(1.1) Thirty-five miles per hour on an unpaved county road unless designated otherwise by appropriate signs;
(Ga. L. 1953, Nov.-Dec. Sess., p. 556, § 48; Ga. L. 1963, p. 26, § 1; Ga. L. 1974, p. 11, § 1; Code 1933, § 68A-802, enacted by Ga. L. 1975, p. 1582, § 1; Ga. L. 1982, p. 1290, §§ 1, 2; Ga. L. 1983, p. 3, § 29; Ga. L. 1984, p. 22, § 40; Ga. L. 1988, p. 30, § 1; Ga. L. 1990, p. 2048, § 5; Ga. L. 1995, p. 759, § 1.1; Ga. L. 1996, p. 469, § 1.1; Ga. L. 2014, p. 851, § 8/HB 774.)
Cross references.- Speed limits in parks, historic sites, or recreational areas, § 12-3-10.
Editor's notes.- Ga. L. 1996, p. 469, § 4, not codified by the General Assembly, provides: "This Act shall become effective July 1, 1996, and shall apply with respect to offenses committed on or after that date. The provisions of this Act shall not apply to or affect offenses committed prior to that effective date."
Law reviews.- For survey article on local government law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 353 (2003).
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 68-301 are included in the annotations for this Code section.
Constitutionality.
- Enumeration of error charging that O.C.G.A. § 40-6-181 is unconstitutional was without merit. Getz v. State, 251 Ga. 462, 306 S.E.2d 918 (1983).
Statute authorizes quasi-legislative activity.
- O.C.G.A. §§ 40-6-181 and40-6-182 are laws which plainly authorize the Georgia Department of Transportation to exercise the quasi-legislative function of adopting rules (i.e., establishing speed limits on state highways) which carry the maximum speed limit law into effect and provide detail for it. In other words, the Department's administrative actions of determining and establishing the appropriate speed limit for a particular roadway based on various conditions is analogous to the legislative act of making law. DOT v. Watts, 260 Ga. App. 905, 581 S.E.2d 410 (2003).
Instruction containing incorrect speed limit not reversible error.
- When the actual speed limit in the area of the accident was 55 miles per hour, the court's reference to a 35-mile-per-hour speed limit in the court's instruction to the jury, although inappropriate, did not constitute a reversible error. Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 311 S.E.2d 193 (1983).
No fatal variance when the speed alleged in the accusation was not a material allegation.
- When the accusation alleged 100 mph and the evidence showed only 95 mph, no fatal variance occurred because: (1) to have been guilty of speeding, one need have only exceeded the designated speed limit under O.C.G.A. § 40-6-181(b); and (2) greater speeds by specified increment affected only the punishment and were therefore not material allegations to prove the crime of speeding. Jones v. State, 258 Ga. App. 337, 574 S.E.2d 398 (2002).
With regard to the defendant's trial and conviction for speeding, the trial court properly denied the defendant's motion for a directed verdict, which was based on the assertion that the state's evidence only showed that the defendant was driving 80 miles per hour in a 65 mile per hour zone and, therefore, the state failed to prove that the defendant was driving 16-20 miles per hour over the posted speed limit as there was no fatal variance between the indictment and the evidence at trial since actual speed was not a material averment of the indictment that had to be proven and it was within the jury's province to resolve the conflicting evidence against the defendant. Porter v. State, 290 Ga. App. 113, 658 S.E.2d 893 (2008).
Incremental speed not material to accusation.
- Accusation specified that the defendant was charged with exceeding the speed limit on a certain road on a certain day, which was sufficient to put the defendant on notice that the defendant was being tried for speeding, O.C.G.A. § 40-6-181(b); greater speeds by specified increments affected only the punishment and were therefore not material allegations to prove the crime of speeding so that the allegation that the defendant was traveling 127 mph was not a material averment that had to be proven. Nye v. State, 279 Ga. App. 347, 631 S.E.2d 386 (2006).
Count mistakenly naming officer as perpetrator.
- Defendant could not be convicted under an accusation charging speeding since the accusation mistakenly named the prosecuting law enforcement officer as the perpetrator of the offense, even though the error was the result of inadvertence or carelessness, and the trial court abused the court's discretion in refusing to grant a mistrial as to the defective count in the accusation. Noeske v. State, 181 Ga. App. 778, 353 S.E.2d 635 (1987).
