Expungement and Record Restriction in Georgia

Expungement and Record Restriction in Georgia

A criminal record can follow you for years, affecting your ability to find employment, secure housing, obtain professional licenses, and even pursue educational opportunities. In the Atlanta metropolitan area, where the job market is competitive and background checks are standard practice for most employers, having a criminal record can be a significant barrier to rebuilding your life. Fortunately, Georgia law provides mechanisms for eligible individuals to have their criminal records restricted or, in certain limited circumstances, expunged. Understanding the difference between record restriction and expungement, who qualifies, and how to navigate the process can open doors that a criminal record has kept closed.

Understanding the Difference: Expungement vs. Record Restriction in Georgia

In many states, the term expungement refers to the complete destruction or sealing of a criminal record. Georgia law uses different terminology and has a more nuanced system. It is important to understand the distinction between expungement and record restriction under Georgia law, as they serve different purposes and apply to different situations.

Expungement Under O.C.G.A. Section 35-3-37

Under Georgia law, expungement as governed by O.C.G.A. Section 35-3-37 applies primarily to arrest records rather than conviction records. When a record is expunged in Georgia, the arrest record is purged from the Georgia Crime Information Center (GCIC) database. Expungement is generally available when charges were dismissed, the individual was acquitted at trial, the case was nolle prosequi (the prosecutor declined to pursue the charges), or the arrest was made without probable cause. It is critical to understand that expungement in Georgia does not apply to convictions. If you were convicted of a crime, expungement of that conviction record is generally not available. Instead, you would need to pursue record restriction.

Record Restriction Under O.C.G.A. Section 35-3-37(j)

Record restriction, sometimes informally called record sealing, is the process by which a criminal record is made inaccessible to the general public but remains available to law enforcement and certain government agencies. Under O.C.G.A. Section 35-3-37(j), record restriction is available for certain offenses and under certain conditions. When a record is restricted, it will not appear on standard background checks conducted by employers, landlords, or educational institutions. However, law enforcement agencies, prosecutors, and certain licensing boards may still access restricted records.

Who Qualifies for Record Restriction in Georgia?

Georgia's record restriction laws have been expanded in recent years, providing more opportunities for individuals to move past their criminal history. The following categories of individuals may qualify for record restriction.

Cases Resulting in Acquittal, Dismissal, or Nolle Prosequi

If you were arrested but the charges were ultimately dismissed, you were found not guilty at trial, or the prosecutor entered a nolle prosequi, you are generally eligible for record restriction. Under O.C.G.A. Section 35-3-37(j)(1), these records can be restricted so that they do not appear on standard background checks. This is particularly important for individuals who were wrongfully arrested or whose cases were resolved favorably.

First Offender Treatment Under O.C.G.A. Section 42-8-60

Georgia's First Offender Act, codified at O.C.G.A. Section 42-8-60, allows individuals who have never been convicted of a felony to be sentenced without a formal adjudication of guilt. Upon successful completion of the sentence, including any probation, community service, or other conditions, the case is discharged without a conviction. Records associated with first offender treatment are eligible for restriction under O.C.G.A. Section 35-3-37(j)(2). This is one of the most powerful tools available to first-time offenders in Georgia, as it allows them to avoid the long-term consequences of a criminal conviction.

Certain Misdemeanor Convictions

Under Georgia law as amended by recent legislative changes, certain misdemeanor convictions may be eligible for record restriction. Generally, misdemeanor offenses that are not crimes of moral turpitude and do not involve sexual offenses, domestic violence, or offenses against minors may qualify. The individual must have completed their sentence, including any probation and payment of fines, and a waiting period must have elapsed since the completion of the sentence. The specific waiting period and eligibility requirements depend on the nature of the offense.

Youthful Offenders

Individuals who committed offenses as juveniles may have additional options for record restriction or sealing under Georgia's juvenile code. O.C.G.A. Section 15-11-79.2 provides for the sealing of juvenile records under certain circumstances, which can prevent youthful mistakes from having lifelong consequences.

The Record Restriction Process in Georgia

The process for obtaining record restriction in Georgia involves several steps and can vary depending on the county where the case was adjudicated.

Step 1: Obtain Your Criminal History Record

The first step is to obtain a copy of your Georgia criminal history record from the GCIC. This will show all arrests and dispositions on file and help identify which records may be eligible for restriction. You can request your criminal history through the Georgia Bureau of Investigation.

