2021 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 8 - Equipment and Inspection of Motor Vehicles
Article 1 - Equipment Generally
Part 1 - General Provisions
§ 40-8-5. Alteration of Odometer; Involvement With Devices Which Cause Odometer to Register Other Than Actual Mileage; Penalties

1. It shall be unlawful for any person knowingly to tamper with, adjust, alter, change, set back, disconnect, or fail to connect an odometer of a motor vehicle, or to cause any of the foregoing to occur to an odometer of a motor vehicle, so as to reflect a lower mileage than the motor vehicle has actually been driven, except as provided in this Code section.
2. It shall be unlawful for any person knowingly to bring into this state a motor vehicle which reflects a lower mileage than the motor vehicle actually has been driven due to any illegal acts outlined in subsection (a) of this Code section.
3. It shall be unlawful for any person knowingly to sell or attempt to sell a motor vehicle which reflects a lower mileage than the motor vehicle actually has been driven due to any illegal acts outlined in subsection (a) of this Code section.
4. Subsections (a), (b), and (c) of this Code section shall not apply to the disconnection of the odometer used for registering the mileage or use of new motor vehicles being tested by the manufacturer prior to delivery to a franchised dealer.
5. It shall be unlawful for any person to advertise for sale, to sell, to use, to install, or to have installed any device which causes an odometer to register any mileage other than the actual mileage driven. For the purposes of this subsection, the actual mileage driven is that mileage driven by the vehicle as registered by the odometer within the manufacturer's designed tolerance.
6. It shall be unlawful for any person to conspire with any other person to violate this Code section.
7. 1. In addition to any other penalty provided by law, any person who, with intent to defraud, violates this Code section shall be liable in an amount equal to the sum of:
      1. Three times the amount of actual damages sustained or $1,500.00, whichever is greater; and
      2. In the case of any successful action to enforce the foregoing liability, the costs of the action, together with reasonable attorney's fees, as determined by the court.
   2. Any action to enforce any liability created under this subsection may be brought in any superior court or state court having proper jurisdiction, within two years from the date on which the liability arises.
8. 1. If any person violates any provision of this Code section, the Attorney General, any district attorney in this state, or any solicitor-general in this state may bring an action in any superior court or state court having jurisdiction to restrain such violation.
   2. Any action arising under paragraph (1) of this subsection may be brought within two years from the date of the violation.
9. Any person violating this Code section shall be guilty of a misdemeanor.

(Ga. L. 1975, p. 754, §§ 1, 2; Ga. L. 1977, p. 1227, § 1; Ga. L. 1981, p. 649, § 1; Code 1933, § 68E-105, enacted by Ga. L. 1982, p. 165, § 4; Code 1981, §40-8-5, enacted by Ga. L. 1982, p. 165, § 10; Ga. L. 1985, p. 149, § 40; Ga. L. 1996, p. 748, § 20.)

- Entry of odometer reading on certificate of title upon sale or transfer of motor vehicle, § 40-3-25.

Actions giving rise to suspension or revocation of licenses of used car dealers generally, § 43-47-10.

- 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 annual survey on law on torts, see 42 Mercer L. Rev. 431 (1990).

JUDICIAL DECISIONS

Conflicting evidence of mileage presented jury question.

- When the evidence established that at the time an automobile was purchased by seller of automobile the certificate of ownership listed 14,229 miles as the car's mileage, that when the car was sold by the seller to the buyer, the odometer read 14,179 miles, and when the buyers test-drove the car the odometer read approximately 7,000 miles, there is considerable conflict regarding the actual mileage of the car, and it is the province of the jury to determine whether the seller altered or knew of the alteration of the odometer. Joseph Charles Parrish, Inc. v. Hill, 173 Ga. App. 97, 325 S.E.2d 595 (1984).

Trial court's grant of summary judgment to the defendant was error because the circumstantial evidence in support of the plaintiff's tampering claim pointed at least more strongly to a conclusion opposite to the defendant's testimony denying the claim, and was sufficient to allow a jury to draw reasonable inferences in favor of the claim. Winder v. Paul Light's Buckhead Jeep Eagle Chrysler Plymouth, Inc., 249 Ga. App. 707, 549 S.E.2d 515 (2001).

Trial court did not err when the court denied an auto dealership summary judgment as to a buyer's claims under O.C.G.A. § 40-8-5(c) for odometer tampering because the dealership's technician actually suspected that the odometer reading was inaccurate and reported that suspicion to a superior, with the result that the dealership had a duty to investigate before selling the car to the buyer with a certification that the odometer reading was accurate. Alvear v. Sandy Springs Toyota, Inc., 332 Ga. App. 798, 775 S.E.2d 172 (2015).

