23 LC 48 0965S
S. B. 36 (SUB)
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The House Committee on Judiciary Non-Civil offers the following substitute to SB 36:
A BILL TO BE ENTITLED
AN ACT
To amend Title 16 and Code Sections 17-10-21 and 35-5-37 of the Official Code of Georgia1
Annotated, relating to crimes and offenses, vacating of sentence for trafficking victim2
defendants, and review of individual's criminal history record information, definitions,3
privacy considerations, written application requesting review, and inspection, respectively,4
so as to provide for the offense of drive-by shooting; to modify the offense of aggravated5
assault; to provide for enhanced criminal penalties in certain circumstances; to provide for6
definitions; to provide for penalties; to provide for protections relative to victims of7
trafficking; to increase the penalty provisions relating to pimping and pandering; to provide8
for a definition; to provide for certain relief for trafficking victims who have been9
conditionally discharged or sentenced as a first offender for certain crimes; to provide for10
related matters; to repeal conflicting laws; and for other purposes.11
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:12
SECTION 1.13
Title 16 of the Official Code of Georgia Annotated, relating to crimes and offenses, is14
amended in Code Section 16-5-21, relating to aggravated assault, by revising subsection (a)15
as follows:16 23 LC 48 0965S
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"(a) A person commits the offense of aggravated assault when he or she assaults:17
(1) With intent to murder, to rape, or to rob;18
(2) With a deadly weapon or with any object, device, or instrument which, when used19
offensively against a person, is likely to or actually does result in serious bodily injury;20
(3) With any object, device, or instrument which, when used offensively against a21
person, is likely to or actually does result in strangulation; or22
(4) A person or persons without Without legal justification by discharging a firearm from23
within a motor vehicle, or after immediately exiting a motor vehicle, toward a person, an24
occupied motor vehicle, or persons an occupied building."25
SECTION 2.26
Said title is further amended in Code Section 16-6-13, relating to penalties for violating Code27
Sections 16-6-9 through 16-6-12, is amended by revising subsections (a) and (b) as follows:28
"(a) Except as otherwise provided in subsection (b) of this Code section, a person29
convicted of violating:30
(1) Code Section 16-6-10 shall be punished as for a misdemeanor of a high and31
aggravated nature, and at the sole discretion of the judge, all but 24 hours of any term of32
imprisonment imposed may be suspended, stayed, or probated;33
(2) Code Section 16-6-9 shall be punished as for a misdemeanor;34
(3) Code Section 16-6-11 for a:35
(A) First offense shall be punished as for a misdemeanor of a high and aggravated36
nature, and at the sole discretion of the judge, all but 72 hours of any term of37
imprisonment imposed may be suspended, stayed, or probated guilty of a felony and38
shall be punished by a term of imprisonment of not less than one nor more than ten39
years; and40
(B) Second or subsequent offense shall be guilty of a felony and shall be punished by41
a term of imprisonment of not less than one year nor more than ten years and shall be42 23 LC 48 0965S
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sentenced to a mandatory minimum term of imprisonment of one year and no portion43
of the mandatory minimum sentence imposed shall be suspended, stayed, or probated44
by the sentencing court; provided, however, that in the court's discretion, the court may45
depart from such mandatory minimum sentence if the interest of justice will not be46
served by the imposition of the prescribed mandatory minimum, with such findings47
stated on the record by the court; or48
(4) Code Section 16-6-12 for a:49
(A) First offense shall be punished as for a misdemeanor of a high and aggravated50
nature, and at the sole discretion of the judge, all but 72 hours of any term of51
imprisonment imposed may be suspended, stayed, or probated guilty of a felony and52
shall be punished by a term of imprisonment of not less than one nor more than ten53
years; and54
(B) Second or subsequent offense shall be guilty of a felony and shall be punished by55
a term of imprisonment of not less than one year nor more than ten years and shall be56
sentenced to a mandatory minimum term of imprisonment of one year and no portion57
of the mandatory minimum sentence imposed shall be suspended, stayed, or probated58
by the sentencing court; provided, however, that in the court's discretion, the court may59
depart from such mandatory minimum sentence if the interest of justice will not be60
served by the imposition of the prescribed mandatory minimum, with such findings61
stated on the record by the court.62
(b)(1) For purposes of this subsection, the term 'victim of sexual exploitation' means a63
person 18 years of age or younger who performs or offers or consents to perform a sexual64
act, including, but not limited to, sexual intercourse or sodomy, for money or other items65
