This appeal places before the Court a challenge to the constitutionality of OCGA § 40-8-73.1, the statute governing the use of tinted automobile windows in Georgia, which provides in pertinent part that it shall be unlawful for any resident person to operate a motor vehicle in this state . . . which has material and glazing applied . . . to . . . the side or door windows, which . . . reduce light transmission through the . . . window to less than 32 percent or increase light reflectance to more than 20 percent. . . . The provisions of . . . this Code section shall not apply to. . . a vehicle, the windows or windshields of which have been tinted or darkened before factory delivery . . . or any motor vehicle not registered in this state. . . . A police officer stopped Ciak solely because he suspected the windows of the Georgia-registered car she was driving violated OCGA § 40-8-73.1. Smelling alcohol, the officer commenced a DUI investigation, ultimately arresting Ciak for DUI. She was not charged at that time with a violation of OCGA § 40-8-73.1 because a test at the arrest site showed the windows were not tinted beyond the 32 limit, but was eventually charged by accusation with that offense. Ciak filed a motion to suppress all evidence derived from the traffic stop, contending OCGA § 40-8-73.1 is facially unconstitutional as a denial of equal protection. The trial court denied the motion, holding that Ciak failed to prove she was similarly situated to others who are treated differently and that the statute is rationally related to the purpose of officer safety. This Court granted Ciak’s application for interlocutory review and requested the parties to address the constitutionality of OCGA § 40-8-73.1 1. Ciak contends the statute denies equal protection of the law because it applies only to residents of Georgia. The trial court rejected that argument on two bases, first that Ciak was not situated similarly to a class being treated differently, and second that the legislature had legitimately applied piecemeal remedies to achieve the statute’s purpose of promoting the safety of law enforcement personnel. We disagree with both holdings.
The trial court’s order identifies the class of persons affected by the statute as drivers of all vehicles on Georgia roads, but the class to be considered here is actually somewhat smaller. The class of persons affected by the statute comprises the drivers of all motor vehicles which are registered in Georgia and have tinted windows. Within that class, the statute distinguishes between residents of this state and non-residents.1 It is that distinction which Ciak contends denies her equal protection of the law. Her argument is supported by the holding of the U.S. Supreme Court in Williams v. Vermont , 472 U.S. 14, 23 105 SC 2465, 86 LE2d 11 1985: “A State may not treat those within its borders unequally solely on the basis of their different residences . . . .”
