TITLE 17 CRIMINAL PROCEDURE

Section 6. Bonds and Recognizances, 17-6-1 through 17-6-114.

ARTICLE 1 GENERAL PROVISIONS

17-6-2. Acceptance of bail in misdemeanor cases; posting driver's license as collateral for bail.

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 individual's driver's 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case, up to and including the amount of $1,000.00, provided such license is not under suspension or has not expired or been revoked.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 individual's license through suspension by operation of law effective upon the date of the individual's 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 individual's license as bail pursuant to this subsection shall, by operation of law, cause that individual's license to be suspended by the Department of Driver Services 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 Driver Services which shall enter the suspension upon the individual's 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 defendant's 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 Driver Services 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 individual's failure to appear shall be prima-facie evidence of actual notice to the individual that the individual's license was suspended.
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.

(Ga. L. 1921, p. 241, § 1; Code 1933, § 27-902; Ga. L. 1966, p. 428, § 1; Ga. L. 1989, p. 448, § 1; Ga. L. 1990, p. 8, § 17; Ga. L. 1991, p. 94, § 17; Ga. L. 2002, p. 415, § 17; Ga. L. 2005, p. 334, § 7-2/HB 501.)

Cross references.

- Bail in magistrate court criminal cases, Uniform Rules for the Magistrate Courts, Rule 11.

Law reviews.

- For note, "Bail in Georgia: Elimination of 'Double Bonding' - A Partially Solved Problem," see 8 Ga. St. B.J. 220 (1971).

JUDICIAL DECISIONS

Approval of surety in misdemeanor cases.

- This section placed the approval of sureties on misdemeanor bonds in the sheriff's discretion. Jarvis v. J & J Bonding Co., 239 Ga. 213, 236 S.E.2d 370 (1977).

Mere failure or refusal of an officer to accept bail under this section did not authorize release without bail, when the detention was otherwise lawful. Paulk v. Sexton, 203 Ga. 82, 45 S.E.2d 768 (1947).

Sheriffs not authorized to demand additional cash of sureties.

- If one is charged with a misdemeanor, that person is entitled as a matter of law to furnish bail in a reasonable amount, with the sureties on the bond to be approved by a sheriff, and there is no provision of law whereby a sheriff can require such sureties to deposit with the sheriff a cash bond or a deposit of money in addition to the bail required by law before the sheriff will accept the bail tendered. Money so deposited remains the property of the person depositing the money, and the sheriff holds the money as trustee for the depositor. Washburn v. Foster, 87 Ga. App. 132, 73 S.E.2d 240 (1952).

Sheriffs not authorized to accept cash in lieu of bail.

- There is no authority of law for a sheriff or arresting officer to accept a cash bond or a deposit of money in lieu of bail from one charged with a criminal offense. When an arresting officer requires or accepts a cash bond or a deposit of money in lieu of bail, the money remains the property of the person depositing the money with such officer, and the officer holds the money in trust for the depositor. Washburn v. Foster, 87 Ga. App. 132, 73 S.E.2d 240 (1952) (decided before enactment of § 17-6-4).

Authority of arresting officer to accept bond from felon.

- Arresting officer has no authority to accept bond from one arrested under warrant for felony, but should return the party arrested to the county in which the crime was alleged to have been committed, for examination before a judicial officer of that county and fixing of bail by such officer in case of commitment. Paulk v. Sexton, 203 Ga. 82, 45 S.E.2d 768 (1947).

Deputy sheriff had authority to issue cash bond for drunk driving arrestee.

- When a person was arrested by a state patrol officer inside a municipality for driving under the influence, a deputy sheriff, even without authorization from the court, could accept a cash bond; the trial court, as a result, had the authority to order the cash bond forfeited. Wilson v. State, 167 Ga. App. 421, 306 S.E.2d 704 (1983).

Cited in Johnson v. Aldredge, 192 Ga. 209, 14 S.E.2d 757 (1941); Gill v. Decatur County, 129 Ga. App. 697, 201 S.E.2d 21 (1973).

OPINIONS OF THE ATTORNEY GENERAL

Approval of sureties generally.

- Former Code 1933, §§ 27-801, 27-901 and 27-902 (see O.C.G.A. §§ 17-6-1,17-6-2, and17-7-90) provide for the approval of sureties by sheriffs or judicial officers. Qualifications, such as solvency and reliability, may be inquired into before approval. 1970 Op. Att'y Gen. No. U70-83.