Admissibility of evidence gained through use of speed detection device.
- State is required to present the necessary foundation, including proof of the visibility of the police vehicle as required by O.C.G.A. § 40-14-7, before evidence of speed gained through the use of a speed detection device is admissible. Johnson v. State, 189 Ga. App. 192, 375 S.E.2d 290 (1988), overruled on other grounds, Carver v. State, 208 Ga. App. 405, 430 S.E.2d 790 (1993).
State trooper's estimate that the defendant was driving 90 miles per hour in a zone designated for traveling no greater than 55 miles per hour was sufficient to support the defendant's conviction for speeding. Jackson v. State, 257 Ga. App. 715, 572 S.E.2d 60 (2002).
In a speeding and eluding prosecution, though an officer might not have advised the defendant of the defendant's right under O.C.G.A. § 40-14-5(b) to test a radar device for accuracy, any error in admitting the radar evidence was harmless since the defendant admitted speeding and the passenger said the car was traveling about 75 to 80 miles per hour (mph), which exceeded the 65 mph speed limit. Segel v. State, 293 Ga. App. 506, 667 S.E.2d 670 (2008).
Use of speed detection device without permit.
- Although an officer used a speed detection device without a permit, the trial court's determination of guilt was not invalid because the state made the state clear that it was not depending on the radar confirmation of the speed to convict defendant. Stone v. State, 257 Ga. App. 492, 571 S.E.2d 488 (2002).
Sentence not excessive.
- Sentence of 12 months probation, a $75 fine for speeding, and a concurrent 12 months probation for failure to dim headlights was within statutory limits, and was particularly merited in the case of defendant who had two prior DUI arrests and who, while acquitted of DUI in the instant case, had a blood alcohol level of .096 to .099 at the time of the defendant's arrest. Pitts v. State, 231 Ga. App. 9, 498 S.E.2d 534 (1998).
Trial court did not err in sentencing the defendant to a $1,000 fine for speeding in violation of O.C.G.A. § 40-6-181(b)(2) because the defendant did not object to the state's failure to admit certified copies of the defendant's prior convictions, nor did the defendant dispute that the defendant had multiple convictions for traffic violations; when the trial court asked the defendant whether any of the defendant's previous violations occurred while the defendant was operating a motorcycle, the defendant implicitly admitted at least one prior conviction for speeding. Jones v. State, 308 Ga. App. 99, 706 S.E.2d 593 (2011).
Defendant's sentence to serve 12 months for speeding in violation of O.C.G.A. § 40-6-181(b)(2) was within authorized limits; O.C.G.A. § 40-6-1(b) simply sets limits on fines that can be imposed as punishment for a first offense of speeding and the statute does not restrict the available punishment for speeding to a fine. Jones v. State, 308 Ga. App. 99, 706 S.E.2d 593 (2011).
Uniform traffic citation accused the defendant of a general speeding charge, rather than of speeding at 96 mph in a 55 mph zone and therefore, the trial court properly found the defendant guilty of speeding at 88 mph in a 55 mph zone. Wise v. State, 234 Ga. App. 140, 506 S.E.2d 156 (1998).
Defendant's argument that the state was required to prove the defendant was going 100 mph since that radar-gun speed was set forth in the uniform traffic citation (UTC) failed and the defendant's conviction for speeding under O.C.G.A. § 40-6-181 was affirmed because: (1) the UTC references to defendant's speed were not allegations but were notices of the evidence against the defendant; (2) even if the references to speed were allegations, the UTC specifically set forth the police officer's visual estimate of over 95 mph, and thus the defendant could not have complained that the evidence varied from that allegation; and (3) even if the radar-gun 100-mph allegation were the only allegation of speed, it would not have been a material allegation, and thus no fatal variance would have occurred. Jones v. State, 258 Ga. App. 337, 574 S.E.2d 398 (2002).
Evidence sufficient for conviction.
- Evidence that a police officer observed the defendant driving above the speed limit, which the officer confirmed through use of the officer's radar and speedometer, was sufficient to support the defendant's conviction for speeding. Stearnes v. State, 261 Ga. App. 522, 583 S.E.2d 195 (2003).
