Georgia Expungement and Record Restriction: SB 288 Updates and How to Clear Your Record

A criminal arrest record can follow you for years, affecting employment, housing, education, and professional licensing opportunities, even if you were never convicted. Georgia law provides a mechanism called "record restriction" (commonly referred to as expungement) that can limit public access to certain criminal records. Recent legislative updates, including Senate Bill 288, have expanded eligibility and streamlined the process. Here is what you need to know about clearing your record in Georgia.

Record Restriction vs. Expungement: Understanding the Terms

Georgia technically does not have "expungement" in the traditional sense. Instead, Georgia uses a process called "record restriction" under O.C.G.A. § 35-3-37. Record restriction does not destroy the record. Instead, it restricts access so that the record is no longer visible on standard background checks conducted by employers, landlords, and licensing agencies. Law enforcement and certain government agencies retain access to restricted records.

The practical effect of record restriction is similar to expungement in other states: it allows you to legally state on most job applications and housing applications that you have not been arrested or convicted of the restricted offense.

Who Is Eligible for Record Restriction?

Eligibility for record restriction in Georgia depends on how your case was resolved. Under O.C.G.A. § 35-3-37, the following outcomes may qualify:

Automatic Restriction (No Petition Required)

Under the revised statute, certain records are restricted automatically without requiring you to file a petition:

• Acquittal: If you were found not guilty at trial, the record is restricted automatically.
• Dismissal or nolle prosequi: If the charges were dismissed by the prosecutor (nolle prosequi) or by the court, the record is restricted automatically after a waiting period.
• Dead docketed cases: Cases that have been placed on the dead docket (inactive docket) for a specified period may qualify for automatic restriction.

Petition-Based Restriction

For other case outcomes, you must file a petition with the court and meet specific criteria:

• First Offender Act completions: If you were sentenced under the Georgia First Offender Act (O.C.G.A. § 42-8-60) and successfully completed all terms of the sentence, you may petition for record restriction. The discharge under the First Offender Act is not automatic record restriction; a separate petition is required.
• Conditional discharge (drug offenses): If you received a conditional discharge for a first-time drug offense under O.C.G.A. § 16-13-2 and completed probation, you may petition for restriction.
• Youthful offenders: Persons convicted before the age of 21 of certain misdemeanor offenses may petition for restriction after completing the sentence and waiting the required period.
• Certain misdemeanor convictions: Georgia law has expanded the categories of misdemeanor convictions eligible for restriction, particularly for offenses that do not involve violence, sexual conduct, or driving under the influence.

SB 288: Expanding Record Restriction Eligibility

Senate Bill 288, signed into law in Georgia, represented a significant expansion of record restriction eligibility. Key provisions include:

• Broader misdemeanor eligibility: SB 288 expanded the list of misdemeanor offenses eligible for record restriction. Many non-violent misdemeanor convictions became restrictable for the first time, including certain theft offenses, criminal trespass, and disorderly conduct.
• Reduced waiting periods: The bill reduced the waiting period for certain record restriction petitions. For dismissed cases and acquittals, the process was made automatic. For other eligible cases, waiting periods were shortened.
• Automated processes: SB 288 directed the Georgia Crime Information Center (GCIC) to develop automated systems for processing record restrictions, reducing the administrative burden on petitioners and courts.
• Multiple offenses: The bill addressed situations where individuals have multiple arrest records, allowing for restriction of multiple eligible records through a single petition process.

What Offenses Cannot Be Restricted?

Not all criminal records are eligible for restriction in Georgia. The following categories are generally excluded under O.C.G.A. § 35-3-37:

• Sex offenses requiring registration under O.C.G.A. § 42-1-12
• Crimes against minors (child molestation, cruelty to children, etc.)
• Family violence offenses (simple battery, battery, assault in a family violence context)
• DUI convictions (O.C.G.A. § 40-6-391)
• Serious violent felonies as defined by O.C.G.A. § 17-10-6.1 (murder, armed robbery, kidnapping, aggravated sexual battery, aggravated child molestation, aggravated sodomy, rape)
• Most felony convictions (with limited exceptions under the First Offender Act)

This list highlights the importance of consulting with an attorney to determine your specific eligibility. The law is detailed and fact-specific, and what qualifies for one person may not qualify for another.

