MEMORANDUM
To:
From:
RE:
Date:
Daphne M. Walker, Judge
Arvetta D. Horton
State of Georgia v. Trouble Mann
April 18, 2010
FACTS
On April 30, 2005, Mr. Mann was traveling north on Highway 85 in Riverdale, Georgia
near the Krispy Kreme. Police officer Nail’um N. Jail’um effectuated a traffic stop and advised
Mr. Mann that his window tinting was too dark and that it violated the window tinting law. The
window tinting law went into effect when it was signed by the Governor on May 2, 2005. Mr.
Mann advised the officer that he purchased his truck almost a year ago and had no idea the
window tinting was too dark. Mr. Mann further advised that the window tinting was placed on
his truck by the manufacturer and that he had not intended to violate the window tinting law.
Officer Jail’um stated that ignorance of the law was no excuse and issued Mr. Mann a ticket for
violating the new statute, O.C.G.A. § 40-8-73.1. Mr. Mann wants to demand a trial by jury on
the traffic offense but is afraid that under the new Criminal Justice Act of 2005 (House Bill 170)
evidence of his eight (8) prior speeding convictions and six (6) previous violations of the old
window tinting law might be used against him if he elects to have a jury trial.
ISSUE
1. Can Mr. Mann be prosecuted under the new window tinting statute?
2. Does the statute apply to Mr. Mann since his front windshield was not tinted and the
other windows in his truck have a light transmission restriction of 26%?
3. If Mr. Mann can be prosecuted under the new statute, what defenses, if any, can Mr.
Mann raise at trial?
1
4. Can Mr. Mann demand a trial by jury on the violation? What law authorizes him to
request a trial by jury?
5. Will Mr. Mann’s previous convictions be used against him if he demands a jury trial?
If so, how will they be used against him?
6. What arguments should we make at trial in support of Mr. Mann’s position that he
was not aware that the law existed and, therefore, had no criminal intent to violate the
statute?
DISCUSSION
1. Mr. Mann cannot be prosecuted under the new window tinting statute. Georgia’s
window tinting law on motor vehicles was not in effect during the time Mr. Mann
was stopped by Officer Jail’um. In Ciak v. State, 278 Ga. 27, 597 S.E. 2d 3921
O.C.G.A. § 40-8-73.1 was deemed unconstitutional as it drew a distinction between
Georgia drivers and non-resident drivers; therefore, there was no rational relationship
between increasing officer safety and restricting window tinting on vehicles driven by
Georgia residents. A person cannot be charged or cited under an unconstitutional
statute. On May 2, 2005, O.C.G.A. § 40-8-73.1 was reinstated and became effective.
The Georgia State Patrol did not begin issuing educational warnings until the month
of May and did not begin issuing citations June 1. Mr. Mann was not provided his
right to receive the educational warning.
2. The statute makes it unlawful for window tinting to be applied to a vehicle
windshield. According to O.C.G.A. § 40-8-73.1(b)(1)(2), the annotations state, “no
material and glazing can be applied or affixed to the front windshield when it reduces
light transmission through the windshield; no material and glazing can be applied or
2
affixed to the rear windshield or the side or door windows when it reduces light
transmission through the windshield or window to less than 32 %, plus or minus 3%.”
3. Mr. Mann can raise the defense of his advisement to the officer that the window
tinting law was placed on his truck by the manufacturer, British Motor Works.
O.C.G.A. § 40-8-73.1(c)(6)(D) states the window tinting statute does not apply to
vehicles that had the windows tinted before factory delivery. Although unknown, Mr.
Mann may have a medical condition that would require an exemption to the window
tint law through the Department of Safety.
According to O.C.G.A. § 40-8-
73.1(c)(6)(D), the Department of Safety may issue exemption, upon application from
a person required for medical reasons to be shielded from the direct rays of the sun
and only if such application is supported by written attestation of such fact from a
person licensed to practice medicine.
4. Mr. Mann can demand a trial by jury on the violation. A violation of the window tint
law is classified as a misdemeanor which could result in either confinement in jail for
up to 12 months and fine up to $1,000 or both. Pursuant to O.C.G.A. § 15-12-125,
trials by jury for a misdemeanor charge can be granted.
5. Mr. Mann’s previous convictions could not be used against him as they are unrelated
to statute O.C.G.A. § 24-9-84.1. O.C.G.A. § 24-9-84.1(a) (3) states, “[e]vidence that
any witness or the defendant has been convicted of a crime shall be admitted if it
involved dishonesty or making a false statement, regardless of the punishment that
could be imposed for such offense.” Mr. Mann’s eight (8) prior speeding convictions
and six (6) previous violations of the old window tinting law did not involve
dishonesty or making false statements.
3
6. At the time Mr. Mann was issued the ticket, the window tint law did not exist.
Therefore, Mr. Mann was not in violation of O.C.G.A. § 40-8-73.1. Also, since the
month of May was classified as an educational warning period for drivers, Mr. Mann
was not given the opportunity to receive a warning. Additionally, the window tinting
law was placed on his truck by the manufacturer, British Motor Works. O.C.G.A. §
40-8-73.1(c)(6)(D) states the window tinting statute does not apply to vehicles that
had the windows tinted before factory delivery.
CONCLUSION
Based upon the information that our client has provided and the research into
whether Mr. Mann can be prosecuted under the new statute, it does not appear that
Mr. Mann can be legally prosecuted under the new statute. The new statute was not
effective until May 2, 2005 and Mr. Mann’s ticket was issued on April 30, 2005.
Furthermore, the manufacturer of the truck applied the window tint before delivery;
Therefore Mr. Mann has an exception to the rule. According to statute O.C.G.A. §
40-8-73.1(c)(6)(D), the window tinting statute does not apply to vehicles that had the
windows tinted before factory delivery.
4