Record Restriction: The New Expungement

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  • August 1, 2013

Record Restriction: The New Expungement

Generally, if you are convicted of a crime in Georgia, your criminal record will always contain information about the conviction.  With few exceptions, a conviction is permanent and will remain on your permanent criminal record forever, and your record cannot be restricted.

criminal-record-1Until July 1, 2013, Georgia law provided a statutory means for expunging a criminal record in certain cases.  However, “expungement” was always a misleading term, because even if the process was successful, the criminal record was not erased; rather, access to the information was merely restricted.  In many cases, private background check companies hired by potential employers were able to access criminal records that had been expunged, thereby defeating the purpose of the law.

As of July 1, 2013, aside from “open arrests,” eligibility for record restriction is generally based on the outcome of the case, which is also known as the final disposition.  Before consulting an attorney to determine whether your case is eligible for record restriction, you should obtain a certified copy of the final disposition from the Clerk of Court.  Without the certified copy of your final disposition, it will be impossible to determine whether your case is eligible.

Many additional types of final dispositions are eligible for restriction under the new law.  For example, many final dispositions that were not eligible for record restriction (expungement) under the old law are now eligible for record restriction:

  1. Cases placed on the dead docket by the prosecuting attorney
  2. Cases where no formal charge was entered because the grand jury did not return a bill of indictment (no bill)
  3. Cases with an open arrest (not dismissed by arresting agency nor referred by prosecution)
  4. Cases dismissed because a material witness was unavailable or refused to testify
  5. Cases dismissed because of judicial economy
  6. Cased dismissed because the individual successfully completed a pretrial diversion program that did not specifically allow restriction (expungement)
  7. Cases acquitted by judge or jury (found not guilty after trial)
  8. Cases where the defendant successfully completed a sentence under the Conditional Discharge Statute (O.C.G.A. Section 16-13-2 related to drug possession and nonviolent property crimes)
  9. Cases where the defendant successfully completed a drug or mental health treatment program
  10. Certain misdemeanor CONVICTIONS committed when under the age of 21 (“youthful offender”)
  11. Cases where a conviction is vacated or reversed
  12. Cases where a felony charge is dismissed but the individual is convicted of an unrelated misdemeanor

The following final dispositions are NOT eligible for restriction under either version of the law:

  1. Charge(s) resulted in conviction (except certain misdemeanor convictions committed as a “Youthful Offender”)
  2. Charge(s) dismissed because:

a. Of a plea agreement to at least one other charge related to the case;

b. The conduct was part of a pattern of criminal activity prosecuted in another jurisdiction;

c. The government was barred from introducing material evidence against the individual; or

d. The individual had some form of immunity from prosecution.

 Unless your record will be restricted automatically under the new law, the new process of record restriction is complicated and far beyond the ability of the average layperson.  If you believe your final disposition may be eligible for restriction under the new law, you should obtain a certified copy of your case final disposition, and contact me for a free consultation.

You can find more information about record restriction on the Georgia Justice Project’s website.