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2017 Law Update - SB 104 - A Mishmash of Criminal Law Changes

Posted by Sean A. Black | Jun 15, 2017 | 0 Comments

Georgia SB 104 will take effect on July 1, 2017.  It includes changes in five major categories.

New Offense - Carjacking in the Second Degree

The first three parts address the creation of a new crime called hijacking a motor vehicle in the second degree.  It is basically a lesser offense of the old hijacking a motor vehicle which does not involve the use of a firearm or weapon.  It is notable that the statutory definition includes the attempt or conspiracy to commit the offense.  The second degree offense carries a penalty of 1 to 10 years in prison and a fine up to $5,000.  A second offense has a range of 3-15 years, and third and subsequent offenses carry 5 to 20 years imprisonment.  

Human Trafficking Hotline Notices

Part 4 addresses the posting of human trafficking hotline notices.

Fake Insurance Cards

Part 5 changes the punishments for manufacture, sale or distribution of counterfeit or false proof of insurance documents. The maximum fine is boosted to $10,000 and the sentencing range is boosted from the current 1 to 3 years to a range of 2 to 10 years.

New Crime of Upskirting

Part 5A represents an attempt to fix a perceived gap in the law regarding the conduct known as "upskirting."  Basically, this involves a person taking pictures up a woman's skirt when she is unaware it is happening.  Of course, the statute is written in a gender neutral fashion.  

The resulting definition of the crime is:

It shall be unlawful for any person to,  knowingly and without the consent of the individual observed, use or install a device for the purpose of surreptitiously observing, photographing, videotaping, filming, or video recording such individual underneath or through such individual's clothing, for the purpose of viewing the intimate parts of the body of or the undergarments worn by such individual, under circumstances in which such individual has a reasonable expectation of privacy, regardless of whether it occurs in a public place.

It's a fairly complicated piece of drafting.  The state has to prove (1) knowledge, (2) lack of consent, (3) use or installation of a device, (4) for the purpose of surreptitiously observing, photographing, videotaping, filming or video recording the individual (5) underneath or through such individual's clothing, (6) for the further purpose of viewing the intimate parts of the body or the undergarments worn by such individual, (7) when the individual has a reasonable expectation of privacy.

The offense can occur in a public or private place.

There is an additional offense of dissemination of such an image or recording.

This is a felony offense carrying 1 to 5 years in prison and a fine up to $10,000, but a sentencing judge can exercise discretion to sentence the offense as a misdemeanor.  

There is an interesting carve-out for lawful activities of law enforcement and prosecution agencies.  It is hard to imagine a lawful activity of a district attorney's office to secretly view the underwear of people, but if they can figure one out, they are exempted from prosecution.

Fentanyl Offenses

Parts 6 and 7 deal with fentanyl and related substances.  It first includes fentanyl and related substances for morphine and opium trafficking.  Tier 1 is 4 grams or more but less than 14 grams.  Tier 2 is 14 grams or more but less than 28 grams.  Tier 3 is 28 grams or more.

Fenantanyl and related substances are then added to Schedule I of the Georgia drug charts.  It exempts actual medical use, but it is an unfortunate scheduling.  Schedule I drugs, substances or chemicals are typically defined as drugs with no currently accepted medical use and a high potential for abuse.  Fentanyl is currently accepted for a number of medical uses. It seems as if it would be more appropriately on Schedule II.  This will have the effect of boosting the punishment for fentanyl related offenses.

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.

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