Step 2: Determine Eligibility

Review each entry on your criminal history to determine which records are eligible for restriction. This analysis should consider the disposition of each case (conviction, dismissal, acquittal, etc.), the nature of the offense, whether first offender treatment was applied, and the time elapsed since the completion of any sentence. An experienced criminal defense attorney can help you assess your eligibility and identify all records that may qualify.

Step 3: File the Appropriate Petition or Application

For records that qualify for automatic restriction, such as certain dismissed cases, the restriction may occur without any action on your part once the prosecuting attorney's office or the court processes the disposition. For other records, you may need to file a petition with the court in the county where the case was heard. In Fulton County, petitions are filed with the Fulton County Superior Court or the appropriate municipal court. In DeKalb County, Gwinnett County, Cobb County, and other metro Atlanta jurisdictions, the process is similar but may have county-specific procedures.

Step 4: Serve Notice on the Prosecuting Attorney

In most cases, the prosecuting attorney must be notified of the petition for record restriction and given an opportunity to object. The district attorney's office in the relevant county will review the petition and may consent to or oppose the restriction. If the prosecution objects, a hearing may be required where both sides can present arguments to the judge.

Step 5: Court Hearing and Order

If a hearing is necessary, the judge will consider the nature of the offense, the applicant's criminal history, the time elapsed since the offense, and any objections from the prosecution. If the judge grants the petition, an order of record restriction will be issued directing the GCIC and other agencies to restrict the record. The restricted record will then be removed from standard background check databases.

Impact of Record Restriction on Employment in Atlanta

For many Atlanta residents, the primary motivation for seeking record restriction is employment. Georgia law under O.C.G.A. Section 35-3-37(j)(4) provides that restricted records shall not be disclosed to employers conducting standard background checks. This means that once your record is restricted, you can generally answer no when asked on a job application whether you have been arrested or convicted, provided the restricted record is the only relevant entry. This can dramatically improve your prospects in Atlanta's job market, from positions with major employers in Buckhead and Midtown to opportunities with small businesses throughout the metro area.

Professional Licensing Considerations

It is important to note that certain professional licensing boards may still have access to restricted records. If you are pursuing a career that requires a professional license, such as nursing, teaching, law enforcement, or law, you should consult with an attorney about how record restriction may or may not affect your licensing application. Some boards require disclosure of all arrests regardless of disposition, while others only inquire about convictions.

Record Restriction and Housing in Metro Atlanta

A criminal record can also create barriers to securing housing. Many landlords and property management companies in the Atlanta area conduct background checks as part of the rental application process. A restricted record will generally not appear on these checks, potentially improving your ability to secure housing in desirable areas throughout Fulton, DeKalb, Cobb, and Gwinnett counties.

Recent Legislative Developments

Georgia's record restriction laws have undergone significant changes in recent years. Legislative efforts to expand eligibility for record restriction have been part of a broader criminal justice reform movement in the state. These changes reflect a growing recognition that allowing individuals to move past minor criminal records benefits not only the individual but also the community and the economy. Staying informed about legislative developments is important, as new laws may expand or modify eligibility criteria for record restriction.

The Role of Pardons in Record Clearing

In cases where record restriction is not available, a pardon from the Georgia State Board of Pardons and Paroles may be an option. Under the Georgia Constitution and O.C.G.A. Section 42-9-42, the Board of Pardons and Paroles has the authority to grant pardons to individuals convicted of crimes in Georgia. A pardon does not erase the conviction but serves as an official statement of forgiveness and can restore certain civil rights, including the right to vote and the right to possess firearms. The pardon application process is separate from record restriction and involves its own eligibility requirements and procedures.

Contact J. Lee & Associates for Record Restriction Assistance

If you have a criminal record that is holding you back from employment, housing, or other opportunities in the Atlanta area, J. Lee & Associates Law Group can help you explore your options for record restriction or expungement. Our criminal defense attorneys have experience navigating the record restriction process in courts throughout metro Atlanta, including Fulton County, DeKalb County, Gwinnett County, Cobb County, and Clayton County. We will review your criminal history, assess your eligibility, and guide you through every step of the process. Contact us today to schedule a consultation at /consultation and take the first step toward a clean slate.

Related Practice Areas: Criminal Defense | Defense Attorney | Immigration

Free Consultation — Call Now

At J. Lee & Associates Law Group, we offer free consultations to evaluate your case. Our bilingual team is ready to help you understand your legal options and fight for the compensation you deserve.

• Phone: (770) 609-9396
• Address: 1250 Tech Dr, Suite 240, Norcross, GA 30093
• Website: https://www.jlalawgroup.com

Se habla español. You pay nothing unless we win your case. Call today for a free and confidential consultation.