of value. Reserved.66
(2) A person convicted of any of the offenses enumerated in Code Sections 16-6-1067
through 16-6-12 when such offense involves the conduct of a person under the age of 1868
years shall victim of sexual exploitation for a:69 23 LC 48 0965S
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(A) First offense shall be guilty of a felony and shall be punished by imprisonment for70
a period of not less than ten nor more than 30 years and a fine of not more than71
$100,000.00; and72
(B) Second or subsequent offense shall be guilty of a felony and shall be punished by73
imprisonment for a period of not less than ten nor more than 30 years and a fine of not74
more than $100,000.00 and shall be sentenced to a mandatory minimum term of75
imprisonment of one year and no portion of the mandatory minimum sentence imposed76
shall be suspended, stayed, or probated by the sentencing court; provided, however, that77
in the court's discretion, the court may depart from such mandatory minimum sentence78
if the interest of justice will not be served by the imposition of the prescribed79
mandatory minimum, with such findings stated on the record by the court; and80
provided, further, that the mandatory minimum sentence provided for in this81
subparagraph shall not apply to the offenses enumerated in Code Section 16-6-10."82
SECTION 3.83
Said title is further amended by revising Code Section 16-7-22, relating to criminal damage84
to property in the first degree, as follows:85
"16-7-22.86
(a) A person commits the offense of criminal damage to property in the first degree when87
he or she:88
(1) Knowingly and without authority interferes with any property in a manner so as to89
endanger human life; or90
(2) Knowingly and without authority and by force or violence interferes with the91
operation of any system of public communication, public transportation, sewerage,92
drainage, water supply, gas, power, or other public utility service or with any constituent93
property thereof; or94 23 LC 48 0965S
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(3) Knowingly and without justification causes damage to a building by discharging a95
firearm while inside a motor vehicle or after immediately exiting a motor vehicle.96
(b) A person convicted of the offense of criminal damage to property in the first degree97
shall be punished by imprisonment for not less than one nor more than ten years. A second98
and subsequent violation of paragraph (3) of subsection (a) of this Code section shall be99
punished by imprisonment for not less than five nor more than 20 years."100
SECTION 4.101
Said title is further amended in Code Section 16-11-127, relating to carrying weapons or long102
guns in unauthorized locations, by revising paragraphs (6) and (7) of and adding a new103
paragraph to subsection (b) to read as follows:104
"(6) On the premises of a nuclear power facility, except as provided in Code Section105
16-11-127.2, and the punishment provisions of Code Section 16-11-127.2 shall supersede106
the punishment provisions of this Code section; or107
(7) Within 150 feet of any polling place when elections are being conducted and such108
polling place is being used as a polling place as provided for in paragraph (27) of Code109
Section 21-2-2, except as provided in subsection (i) of Code Section 21-2-413; or110
(8) On property described in Code Section 10-9-14.1; or on property described in Code111
Section 36-64-2 when the property is being used by a private party to host a gated and112
ticketed event or events, where such alcohol is permitted to be sold, and which last no113
more than three consecutive days. This paragraph applies only when the private party has114
contractually agreed to indemnify the government for acts occurring on the property115
during the event or events, and this paragraph may not be implemented for events on the116
property more than two times in a calendar year."117
SECTION 5.118
Said title is further amended in Code Section 16-15-3, relating to definitions regarding street119 23 LC 48 0965S
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gang terrorism and prevention, by revising subparagraph (A) of paragraph (1) as follows:120
"(A) Any offense defined as racketeering activity by Code Section 16-14-3, or any121
offense defined in Code Section 16-15-4.1;"122
SECTION 6.123
Said title is further amended in Chapter 15, relating to street gang terrorism and prevention,124
by adding a new Code section to read as follows:125
"16-15-4.1.126
(a) As used in this Code section, the term:127
(1) 'Dwelling' shall have the same meaning as provided in Code Section 16-7-1.128
(2) 'Firearm' means any handgun, rifle, shotgun, or similar device or weapon which will129
or can be converted to expel a projectile by the action of an explosive or electrical charge.130
(b) A person commits the offense of drive-by shooting when he or she, while in a motor131
vehicle or close to the motor vehicle that was used to transport the shooter or the firearm,132
or both, with intent to injure another, or damage the property of another, discharges a133
firearm at or toward:134
