CopyCited 22 times | Published | Supreme Court of Georgia | Jun 7, 2004 | 278 Ga. 27, 2004 Fulton County D. Rep. 1909
...*393 Barry Staples, Hix H. Green III, Marietta, for appellant. Barry E. Morgan, Solicitor-General, Thomas J. Campbell, Assistant Solicitor-General, Marietta, for appellee. BENHAM, Justice. This appeal places before the Court a challenge to the constitutionality of OCGA §
40-8-73.1, the statute governing the use of tinted automobile windows in Georgia, which provides in pertinent part that it shall be unlawful for any resident person to operate a motor vehicle in this state ......
...[a] vehicle, the windows or windshields of *394 which have been tinted or darkened before factory delivery... [or][a]ny motor vehicle not registered in this state.... A police officer stopped Ciak solely because he suspected the windows of the Georgia-registered car she was driving violated OCGA §
40-8-73.1. Smelling alcohol, the officer commenced a DUI investigation, ultimately arresting Ciak for DUI. She was not charged at that time with a violation of OCGA §
40-8-73.1 because a test at the arrest site showed the windows were not tinted beyond the 32 percent limit, but was eventually charged by accusation with that offense. Ciak filed a motion to suppress all evidence derived from the traffic stop, contending OCGA §
40-8-73.1 is facially unconstitutional as a denial of equal protection....
...ated to others who are treated differently and that the statute is rationally related to the purpose of officer safety. This Court granted Ciak's application for interlocutory review and requested the parties to address the constitutionality of OCGA §
40-8-73.1....
...oducing more injuries. This case presents no such dichotomy and the situation governed by the statute at issue here offers no "choice of evils" decision for legislative action. Thus, the difference in treatment of residents and non-residents by OCGA §
40-8-73.1 cannot be justified by the principles stated in Farley....
...McNeil, 96 Cal.App.4th 1302, 118 Cal.Rptr.2d 54 (2002) ( Michigan v. DeFillippo distinguishable where there was controlling precedent that ordinance was unenforceable). The principle stated in DeFillippo applies to the present case and compels the conclusion that our holding in this case that OCGA §
40-8-73.1 is unconstitutional does not, of itself, require suppression of the evidence seized during the traffic stop. 3. Ciak also contended in the trial court that the traffic stop based on OCGA §
40-8-73.1 could not be valid because the statute contains too many elements which cannot be ascertained by an officer merely observing a vehicle with tinted windows....
...202, 204(3),
470 S.E.2d 916 (1996). The undisputed facts before the trial court were that the officer conducting the stop in this case observed Ciak's car, noted that the windows were tinted a dark purple, and believed the tinting appeared darker than that permitted by OCGA §
40-8-73.1. This is not a case like Hameen v. State,
246 Ga.App. 599,
541 S.E.2d 668 (2000), where a stop based on §
40-8-73.1 was held invalid because the presence of an out-of-state license tag was *396 enough to show no violation of the statute could have occurred. By contrast, the officer who made the stop here observed a Georgia-registered vehicle with dark purple windows. The fact that the officer determined from a field test that a citation for violating OCGA §
40-8-73.1 was not warranted does not render the stop improper....
...at 205,
470 S.E.2d 916 (fact that officer did not charge defendant with offenses on which stop based is immaterial). Applying the principles stated in State v. Wright, supra, we conclude that the objective observations of a trained officer were sufficient to support a reasonable suspicion that a violation of OCGA §
40-8-73.1 was occurring in his presence....
