SELECTED PRE-INDICTMENT CRIMINAL PROCEDURES
OFFICIAL GEORGIA CODE: TITLE 17 (OGC 17-___)
[Current through 2003 Session]
17-4-62. [Warrantless arrest]
In every case of an arrest without a warrant, the person arresting shall, without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40. No such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.
(a) The following offenses are bailable only before a judge of the superior court:
(4) Aggravated sodomy;
(5) Armed robbery;
(6) Aircraft hijacking and hijacking a motor vehicle;
(7) Aggravated child molestation;
(8) Aggravated sexual battery;
(9) Manufacturing, distributing, delivering, dispensing, administering, or selling any controlled substance classified under Code Section 16-13-25 as Schedule I or under Code Section 16-13-26 as Schedule II;
(10) Violating Code Section 16-13-31, relating to trafficking in cocaine, methamphetamine, or marijuana;
(11) Kidnapping, arson, aggravated assault, or burglary if the person, at the time of the alleged kidnapping, arson, aggravated assault, or burglary, had previously been convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary, or one or more of the offenses listed in paragraphs (1) through (10) of this subsection; and
(12) Aggravated stalking.
(b)(1) All offenses not included in subsection (a) of this Code section are bailable by a court of inquiry. Except as provided in subsection (g) of this Code section, at no time, either before a court of inquiry, when indicted or accused, after a motion for new trial is made, or while an appeal is pending, shall any person charged with a misdemeanor be refused bail.
(2) Except as otherwise provided in this chapter:
(A) A person charged with violating Code Section 40-6-391 whose alcohol concentration at the time of arrest, as determined by any method authorized by law, violates that provided in paragraph (5) of subsection (a) of Code Section 40-6-391 may be detained for a period of time up to six hours after booking and prior to being released on bail or on recognizance; and
(B) When an arrest is made by a law enforcement officer without a warrant upon an act of family violence pursuant to Code Section 17-4-20, the person charged with the offense shall not be eligible for bail prior to the arresting officer or some other law enforcement officer taking the arrested person before a judicial officer pursuant to Code Section 17-4-21.
(3)(A) Notwithstanding any other provision of law, a judge of a court of inquiry may, as a condition of bail or other pretrial release of a person who is charged with violating Code Section 16-5-90 or 16-5-91, prohibit the defendant from entering or remaining present at the victim´s school, place of employment, or other specified places at times when the victim is present or intentionally following such person.
(B) If the evidence shows that the defendant has previously violated the conditions of pretrial release or probation or parole which arose out of a violation of Code Section 16-5-90 or 16-5-91, the judge of a court of inquiry may impose such restrictions on the defendant which may be necessary to deter further stalking of the victim, including but not limited to denying bail or pretrial release.
(c)(1) In the event a person is detained in a facility other than a municipal jail for an offense which is bailable only before a judge of the superior court, as provided in subsection (a) of this Code section, and a hearing is held pursuant to Code Section 17-4-26 or 17-4-62, the presiding judicial officer shall notify the superior court in writing within 48 hours that the arrested person is being held without bail. If the detained person has not already petitioned for bail as provided in subsection (d) of this Code section, the superior court shall notify the district attorney and shall set a date for a hearing on the issue of bail within 30 days after receipt of such notice.
(2) In the event a person is detained in a municipal jail for an offense which is bailable only before a judge of the superior court as provided in subsection (a) of this Code section for a period of 30 days, the municipal court shall notify the superior court in writing within 48 hours that the arrested person has been held for such time without bail. If the detained person has not already petitioned for bail as provided in subsection (d) of this Code section, the superior court shall notify the district attorney and set a date for a hearing on the issue of bail within 30 days after receipt of such notice.
(3) Notice sent to the superior court pursuant to paragraph (1) or (2) of this subsection shall include any incident reports and criminal history reports relevant to the detention of such person.
(d) A person charged with any offense which is bailable only before a judge of the superior court as provided in subsection (a) of this Code section may petition the superior court requesting that such person be released on bail. The court shall notify the district attorney and set a date for a hearing within ten days after receipt of such petition.
(e) A court shall be authorized to release a person on bail if the court finds that the person:
(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;
(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;
(3) Poses no significant risk of committing any felony pending trial; and
(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.
