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2018 Georgia Code 24-13-28 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 24-13-28 Case Law from Google Scholar Amendments to OCGA 24-13-28

TITLE 24 EVIDENCE

Section 13. Securing Attendance of Witnesses and Production and Preservation of Evidence, 24-13-1 through 24-13-154.

ARTICLE 2 SUBPOENAS AND NOTICE TO PRODUCE

24-13-28. Witness fees for law enforcement officers.

  1. As used in this Code section, the term:
    1. "Director" means the appropriate chief of police, sheriff, director of public safety of a college or university, local fire chief, director of the Georgia Bureau of Investigation, the commanding officer of the Georgia State Patrol, the commissioner of natural resources, the superintendent of a correctional institution, or the state fire marshal.
    2. "Law enforcement officer" means any member of a municipal or county police force, any deputy sheriff, any campus policeman as defined in Code Section 20-8-1, any member of a local fire department, any member of the Georgia State Patrol or Georgia Bureau of Investigation, any correctional officer, any person employed by the Department of Natural Resources as a law enforcement officer, or any arson investigator of the state fire marshal's office.
    3. "Regular duty hours" means the daily shift of duty to which a law enforcement officer is assigned and shall not include paid or unpaid vacation, paid or unpaid sick leave, paid or unpaid holiday leave, or any other paid or unpaid leave status established pursuant to the personnel regulations or scheduling practices of the employing agency.
  2. Any law enforcement officer who shall be required by subpoena to attend any superior court, other courts having jurisdiction to enforce the penal laws of this state, municipal court having jurisdiction to enforce the penal laws of this state as provided by Code Section 40-13-21, juvenile court, grand jury, hearing or inquest held or called by a coroner, or magistrate court involving any criminal matter, as a witness on behalf of the state during any hours except the regular duty hours to which the officer is assigned, shall be paid for such attendance at a fixed rate to be established by the governing authority, but not less than $25.00 per diem. The claim for the witness fees shall be endorsed on the subpoena showing the dates of attendance and stating that attendance was required during the hours other than the regular duty hours to which the claimant was assigned. The claimant shall verify this statement. The dates of attendance shall be certified by the judge or the prosecuting attorney of the court attended. The director or his or her designee shall certify that the claimant has not received any overtime pay for his or her attendance and that his or her attendance was required during hours other than regular duty hours. The amount due shall be paid by the governing body authorized to dispense public funds for the operation of the court. However, no such law enforcement officer shall claim or receive more than one witness fee per day for attendance in any court or before the grand jury regardless of the number of subpoenas which the law enforcement officer may have received requiring such officer to appear in such court or before the grand jury on any one day.
    1. Except as provided in paragraph (2) of this subsection, any law enforcement officer who shall be required by subpoena to attend any court of this state with respect to any civil proceeding, as a witness concerning any matter relative to the law enforcement duties of such law enforcement officer during any hours except the regular duty hours to which the law enforcement officer is assigned, shall be paid for such attendance at a fixed rate to be established by the governing authority, but not less than $25.00 per diem. Any such law enforcement officer shall also be entitled to the mileage allowance provided in Code Section 24-13-25 when such law enforcement officer resides outside the county where the testimony is to be given. The claim for the witness fees shall be endorsed on the subpoena showing the dates of attendance and stating that attendance was required during the hours other than the regular duty hours to which the claimant was assigned. The claimant shall verify such statement. The dates of attendance shall be certified by the party obtaining the subpoena. The director or his or her designee shall certify that the claimant has not received any overtime pay for the law enforcement officer's attendance and that such law enforcement officer's attendance was required during hours other than regular duty hours.
    2. Any law enforcement officer covered by paragraph (1) of this subsection who is required by subpoena to attend any court with respect to any civil proceeding, as a witness concerning any matter which is not related to the duties of such law enforcement officer, shall be compensated as provided in Code Section 24-13-25.
  4. The fee specified by subsections (b) and (c) of this Code section shall not be paid if the law enforcement officer receives any overtime pay for time spent attending such court pursuant to the subpoena.

(Code 1981, §24-13-28, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 24-10-27 are included in the annotations for this Code section.

Failure of proof that fee accrued.

