Record Restriction Georgia: How to Get an Expungement Under the First Offender Act
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Record restriction Georgia is a legal process of restricting certain criminal record details from public view. Here is what you should know about it.
Author: Philip Kim, Founder, Philip Kim Law, P.C.
Defense lawyer Philip Kim has committed his career to standing up for the accused, and protecting the rights and reputations of his valued clients. If you face criminal charges in Georgia, we can provide you with the skilled, effective defense representation you need.
Published on May 05, 2021, last updated on October 23, 2021.
Expungement vs Record Restriction in Georgia
If you are exploring your options for hiding your criminal record in the state of Georgia, you’ll likely come across two different terms: record restriction and expungement. Although they are similar, there are some key differences that should be noted before you begin the process.
In short, record restriction means that one’s Georgia criminal history is sealed and restricted for criminal justice purposes. The term expunged usually means that your criminal record will be destroyed or completely removed, but this term is no longer used under Georgia law.
The change to the meaning of the term came into effect in Georgia in 2013, even though the record restriction process remains pretty much the same.
Record restriction usually refers to the fact that your official criminal history report will be hidden from public view and can only be seen by law enforcement for criminal justice purposes. In such an instance, the entire criminal history will only be accessible to law enforcement officials who need to use them for the purposes of criminal justice.
Unfortunately, criminal records are not automatically restricted, and you can only get your criminal record restricted if you and your attorney can show that your case qualifies for restriction and then get a court order to expunge the records.
New Record Restriction Law in Georgia
In August of 2020, Brian Kemp, the Georgia Governor, expanded access to the sealing and restriction of convictions. Georgia law allows persons whose charges qualify for restriction to have their convictions expunged for a time.
According to the new record restriction law, a person found guilty of certain crimes can petition for court records to be sealed and restricted if they have less than two misdemeanor convictions in their criminal record.
Applicants can also get their records restricted if they completed a mental health court program or drug court program before July 1, 2013.
Certain first-time drug offenders who have pleaded guilty but have successfully completed their sentence can also petition the court for expungement of record under the Conditional Discharge Act. This can also include any offense for which they had ever been pardoned.
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Georgia Record Restriction Application
Record restriction in Georgia allows for the expunging of your criminal history record for purposes of non-criminal justice subject to approval by the prosecuting attorney. Here are a few key details to note:
- Effective July 1, 2013, you will be required to make the restriction application at the arresting agency. According to the law, the arresting agency should not charge more than $50 as an application fee.
- The application to have a criminal record expunged usually has three sections:
1- Section One
Completed by the applicant and/or their attorney, it has the date of arrest and the type of charges that were brought against the applicant on the arrest date. (It is also important to include the Offender Tracking Number in this section)
2- Section Two
The arresting agency fills in this section before forwarding it to the prosecutor that could either deny or approve the request.
3- Section Three
This is filled in by the prosecutor, who indicates the final disposition restriction code and submits the application to the CCH User Interface. He then notifies the applicant that their application process has been completed.
- In the instance that the prosecuting attorney lacks access to the CCH User Interface, the application will be returned to the arresting agency, which will then advise the applicant to submit the Draft Order and the filing fee to the GCIC.
- Applications denied by the prosecutor, those without a filing fee, and incomplete ones will be returned to the applicant.
- If the prosecutor does not have access to the CCH User Interface, the application may be returned to the arresting agency.
As you can see, there are a lot of details involved in applying for a Georgia record restriction. Because of this, it’s generally best to seek legal assistance with the process. If you are interested in determining whether you qualify for record restriction, please contact Philip Kim Law for a free consultation.
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2021 Georgia Criminal Record Restriction Law
In addition to the changes made in the criminal record restriction laws, Georgia Governor Kemp signed SB 288 into law. The new law offers applicants the potential expungement of certain criminal history records for qualifying felony and misdemeanor convictions.
The law, which came into effect on January 1, 2021, makes some felony and most misdemeanor convictions eligible for sealing and record restriction. This effectively makes your Georgia criminal history unavailable for both private and public background checks.
For qualifying convictions under a misdemeanor, an applicant may request restriction for eligible records of no more than two convictions four years after they successfully complete their sentence.
A sentence is deemed successfully completed when the requisite probation has been terminated and the jail time fully served.
In instances where you are not sure what the final disposition was in a case or if it is not in the criminal history record, you should get it from the clerk’s office of the court that handled the case upon payment of a fee.
The new law applies to court records for misdemeanors except for those listed under OCGA 35-3-37. These include sexual crimes, family violence, battery, and traffic offenses such as DUI. An attorney can help you understand how these guidelines apply to your unique situation.
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Criminal Records Restriction Form in Georgia
To complete the application for criminal records information restriction, you would need to fill in the criminal record restriction form. Under the OCGA S35-3-37, certain criminal history records can be restricted for non-criminal justice purposes as long as the prosecuting attorney provides his or her approval.
