Record Expungement

Helping Clients Restrict Their Criminal History Records In Cobb County And In The Atlanta-Metropolitan Area

It has been said that in the age of technology nothing ever completely disappears. And that is true to a large extent. With the internet, social media platforms and computer databases, it is very hard to eliminate information once it is put out into the world. However, we can-and should-take all the steps possible to prevent people from seeing certain information about ourselves. This is especially true when it comes to a person's criminal record. Mugshots, criminal charges, and criminal convictions and sentences can dominate the headlines. Even if your case does not garner any publicity, all of that information can be available to those who wish to look.

I have talked to countless people over the years who have asked one question-"Can I ever make this case disappear like it never happened?" This question makes sense. As people apply to college, or to land that new job they have always wanted, or just want to avoid the embarrassment of someone finding out about a mistake they made several years ago, it is natural for a person to wonder if there is a way to erase that mistake from the record books. The short answer-it all depends.

Record Restriction

In Georgia, the term "expungement" is not actually used. Expungement implies that someone's records will be physically destroyed. Instead, the law uses the term "restrict." This is because a person's criminal history records are not actually destroyed; they are sealed so that most a majority of the general public cannot access or view them. In other words, those records are restricted from public view.

Georgia Code 35-3-37(a)(6) defines the word "restrict" as follows:

“Restrict,” “restricted,” or “restriction” means that the criminal history record information of an individual relating to a particular offense shall be available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the center and shall not be disclosed or otherwise made available to any private persons or businesses pursuant to Code Section 35-3-34 or to governmental agencies or licensing and regulating agencies pursuant to Code Section 35-3-35.

Types Of Cases That Can Be Restricted

Before Indictment, Accusation Or Other Charging Instrument

Pursuant to Georgia Code 35-3-37(h)(1), examples of cases where access to an individual's criminal history record information, including any fingerprints or photographs of the individual taken in conjunction with the arrest, shall be restricted by the center for the following types of dispositions include:

If law enforcement decides not to forward the case onto the prosecuting attorney for disposition; or
The prosecuting attorney decides to dismiss the case after he receives it from law enforcement.

After Indictment, Accusation Or Other Charging Instrument

Georgia Code 35-3-37(h)(2) lists the types of cases that can be restricted after the case is formally charged. Some common examples include:

all charged offenses were dismissed or reduced to a violation of a local ordinance;
the individual successfully completed his sentence pursuant to the Conditional Discharge Act (Georgia Code 16-13-2, et. seq.);
the individual successfully completed his sentence pursuant to the First Offenders Act (Georgia Code 42-8-60, et. seq.);
the individual successfully completed a drug court treatment program, mental health treatment program, or veterans treatment program, the individual's offense has been dismissed or nolle prossed, and he or she has not been arrested during such program, excluding any arrest for a non-serious traffic offense; or
the individual successfully completed a pretrial diversion program pursuant to Georgia Code 15-18-80.

Types Of Cases That Cannot Be Restricted

Pursuant to Georgia Code 35-3-37(i), after the filing of an indictment or accusation, an individual's criminal history record information shall not be restricted if:

1) The prosecuting attorney affirmatively indicates that the offense was dismissed, nolle prossed, or reduced to a violation of a local ordinance because:

Of a plea agreement resulting in a conviction of the individual for an offense arising out of the same underlying transaction or occurrence as the conviction;
The prosecuting attorney was barred from introducing material evidence against the individual on legal grounds, including, without limitation, the granting of a motion to suppress or motion in limine;
The conduct which resulted in the arrest of the individual was part of a pattern of criminal activity which was prosecuted in another court of the state or a foreign nation; or
The individual had diplomatic, consular, or similar immunity or inviolability from arrest or prosecution;

(2) The charged offenses were tried and some, but not all, of the offenses resulted in an acquittal; or

(3) The individual was acquitted of all charged offenses but it was later determined that the acquittal was the result of jury tampering or judicial misconduct.

Misdemeanor Convictions That Can Be Restricted

The Georgia legislature amended the law in 2020 to allow individuals to restrict certain misdemeanor convictions. Pursuant to Georgia Code 35-3-37(j)(4), if an individual was convicted of a misdemeanor offense, that conviction may be restricted if:

that individual has completed the terms of his or her sentence; and
has not been convicted of any crime in any jurisdiction for at least four years prior to filing a petition under this subparagraph, excluding any conviction for a nonserious traffic offense, and
that he or she has no pending charged offenses.

In these cases, the individual may petition the court to restrict access to his criminal history record information. If a hearing is requested by the prosecuting attorney, then the court hall hear evidence and shall grant an order restricting such criminal history record information if it determines that the harm otherwise resulting to the individual clearly outweighs the public's interest in the criminal history record information being publicly available.

Misdemeanor Convictions That Cannot Be Restricted

Georgia Code 35-3-37(j)(4)(B) lists out the criminal offenses that cannot be restricted. They include convictions for DUIs, Family Violence Battery (Domestic Battery), and certain offenses of a sexual nature.

Timeframes

Records Maintained By The Arresting Law Enforcement Agency

If a court orders the restriction of an individual's criminal history, Georgia Code 35-3-37(k) states that the Georgia Crime Information Center shall notify the arresting law enforcement agency of any criminal history record information, access to which has been restricted pursuant to this Code section, within 30 days of the date access to such information is restricted. Upon receipt of notice from the center that access to criminal history record information has been restricted, the arresting law enforcement agency or other law enforcement agency shall, within 30 days, restrict access to all such information maintained by such arresting law enforcement agency or other law enforcement agency for such individual's offense that has been restricted.

Records Maintained By The Clerk Of Court

If a court orders the restriction of an individual's criminal history, Georgia Code 35-3-37(m) states that individual may petition the court with original jurisdiction over the offenses in the county where the clerk of court is located for an order to seal all criminal history record information maintained by the clerk of court for such individual's charged offense.

The court shall order all criminal history record information in the custody of the clerk of court, including within any index, to be restricted and unavailable to the public if the court finds by a preponderance of the evidence that:

The criminal history record information has been restricted pursuant to this Code section; and
The harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record information being publicly available.

Within 60 days of the court's order, the clerk of court shall cause every document, physical or electronic, in its custody, possession, or control to be restricted.

Conclusion

A record restriction is exactly what it sounds like-it is restricting access of your criminal history to most members of the general public. While these records can still be available for viewing and inspection by judicial officials and criminal justice agencies, taking the steps to ensure your personal information is guarded and private can carry many important benefits in many different aspects of your life.

Addison Waid has years of experience helping his clients restrict and seal their criminal history record information.

Call The Law Office of Addison C. Waid IV, LLC today at 770-727-1088 or contact us online to see how he can help you defend this type of criminal case.