Expungement vs. Records Restriction in Georgia

Georgia’s 2012 Criminal Justice Reform Act (HB 1176) included what may be an improvement in the law for those convicted of crimes.  It dramatically changes the expungement law, in Georgia, to something totally different known as “records restriction”. Expungement was a highly limited tool prior to that time. This change became effective until July 1, 2013.

There are apparently a lot urban myths out there about expungement. I’d say, I used to have around 1 person call me per week asking about getting themselves an expungement. Unfortunately, it was available under such limited circumstances that I almost never had anyone call me who was actually eligible.

 First, expungement was not available if you had been convicted of any offense arising out of the incident conduct.  For example, if you were arrested for aggravated battery, and you plead down to battery, you could not expunge the records relating to the arrest or conviction.

You could get an expungement if the aggravated battery charged was dismissed prior to being formally accused or indicted.  So, only if the police had arrested you and the DA’s office (or solicitor) chose not to prosecute (or couldn’t get an indictment), would you be eligible for expungement. At this stage, the only thing you’d be “expunging” would be the arrest/warrant. This rarely occurs and when it does, most folks are so thrilled that they’re not being prosecuted that applying for an expungement never even occurs to them.

 I’d say 75% of people, who actually took advantage of the old expungement law, were people who had completed some sort of pre-trial diversion program. The old law specifically provided an exception for those folks. This is one of the reasons pre-trial diversion is so popular.

 Records Restriction:

The qualification for “records restriction” is greater than expungement.

 Why Records Restriction is better than Expungement

Expungement dealt exclusively with the record kept by the GCIC. Records restriction allows the individual to (after being granted the restriction) send requests to the arresting law enforcement agency, the jail or detention center, and the Clerk of the Court where having jurisdiction over the charge, to restrict access to THEIR records as well.

 Under expungement, even if the GCIC wiped their record out, the jail, arresting agency and the Clerk of the Court would still have publicly available records for the entire world to see. Private databases farm these additional records to answer background checks requested by potential employers and others. Eliminating these collateral records can be more helpful to many people than restricting the actual GCIC record.

 Also, as mentioned above, records restriction is available in FAR more instances.

 Cases Disposed of Prior to a Formal Charge Being Filed

In Georgia, a prosecution begins, in most cases, with the filing of an accusation or an indictment.  An indictment is a charge which has been voted on by a grand jury as a true bill. Basically, a jury-like group of people are called into a room, presented evidence by the prosecution and asked to vote for a list of charges the prosecution would like to prosecute that person for.

 If the charge was never referred by the law enforcement agency to a prosecutor (Solicitor General or District Attorney) and was dismissed at the request of the agency, then the person is eligible for restriction of the records if a specified amount of time has passed.  That amount of time is roughly analogous to the statute of limitations.  So, for misdemeanors, the period is two years.  For most felonies, the period is four years.  For serious violent felonies or felony sexual offenses involving a victim under 16 years of age, the period is seven years.

 Alternatively, if the case has been presented to a grand jury and “no billed” twice, then records restriction is available.  No bill means the grand jury voted against approving the charges requested by the District Attorney.

 Cases Dismissed After Formal Charging Instrument

If all charges were dismissed or nolle prossed, then records restriction is available.

Conditional Discharge

The person received and completed as sentence on a drug possession charge under 16-13-2 (drug offense conditional discharge).  This disposition is a type of first offender treatment where the person ends up not being convicted of the offense.  The person must have successfully completed all the terms of probation.

 O.C.G.A. §16-13-2 (conditional discharge) is wildly popular in misdemeanor marijuana possession cases, especially in the non-Metro Atlanta counties that don’t have a diversion program. The accused pleads guilty, goes through probation and once the probation is completed, the conviction is “re-opened” and the charge and conviction are “discharged”.

