Expungement and Record Restriction in Georgia

Expungement and Record Restriction in Georgia: A Complete Guide

A criminal record can follow you for the rest of your life, affecting employment, housing, education, and professional licensing opportunities. Georgia law provides mechanisms for record restriction (formerly called expungement) that can limit public access to certain criminal records. Understanding the process under O.C.G.A. § 35-3-37 is essential for anyone seeking to move forward with a clean slate.

Expungement vs. Record Restriction in Georgia

It is important to understand that Georgia does not offer true "expungement" in the traditional sense of completely destroying criminal records. Instead, Georgia uses a system of record restriction, which limits who can access your criminal history. Under record restriction, the records still exist but are removed from public databases and are only accessible by law enforcement and certain government agencies.

The key statute governing record restriction is O.C.G.A. § 35-3-37, which was significantly expanded in 2020 and 2021 to provide broader relief to eligible individuals.

Who Qualifies for Record Restriction?

Georgia law provides for automatic and petition-based record restriction depending on the outcome of your case:

Automatic Record Restriction

Under O.C.G.A. § 35-3-37(h), certain records are automatically restricted without requiring a petition:

• Acquittals: If you were found not guilty at trial, your arrest record is automatically restricted.
• Dismissals: If your charges were dismissed, including nolle prosequi (prosecutor declined to pursue), the record is automatically restricted.
• No indictment: If the grand jury returned a "no bill" (declined to indict), automatic restriction applies.
• Dead docketed cases: Cases that have been placed on the dead docket for a specified period may qualify.

Petition-Based Record Restriction

For cases that do not qualify for automatic restriction, you may file a petition under O.C.G.A. § 35-3-37(j):

• Youthful offenders: Individuals convicted of certain misdemeanors before age 21 may petition for restriction after completing their sentence and waiting the required period.
• Certain misdemeanor convictions: Under O.C.G.A. § 35-3-37(j)(4), individuals convicted of specific misdemeanors may petition for restriction after completing their sentence and a waiting period of four years with no new arrests or convictions.
• First Offender completions: Individuals who successfully completed First Offender sentences under O.C.G.A. § 42-8-60 can have their records restricted.
• Pardoned offenses: If you received a pardon from the Georgia Board of Pardons and Paroles, you may petition for record restriction.

Offenses That Cannot Be Restricted

Georgia law excludes several categories of offenses from record restriction:

• Serious violent felonies as defined in O.C.G.A. § 17-10-6.1
• Sex offenses requiring registration under O.C.G.A. § 42-1-12
• Crimes against minors, including child molestation and exploitation
• DUI convictions under O.C.G.A. § 40-6-391 (though DUI arrests without conviction may qualify)
• Certain domestic violence offenses

The Record Restriction Process

The process for obtaining record restriction in Georgia involves several steps:

• Step 1: Determine eligibility. An experienced attorney will review your criminal history to identify which records may qualify for restriction under current Georgia law.
• Step 2: Obtain your criminal history. Request your official criminal history report from the Georgia Crime Information Center (GCIC) to ensure accuracy.
• Step 3: File the petition. For non-automatic cases, your attorney will prepare and file a petition for record restriction in the appropriate court, typically the court where the original case was handled.
• Step 4: Serve notice. The prosecuting attorney must be served with notice of your petition and given an opportunity to object.
• Step 5: Hearing. If the prosecution does not object, the court may grant the petition without a hearing. If there is an objection, a hearing will be scheduled where your attorney can present evidence supporting restriction.
• Step 6: Court order. If granted, the court issues an order directing the GCIC and other agencies to restrict your records from public access.

Impact of Record Restriction

Once your record is restricted, the following protections apply:

• The arrest and charge will not appear on standard criminal background checks conducted by employers, landlords, or educational institutions.
• You may legally deny the existence of the restricted record in most circumstances under O.C.G.A. § 35-3-37(q).
• Law enforcement and certain government agencies can still access the records, but they cannot disclose them publicly.
• If you are charged with a new crime, the restricted records may be used by the prosecution in certain limited circumstances.

Recent Changes to Georgia Record Restriction Law

Georgia has significantly expanded record restriction eligibility in recent years. The 2020 and 2021 legislative sessions brought important changes, including broader eligibility for misdemeanor convictions, streamlined processes for automatic restriction in acquittal and dismissal cases, and expanded relief for individuals who completed diversion programs or conditional discharge.

Why You Need an Attorney

Navigating the record restriction process requires careful analysis of your criminal history, applicable statutes, and court procedures. An experienced Georgia criminal defense attorney can identify all records eligible for restriction, ensure your petition is properly prepared and filed, advocate on your behalf if the prosecution objects, and navigate complex procedural requirements specific to each county.

Contact J. Lee & Associates

At J. Lee & Associates in Norcross, Georgia, our criminal defense team has extensive experience helping clients clear their records through Georgia's record restriction process. We understand how a criminal record can impact every aspect of your life, and we are committed to helping you move forward.

Schedule a confidential consultation today: (770) 609-9396