Procedure

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  1. Prosecution for a misdemeanor violation of Code Section 16-9-20 may proceed by arrest, as provided in Chapter 4 of Title 17, and an accusation, as provided in Code Section 17-7-71, or by citation.
  2. Each citation shall be based upon an affidavit as in the issuance of an arrest warrant and said citation shall state the time and place at which the accused is to appear for trial, shall identify the offense with which the accused is charged, shall have an identifying number by which it shall be filed with the court, shall indicate the identity of the accused and the date of service, and shall be signed by a judge or clerk of the magistrate court.
  3. Prosecutions upon citations shall be commenced by the completion and signing of the citation by a judge or clerk of the magistrate court and service of the citation by a law enforcement officer. A copy of the citation shall be personally served upon the accused and the original shall promptly be filed with the court.
  4. If the prosecution is proceeding upon citation, the accused shall not be arrested prior to the time of trial; but any defendant who fails to appear for trial shall be arrested thereafter on the warrant of a judge of the magistrate court and required to post a bond for his future appearance. If the accused demands removal of the case to the state or superior court, the magistrate court may require that the accused post a bond for his future appearance in the state or superior court.
  5. The prosecuting attorney of the court in which the case would have been tried if a demand for removal had been made shall be responsible for the prosecution of the case in the magistrate court.

(Code 1981, §15-10-202, enacted by Ga. L. 1987, p. 1032, § 2; Ga. L. 2000, p. 880, § 3.)

Law reviews.

- For article, "Should Georgia Change Its Misdemeanor Arrest Laws to Authorize Issuing More Field Citations? Can Alternative Arrest Process Help Alleviate Georgia's Jail Overcrowding and Reduce the Time Arresting Officers Expend Processing Nontraffic Misdemeanor Offenses?," see 22 Ga. St. U.L. Rev. 313 (2005).

OPINIONS OF THE ATTORNEY GENERAL

"Law enforcement officer" includes constables.

- Since, although constables do not have general police powers, the constables do have the power to arrest with a warrant and to execute and return all warrants, summons, executions, and other processes directed to the constable by the magistrate court, and constables are to perform all other duties required of the constable by law or which relate to the constable's offices, under O.C.G.A. §§ 15-10-102 and15-10-103, one can logically conclude that the term "law enforcement officer" as used in subsection (c) of O.C.G.A. § 15-10-202 includes constables of the magistrate court, and, therefore, constables can serve citations pursuant to that subsection. 1987 Op. Att'y Gen. No. U87-21.

Commencement of prosecution.

- Prosecution for a violation of O.C.G.A. § 16-9-20 is commenced within the meaning of the statute of limitations on misdemeanors, O.C.G.A. § 17-3-1(d), when a citation meets the requirements contained in subsections (b) and (c) of O.C.G.A. § 15-10-202, including the signature of the judge or clerk of the magistrate court and personal service of the citation by a law enforcement officer. 1998 Op. Att'y Gen. No. 98-1.


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