A criminal charge can interfere with a person’s employment, housing, and education prospects. Even if you are arrested but not convicted of a charge, you technically still have a criminal history. Anyone can do a background check and see that you were arrested. However, some charges for minor crimes or those that are not prosecuted can often be expunged, or restricted, from public view.
Expungement is a process where criminal history records are sealed from the public. In Georgia, expungement is also referred to as record restriction. In August 2020, SB 288 was signed into law. Bill SB 288 enables more residents to seal and restrict certain convictions from their criminal history.
Convictions which are successfully expunged are hidden from public and private background checks, so a landlord or employer will not know you have been convicted of that criminal offense. However, it is important to note that expunged offenses do not disappear entirely. They are still accessible to law enforcement agencies for criminal justice purposes.
Limited crimes can potentially be restricted and sealed under Georgia law. They include:
- Nearly any misdemeanor or felony that has been pardoned.
- Up to two misdemeanor convictions.
Most criminal acts that are not considered a felony in Georgia are misdemeanors. Misdemeanors are typically punishable by fines up to $1,000, jail time up to 12 months, or both. Individuals convicted of a misdemeanor serve time in a county or city jail. Public intoxications, theft, or property valued at less than $500, and possession of marijuana less than 1 ounce are common misdemeanors.
Felonies are more serious crimes and typically result in at least one year in prison. They are classified by degree of severity. Burglary, armed robbery, and murder are felonies in Georgia. Because they are violent in nature, these crimes are not eligible for expungement unless they are pardoned.
There are three specific situations where expungement is possible in Georgia.
It is important to note that even if your criminal charge is dismissed or you are adjudicated not-guilty by the court, you still have a criminal record. A record of that charge will be picked up in a background check. To have that charge removed from public view, it must be expunged.
Cases that are closed without a conviction generally qualify for expungement. These include charges which are closed by the charging agency, dismissed entirely, as well as non-guilty, vacated, and reversed verdicts.
If you were under 21 years old at the time of your conviction, your charge may be expunged. You must have completed your sentence and avoided an addition charge in the five years prior to your request for restriction with the exception of minor traffic offenses.
Felony Charge Closed Without Conviction, but a Final Conviction of an Unrelated Misdemeanor
If your felony charge was closed without conviction and you only convicted of a minor misdemeanor offense for that case, the court may consider how the conviction is impacting your life. If it is a roadblock to housing or employment, the conviction may be restricted.
As you may have determined, expungement guidelines vary from case to case. Your lawyer will speak to your chances of restriction based on the circumstances surrounding your conviction.
Crimes That Are Excluded From Expungement
Many crimes will never qualify for expungement in Georgia, even under SB 288. Misdemeanors that cannot be expunged include:
- Certain DUI charges.
- Certain theft offenses.
- Crimes against minors.
- Public indecency.
- Sexual battery.
Felonies that cannot be expunged include:
- Armed robbery.
- Child molestation.
- False imprisonment.
Keep in mind, this list does not include all of the crimes that cannot be expunged under Georgia law. The best way to find out about your specific situation is to speak with a trusted lawyer who knows the ins and outs of criminal law.
The Expungement Process
Before you begin the process, you or your lawyer should request a copy of your criminal history which includes the date of your arrest and the arresting agency involved. From there, the process depends on the date of your arrest. If you were arrested before July 1, 2013, the arresting agency oversees your request for record restriction. If the arrest occurred on or after July 1, 2013, your lawyer should contact the prosecuting attorney’s office directly. That may be an attorney general, district attorney, or solicitor-general.
Arrests Before July 1, 2013
First, you need to complete Section 1 on the Request to Restrict Arrest Record form and submit it to the arresting agency. They fill out Section 2 and pass it on to the prosecuting attorney’s office.
The prosecuting attorney’s office fills out Section 3 and makes a decision to approve or deny your request within 90 days. The prosecuting attorney’s office then notifies you and the arresting agency of the decision.
Arrests On or After July 1, 2013
You do not have to contact the arresting agency for arrests on or after July 1, 2013. Instead, contact the prosecuting attorney’s office in the county where the arrest occurred. From there, the process is the same.
What Happens if My Request Is Approved?
If your request to restrict your arrest record is approved, the prosecuting attorney submits the completed application to the Georgia Crime Information Center (GCIC) database. In some cases, the prosecuting attorney may not have access to the database. You would need to send the approved application along with a processing fee to the GCIC on your own.
It usually takes two to three weeks for the GCIC to complete record restriction. Once the arrest is restricted in the law enforcement database, you should receive a letter of confirmation in the mail. Always save all documents related to your arrest, request for restriction, and response from the prosecuting attorney and GCIC for your records.
What Happens if My Request Is Denied?
When an applicant’s request for record restriction is denied, they have 30 days to appeal the decision to Superior Court in that country.
Is Restriction Ever Automatic in Georgia?
In Georgia, if you are arrested but your crime is not referred for prosecution, it is automatically restricted from the GCIC after a period of two years for misdemeanors and four years for most felonies. More serious crimes which are not referred for prosecution, including violent and sex-related felonies, are expunged automatically after seven years.
According to Georgia law, some less serious crimes may qualify for expungement. Because there is so much at stake, it makes sense to hire a lawyer to review your situation and handle your request for record restriction in Georgia.
Springfield Criminal Defense Lawyers at Kicklighter Law Help Clients Determine if Their Charges Are Eligible for Expungement
Georgia law provides an avenue for some people with minor convictions to have their arrest records sealed from public view. Record restriction is invaluable for anyone who finds a past arrest is making it challenging to land a job or rent a home. Our Springfield criminal defense lawyers at Kicklighter Law have successfully obtained expungement for clients who have been arrested across the state. Call us at 912-754-6003 or contact us online to schedule a free consultation. Located in Springfield, Georgia, we serve clients throughout Effingham County, Savannah, and the surrounding areas.