providing that municipal courts shall have jurisdiction over ordinance violations and such other jurisdiction as provided by law, Ga. Const. 1983, Art. VI, Sec. I, Para. I authorizes the General Assembly to vest municipal courts with jurisdiction over state misdemeanor offenses. Kolker v. State, 260 Ga. 240, 391 S.E.2d 391 (1990).

Construed with O.C.G.A. § 1-1-2. - Under the statutory provisions contained in O.C.G.A. § 40-13-21, it was in 1937, and continues to be, the intent of the legislature to vest all municipal courts with jurisdiction over state misdemeanor traffic laws (citing 1945 Georgia Constitution). Whaley v. State, 260 Ga. 384, 393 S.E.2d 681 (1990).

- Power of municipal courts to try and dispose of misdemeanor traffic offenses is conditioned upon the defendant's waiver of the defendant's right to a jury trial. Kolker v. State, 260 Ga. 240, 391 S.E.2d 391 (1990).

- Right and jurisdiction of the court to issue a warrant is not limited to any particular instances. Cooper v. Lunsford, 203 Ga. 166, 45 S.E.2d 395 (1947).

- Defendant's motion to suppress evidence seized pursuant to a warrant issued by a probate court judge was properly denied because the probate court judge was authorized to hold a court of inquiry under O.C.G.A. § 17-7-20 and, therefore, was authorized to issue a search warrant under O.C.G.A. § 17-5-21(a). O.C.G.A. § 40-13-21(b), assuming the statute required the state court to issue a warrant, pertained to the jurisdiction of probate courts in misdemeanor traffic cases and did not apply in this felony case. Joyner v. State, 347 Ga. App. 159, 817 S.E.2d 822 (2018).

Probate court lost the court's jurisdiction to hear and decide misdemeanor traffic offenses by operation of law upon the effective date of the creation of a state court in the county. Fausnaugh v. State, 244 Ga. App. 263, 534 S.E.2d 554 (2000).

- In those probate court cases in which there is no record that a timely objection to trial without a jury was made, the right to a jury trial is waived, and the issue cannot be raised for the first time on appeal. Nicholson v. State, 261 Ga. 197, 403 S.E.2d 42 (1991), but see Davis v. State, 197 Ga. App. 746, 399 S.E.2d 554 (1990).

- When no evidence appeared indicating the defendant's objection to proceeding without a jury on a prior charge of driving under the influence tried in the recorder's court, the defendant waived the defendant's right to a jury trial on that charge, and the trial court did not err by considering the valid prior judgment in sentencing the defendant as a third-time violator. Kolker v. State, 200 Ga. App. 72, 406 S.E.2d 514, cert. denied, 200 Ga. App. 896, 406 S.E.2d 514 (1991).

Cited in Mathis v. Rowland, 208 Ga. 571, 67 S.E.2d 760 (1951); City of Adairsville v. Barton, 159 Ga. App. 810, 285 S.E.2d 581 (1981); Kolker v. State, 193 Ga. App. 306, 387 S.E.2d 597 (1989); Zornes v. State, 262 Ga. 757, 426 S.E.2d 355 (1993); Mauldin v. Burnette, 89 F. Supp. 2d 1371 (M.D. Ga. 2000); Lockett v. State, 257 Ga. App. 412, 571 S.E.2d 192 (2002); State v. Rigdon, 284 Ga. App. 785, 645 S.E.2d 17 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Jurisdiction over cases arising under traffic laws.

- In counties having no city court (now state court), the probate court has jurisdiction to dispose of misdemeanor cases arising by virtue of traffic laws of this state. 1948-49 Op. Att'y Gen. p. 483; 1950-51 Op. Att'y Gen. p. 21.

Ga. L. 1937-38, Ex. Sess., p. 558, §§ 1-3 (see now O.C.G.A. § 40-13-21) limits the jurisdiction of the probate court to cases arising under traffic laws of the state. 1958-59 Op. Att'y Gen. p. 67.

Probate court, having jurisdiction over traffic offenses pursuant to O.C.G.A. §§ 15-9-30(b)(8) and40-13-21, has jurisdiction over violations of county traffic ordinances. 1995 Op. Att'y Gen. No. U95-1.

- Probate court may exercise state judicial power over misdemeanor traffic offenses occurring within the corporate limits of a municipal corporation where the charter of the municipal corporation authorizes a municipal court but no such court is in existence. The arresting officer in a misdemeanor traffic case is responsible for returning those charges to the proper court with jurisdiction to hear the matter, but, if the citation is erroneously returned to the incorrect court, that court should promptly act to transfer the matter to a court with jurisdiction to consider the charges. 1989 Op. Att'y Gen. No. U89-30.

- O.C.G.A. § 40-13-29 does not prohibit the probate court from exercising state judicial power in any county simply because of the existence of a municipal court within the corporate limits of a municipal corporation within that county. 1989 Op. Att'y Gen. No. U89-30.

Authority of mayor's court when there is no city or county court, see 1954-56 Op. Att'y Gen. p. 489; 1960-61 Op. Att'y Gen. p. 567.