Although the state failed to provide a proper foundation for the introduction of laser detection evidence, other evidence at trial was sufficient to sustain the defendant's conviction for speeding because the police officer who observed the defendant's vehicle testified that the vehicle was traveling at an "obvious high rate of speed" and faster than the speed limit. In the Interest of J.D.S., 273 Ga. App. 576, 615 S.E.2d 627 (2005).
Defendant's conviction for speeding was supported by sufficient evidence including the arresting officer's testimony that the speed limit at the scene was 35 mph, greater than the statutory maximum. Frasard v. State, 322 Ga. App. 468, 745 S.E.2d 716 (2013).
Evidence was sufficient to convict the defendant of driving under the influence of alcohol to the extent that the defendant was a less safe driver, speeding, failure to maintain lane, and driving while possessing an open container of an alcoholic beverage when the evidence showed that a sergeant pulled over the defendant's car for speeding and failing to maintain the defendant's lane, another officer observed six out of six clues of impairment in the officer's horizontal gaze nystagmus evaluation of the defendant and smelled the odor of an alcoholic beverage coming from the defendant's mouth, and, after the defendant's arrest, the sergeant searched the defendant's car and found a glass filled with ice and a dark liquid that smelled like an alcoholic beverage. Monroe v. State, 340 Ga. App. 373, 797 S.E.2d 245 (2017).
Recovery predicated on finding of gross negligence.
- It was not error for a court to charge former Code 1933, § 68-301 as there were allegations to the effect that under the circumstances a violation of applicable speed laws was gross negligence; it was not charged that a violation of the speed laws in itself was gross negligence, when "gross negligence" was defined by the judge in the judge's charge to the jury; and it was made clear to the jury that recovery must be predicated on a finding of gross negligence on the part of the driver of the automobile. Kimberly v. Reed, 79 Ga. App. 137, 53 S.E.2d 208 (1949) (decided under former Code 1933, § 68-301).
Venue.
- In the absence of constitutional or statutory provisions to the contrary, a criminal offense under former Code 1933, § 68-301 must be prosecuted in the county or district in which the offense was committed, unless the venue was changed. Hall v. State, 73 Ga. App. 616, 37 S.E.2d 545 (1946) (decided under former Code 1933, § 68-301).
Extension of criminal activity into adjoining county.
- When a driver voluntarily and criminally began operating a driver's automobile in excess of the speed limit and voluntarily, continuously, and uninterruptedly extended the driver's criminal act into an adjoining county, the driver violated former Code 1933, § 68-301 in each county. A conviction for violating that section in one county under such circumstances would be no bar to a prosecution in the adjoining county. Hall v. State, 73 Ga. App. 616, 37 S.E.2d 545 (1946) (decided under former Code 1933, § 68-301).
Factors in determining whether limit reduced.
- Whether the speed limit has been reduced depends upon whether action has been taken by a governing authority and proper notice posted on the highway. Harper v. Brown, 122 Ga. App. 316, 176 S.E.2d 621 (1970).
Reduction of speed required by existing hazards.
- If the actual and potential hazards existing at any particular place on a highway require a speed of less than 60 (now 55) miles per hour, then the operator should reduce the speed of the operator's automobile at that place to whatever is reasonable and prudent under the conditions. Thomas v. Barnett, 107 Ga. App. 717, 131 S.E.2d 818 (1963).
Negligence per se.
- While a violation of Ga. L. 1953, Nov.-Dec. Sess., p. 556 has been called negligence per se, it cannot be denied or refuted that to find it to be negligence per se, a finding of common-law negligence must first be made. When the plaintiff simply charged the defendant, not with driving over 35 miles per hour, but with driving too fast for the conditions existing at the time and place involved, this is not negligence per se. Grayson v. Yarbrough, 103 Ga. App. 243, 119 S.E.2d 41 (1961).
Speeding merged into reckless driving.
- Defendant's conviction and sentence for speeding was vacated because the offense of speeding should have been merged into the offense of reckless driving; the defendant should have been convicted and sentenced only for reckless driving. Travis v. State, 314 Ga. App. 280, 724 S.E.2d 15 (2012).
Charging whole of section surplusage, but not error.
