2021 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 6 - Uniform Rules of the Road
Article 14 - Effect of Chapter on Powers of Local Authorities
§ 40-6-376. Prosecution Under This Chapter or Local Ordinance; Transfer of Charge to State Tribunal; Double Jeopardy

1. Any offense, except a violation of subsection (b) of Code Section 40-6-270 or a violation of Code Section 40-6-393, which is a violation of a provision of this chapter and of a local ordinance may, at the discretion of the local law enforcement officer or prosecutor, be charged as a violation of the state statute or of the local ordinance.A violation of subsection (b) of Code Section 40-6-270 or a violation of Code Section 40-6-393 shall be charged as a state violation.
2. If the offense charged under an ordinance constitutes a violation of any provision of this chapter, the defendant may request transfer of the charge to the appropriate state tribunal. If the defendant sorequests, the recorder or city judge, after conducting a commitment hearing in which probable cause for arrest is found, or upon obtaining a waiver of commitment hearing, shall summarily fix the defendant's bond and bind his case over to the appropriate state tribunal.
3. No person tried in any court for a violation of this chapter or any ordinance adopted pursuant thereto shall thereafter be tried in any court for the same offense. A conviction for the violation of an ordinance adopted pursuant to this chapter shall be considered a prior conviction for all purposes under this chapter and under Chapter 13 of this title.
4. No court, other than a court having jurisdiction to try a person charged with a violation of Code Section 40-6-393, shall have jurisdiction over any offense arising under the laws of this state or the ordinances of any political subdivision thereof, which offense arose out of the same conduct which led to said person's being charged with a violation of Code Section 40-6-393 and any judgment rendered by such court shall be null and void.

(Ga. L. 1955, p. 736, §§ 1, 2; Code 1933, § 68A-1507, enacted by Ga. L. 1974, p. 633, § 1; Ga. L. 1975, p. 1582, § 4; Ga. L. 1982, p. 1694, §§ 2, 4; Ga. L. 1988, p. 1499, § 2; Ga. L. 1989, p. 14, § 40; Ga. L. 1990, p. 2048, § 5.)

- Arrests, Trials, and Appeals for Traffic Offenses, T. 40, Ch. 13, Art. 2.

- 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).

JUDICIAL DECISIONS

Charging of violation of statute and ordinance interchangeable.

- Any violation of former Code 1933, Ch. 68A and of a local ordinance may, at the discretion of the local prosecutor, be charged as a violation of the state statute or the local ordinance. Diamond v. State, 151 Ga. App. 690, 261 S.E.2d 434 (1979) (decided prior to 1982 amendment; see O.C.G.A. Ch. 6, T. 40).

- O.C.G.A. § 40-6-376(a) expressly grants the prosecutor the discretion to select the forum. State v. Serio, 257 Ga. App. 369, 571 S.E.2d 168 (2002).

- Trial court erred in concluding that the state was not authorized to seek transfer from municipal to state court as the prosecutor properly brought a state charge against the defendant and entered a nolle prosequi on the local ordinance violation; the prosecutor was authorized to bring the charges in state court, and the trial court erred in finding otherwise and in transferring the case back to municipal court. State v. West, 258 Ga. App. 269, 574 S.E.2d 365 (2002).

- Under O.C.G.A. § 40-6-376(a), any violation of state traffic law which is also a violation of a local ordinance may, at the prosecutor's discretion, be charged as a violation of either the state statute or the local ordinance; under O.C.G.A. § 40-6-376(b), if an offense is charged under a local ordinance, but also constitutes a violation of state law, the defendant may request a transfer of the charge from a lower court to "the appropriate state tribunal," and if the defendant makes such a request, a city or recorder's court judge shall bind the defendant's case over to the appropriate state tribunal, after fixing bond and determining whether there was probable cause for arrest. State v. Serio, 257 Ga. App. 369, 571 S.E.2d 168 (2002).

- Defendant's offenses were charged as violations of state laws, not local ordinances, so O.C.G.A. § 40-6-376(b) was inapplicable because the defendant waived the defendant's right to a jury trial and jurisdiction was proper in either the recorder's court or the state court. State v. Serio, 257 Ga. App. 369, 571 S.E.2d 168 (2002).

- As Ga. L. 1974, p. 633 (see now O.C.G.A. Art. 14, Ch. 6, T. 40) did not prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from regulating or prohibiting stopping, standing, or parking, in the course of which local authorities may by reference adopt any or all provisions of former Code 1933, Ch. 68A, and as a violation, which is both a violation of the state traffic regulations, and the city ordinance may be tried in either jurisdiction, there seems no reason why that former chapter should not be generally admissible in civil cases with the burden on the party contending the provision inapplicable to prove any change effectuated by local authorities. Fabian v. Vincent, 155 Ga. App. 464, 270 S.E.2d 858 (1980).

Existence of municipal ordinances must be pled and proved as the court will not take judicial notice of the existence of such ordinances. Hodges v. State, 100 Ga. App. 611, 112 S.E.2d 373 (1959).

- Conviction of violation of either the state law or municipal ordinance shall constitute res judicata as to the other tribunal for the same offense. Merely because an identical municipal ordinance exists, as to a traffic regulation, the jurisdiction of neither the state nor the municipal court is preempted by the other until there has been a conviction in one of the courts. Hodges v. State, 100 Ga. App. 611, 112 S.E.2d 373 (1959).

- As the focus of a jurisdictional statute was a charge against a specific person, it divested a probate court of jurisdiction over an underlying misdemeanor offense, like reckless driving, when the person was charged with felony vehicular homicide. State v. Perkins, 276 Ga. 621, 580 S.E.2d 523 (2003).

Ga. L. 1955, p. 736 was not in conflict with the state Constitution. 1972 Op. Att'y Gen. No. 72-79.

RESEARCH REFERENCES

ALR.

- Liability for accident arising from motorist's failure to give signal for right turn, 38 A.L.R.2d 143.