Scope of sheriff's discretion.

- Language "provided that the sureties tendered and offered on the bond are approved by a sheriff of any county" vests in the sheriff the discretion to accept or reject any surety offered on bail bond in misdemeanor cases and, if in the sheriff's judgment the surety does not own sufficient property or if the property is otherwise encumbered by reason of the execution of other bail bonds, the sheriff is not required to accept the surety tendered, whether it be an individual or a limited partnership. 1957 Op. Att'y Gen. p. 197.

Residence of surety.

- In those cases in which a sheriff is authorized to accept bail, and in which the sureties have been approved by the sheriff, the detaining sheriff must accept bail in reasonable amounts without regard to the residence of the approved sureties. 1970 Op. Att'y Gen. No. U70-168.

Construction with O.C.G.A.

§ 17-6-5, dealing with cash bonds. - While it was true that Ga. L. 1953, Jan. - Feb. Sess., p. 331, § 1 (see O.C.G.A. § 17-6-5) authorized the taking of cash bonds under certain circumstances, it was quite obvious that the preceding provision was in addition to and not in place of former Code 1933, § 27-902 (see O.C.G.A. § 17-6-2). 1957 Op. Att'y Gen. p. 65.

Authority to accept or reject sureties in felony cases.

- Responsibility for approving or rejecting the surety on a criminal bail bond in a felony offense remains in the court having jurisdiction over the offense but, since it is a ministerial function, the responsibility may be delegated to a nonjudicial officer such as a sheriff. 1976 Op. Att'y Gen. No. U76-39. But see § 17-6-15 and 1977 Op. Att'y Gen. No. U77-29.

No authority to set bail in felony cases.

- Sheriffs and constables may accept bail in misdemeanor cases, but there is no authority for such officers to set bail in felony cases. 1970 Op. Att'y Gen. No. U70-152.

Court to which appearance bond made.

- Appearance bond received for a person charged with a misdemeanor should be made to a court that has jurisdiction to try the offense. 1969 Op. Att'y Gen. No. 69-79.

Authority of constable to accept bond.

- Constable is authorized to accept bond in a reasonable amount in a misdemeanor case, provided it was approved by the sheriff. 1962 Op. Att'y Gen. p. 111.

County police officer has the same authority as the sheriff in those cases when the defendant is arrested under a warrant charging a misdemeanor, so long as the prisoner is in the officer's custody. If the county police officer turns the prisoner over to the sheriff without bail, it would thereafter be the responsibility of the sheriff to accept bail. 1962 Op. Att'y Gen. p. 63.

Bail in traffic cases.

- While it was true that Ga. L. 1937-38, Ex. Sess., p. 558, § 10 (see O.C.G.A. § 40-13-28) does not specifically provide for the taking of an appearance bond, but merely for the taking of a bond in cases which are to be appealed, acting under former Code 1933, § 27-902 (see O.C.G.A. § 17-6-2) the sheriff or constable could accept bail in cases involving traffic violations which are made returnable to the court of ordinary (now probate court). 1948-49 Op. Att'y Gen. p. 393.

Bonds for traffic violations.

- O.C.G.A. § 17-6-2 gives the sheriff complete authority to approve or reject bail bonds written by a bonding company for traffic citations. 1993 Op. Att'y Gen. No. U93-6.

Disposition of interest accrued on cash bond.

- County may not pay to a bondsman the interest accrued on a cash bond during the time it is held as assurance of a defendant's appearance at trial; upon timely appearance by the defendant, the bondsman is entitled to no more than the amount of the bond. 1986 Op. Att'y Gen. No. U86-39.

No modification of judicial order specifying cash bond.

- Sheriff does not have the authority to modify a judicial order and accept a property or surety bond after a magistrate has specified a cash bond. 1987 Op. Att'y Gen. No. U87-22.

RESEARCH REFERENCES

Am. Jur. 2d.

- 8A Am. Jur. 2d, Bail and Recognizance, § 1 et seq.

C.J.S.

- 8 C.J.S., Bail; Release and Detention Pending Proceedings, §§ 53, 60, 144, 145.

ALR.

- Power to admit to bail in deportation case, 36 A.L.R. 887.

Amount of bail required in criminal action, 53 A.L.R. 399.

Factors in fixing amount of bail in criminal cases, 72 A.L.R. 801.

Reasonableness of amount required for bond to keep peace, 93 A.L.R. 304.

Pretrial preventive detention by state court, 75 A.L.R.3d 956.

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