As expungement lawyers in Georgia, we help our clients clean up their criminal record. From finding work to spending time with your children, having a criminal record can impact nearly all aspects of your life. When you get convicted of a crime, jail time, probation, and fines are just the beginning of a lifetime of consequences. For this reason, many people who get convicted in Georgia find themselves needing to determine if their record is eligible for expungement.
Unfortunately, the answer to this question is painfully clear: In Georgia, expungement is not an option. While a change in the law that went into effect clarifies the option to petition for “record restriction,” in Georgia there is not an option to have your criminal record wiped clean. As explained by the Georgia Justice Project:
“Georgia’s old law used the term ‘expungement,’ which implied that criminal records information was deleted or destroyed. In reality, criminal records were not deleted or destroyed; the term ‘expungement’ simply meant that the information was unavailable to be viewed for all purposes except law enforcement and criminal justice. “Georgia’s new law, effective July 1, 2013, does not use the word ‘expungement.’ Instead, the process is now referred to as ‘record restriction.’ Only the name of the process has changed. Record restriction means that eligible records on your official criminal history report are restricted from public view and are only accessible to law enforcement for criminal justice purposes.” Is this a distinction without a difference? Not necessarily. While private employers and most public employers will not have access to your restricted record, you will not be able to legally state that you “don’t have a criminal record.” Whereas expungement under other states’ laws truly erases your record – making it as though you were never arrested or convicted – in Georgia your criminal record stays with you forever.
Two Paths to Record Restriction in Georgia: Automatic and By Petition
In Georgia, you can have your criminal record restricted in one of two ways: (i) automatically, or (ii) by petition. But, before we get into a discussion of these methods, there are a couple of points that need to be made clear:
- Record Restriction is Charge-Specific. The term “record restriction” as used in Section 35-3-37 of the Georgia Code is somewhat misleading. This is because any “restriction” for which you are eligible does not apply to your criminal record as a whole, but rather only to an individual eligible charge. If you have multiple charges on your criminal record, then you will need to address each charge independently in order to have your entire record restricted from public view.
- Not All Criminal Charges are Eligible for Restriction. Under Section 35.3-37, not all criminal charges are eligible for restriction. As a general rule, felonies convictions are ineligible, including (but not limited to) convictions for child molestation, sexual assault, sexual battery, certain theft crimes, and certain serious traffic offenses.
1. Automatic Record Restriction
If you were arrested but your case was never referred for prosecution, then the record of your arrest will automatically be restricted after a designated time period. The length of this period varied depending upon the severity of the crime for which you were arrested:
- Misdemeanors: Two years
- Felonies: Four years
- Serious violent and sex-related felonies: Seven years
However, this automatic restriction may be temporary. If a prosecutor eventually decides to take up your case, then your record will be “unrestricted” pending the final outcome. Other circumstances in which a criminal record will be automatically restricted include:
- Your case was referred for prosecution but was subsequently dismissed.
- The grand jury returned two no bills.
- The grand jury returned one no bill and the relevant time period listed above has expired.
- Your charge was dismissed or nolle prossed.
- You were sentenced under conditional discharge.
- You completed a drug court treatment program, mental health treatment program, or veterans treatment program, our case was dismissed or nolle prossed, and you were not arrested while you were enrolled in the program.
- You were acquitted in court (unless the prosecution challenges restriction within 10 days of your verdict).
Importantly, these rules are subject to a number of exceptions. For example, a charge will not be automatically restricted if it was dismissed because you entered a plea resulting on conviction for a different offense arising from the same events, or if you were acquitted due to judicial misconduct or jury tampering.
2. Record Restriction by Petition
If your record is not eligible for automatic restriction, then you will need to file a petition with the appropriate court. This will be an option if:
- Your felony charge was dismissed but you were found guilty of an unrelated misdemeanor;
- Your conviction was vacated or reversed;
- Your case has been on the “dead docket” for more than 12 months; or,
- You were prosecuted for a misdemeanor as a youthful offender.
In addition to filing your petition in the appropriate court, you must also serve copies of the petition on all relevant agencies. Your petition will need to include:
- The Offender Tracking Number (OTN) for the specific charge you are seeking to have restricted;
- A copy of the final disposition from the prior case;
- Evidence demonstrating that your criminal record is causing you harm (i.e. preventing you from obtaining housing or finding a job) that “outweighs the public interest in the criminal history record information being publicly available;”
- A Draft Order; and,
- The filing fee or a petition to waive the fee and an affidavit of indigency.
Due to the complexities involved in filing a petition for record restriction (in addition to the potentially severe consequences of failing to successfully have your criminal record restricted), it is important that you seek help from an experienced attorney. At Davis, Chapman, & Wilder, LLC, our attorneys can review your record to determine if you are eligible to file for restriction; and, if you are, we can guide you through the process of filing your petition.
Find Out if Your Criminal Record is Eligible for Restriction
If you would like to speak with a criminal defense lawyer, we invite you to contact us for a confidential initial consultation. To schedule an appointment at our law offices in Augusta, Georgia, please call 706-200-1578 or inquire online today.