concurring specially.
I agree with the majority’s affirmance of the trial court’s grant of the motion to suppress in the instant case. However, I must concur specially so as to explicate what I perceive to be the crucial distinction between the instant case and the whole-court decision in Baker v. State, 202 Ga. App. 73 (413 SE2d 251) (1991).
Title 17, Chapter 4, Article 2 of the OCGA addresses the authority of a law enforcement officer to make an initial arrest. OCGA §. 17-4-23 authorizes, but does not require, an officer to effectuate a noncustodial arrest for certain traffic offenses through issuance of a traffic citation. A custodial arrest for those traffic offenses can, in the officer’s discretion, nevertheless be effectuated pursuant to OCGA § 17-4-20. Brock v. State, 196 Ga. App. 605, 606 (1) (396 SE2d 785) (1990). A custodial arrest necessarily mandates that the arrestee is to be taken into custody by the arresting officer.
Title 17, Chapter 6, Article 1 of the OCGA does not address the authority of an officer to make an initial arrest, but the entirely distinct issue of the arrestee’s subsequent bail and recognizance. OCGA § 17-6-1 provides generally for a judicial determination of bail and recognizance. However, OCGA § 17-6-11 specifically provides that one who has been subjected to a non-custodial arrest for certain traffic offenses through the officer’s discretionary issuance of a citation is not to be held in custody pending a judicial determination of bail and recognizance, but may simply deposit his driver’s license with the arresting officer. A grant of authority to make a non-custodial arrest would be pointless if the officer, having determined to make such a discretionary non-custodial arrest pursuant to OCGA § 17-4-23, was nevertheless required to bring the arrestee into custody for a judicial *72determination of bail and recognizance pursuant to OCGA § 17-6-1. This anomaly is obviated by the authorization in OCGA § 17-6-11 of a non-judicial determination of bail and recognizance when the officer has determined to effectuate a discretionary non-custodial arrest for certain traffic offenses pursuant to OCGA § 17-4-23. In the case of such a discretionary non-custodial arrest, the officer simply accepts the arrestee’s driver’s license in lieu of a judicial determination of bail and recognizance and then allows the arrestee to drive away.
It would, however, be highly anomalous to hold that an officer, having determined to make a discretionary custodial arrest pursuant to OCGA § 17-4-20 (a), would nevertheless be required to accept the arrestee’s driver’s license in lieu of a judicial determination of bail and recognizance. To allow the arrestee simply to drive away would be antithetical to the concept of a custodial arrest. This would, in effect, mean that the officer has no discretion to make a custodial arrest of a traffic offender pursuant to OCGA § 17-4-20 (a) and that the traffic offender has an absolute right to be subjected to only a non-custodial arrest pursuant to OCGA § 17-4-23. This is clearly not the law of this state. It is the officer, not the arrestee, who makes the determination as to whether the arrest will be custodial or non-custodial. “The language of OCGA § 17-4-23 (a) that an officer ‘may arrest’ for a traffic violation by means of a citation clearly is discretionary. For the convenience of the motoring public and the police, the Code section gives the officer the option of issuing a citation rather than going through the time-consuming ordeal of a custodial arrest. It does not mandate a citation.” Brock v. State, supra at 606 (1). Accordingly, a discretionary custodial arrest necessarily mandates the “time-consuming ordeal” of taking the arrestee into custody for a judicial determination of bail and recognizance, whereas that “time-consuming ordeal” is necessarily obviated only in the event that the officer has determined to effectuate a discretionary non-custodial arrest by means of a traffic citation.
The defendant in Baker v. State, supra, had been subjected to a valid custodial arrest for a traffic offense pursuant to OCGA § 17-4-20, and we rejected the contentions that, under OCGA §§ 17-4-23 and 17-6-11, a defendant had an absolute right to be subjected to only a non-custodial arrest. Since Baker’s custodial arrest was lawful, she was properly taken into custody for a judicial determination of her bail and recognizance. Accordingly, an inventory search of her bag pursuant to her lawful custodial arrest was valid and her motion to suppress was properly denied.
Unlike the defendant in Baker, appellee in the instant case was not subjected to a valid custodial arrest pursuant to OCGA § 17-4-20. He was subjected to an invalid custodial arrest pursuant to former OCGA § 33-34-12 (1) (3). That former statute, unlike OCGA § 17-4-*7323, did not give the officer any discretion to effectuate a custodial arrest, but specifically mandated a non-custodial arrest for the specific traffic offense which appellant was charged with having committed. Since appellee’s custodial arrest was unlawful, he was illegally taken into custody for a judicial determination of his bail and recognizance. Accordingly, the inventory search of his automobile and person pursuant to his unlawful custodial arrest was invalid and his motion to suppress was properly granted.
Decided November 26, 1991. Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellant. T. Michael Martin, for appellee.I am authorized to state that Judge Arnold Shulman joins in this special concurrence.