1 STATE COURT OF GEORGIA

2 Case No.:12345-6789
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State Of Georgia, ) MOTION TO DISMISS FOR LACK OF
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) SUBJECT MATTER JURISDICTION;
5 vs. )
) LACK OF ADMINISTRATIVE DUE
6 Joe Six Pack, )
) PROCESS; FAILURE TO STATE A
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) CLAIM UPON WHICH RELIEF CAN BE
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GRANTED.
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Now comes Joe Six Pack in the above-styled cause and files this
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written motion in the time provided for by Title 17 Chapter 7
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Article 61 of the Criminal procedure.
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The Defendant, hereby challenges the subject matter jurisdiction2
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of this court3 and motions this Court to dismiss all charges
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against him as a matter of law for the following reasons:
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1. The prosecution of traffic violations is an administrative
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complaint.4 The Board of Public Safety establishes the general
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policy for the Department of public Safety.5 The Commissioner of
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the Department of Public Safety is charged with the
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responsibility of creating the Uniformed Traffic Citation.6
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The commissioner of public safety is authorized to promulgate
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rules and regulation as necessary to carry out his official
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duties.7 The Board of Public Safety, Commissioner of Public
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Safety and the Department of Public Safety is defined as
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“Agency” and are therefore subject to the Administrative
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Procedure Act.8 Pursuant to this authority the commissioner of
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the Department of Public Safety promulgate the rules for the
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Uniform Traffic Citation.9 The State has failed to properly
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prosecute this case per the rules and regulations adopted by the
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[Summary of pleading] - 1
 1 Department of Public Safety.10 The State has failed to present
2 to this court the agencies final decision from which the
3 prosecution seeks judicial review.11 The prosecution has failed
4 to exhaust all of it’s administrative remedies. The defendant
5 has been denied administrative due process and hearing.12 There
6 has been no finding of facts and law nor has a decision or order
7 been issued by the agency involved.13
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9 2. Since the State has failed to seek an agency final decision

10 or order the State has failed to exhaust all its administrative
11 remedies.14
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13 3. Because the State has failed to exhaust all of its

14 administrative remedies it is unable to produced15 evidence16 of
15 an agency final decision for this court to judicial review.
16 The State has failed to state a claim upon which this court may
17 grant relief.17
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19 4. The court has jurisdiction to judicial review an agency

20 final decision or order, without such evidence lacks subject
21 matter jurisdiction.
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23 The Court has not announced its intention to take judicial

24 notice of any fact(s).18
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26 WHEREFORE, this defendant request that the criminal proceeding

27 be dismissed for failure to state a cause of action and
28 withholding of exculpatory evidence (final decision or order)
29 and for the lack of administrative procedure.
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[Summary of pleading] - 2
 1
Dated
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________________________
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CERTIFICATE OF SERVICE
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I hereby certify that I have provided a copy of the above and
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foregoing MOTION TO DISMISS to the State or Prosecution via hand
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delivery, on this 44th day of September, 2020.
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Joe Six Pack
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[Summary of pleading] - 3
1 ARTICLE 6

DEMURRERS, MOTIONS, AND SPECIAL PLEAS AND EXCEPTIONS

2

15-1-2
Jurisdiction not given by consent; when lack of jurisdiction of person may be

waived
Parties may not give jurisdiction to a court by consent, express or implied, as to

the person or subject matter of an action. However, lack of jurisdiction of the

person may be waived, insofar as the rights of the parties are concerned, but not

so as to prejudice third persons.

3 17-7-111
Demurrers and special pleas to be in writing. Right to plead "not guilty"

If the defendant, upon being arraigned, demurs to the indictment, pleads to the
jurisdiction of the court, pleads in abatement, or enters any other special plea in

bar, the demurrer or plea shall be made in writing. If the demurrer or plea is
decided against the defendant, he may nevertheless plead and rely on the general

issue of "not guilty."

4 40-13-2 Rules and regulations

The Board of Public Safety, by rule and regulation, shall establish a system of

accountability for all traffic citations and complaints, and it shall also provide
the procedures governing the use and issuance of such citations and complaints.

35-5-2. Duties, power, and authority of the board

(a) The Board of Public Safety is authorized:

(2) To do all things and take any action necessary to accomplish such

purpose, including, but not limited to, the promulgation of rules and regulations
relative thereto.

5 35-2-1. Board of Public Safety;

There is created a Board of Public Safety which shall establish the general policy
to be followed by the Department of Public Safety.
6 § 40-13-1. Authorization for development of form; contents; identifying number

The commissioner of public safety shall develop a uniform traffic citation

and complaint form for use by all law enforcement officers who are empowered to

enforce the traffic laws and ordinances in effect in this state. Such form shall
serve as the citation, summons, accusation, or other instrument of prosecution of

the offense or offenses for which the accused is charged, and as the record of the
disposition of the matter by the court before which the accused is brought, and

shall contain such other matter as the commissioner shall provide. Each such form
shall have a unique identifying number which shall serve as the docket number for

the court having jurisdiction of the accused.

