- If application is made for a warrant by a person other than a peace officer or law enforcement officer and the application alleges the commission of an offense against the penal laws, the judge or other officer shall schedule a warrant application hearing as provided in this subsection unless the person accused has been taken into custody by a peace officer or law enforcement officer or except as provided in paragraph (6) of this subsection; provided, however, that a warrant may be denied without the notice required in paragraph (2) of this subsection where the application form and any testimony from the affiant provided at the time of the application do not demonstrate probable cause for issuing a warrant.
- Except as otherwise provided in paragraph (6) of this subsection, a warrant application hearing shall be conducted only after attempting to notify the person whose arrest is sought by any means approved by the judge or other officer which is reasonably calculated to apprise such person of the date, time, and location of the hearing.
- If the person whose arrest is sought does not appear for the warrant application hearing, the judge or other officer shall proceed to hear the application and shall note on the warrant application that such person is not present.
- At the warrant application hearing, the rules of evidence at a commitment hearing shall apply as set forth in paragraph (1) of subsection (d) of Code Section 24-1-2. The person seeking the warrant shall have the customary rights of presentation of evidence and cross-examination of witnesses. The person whose arrest is sought may cross-examine the person or persons applying for the warrant and any other witnesses testifying in support of the application at the hearing. The person whose arrest is sought may present evidence that probable cause does not exist for his or her arrest. The judge or other officer shall have the right to limit the presentation of evidence and the cross-examination of witnesses to the issue of probable cause.
- At the warrant application hearing, a determination shall be made whether or not probable cause exists for the issuance of a warrant for the arrest of the person whose arrest is sought. If the judge or other officer finds that probable cause exists, the warrant may issue instanter.
- Nothing in this subsection shall be construed as prohibiting a judge or other officer from immediately issuing a warrant for the arrest of a person upon application of a person other than a peace officer or law enforcement officer if the judge or other officer determines from the application or other information available to the judge or other officer that:
- An immediate or continuing threat exists to the safety or well-being of the affiant or a third party;
- The person whose arrest is sought will attempt to evade arrest or otherwise obstruct justice if notice is given;
- The person whose arrest is sought is incarcerated or otherwise in the custody of a local, state, or federal law enforcement agency;
- The person whose arrest is sought is a fugitive from justice;
- The offense for which application for a warrant is made is deposit account fraud under Code Section 16-9-20, and the person whose arrest is sought has previously been served with the ten-day notice as provided in paragraph (2) of subsection (a) of Code Section 16-9-20; or
- The offense for which application for the warrant is made consists of an act of family violence as defined in Code Section 19-13-1. In the event that the judge or officer finds such circumstances justifying dispensing with the requirement of a warrant application hearing, the judge or officer shall note such circumstances on the face of the warrant application.
History. Orig. Code 1863, § 4595; Code 1868, § 4616; Code 1873, § 4713; Code 1882, § 4713; Penal Code 1895, § 882; Penal Code 1910, § 903; Code 1933, § 27-102; Ga. L. 1974, p. 1230, § 1; Ga. L. 1983, p. 884, § 3-17; Ga. L. 1985, p. 1105, § 1; Ga. L. 1990, p. 8, § 17; Ga. L. 2000, p. 1702, § 1; Ga. L. 2010, p. 313, § 1/HB 199; Ga. L. 2011, p. 99, § 28/HB 24; Ga. L. 2021, p. 132, § 1/HB 562.
The 2021 amendment, effective May 3, 2021, inserted “DFCS case manager,” near the beginning of subsection (c).
Cross references.
Compliance with this Code section in violations of public records inspection provisions, § 50-18-74 .
Dismissal and return of warrants in magistrate court, Uniform Rules for the Magistrate Courts, Rule 12.
Editor’s notes.
Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.
Law reviews.
For article, “Should Georgia Change Its Misdemeanor Arrest Laws to Authorize Issuing More Field Citations? Can Alternative Arrest Process Help Alleviate Georgia’s Jail Overcrowding and Reduce the Time Arresting Officers Expend Processing Nontraffic Misdemeanor Offenses?,” see 22 Ga. St. U.L. Rev. 313 (2005).
For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007).
For article, “Evidence,” see 27 Ga. St. U. L. Rev. 1 (2011).
For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).
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