- Court's charge in a personal injury action of substantially the whole of Ga. L. 1953, Nov.-Dec. Sess., p. 556, which included the statement that speed in a business or residential district is 35 (now 30) miles per hour, was surplusage, but it was not error for the reason that nothing in the charge intimated to the jury that the defendant would have been guilty of negligence in exceeding a 35-mile-per-hour (now 30-mile-per-hour) rather than a 60-mile-per-hour (now 55-mile-per-hour) maximum. Collins v. Porterfield, 102 Ga. App. 294, 116 S.E.2d 105 (1960).
Jury question alleged as to whether cause of collision was excessive speed.
- When plaintiff driver, before entering the inner traffic lane, signaled the plaintiff's intention to do so, and the defendant driver was guilty of negligence per se in that defendant was operating a truck in excess of 55 miles per hour in violation of Ga. L. 1953, Nov.-Dec. Sess., p. 556, a jury question is alleged as to whether the proximate cause of the collision was negligence on the part of the defendant driver due to the defendant's excessive speed and failure to slow the defendant's vehicle down so as to avoid colliding with the plaintiff's automobile after an emergency in the road ahead forced the plaintiff driver to turn into the inner traffic lane. Hargrove v. Tanner, 98 Ga. App. 16, 104 S.E.2d 665 (1958).
Trial court did not commit reversible error in failing to give, sua sponte, a jury charge on justification, because there was no evidence to support such a charge; contrary to the defendant's assertions in the defendant's brief, at no time did the defendant testify that the defendant accelerated to 103 mph because the defendant had no safer option. Jones v. State, 315 Ga. App. 688, 727 S.E.2d 512 (2012).
Jury charge not misleading.
- With regard to the defendant's trial and conviction for speeding, the portion of the jury charge that prohibited speeding in an urbanized area over a certain population amount was held to be mere surplusage and did not mislead the jurors. Porter v. State, 290 Ga. App. 113, 658 S.E.2d 893 (2008).
Cited in Gray v. State, 156 Ga. App. 117, 274 S.E.2d 115 (1980); Bilbrey v. State, 254 Ga. 629, 331 S.E.2d 551 (1985); Blackwell v. State, 180 Ga. App. 253, 349 S.E.2d 13 (1986); Laymac v. State, 181 Ga. App. 737, 353 S.E.2d 559 (1987); Cabral v. White, 181 Ga. App. 816, 354 S.E.2d 162 (1987); Coop v. State, 186 Ga. App. 578, 367 S.E.2d 836 (1988); Carver v. State, 199 Ga. App. 842, 406 S.E.2d 236 (1991); Pratt v. State, 208 Ga. App. 617, 431 S.E.2d 397 (1993); Forsman v. State, 239 Ga. App. 612, 521 S.E.2d 410 (1999); State v. Lockett, 259 Ga. App. 179, 576 S.E.2d 582 (2003); King v. State, 262 Ga. App. 37, 584 S.E.2d 652 (2003); In the Interest of W.N.J., 268 Ga. App. 637, 602 S.E.2d 173 (2004); Whittle v. State, 282 Ga. App. 64, 637 S.E.2d 800 (2006); McWilliams v. State, 287 Ga. App. 585, 651 S.E.2d 849 (2007); Pruitt v. State, 289 Ga. App. 307, 656 S.E.2d 920 (2008); Spence v. State, 295 Ga. App. 583, 672 S.E.2d 538 (2009); Waterman v. State, 299 Ga. App. 630, 683 S.E.2d 164 (2009); State v. Ogilvie, 292 Ga. 6, 734 S.E.2d 50 (2012); Puckett v. State, 321 Ga. App. 785, 743 S.E.2d 466 (2013); Sigerfoos v. State, 350 Ga. App. 450, 829 S.E.2d 666 (2019).
RESEARCH REFERENCES
C.J.S.
- 60A C.J.S., Motor Vehicles, §§ 671et seq., 683.
ALR.
- Excuse for exceeding speed limit for automobiles, 29 A.L.R. 883.
Right of way at street or highway intersections, 37 A.L.R. 493; 47 A.L.R. 595.
Necessity and propriety of instruction as to prima facie speed limit, 87 A.L.R.2d 539.
Criminal liability for street racing (drag racing), 89 A.L.R.6th 565.