However, if the person is charged with a serious violent felony and has already been convicted of a serious violent felony, or of an offense under the laws of any other state or of the United States which offense if committed in this state would be a serious violent felony, there shall be a rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the person as required or assure the safety of any other person or the community. As used in this subsection, the term 'serious violent felony' means a serious violent felony as defined in Code Section 17-10-6.1.
(f)(1) Except as provided in subsection (a) of this Code section or as otherwise provided in this subsection, the judge of any court of inquiry may by written order establish a schedule of bails and unless otherwise ordered by the judge of any court, a person charged with committing any offense shall be released from custody upon posting bail as fixed in the schedule.
(2) For offenses involving an act of family violence, as defined in Code Section 19-13-1, the schedule of bails provided for in paragraph (1) of this subsection shall require increased bail and shall include a listing of specific conditions which shall include, but not be limited to, having no contact of any kind or character with the victim or any member of the victim´s family or household, not physically abusing or threatening to physically abuse the victim, the immediate enrollment in and participation in domestic violence counseling, substance abuse therapy, or other therapeutic requirements.
(3) For offenses involving an act of family violence, the judge shall determine whether the schedule of bails and one or more of its specific conditions shall be used, except that any offense involving an act of family violence and serious injury to the victim shall be bailable only before a judge when the judge or the arresting officer is of the opinion that the danger of further violence to or harassment or intimidation of the victim is such as to make it desirable that the consideration of the imposition of additional conditions as authorized in this Code section should be made. Upon setting bail in any case involving family violence, the judge shall give particular consideration to the exigencies of the case at hand and shall impose any specific conditions as he or she may deem necessary. As used in this Code section, the term 'serious injury' means bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, substantial bruises to body parts, fractured bones, or permanent disfigurements and wounds inflicted by deadly weapons or any other objects which, when used offensively against a person, are capable of causing serious bodily injury.
(4) If probable cause is shown that the offense charged is in furtherance of a pattern of criminal gang activity as defined by Code Section 16-15-3, the court shall require increased bail and shall include as a condition of bail or pretrial release that the defendant shall not have contact of any kind or character with any other member or associate of a criminal street gang and that the defendant shall not have contact of any kind or character with the victim or any member of the victim´s family or household.
(5) For offenses involving violations of Code Section 40-6-393, bail or other release from custody shall be set by a judge on an individual basis and not a schedule of bails pursuant to this Code section.
(g) No appeal bond shall be granted to any person who has been convicted of murder, rape, aggravated sodomy, armed robbery, aggravated child molestation, kidnapping, trafficking in cocaine or marijuana, aggravated stalking, or aircraft hijacking and who has been sentenced to serve a period of incarceration of seven years or more. The granting of an appeal bond to a person who has been convicted of any other felony offense or of any misdemeanor offense involving an act of family violence as defined in Code Section 19-13-1, or of any offense delineated as a high and aggravated misdemeanor or of any offense set forth in Code Section 40-6-391, shall be in the discretion of the convicting court. Appeal bonds shall terminate when the right of appeal terminates, and such bonds shall not be effective as to any petition or application for writ of certiorari unless the court in which the petition or application is filed so specifies.
(h) Except in cases in which life imprisonment or the death penalty may be imposed, a judge of the superior court by written order may delegate the authority provided for in this Code section to any judge of any court of inquiry within such superior court judge´s circuit. However, such authority may not be exercised outside the county in which said judge of the court of inquiry was appointed or elected. The written order delegating such authority shall be valid for a period of one year, but may be revoked by the superior court judge issuing such order at any time prior to the end of that one-year period.
(i) As used in this Code section, the term 'bail' shall include the releasing of a person on such person´s own recognizance.
(j) For all persons who have been authorized by law or the court to be released on bail, sheriffs and constables shall accept such bail; provided, however, that the sureties tendered and offered on the bond are approved by the sheriff of the county in which the offense was committed.