Municipal courts, police courts, mayors' courts or recorders' courts have jurisdiction when the offense occurs within the incorporated limits of the municipality in a county which has no city or county court and the defendant waives a jury trial. 1967 Op. Att'y Gen. No. 67-157.

Municipal court possesses jurisdiction to try all misdemeanor cases originating within the corporate limits of the city which concern violations of laws relating to traffic upon the public roads, streets, and highways. 1973 Op. Att'y Gen. No. 73-29.

- Municipal court has jurisdiction over the offenses of driving under the influence of intoxicating liquor or drugs, driving a vehicle without a driver's license or with a revoked, suspended, or cancelled driver's license, driving a vehicle without a state inspection sticker or with an expired state inspection sticker, driving a vehicle without a state license plate or with an illegal or expired state license plate, and other traffic offenses occurring on the public roads of the municipality. 1967 Op. Att'y Gen. No. 67-157.

Municipal court possesses jurisdiction to try violations of laws requiring annual inspections of motor vehicles and prohibiting driving under the influence of intoxicating liquor or drugs. 1973 Op. Att'y Gen. No. 73-29.

- Probate courts have no authority or jurisdiction in violations arising under licensing and registration provisions because those provisions are not "traffic laws" as contemplated by Ga. L. 1962, p. 3146, § 2 (see now O.C.G.A. § 40-13-21). 1965-66 Op. Att'y Gen. No. 65-18.

- Since the offense of public drunkenness does not involve "traffic upon the public roads, streets, and highways of this state ...," a probate court is without jurisdiction to try cases or to accept cash bonds for the offense of public drunkenness. 1984 Op. Att'y Gen. No. U84-13.

- If there is no city or county court in a county, then the judge of the probate court would have authority to issue warrants for the violation of traffic laws. 1954-56 Op. Att'y Gen. p. 109.

Judge of the probate court may issue a warrant for arrest for traffic violations and a justice of the peace may issue a warrant for traffic offenses if a warrant has not otherwise been issued by the judge of the probate court. 1965-66 Op. Att'y Gen. No. 65-57.

Probate judges may issue arrest warrants only in certain traffic cases and for peace officers accused of any offense in the performance of their duties. 1983 Op. Att'y Gen. No. U83-13.

- In a misdemeanor traffic case before a county probate court when the probate judge either has not requested the assistance of the district attorney or has requested assistance but the district attorney has refused to conduct the trial or to designate a member of his or her staff to conduct the trial, the board of commissioners is free to provide an attorney to prosecute the case. Further, in a case under the jurisdiction of the probate court other than a misdemeanor traffic case, the board of commissioners is also free to provide an attorney to prosecute the case. 2001 Op. Att'y Gen. No. U2001-2.

- Judge of the probate court does not have authority to issue a bench warrant, but the judge does have authority to issue an arrest warrant for a person who does not appear to answer a traffic violation citation issued to that person. 1975 Op. Att'y Gen. No. U75-65.

Named probate court may issue warrant ordering apprehension of individual charged with violating traffic laws who fails to appear in court on the date and at the time specified in the citation upon which he or she was arrested. 1980 Op. Att'y Gen. No. U80-58.

- Probate court has an affirmative burden to obtain a written waiver of a jury trial prior to proceeding to dispose of a pending traffic case on the merits. However, the defendant has an affirmative burden to notify the court if a jury trial is desired. 1980 Op. Att'y Gen. No. 80-135.

- Maximum fines that may be imposed by the probate court under Ga. L. 1937-38, Ex. Sess., p. 558, §§ 1-3 (see now O.C.G.A. § 40-13-21) would be those fines specifically provided by statute for the particular misdemeanor involved in the trial. 1948-49 Op. Att'y Gen. p. 484.

- When a probate court hears cases involving traffic cases, costs should be assessed in accordance with former Code 1933, § 24-1716. 1970 Op. Att'y Gen. No. U70-102 (see now O.C.G.A. § 15-9-60).

In traffic offense cases tried in the probate court, costs which are properly incurred may be recovered from an insolvent cost fund when there is neither a fine nor a bond forfeiture. 1969 Op. Att'y Gen. No. 69-511.

Costs applicable to traffic cases brought in probate courts pursuant to O.C.G.A. § 40-13-21 or when a judge of the probate court issues warrant in traffic cases pursuant to O.C.G.A. § 17-4-23 are those enumerated in O.C.G.A. § 15-9-60 for public safety patrol trials plus costs allowed for other services actually performed. 1981 Op. Att'y Gen. No. U81-36.

- O.C.G.A. § 40-13-28 requires that a misdemeanor traffic defendant who has been convicted in the probate court and who wishes to appeal to the superior court is to be remanded to the custody of the sheriff pending the posting of an appellate bond only if the defendant has been sentenced to a term of imprisonment. 1989 Op. Att'y Gen. No. U89-30.

- District attorney may appoint a part-time assistant district attorney to prosecute traffic cases in the probate court if requested by the judge of the probate court. If the assistant is compensated solely by county funds, the assistant can engage in the private practice of law except as a conflict of interest may arise due to that person's responsibilities as an assistant district attorney. 1991 Op. Att'y Gen. No. U91-6.

RESEARCH REFERENCES

C.J.S.

- 21 C.J.S., Courts, § 109 et seq.