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State v. McDuff10/11/2001
Richard Scott McDuff was driving his pickup truck on Cobb Parkway with two minor children riding unrestrained in the open bed. Cobb County Police Officer Greg Bradford pulled McDuff over for a violation of OCGA § 40-8-76.1 (e) (3), failure to secure a minor with a safety belt in a passenger vehicle. Further investigation resulted in McDuff's arrest for DUI. Citations were issued for the seat belt violation and the DUI. The State Court of Cobb County granted McDuff's motion to suppress evidence, finding that while Officer Bradford was "extremely credible" and "acted in good faith," it is not a violation of the law for minor children to ride unrestrained in the open bed of a pickup truck on Cobb Parkway and, thus, there was no legal basis for the stop. The State appeals. Upon review, we reverse the judgment of the court below.
In granting McDuff's motion to suppress, the trial court relied upon language in In re: BCG, 235 Ga. App. 1 (508 SE2d 239) (1998), wherein the Court held that,
Since Georgia law allows minors to ride in such a manner [in the open bed of a pickup truck], so long as it is not on an interstate highway, there was no basis for Officer Borgen to believe that B. C. G. was in violation of any traffic law prior to the stop.
From this, the trial court reasoned that since Cobb Parkway is not an "interstate highway," it is not a violation of any traffic law for a minor to ride without a seat belt in the open bed of pickup truck and, thus, such conduct did not provide a sufficient basis for a traffic stop. In addition, the trial court determined that OCGA § 40-8-79, precluding a minor from riding in an open pickup truck on an interstate, would be rendered "superfluous" if OCGA § 40-8-76.1 precluded a minor from riding unrestrained in the back of a pickup truck.
We cannot agree with the trial court's application of BCG to the facts of the instant case. While the cited language appears broad, it should not be taken out of context. This Court reached its conclusion in BCG through an examination of OCGA § 40-8-79 and through the officer's testimony that he based his stop on a violation of such statute. Seat belt safety laws were not at issue in BCG, and a traffic violation under § 40-8-76.1 was neither raised nor considered therein. In the case before us now, at issue is the statutory construction of OCGA §§ 40-8- 76.1.
1. The seat belt safety law, OCGA § 40-8-76.1, was enacted by Ga. L. 1988. p. 31, § 1. and requires that,
Each occupant of the front seat of a passenger vehicle shall, while such passenger vehicle is being operated on a public road, street, or highway of this state, be restrained by a seat safety belt approved under Federal Motor Vehicle Safety Standard 208.
In subsection (a) of the statute, "passenger vehicle" was originally defined as "every motor vehicle designed to carry ten passengers or less and used for the transportation of persons but shall not mean motorcycles, motor driven cycles, vehicles mounted on a truck chassis, or vehicles equipped for off-road use."
During the 1990 legislative session, the statute was amended specifically to exclude a pickup truck as a "passenger vehicle" under the seat belt safety law: it "shall not mean pickup trucks[.]" And Code Section 40-8-79 was enacted in order to make it unlawful for a minor "to ride as a passenger in the uncovered bed of a pickup truck on any interstate highway of this state."
Then, in 1993, the General Assembly added a method by which the seat belt safety law could be violated:
Each minor over four years of age who is an occupant of a passenger vehicle shall, while such passenger vehicle is bein
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