State v. Lamb , 202 Ga. App. 69 ( 1991 )

Beasley, Judge.

The State appeals an order granting defendant’s motion to suppress.

At a suppression hearing the trial court is the trier of fact, State v. Watts, 154 Ga. App. 789, 790 (4) (270 SE2d 52) (1980), and on appeal its decision on factual issues and credibility must be accepted unless clearly erroneous. Muff v. State, 254 Ga. 45, 48 (2b) (326 SE2d 454) (1985); Hill v. State, 183 Ga. App. 654, 656 (2) (360 SE2d 4) (1987).

Applying these principles, the evidence shows that on November 15, 1989, Officer Dorner was informed that Detective George planned to make an undercover drug transaction with a suspect driving a blue Camaro. While on patrol Dorner observed defendant’s car, a blue Firebird, exiting Riverdale Plaza. Dorner then observed defendant’s car traveling north on Highway 85 at a speed between 37 and 38 mph and weaving within his lane. The posted speed limit on that part of the highway is 45 mph. Dorner stopped defendant because he “thought [defendant] might be under the influence of alcohol.”

After investigating further, Dorner concluded defendant was not intoxicated but requested his driver’s license and proof of insurance. When defendant could not produce proof of insurance, OCGA § 33-34-12 (a) (l),¹ Dorner arrested defendant for this failure and impounded defendant’s car.

The inventory search of the vehicle produced a .38 caliber pistol and a bottle of pills marked Valium, so the officer also charged defendant with carrying a concealed weapon. He transported defendant to the police station, where a subsequent search of defendant produced bags of suspected cocaine and cocaine paraphernalia.

The superior court concluded that Dorner acted reasonably regarding the initial stop of defendant’s car, despite Dorner’s admission that he was consciously attempting to stop defendant based on the information Detective George provided. We render no ruling in this regard. The court further concluded, however, that Dorner acted improperly in arresting defendant and impounding his car “solely on the grounds of having no proof of insurance”; that Dorner failed to determine whether the vehicle was actually uninsured and whether the vehicle could safely remain in its present location, relying on Attorney General Opinion 83-5 and OCGA § 33-34-12 (a) (3).

The State contends the trial court erred by ruling that Dorner lacked the authority to impound defendant’s vehicle for operating a motor vehicle without proof of insurance.

1. OCGA § 33-34-12 (a) (3) requires; “If the owner or operator of a motor vehicle fails to show proof or evidence of minimum insurance, the arresting officer shall issue a uniform traffic citation for operating a motor vehicle without proof of insurance and shall take possession of the driver’s license and forward it to a court of competent jurisdiction.”

The statute mandates the procedure and precludes the discretion to effect a custodial arrest in lieu of a citation. The violator faces at most a $25 fine, OCGA § 33-34-12 (a) (4). The officer is authorized only to issue a citation, take the driver’s license to assure appearance, and issue a receipt to be used as a temporary license until the court date. Although not expressly mentioned in the statute, cf. OCGA § 17-6-11 (a), this latter step is a necessary corollary to taking the license so as not to summarily impose the penalty of a temporary suspension. Compare United States v. Wilson, 853 F2d 869 (11th Cir. 1988).

Under OCGA § 40-6-206 (d), law enforcement officers may impound vehicles when a person is charged with violating OCGA § 33-34-12 (a) or (b) if the person admits there is no insurance or if the officer “verifies that the proof of insurance ... is fraudulent.” Neither of these conditions was present, so Dorner lacked authority to impound the vehicle under OCGA § 40-6-206 (d).

Nor is there evidence that any other circumstance existed to authorize movement of the vehicle under the strictures of OCGA § 40-6-206. See also Mitchell v. State, 178 Ga. App. 244, 246 (3) (342 SE2d 738) (1986), and cases cited. Compare Baker v. State, 202 Ga. App. 73 (413 SE2d 251) (1991).

We find no error in the trial court’s grant of defendant’s motion to suppress.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur specially.

1 OCGA § 33-34-12 was repealed effective January 1, 1991, and OCGA § 40-6-10 was substituted.