What is record restriction/expungement?
Record restriction is the process of ensuring that certain criminal records are unavailable to be viewed by the public. An individual’s criminal history is never permanently deleted and can always be viewed by law enforcement and the criminal justice system.
Prior to July 1, 2013, this process was known as “expungement,” and some people still use this word to describe the process.
Who is eligible for record restriction?
You are eligible for record restriction if your case did not result in a conviction. For example, you are eligible for record restriction if:
- You completed a Pre-trial Diversion Program. These programs do not result in convictions. As a result, if you complete a program like this, you are eligible for record restriction.
- You plead guilty under the Conditional Discharge statute (O.C.G.A. § 16-13-2). Conditional Discharge operates slightly differently than a pre-trial diversion program. Under O.C.G.A. § 16-13-2, a person pleads guilty to the charge and is sentenced. However, if they successfully complete their sentence, the case is discharged without a conviction. The person is therefore eligible for record restriction.
- Your case was closed by the arresting agency.
- Your case was dismissed, or nolle prossed, by the prosecutor.
- Your case was not presented to the grand jury, or the grand jury twice refuses to indict your case.
- You go to trial and the jury acquits you.
- Your case was dead docketed for 12 months.
There are some exceptions to these general rules.
Even absent a conviction, you may not be eligible for record restriction if:
- The prosecutor dismisses a charge because you plead guilty to other charges in the case.
- The prosecutor dismisses a charge because you were prosecuted in another jurisdiction for related charges.
- Evidence was suppressed, resulting in a dismissal.
You may also be eligible for record restriction if you have been convicted of certain misdemeanor offenses prior to the age of 21. In the five years prior to the request for record restriction, you must not receive new charges. Certain charges are ineligible for record restriction under this provision – for example, people convicted of DUI are ineligible for record restriction. You should talk to a qualified Georgia attorney about record restriction if you were convicted prior to age 21.
I’m eligible for record restriction because my case did not result in a conviction – how do I do it?
As previously stated, the rules regarding record restriction changed on July 1, 2013. As a result, the procedure for having your records restricted depends on when you were arrested. If you were arrested prior to July 1, 2013, you will need to apply for record restriction. This is done through the arresting agency, and fees may be required. It must be completed within 150 days.
If you were arrested after July 1, 2013, records are restricted automatically when the clerk of court enters the disposition of the case into the GCIC database. You do not need to take any action.
In some cases, records cannot be restricted without a formal petition filed with the court.
- You were a youthful offender,
- Your case was dead docketed for 12 months,
- Your conviction was vacated or overturned by an appellate court, or
- You plead guilty only to an unrelated misdemeanor in the case,
you must file a petition formally requesting that your records be restricted. While it is technically possible to do this pro se (on your own, without an attorney), an attorney is well-equipped to handle these motions on your behalf.
If you have any questions regarding your eligibility for record restriction, or how to go about completing the process, please contact my office immediately. Record restriction can make a huge difference in your life.