(1) An occupied or unoccupied dwelling, building, or motor vehicle; or135
(2) A person.136
(c) A person convicted of the offense of drive-by shooting shall be punished by137
imprisonment for not less than five nor more than 20 years.138
(d) A person convicted of the offense of drive-by shooting that results in serious bodily139
injury to another shall be punished by imprisonment for not less than five nor more than140
20 years.141
(e) A person who knowingly commits the offense of drive-by shooting against a person142
under the age of 16 years shall be punished by imprisonment for not less than five nor more143
than 20 years."144 23 LC 48 0965S
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SECTION 7.145
Code Section 17-10-21 of the Official Code of Georgia Annotated, relating to vacating of146
sentence for trafficking victim defendants, is amended by revising paragraphs (1) and (4) and147
subparagraph (A) of paragraph (5) of subsection (a) as follows:148
"(a)(1) A defendant convicted of an offense and sentenced, or a defendant sentenced149
pursuant to Code Section 42-8-60 or 16-13-2, as a direct result of the defendant being the150
victim of an offense of trafficking under Code Section 16-5-46 may petition the court151
imposing the sentence to vacate such conviction and sentence or such sentence imposed152
pursuant to Code Section 42-8-60 or 16-13-2. Such court shall maintain the jurisdiction,153
power, and authority to vacate such conviction and sentence."154
"(4) If the prosecuting attorney, to the court, consents in writing to the vacatur of such155
conviction or fails to respond to such petition within 30 days of service, the court156
imposing the conviction and sentence or sentence imposed pursuant to Code157
Section 42-8-60 or 16-13-2 shall, without notice or hearing, issue an order vacating the158
conviction and sentence and shall also issue an order restricting access to criminal history159
record information for such offense.160
(5)(A) If the prosecuting attorney, to the court, objects in writing to the petition, the161
court shall hold a hearing within 90 days of the filing of the petition. The court shall162
hear evidence and determine, by a preponderance of the evidence, whether the163
defendant committed such offense as a direct result of being the victim of an offense164
of trafficking under Code Section 16-5-46. If the court finds, by a preponderance of the165
evidence, that the defendant committed such offense as a direct result of being the166
victim of an offense of trafficking under Code Section 16-5-46, the court may issue an167
order vacating the conviction and sentence or sentence imposed pursuant to Code168
Section 42-8-60 or 16-13-2. The vacatur of a sentence under this chapter or a sentence169
imposed pursuant to Code Section 42-8-60 or 16-13-2 shall result in the discharge and170
dismissal of the action."171 23 LC 48 0965S
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SECTION 8.172
Code Section 35-3-37 of the Official Code of Georgia Annotated, relating to review of173
individual’s criminal history record information, definitions, privacy considerations, written174
application requesting review, and inspection, is amended by revising175
subparagraphs (j)(6)(A), (j)(6)(C), and (j)(6)(D) as follows:176
"(6)(A) A defendant convicted of an offense and sentenced, or a defendant sentenced177
pursuant to Code Section 42-8-60 or 16-13-2, while such individual was a victim of an178
offense of trafficking under Code Section 16-5-46 may petition the court imposing the179
sentence to restrict such conviction and sentence or such sentence imposed pursuant to180
Code Section 42-8-60 or 16-13-2. Such court shall maintain the jurisdiction, power,181
and authority to restrict such conviction and sentence."182
"(C) If the prosecuting attorney, to the court, consents in writing to the restriction of183
such conviction and sentence or fails to respond to such petition within 30 days of184
service, the court imposing the conviction and sentence or sentence imposed pursuant185
to Code Section 42-8-60 or 16-13-2 shall, without notice or hearing, issue an order186
restricting the conviction and sentence access to the criminal history record of such187
offense.188
(D) If the prosecuting attorney, to the court, objects in writing to the petition, the court189
shall determine, by a preponderance of the evidence, whether the defendant committed190
such offense while such individual was a victim of an offense of trafficking under Code191
Section 16-5-46. If the court finds, by a preponderance of the evidence, that the192
defendant committed such offense while such individual was a victim of an offense of193
trafficking under Code Section 16-5-46, the court may issue an order restricting the194
conviction and sentence access to the criminal history record of such offense. The court195
shall hold a hearing within 90 days of the filing of the petition to hear evidence for196
purposes of making a determination under this subparagraph or make a determination197
upon the pleadings or record."198 23 LC 48 0965S
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SECTION 9.199
All laws and parts of laws in conflict with this Act are repealed.200