 The problem, under the old law, was that your Georgia Crime Information Center (GCIC) record still reflected “O.C.G.A. §16-13-2” next to the charge and arrest. Anyone who knows what they’re reading can plainly see that the accused plead guilty to the charge. Legally, however, it didn’t come with the administrative repercussions of a typical guilty plea (license suspension, loss of access to student loans etc).   

 Drug Court or Mental Health Court

A person may also be eligible by completing a drug court or mental health court program successfully. Similar to O.C.G.A. §16-13-2, once an individual completes the drug court program, charges are dismissed or nolle prossed. After that, if the person successfully makes it five years from the dismissal with no serious arrests, they’re eligible for records restriction.

 Normally, drug court is only available to those folks with multiple convictions who are facing some significant jail time. By that time, the accused is usually much more concerned with staying out of prison than they are with expungement. Nonetheless, if a person successfully completes Drug Court, gets the charges dismissed, and, basically, stays out of trouble for 5 years, you can apply for records restriction.

 Defendant Acquitted of All Charges

Additionally, if a person goes to trial and is found not guilty of all charges, they may be eligible for records restriction.  This is a big change. Under the old law, a jury finding you Not Guilty did nothing to get the arrest/indictment off your record.

 The catch is, the prosecutor can petition the court, within ten days, not to restrict the records.  In this event, the prosecutor must show by clear and convincing evidence that the public interest in the information being available outweighs the individual's interest in restriction because (1) the prosecution was barred form introducing material evidence against the individual on legal grounds or (2) the individual has been charged with the same or similar offense within the previous five years.

 The first exception is basically there for situations where law enforcement screwed up the case somehow and the defense was granted a Motion to Suppress some of the prosecution’s evidence.  For instance, they conducted an illegal search and the murder weapon or contraband is excluded from evidence.  Say, the murder weapon is restricted from evidence because the police searched a location without consent or a search warrant.  There may still be a public interest in knowing that this is a violent individual. I suspect this exception to be liberally exploited by angry prosecutors who are sore about losing.

 Under the second exception, if you’re charged and convicted of something today and you’re charged, but found not guilty, with the same charge 4 years later, the prosecution can request that the court disallow records restriction.

 Defendant was only convicted of misdemeanors

If a person is charged with one or more felonies but is only convicted of a misdemeanor offense or offenses, then the person can petition the Superior Court where the arrest occurred within four years to restrict the records.

The language of this subsection is a little troubling.  The accused can be arrested and convicted in different counties and even different states. The arrest record would then be in a different county (or state) than where the person pled guilty to (or was convicted of) the misdemeanor offense. It is doubtful that a different state would follow Georgia law and “restrict” the arrest record the way the GCIC would. If in Georgia, the accused would have to petition the Superior Court in the county where the arrest occurred.

 It is also not clear how this time limit will be applied to cases that predate the effective date of the law.  If a defendant went to trial in 2002 for aggravated battery and was acquitted of that charge but convicted of battery, will the person be barred from requesting records restriction or will the courts allow them four years from the effective date of the law? This has yet to be determined.

 Finally, the statute itself, on this issue, makes no sense.  It is provided that the order (records restriction) will only be granted if the court finds that the misdemeanor charge in question did not arise out of the same underlying felony transaction or occurrence.  This simply doesn’t make sense.  If the misdemeanor charge was part of the original indictment or accusation then it would be a VERY rare occurrence for it to not be part of the same underlying transaction or occurrence.  If the misdemeanor charge was a lesser included offense, then it arose from the same underlying transaction or occurrence.  Even if the prosecution is in agreement, and allows the accused to plead to a charge wholly unrelated to the charge in the indictment, the Judge obviously knows that it arose from the same transaction or occurrence that led to your client finding himself in this predicament in the first place. In fact, the first sentence of the subsection states that you can only seek the relief if you were convicted of a misdemeanor or misdemeanors arising out of the same underlying transaction or occurrence.  How this gibberish ends up in the law is beyond my understanding.