- O.C.G.A. § 40-8-5 is designed to protect consumers against fraud in the statute's general prohibition against odometer tampering. Chrysler Motors Corp. v. Morgan, 194 Ga. App. 39, 389 S.E.2d 545, cert. dismissed, 194 Ga. App. 911, 389 S.E.2d 545 (1989).

- One legal effect of O.C.G.A. § 40-8-5(d) is that a manufacturer's disconnection of a new vehicle's odometer and testing of that vehicle does not alter the status of that vehicle. It is still a new vehicle. Chrysler Motors Corp. v. Morgan, 194 Ga. App. 39, 389 S.E.2d 545, cert. dismissed, 194 Ga. App. 911, 389 S.E.2d 545 (1989).

- Trial court properly denied an auto sales company's motion for directed verdict as to the buyer's claims of fraud and violation of fair business and odometer statutes because the company pointed to no evidence that the buyer was put on notice that the odometer reading was false or that the car did not have a valid emissions inspection at the time of the sale plus the buyer testified that the company responded that the odometer reflected the car's actual mileage. Gobran Auto Sales, Inc. v. Bell, 335 Ga. App. 873, 783 S.E.2d 389 (2016).

- Punitive damages are not permitted solely for violation of O.C.G.A. § 40-8-5; recovery is limited to three times actual damages or $1,500, whichever is greater. Joseph Charles Parrish, Inc. v. Hill, 173 Ga. App. 97, 325 S.E.2d 595 (1984).

- Trial court erred by awarding treble damages of the entire compensatory damages award for each violation, which amounted to sextuple damages for each violation, as the jury awarded the car buyer compensatory damages of $4,114.50 and, in addition, the jury awarded $24,684 on the basis of both the treble damages provision in the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., specifically O.C.G.A. § 10-1-399(c), and the treble damages provision in the odometer statute, O.C.G.A. § 40-8-5(g)(1)(A), with no verdict allocation. Gobran Auto Sales, Inc. v. Bell, 335 Ga. App. 873, 783 S.E.2d 389 (2016).

- Nothing on the face of either the federal or the state statute warrants a conclusion that it was intended that a successful consumer litigant, in effect, reap the benefit of six times the amount of actual damages suffered or a minimum award of $3,000 merely because the litigant asserts in a state judicial forum causes of action, arising from the same general course of conduct, under both the federal and the state odometer law. Such a result would vest the consumer with a major windfall, and one that is not needed to advance the legislative purpose behind the odometer statutes. Force v. McGeachy, 186 Ga. App. 781, 368 S.E.2d 777 (1988).

- Both paragraph (g)(1) of O.C.G.A. § 40-8-5 and 15 U.S.C. § 1989(a)(2) on their face require the trial court and not the jury to determine reasonable attorney fees and to award costs of the action whenever the litigation to enforce the odometer statutes is successful. Accordingly, the trial judge erred in refusing to award any attorney fees whatsoever to the plaintiff's counsel after the jury found the defendant had defrauded the plaintiff but awarded no damages or litigation expense. Force v. McGeachy, 186 Ga. App. 781, 368 S.E.2d 777 (1988).

- In the event that a case is retried in whole or in part, and if the plaintiff should once more be successful, plaintiff's counsel would be entitled to an award of reasonable attorney fees based not only on all proceedings prepared for and conducted at the trial court level but based on counsel's representation of the client at the appellate level as well, and the trial court has the power and is the proper forum in which to determine reasonable attorney fees for services performed, including those on appeal. Force v. McGeachy, 186 Ga. App. 781, 368 S.E.2d 777 (1988).

- Rights which a purchaser of an automobile acquired under O.C.G.A. § 40-8-5 are waived by the purchaser's signing of a release absolving the dealer of liability when the purchaser is an articulate and wary businessman who is knowledgeable and experienced in the law. Leathers v. Robert Potamkin Cadillac Corp., 184 Ga. App. 430, 361 S.E.2d 845 (1987).

Cited in State ex rel. Ryles v. Meredith Chevrolet, Inc., 145 Ga. App. 8, 244 S.E.2d 15 (1978).

RESEARCH REFERENCES

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 196 et seq.

Fraudulent Alteration of Odometer, 1 POF2d 677.

- Construction and application of state statute making it unlawful to tamper with motor vehicle odometer, 76 A.L.R.3d 981.

Practices forbidden by state deceptive trade practice and consumer protection acts, 89 A.L.R.3d 449.

Validity, construction and application of state laws concerning, relating to, or encompassing disclosure of and tampering with motor vehicle odometer - Validity of statutory provisions, construction of statute and particular terms, and remedies, 66 A.L.R.6th 351.

Validity, construction, and application of state laws concerning, relating to, or encompassing disclosure of and tampering with motor vehicle odometer - Statutes of limitation, parties to action, evidentiary matters, and particular violations of statute, 67 A.L.R.6th 209.