(a)(1) In all cases wherein a licensed driver of this state has been arrested, incarcerated, and charged with a violation of state law and where said violation is a misdemeanor, the sheriff of the county wherein the violation occurred shall be authorized, unless otherwise ordered by a judicial officer, after the individual has been incarcerated for not less than five days, to accept that individualīs driverīs license as collateral for any bail which has been set in the case, up to and including the amount of $1,000.00, provided such license is not under suspension or has not expired or been revoked.
(2) The individual posting a license as collateral pursuant to this subsection shall execute an acknowledgment and agreement between the individual and the State of Georgia as bond wherein the individual agrees to appear in court to answer the charges made against the individual and acknowledges that failure to appear in court when the case is scheduled for hearing, trial, or plea shall result in a forfeiture of the individualīs license through suspension by operation of law effective upon the date of the individualīs scheduled appearance. The individual shall also be notified that failure to appear in court as required may result in criminal prosecution for bail jumping as provided in Code Section 16-10-51. After execution of the agreement, except as otherwise provided by law, the license shall be returned to the individual and the original agreement shall be delivered to the prosecuting attorney for filing with the accusation, citation, or dismissal. Whenever an individual has been charged with a violation of Code Section 40-6-391, relating to driving under the influence of alcohol or drugs, then the provisions of Code Section 40-5-67 shall apply.
(3) A failure to appear by the individual who has been charged with a misdemeanor offense and who posted that individualīs license as bail pursuant to this subsection shall, by operation of law, cause that individualīs license to be suspended by the Department of Motor Vehicle Safety effective immediately, and the clerk of the court within five days after that failure to appear shall forward a copy of the agreement to the Department of Motor Vehicle Safety which shall enter the suspension upon the individualīs driver history record. The posting of a license as provided in this subsection shall also be considered as bail for the purposes of Code Section 16-10-51. Where the original court date has been continued by the judge, clerk, or other officer of the court and there has been actual notice given to the defendant in open court or in writing by a court official or officer of the court or by mailing such notice to the defendantīs last known address, then the provisions of this paragraph shall apply to the new court appearance date.
(4) A license suspended pursuant to this subsection shall only be reinstated when the individual shall pay to the Department of Motor Vehicle Safety a restoration fee of $25.00 together with a certified notice from the clerk of the originating court that the case has either been disposed of or has been rescheduled and a deposit of sufficient collateral approved by the sheriff of the county wherein the charges were made in an amount to satisfy the original bail amount has been paid. The court wherein the charges are pending shall be authorized to require payment of costs by the defendant in an amount not to exceed $100.00 to reschedule the case.
(5) Upon the trial of any individual charged with the offense of driving with a suspended license where such license was suspended as provided in this subsection, a copy of the acknowledgment and agreement executed by the individual together with certification by the clerk of the court of the individualīs failure to appear shall be prima-facie evidence of actual notice to the individual that the individualīs license was suspended.
(b) In all other misdemeanor cases, sheriffs and constables shall accept bail in such reasonable amount as may be just and fair for any person or persons charged with a misdemeanor, provided that the sureties tendered and offered on the bond are approved by the sheriff in the county where the offense was committed.
17-6-12. [Recognizance bond]
(a) In addition to other laws regarding the release of an accused person, the judge of any court having jurisdiction over a person charged with committing an offense against the criminal laws of this state shall have authority, in his sound discretion and in appropriate cases, to authorize the release of the person upon his own recognizance only.
(b) Upon the failure of a person released on his own recognizance only to appear for trial, if the release is not otherwise conditioned by the court, the court may summarily issue an order for his arrest which shall be enforced as in cases of forfeited bonds.
17-6-13. [Subsequent bail]
Except as otherwise provided in this chapter, each person who is entitled to bail under this article shall be permitted one bail for the same offense as a matter of right. Subsequent bails shall be in the discretion of the court.
17-7-20 -- 17-7-34 [Courts of Inquiry: Commitment Hearings]
Any judge of a superior or state court, judge of the probate court, magistrate, or officer of a municipality who has the criminal jurisdiction of a magistrate may hold a court of inquiry to examine into an accusation against a person legally arrested and brought before him or her. The time and place of the inquiry shall be determined by such judicial officer. Should the county in which the offense is alleged to have been committed be a member of a regional jail authority created under Article 5 of Chapter 4 of Title 42, the 'Regional Jail Authorities Act,' the judge may order the court of inquiry to be conducted alternatively in the county in which the offense is alleged to have been committed or in facilities available at the regional jail or by audio-visual communication between the two locations and between the accused, the court, the attorneys, and the witnesses.