 The only situations where I can imagine this becoming applicable is if you happen to be arrested on a felony warrant and, during your pat-down, the police happen to find marijuana in your pocket. The person would be charged with the possession offense on the same indictment, but they’d be totally unrelated offenses. As such, if the person was later acquitted of the felony offense and convicted of the “unrelated misdemeanor” then they’d be eligible for records restriction on the felony.

 Defendant Convicted, But Conviction Reversed on Appeal

If a person is convicted and sentenced (other than the death penalty) and successfully appeals the conviction, they’re eligible for records restriction if the State does not retry the case within two years.  The court must determine whether records restriction is appropriate considering the reason for the reversal or vacating of the conviction, the reasons that the case has not been retried, and the public's interest in the information being publicly available.

 Case Dead Docketed for More than Twelve Months

Where a case has been placed on the dead docket for more than twelve months, the person can petition the court to restrict the records.  This relief is not available if there is an active arrest warrant outstanding.  Often, a case will be placed on the dead docket if an individual has skipped bail and hasn't been caught for several months or even years. The law will obviously not reward these folks by allowing records restriction of their charge. The court will consider why the case was placed on the dead docket in deciding if records restriction is inappropriate.

 Youthful Offender Provision

Where a person is convicted of misdemeanors at a young age, has completed all sentences and has not been arrested for five years (excluding minor traffic offenses), they can petition for records restriction.

 The big problem with this provision is the definition of youthful offender.  Youthful offender is defined as a person who was less than 21 years of age at the time of conviction.  Basing the decision on the age at the time of conviction is unfair for a number of reasons. Primarily, the “age at time of conviction” restriction might end up encouraging accused “youthful offenders” to hurry up and plead guilty so that they can later take advantage of “records restriction” 5 years later when they might otherwise have fought the case. The cost-benefit analysis really depends on how valuable “records restriction” turns out to be.

 Records Restriction Not Allowed For The Following:

The statute sets out that records restriction will not be appropriate for convictions for:

1. Child Molestation
2. Enticing a Child for Indecent Purposes
3. Sexual Assault by a person with Supervisory or Disciplinary Authority
4. Keeping a Place of Prostitution
5. Pimping
6. Pandering by Compulsion
7. Masturbation for Hire
8. Giving Massages in Place Used for Lewdness, Prostitution, etc.
9. Sexual Battery
10. Offenses Related to Minors set out in Part 2 of Article 3 of Chapter 12 of Title 16
11. Theft (except misdemeanor theft by shoplifting)
12. Serious Traffic Offenses listed in Article 15 of Chapter 6 of Title 40.
    1. This section includes reckless driving, DUI, vehicular homicide, serious injury by vehicle, feticide by vehicle, Fleeing and attempting to elude, aggressive driving, and homicide or serious injury by interfering with traffic control device or railroad sign or signal.

 This list of offenses must be considered when an attorney engages in bargaining on behalf of a client.  The possible availability of records restriction should be discussed with a client prior to entering a plea or prior to going to trial.  If a plea will result in the person being ineligible for records restriction, the attorney has a duty to convey that to his client.

 While records restriction is a collateral consequence of a conviction, recent United States Supreme Court cases indicate that criminal defense attorneys have an obligation to advise their clients as to collateral consequences.

 What Records Restriction Isn’t. . .

Even under expungement, Big Brother always had a way to find out what you had done. That will be just as true under records restriction. There’s nothing in the law forcing anyone to eliminate, delete, shred or erase any record. All such records will merely be “restricted”. This means that Big Brother will still have access, but private individuals will be cut off.

 Also, as is outlined above, records restriction is usually not available until long after most convictions. As such, private databases will have already done their dirty work by the time you become eligible. While new access to the records will be restricted, the private databases are under no legal duty to delete your record. As such, employers (or others) utilizing private background checks will very likely have the record based on farming they had done long before you applied for records restriction.

For additional information, please visit my website at www.carnellfirm.com. I can be reached via email at jason@carnellfirm.com or you can call me at 770-729-4809.

- Jason Carnell