Effective July 1, 2013, there is no need to apply for criminal records restriction. Nonetheless, the application process still involves formally contacting the prosecutor to have their record expunged, which is why the term ‘application’ is used.
For arrests prior to July 1, 2013, you will have to apply for the restriction of record from the police departments that were involved in the arrest. The criminal records restriction form may be downloaded from the Georgia Bureau of Investigations.
Georgia First Offender Act Expungement
In the past, it used to be almost impossible to get any Georgia criminal history record expunged for non-criminal justice purposes.
This caused many complications for a lot of people as their background, and criminal history record was often made public. As such, many people found difficulties getting professional licensing, housing, and employment because of their records.
One of the most important exceptions through the years has been the conditional discharge and the first offender act. However, these laws were about felonies, and one could only use them once.
The way this used to work is that once you have used your first offender privilege and then get convicted of another felony, you cannot have the record restricted.
As mentioned above, Georgia recently passed a first offender statute known as Bill SB 288 that would be applied retroactively. The new law allows persons that could have been convicted as first offenders to petition the judge to be granted first offender status.
The act provides an expungement opportunity if you were prosecuted as a youthful offender and now have an unwanted Georgia criminal history.
Still, it is critical to note that you cannot petition the court to restrict your entire criminal history. Rather, you will have to apply for each eligible arrest to be restricted individually.
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Georgia First Offender Act Rules
Record restriction in Georgia is classified into three categories:
With a few exceptions (such as sex-related felonies, child molestation, and serious traffic offenses), particular misdemeanor charges before one turns twenty-one tears of age are eligible for restriction.
Still, there are certain elements that need to be present for your case to be eligible. These include:
- Having successfully completed your sentence
- Not having been charged with an offense for at least five years before submitting the restriction request.
Any case that does not result in a conviction will more often than not be eligible for restriction. This can include:
- Cases that are dismissed by a judge
- Cases where the conviction is reversed
- Cases closed by law enforcement
- Cases where one is found not guilty in a court
- Cases that are not brought before a grand jury
- Cases that are indefinitely postponed (usually referred to as dead docket)
Still, there will be exceptions to this that include:
- If the applicant pled guilty to another charge that was in the same case
- If the applicant had immunity
- If the prosecution in the case failed to present sufficient evidence to convict
- If there was judicial misconduct or jury tampering in your case
- If the prosecution manages to convince the court not to restrict any of the charges brought against you
Felony Charges But Convicted of Unrelated Misdemeanor
The courts are more likely to expunge or restrict your record if you were charged with a felony, but you were not convicted of that charge but instead were found guilty of an unrelated misdemeanor.
However, if you were convicted of a lesser offense that is in some way related to the felony charges that had been brought against you, you may not qualify for getting your record expunged. Regardless, it may be worth reaching out to an attorney to explore your post-conviction options.
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Can First Offender Felony Be Expunged in Georgia?
Overall, most misdemeanors could be eligible for record restriction as long as the applicant satisfies the requirements set out above.
Felony charges tend to be more complicated as you will be required to petition the court for a pardon before filing a restriction petition.
What Can Be Expunged from the Official Criminal Record?
Most misdemeanor crimes can be expunged, or restricted, from one’s criminal record in Georgia. For the sake of public interest, however, there are charges which cannot be restricted under the Georgia Record Restriction laws. These usually include misdemeanors such as:
- Sex crimes against children committed by people with supervisory responsibility or authority
- Certain DUI cases
- Pandering and pimping
- Certain theft cases
- Crimes against minors
- Hindering or obstructing persons making emergency telephone calls
- Sexual battery
- Public indecency
- Child molestation
- Family violence battery convictions (unless the person charged is under the age of 21)
What Can’t Be Expunged from the Official Criminal History Report?
Any felony charge and conviction in a criminal case will usually result in a denial of an application for restriction of the record. These felonies include:
- Sexual exploitation of minors
- Armed robbery
- Sexual assault against people in custody
- Statutory rape
- Enticing a child for indecent purposes
- Child molestation and aggravated child molestation
- False imprisonment
- Sodomy and aggravated sodomy
- Aggravated assault with intent to rape
- Aggravated sexual battery
If you are not sure if you qualify for restriction or expungement of records or if your case happened several years before the change in the law, Philip Kim Law is here to help. Our experienced legal team is willing and ready to offer a free consultation to discover if you qualify for record restriction. Contact us today, and we will do all we can to assist you in getting a clean record and moving forward.
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How can a Lawyer Help in Criminal Record Restriction?
In Georgia, if you want to get free from your criminal record history and want to have a peaceful life, record restriction is the best option for you. This way, your criminal history will only be visible to law enforcement for criminal justice purposes.
Preparing for criminal record restriction and filing a petition in court isn’t an easy task. You need to prepare several documents and follow a detailed process. Moreover, you have to consider the eligibility criteria as well.
During such difficult times, Philip and Kim’s Law firm is ready to help. Our experienced attorneys will help you all theway, from eligibility to getting your records restricted by the court. Contact us today to discuss your case.