The judicial officer before whom the accused is brought may associate with him, in the investigation, one or more magistrates, in which event a majority shall decide all questions. If there are only two presiding, the original officer shall determine all the questions where the court is not in agreement.
Any mayor, recorder, or other proper officer presiding in any court of a municipal corporation shall have authority to bind over or commit to jail offenders against any criminal law whenever, in the course of an investigation before such officer, a proper case therefor is made out by the evidence.
(a) The duty of a court of inquiry is simply to determine whether there is sufficient reason to suspect the guilt of the accused and to require him to appear and answer before the court competent to try him. Whenever such probable cause exists, it is the duty of the court to commit.
(b) Any court, other than a superior court or a state court, to which any charge of a violation of Code Section 16-11-126 or Code Section 16-11-128 is referred for the determination required by this Code section shall thereafter have and exercise only the jurisdiction of a court of inquiry with respect to the charge and with respect to any other criminal violation arising from the transaction on which the charge was based and shall not thereafter be competent to try the accused for the charge or for any other criminal violation arising from the transaction on which the charge was based, irrespective of the jurisdiction that the court otherwise would have under any other law.
A reasonable time shall be given to the defendant and prosecutor for the preparation of the case. In no event shall the defendant be forced to attend the hearing without the aid of counsel if there is a reasonable probability of his securing counsel without too great delay. Where the hearing is postponed to a future day at the instance of either party or the court, it shall not be necessary to commit the defendant to jail pending the hearing; but he shall have the right to give bail for appearance at the hearing before the court of inquiry if the offense is bailable under the authority of the court.
A court of inquiry shall have the same power to compel the attendance of witnesses as in other criminal cases, as set forth in and subject to all of the provisions of Chapter 10 of Title 24, at any location where the court shall conduct a hearing, provided that notice is given at least 24 hours prior to the hearing. A court of inquiry may order the arrest of witnesses if required to compel their attendance.
In the event of a commitment of the accused person, the court, in its discretion, may require the witnesses, on behalf of the state or others, to give suitable bonds to secure their appearance at court, with or without sureties, as the circumstances seem to demand.
The sheriffs and constables shall accept bond in such reasonable amount as may be just and fair to secure the appearance of any witness to attend the courts, provided the sureties tendered and offered on the bond are approved by a sheriff of any county.
The court of inquiry shall hear all legal evidence submitted by either party. If the defendant wishes to testify and announces in open court before the court of inquiry his intention to do so, he may testify in his own behalf. If he so elects, he shall be sworn as any other witness and may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant first puts his character into issue. The failure of a defendant to testify shall create no presumption against him, and no comment may be made because of such failure.
A court of inquiry may commit the defendant for a different offense than that stated in the warrant if the evidence requires it.
The following form, or one in substance the same, shall be deemed to be a sufficient commitment:
Georgia, __________ County.
_____________________ (name of the defendant) having been arrested
on a warrant for the offense of ______________ and brought before me, after
hearing evidence it is ordered that he be committed for trial for the offense
of ______________. The jailer of said county (or any other county, if necessary)
is required to receive and safely keep him until discharged by due process of
Witness my hand and seal, this ______ day of ______________, ____.
Judicial officer (Seal)
Whenever any judicial officer sitting as a court of inquiry binds over a defendant to appear at an appropriate court to answer any charge, it shall be the duty of the judicial officer to write on the warrant the names of each witness for the state who appeared at the commitment hearing.
The commitment form shall be delivered to the officer in whose charge the accused person is placed, and the officer shall deliver it with the accused person to the sheriff or the other person in charge of the jail. A memorandum of the commitment shall be entered on the warrant by the judicial officer. The warrant and all other papers shall be forwarded to the clerk of the appropriate court having jurisdiction over the offense for delivery to the prosecuting attorney.
No defendant shall be discharged on a writ of habeas corpus because of informality in the commitment or in the proceedings prior thereto, provided there has been substantial compliance with this article.