- When a police officer did not in the officer's affidavit verify that the officer's attendance was required during hours which were other than the officer's regularly assigned duty hours and there was no certification from the officer's superior that the officer was neither paid additional compensation nor given time off on account of the officer's service, there was a failure of proof that a witness fee had accrued. Walden v. State, 185 Ga. App. 413, 364 S.E.2d 304 (1987), rev'd on other grounds, 258 Ga. 503, 371 S.E.2d 852 (1988), aff'd, 189 Ga. App. 896, 378 S.E.2d 418 (1989) (decided under former O.C.G.A. § 24-10-27).

Lodging and airfare costs.

- There was no specific statutory authorization for assessing a criminal defendant for the lodging and airfare costs of witnesses for the state. Smith v. State, 272 Ga. 83, 526 S.E.2d 59 (2000), reversing Smith v. State, 236 Ga. App. 548, 512 S.E.2d 19 (1999) (decided under former O.C.G.A. § 24-10-27).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Ga. L. 1968, p. 434, § 1; former Ga. L. 1978, p. 925, § 1; former Ga. L. 1980, p. 439, § 1; and former O.C.G.A. § 24-10-27 are included in the opinions for this Code section.

Purpose of the former statute was to ensure that witness fees were not denied certain officers in cases involving penal statutes when those officers were connected with the enforcement of those statutes in such a way that testimony at a trial during off-duty hours might nevertheless be considered within their regular duties and therefore already compensated for by their salaries. 1972 Op. Att'y Gen. No. 72-157.(decided under former Ga. L. 1968, p. 434, § 1).

Criminal as well as civil cases.

- County must pay the per diem witness fee to witnesses summoned in criminal cases, as well as to those summoned in civil cases; the source of funds for witness fees was from county taxes. 1970 Op. Att'y Gen. No. U70-11.(decided under former Ga. L. 1968, p. 434, § 1).

Word "member" in the former statute did not include fingerprint experts employed by the Division of Investigation. 1972 Op. Att'y Gen. No. 72-157.(decided under former Ga. L. 1968, p. 434, § 1).

Peace officer who, required by subpoena, attended court on behalf of the state during any hours except regular duty hours, was entitled to mileage as provided by former O.C.G.A. § 24-10-24 (see now O.C.G.A. § 24-13-28); under these conditions, the peace officer was also entitled to per diem as provided in Ga. L. 1968, p. 434, § 1 (see O.C.G.A. § 24-13-27). 1971 Op. Att'y Gen. No. U71-57.

State trooper was entitled to be compensated separately from each court in which the trooper appeared as a witness under subpoena; however, the trooper may not have received more than one witness fee per day for appearing as a witness under subpoena in any single court. 1983 Op. Att'y Gen. No. 83-4.(decided under former O.C.G.A. § 24-10-27).

Attendance at justice court commitment hearing did not entitle an officer to a fee. 1970 Op. Att'y Gen. No. U70-234.(decided under former Ga. L. 1968, p. 434, § 1).

University officers not entitled to fees.

- University system law enforcement officers may have enforced municipal ordinances of all kinds within 500 yards of the Board of Regents' property and may have prosecuted those cases in any court of this state. However, such officers were not entitled to the statutory witness stipend provided under subsection (a) of former O.C.G.A. § 24-10-27 (now see O.C.G.A. § 24-13-28). 1993 Op. Att'y Gen. No. 93-20.(decided under former O.C.G.A. § 24-10-27).

Endorsement of claim for fees.

- Under the provisions of former O.C.G.A. § 24-10-27 (now see O.C.G.A. § 24-13-28), a post commander may have endorsed a state trooper's claim for witness fees stating that attendance was required during hours other than the trooper's regular duty hours. However, only the commanding officer of the division to which the trooper was assigned was authorized to certify that the claimant had been paid no additional compensation and had been given no time off on account of the claimant's court appearance. 1985 Op. Att'y Gen. No. U85-28.(decided under former O.C.G.A. § 24-10-27).

Subpoena of duty records by grand juries.

- Grand juries did not have the power to subpoena duty records of the state patrol or city police to determine the accuracy of disbursement of witness fees by the clerk's office. 1985 Op. Att'y Gen. No. U85-28.(decided under former O.C.G.A. § 24-10-27).

RESEARCH REFERENCES

C.J.S.

- 98 C.J.S. (Rev), Witnesses, § 147.

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