The Record Restriction Process in Georgia

For records that require a petition (as opposed to automatic restriction), the general process is as follows:

1. Obtain your criminal history: Request a copy of your Georgia criminal history record from the Georgia Crime Information Center (GCIC). This will identify all records on file and help determine which are eligible for restriction.
2. Determine eligibility: Review each record with an attorney to confirm it meets the statutory requirements for restriction. Consider the type of offense, the outcome of the case, the waiting period, and any disqualifying factors.
3. File a petition: Prepare and file a petition for record restriction in the court where the case was handled. The petition must include specific information about the offense, the disposition, and your eligibility basis.
4. Serve the prosecuting attorney: The petition must be served on the prosecuting attorney who handled the case (district attorney or solicitor general). The prosecutor has the opportunity to object to the restriction.
5. Hearing (if contested): If the prosecutor objects, the court holds a hearing to determine whether restriction is appropriate. The petitioner has the burden of proving eligibility.
6. Court order: If the court grants the petition, it issues an order directing GCIC to restrict the record. The restriction typically takes effect within a few weeks of the order.
7. Verification: After the restriction is processed, obtain an updated criminal history to confirm that the record no longer appears on standard background checks.

Practical Impact of Record Restriction

Record restriction can have a transformative effect on your life. Here are some of the practical benefits:

• Employment: Most employers who conduct standard background checks through third-party screening companies will not see restricted records. Georgia law also prohibits employers from asking about restricted records in most circumstances.
• Housing: Restricted records will not appear on standard tenant screening reports, improving your ability to secure rental housing.
• Education: College and university applications typically ask about criminal convictions. Restricted records generally do not need to be disclosed.
• Professional licensing: While some licensing boards have access to restricted records (particularly in healthcare and law enforcement), many do not, and restriction can facilitate the licensing process.
• Peace of mind: Perhaps most importantly, record restriction allows you to move forward without the constant burden of an arrest or conviction following you through life.

Limitations of Record Restriction

Record restriction is not a complete erasure of your criminal history. Several important limitations apply:

• Law enforcement access: Police, prosecutors, and courts retain access to restricted records. If you are arrested again, the restricted record may be visible to these agencies.
• Federal records: Record restriction under Georgia law does not affect federal databases, such as those maintained by the FBI. Federal background checks may still reveal the arrest.
• Immigration: For immigration purposes, restricted records may still be relevant. USCIS and immigration courts can access records that are restricted under state law. If you are a non-citizen, consult with an immigration attorney before relying on record restriction for immigration benefits.
• Certain licensing boards: Some professional licensing agencies have statutory access to restricted records. Research your specific licensing requirements before assuming restriction will resolve licensing issues.

Common Mistakes to Avoid

When pursuing record restriction in Georgia, avoid these common pitfalls:

• Assuming automatic eligibility: Not all dismissed cases or First Offender completions automatically qualify. Confirm eligibility with an attorney before filing.
• Missing waiting periods: Filing too early will result in denial. Ensure you have waited the required period before petitioning.
• Incomplete petitions: Courts require specific information and documentation. An incomplete petition will delay the process or result in denial.
• Ignoring multiple records: If you have multiple arrest records, each must be evaluated individually. Restricting one record does not affect others.
• Relying on restriction for immigration purposes: As noted above, restriction may not protect you in immigration proceedings. Get specialized immigration advice if applicable.

Cost of Record Restriction

The cost of pursuing record restriction in Georgia varies depending on the complexity of your case. General costs include:

• Court filing fees (typically $50 to $200 per petition, depending on the court)
• GCIC criminal history report fee (approximately $20 to $35)
• Attorney fees (vary based on complexity; a straightforward petition may cost a few hundred dollars, while contested cases cost more)

Given the long-term benefits of a clean record, including improved employment and housing prospects, the investment in record restriction typically provides substantial returns.

Contact J. Lee & Associates Law Group

If you have a criminal arrest or conviction on your record in Georgia and want to explore your options for record restriction, contact J. Lee & Associates Law Group in Norcross. Our criminal defense team can review your criminal history, determine your eligibility, prepare and file your petition, and represent you in any contested hearings. We serve clients throughout Gwinnett County, Fulton County, DeKalb County, and the metro Atlanta area. Take the first step toward a fresh start by contacting us today.