7 35-2-3. (a) There is created the position of commissioner of public safety. The
commissioner shall be the chief administrative officer and shall be both appointed

and removed by the board with the approval of the Governor. Except as otherwise
provided by law and subject to the general policy established by the board, the

commissioner shall supervise, direct, account for, organize, plan, administer, and
execute the functions vested in the department by law.

(b) The commissioner shall be authorized to promulgate rules and regulations as

necessary to carry out his or her official duties.

8 § 50-13-2. Definitions

As used in this chapter, the term:

"Agency" means each state board, bureau, commission, department, activity, or

officer authorized by law expressly to make rules and regulations or to determine

contested cases,…

9 570-19-.01. Rule Providing for the Use of the Form DPS-32, Uniform Traffic

Citation, Summons, Accusation, 180 Day Temporary Driving Permit.

10 TITLE 570. RULES OF DEPARTMENT OF PUBLIC SAFETY

CHAPTER 570-1. RULES OF GENERAL APPLICABILITY

570-1-.05. Contested Cases Under the Administrative Procedure Act

The hearing and appeal procedures provided for in the Georgia Administrative

Procedure Act shall be followed in cases which are directed by statute to be

conducted pursuant to the Administrative Procedure Act. Contested cases heard

pursuant to the Georgia Administrative Procedure Act shall be conducted in

accordance with the procedures provided herein and the following procedures:…

11 50-13-19. Judicial review of contested cases

(a) Any person who has exhausted all administrative remedies available within
the agency and who is aggrieved by a final decision in a contested case is entitled

to judicial review under this chapter. This Code section does not limit utilization
of or the scope of judicial review available under other means of review, redress,

relief, or trial de novo provided by law. A preliminary, procedural, or

intermediate agency action or ruling is immediately reviewable if review of the
final agency decision would not provide an adequate remedy.

12 § 50-13-13. Contested cases; notice; hearing; record; powers of hearing officer

(a) In addition to any other requirements imposed by common law,

constitution, statutes, or regulations:

(1) In any contested case, all parties shall be afforded an opportunity for hearing

after reasonable notice served personally or by mail;

13 § 50-13-17. Decisions and orders; review

A final decision or order adverse to a party, other than the agency, in a contested

case shall be in writing or stated in the record. A final decision shall include
findings of fact and conclusions of law, separately stated, and the effective date

of the decision or order. Findings of fact shall be accompanied by a concise and

explicit statement of the underlying facts supporting the findings. Each agency

shall maintain a properly indexed file of all decisions in contested cases, which
file shall be open for public inspection with the exceptions provided in paragraph

(4) of subsection (a) of Code Section 50-13-3. A copy of the decision or order and
accompanying findings and conclusions shall be delivered or mailed promptly to each

party or to his attorney of record.

Each agency shall render a final decision in contested cases within 30 days after

the close of the record required by Code Section 50-13-13 except that any agency,
by order, may extend such period in any case in which it shall find that the

complexity of the issues and the length of the record require an extension of the
period, in which event the agency shall render a decision at the earliest date

practicable.
------------ (Emphasis supplied.) Excerpt from 50-13-17

14 “ [1] [2] The Department contends that agency review provided in the Georgia

Administrative Procedure Act is a necessary step in the exhaustion of

administrative remedies required by the Act as a prerequisite to judicial review;

and that the scope of judicial review is limited under the Act to those objections
upon which the agency (the seven member Department of Public Safety) has had an

opportunity to rule.

We agree.”

“It is urged that construction of Code Ann. s 3A-118(a), supra, allows a party
dissatisfied with the initial decision rendered by the hearing officer to bypass

the review available within the agency and directly seek judicial review in the
courts.

In our view this cannot be done.”

“But here, the holding of the Court of Appeals would require the superior court to

pass upon an administrative complaint when the agency had not been required to do
so. This is contrary to a basic principle of administrative law. The Act seeks to

avoid this result so that agencies such as the Department of Public Safety can deal
with disputes at the agency level, and with its own personnel without burdening the

courts, except as a last resort.”

(Emphasis supplied.) 195 S.E.2d 748, 230 Ga. 22, Department of Public Safety v.
MacLafferty, (Ga. 1973)

------------ Excerpt from page 195 S.E.2d 750

'Exhaustion of all administrative remedies available within the Department of

Public Safety is necessary for judicial review of a final decision in a contested

case under the Georgia Administrative Procedure Act (Ga.L.1964, pp. 338, 339; 1965,
pp. 283, 284; Code Ann. Ch. 3A-1).' (Emphasis supplied.) Dept. of Public Safety

v. MacLafferty, 230 Ga. 22(1) > 195 S.E.2d 748. '. . . (A)gency review provided in
the Georgia Administrative Procedure Act is a necessary step in the exhaustion of

administrative remedies required by the Act as a prerequisite to judicial

review. . . .' (Emphasis supplied.) MacLafferty, supra, p. 25, 195 S.E.2d, p.

750.

202 S.E.2d 196, 130 Ga.App. 71, Department of Public Safety v. Foreman, (Ga.App.
1973) ------------ Excerpt from page 202 S.E.2d 197.

"[O]nly in rare instances will the requirement of exhaustion be relaxed. This will
be the case only when the administrative remedy exacts a price which causes it to
be no remedy at all." Moss v. Central State Hosp., 255 Ga. 403, 404, 339 S.E.2d

226 (1986).

DHR points out that it has long been the rule in Georgia that a litigant must
exhaust administrative remedies prior to seeking judicial review of an agency

decision, even if constitutional issues are raised, citing Dept. of Public Safety
v. MacLafferty, 230 Ga. 22, 195 S.E.2d 748 (1973), and Dept. of Public Safety v.

Foreman, 130 Ga.App. 71, 202 S.E.2d 196 (1973).

Moreover, it points out, even use of a declaratory judgment proceeding under OCGA §
9-4-2 to avoid administrative review is not favored. See George v. Dept. of

Natural Resources, 250 Ga. 491, 299 S.E.2d 556 (1983), which also reaffirms the
general principles requiring resort to administrative channels first.

389 S.E.2d 771, 194 Ga.App. 32, Wilson v. Ledbetter, (Ga.App. 1989) ------------

Excerpt from page 389 S.E.2d 774

15 24-5-4
Best evidence, necessity of producing; written evidence as best evidence

(a) The best evidence which exists of a writing sought to be proved shall be
produced, unless its absence shall be satisfactorily accounted for.
(b) Written evidence of a writing is considered of higher proof than oral evidence.

In all cases where the parties have reduced their contract, agreement, or
stipulation to writing and have assented thereto, such writing is the best evidence

of the same.

16 24-1-3
Same rule in all courts and cases

The rules of evidence shall be the same in all courts and in all trials unless
otherwise expressly provided by statute.

17 § 9-11-12. Defenses and objections--when and how presented

(b) How defenses and objections presented. Every defense, in law or fact, to a
claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or

third-party claim, shall be asserted in the responsive pleading thereto if one is

required, except that the following defenses may, at the option of the pleader, be

made by motion in writing:

(1) Lack of jurisdiction over the subject matter;

(2) Lack of jurisdiction over the person;

(3) Improper venue;

(4) Insufficiency of process;

(5) Insufficiency of service of process;

(6) Failure to state a claim upon which relief can be granted;

(7) Failure to join a party under Code Section 9-11-19.

------------ Excerpt from 9-11-12

18 First, we conclude that henceforth, if a trial court intends to take judicial

notice of any fact, it must first announce its intention to do so on the record,

and afford the parties an opportunity to be heard regarding whether judicial notice
should be taken. The reasons for requiring such a rule have been well stated by

the United States Supreme Court in Garner v. Louisiana:

[U]nless an accused is informed at trial of the facts of which the court is taking

judicial notice, not only does he not know upon what evidence he is being
convicted, but, in addition, he is deprived of any opportunity to challenge the

deductions drawn from such notice or to dispute the notoriety or truth of the facts
allegedly relied upon. Moreover, there is no way by which an appellate court may

review the facts and law of a case and intelligently decide whether the findings of
the lower court are supported by evidence where that evidence is unknown. Such an

assumption would be a denial of due process.

504 S.E.2d 679, 269 Ga. 772, Graves v. State, (Ga. 1998)

------------ Excerpt from page 504 S.E.2d 682

(FN16.) Garner v. Louisiana, 368 U.S. 157, 173-74, 82 S.Ct. 248, 7 L.Ed.2d 207
(1961). To the extent that, In the Interest of G.G., 177 Ga.App. 639, 341 S.E.2d

13 (1986), and Walker v. McLarty, 199 Ga.App. 460, 405 S.E.2d 294 (1991) state
otherwise, they are hereby disapproved.

504 S.E.2d 679, 269 Ga. 772, Graves v. State, (Ga. 1998)

------------ Excerpt from page 504 S.E.2d 683.

For all of these reasons, we conclude that in future cases, trial courts are
required to announce on the record an intention to take judicial notice, and to

give the parties an opportunity to be heard on whether judicial notice should be

taken.

504 S.E.2d 679, 269 Ga. 772, Graves v. State, (Ga. 1998)

------------ Excerpt from page 504 S.E.2d 682