As experienced criminal defense trial attorneys in Augusta, Georgia, we obtain favorable results for our clients.  These results include acquittals, dismissals, pretrial diversions, and reductions in charges. During our client consultations, we are often asked “how do I expunge my record?”  This article will provide an overview of issues surrounding record restriction.

What is a record restriction?

In Georgia, record restriction, formerly known as expungement, is the process of removing criminal charges from an arrest record.    Record restriction limits the information accessible to the general public and most employers about prior arrests. Your arrest history can have a significant impact on your ability to find work and may even impact housing availability.

Why is record restriction important?

The Georgia Crime Information Center is the state agency that tracks a person’s arrests and convictions and also provides background checks. Background checks are requested for a variety of reasons including:

  • Employment
  • Licensing
  • Immigration
  • Volunteers
  • Security clearance
  • Housing

When a person is arrested and charged with a crime, certain personal information is collected, reported, shared, and accessible to law enforcement agencies across the state.  Arrest history is connected to specific identifying information, such as fingerprints, social security numbers, and dates of birth. This same information is requested by many potential employers and organizations when screening for the purposes listed above.

Who receives an application for record restriction?

The process of restricting a past criminal arrest involves multiple agencies, including the prosecuting officer, the arresting agency, police department, or sheriff’s office, as well as the Georgia Bureau of Investigations (GBI), which is the record keeping agency for all fingerprintable arrests in the State of Georgia.

An application for restriction must be made to each arresting agency.  If you live in a large geographic judicial circuit, such as Augusta which includes Burke, Columbia, and Richmond Counties, an application for record restriction will need to be made with each sheriff’s office.

Who is the prosecuting officer?

The prosecuting officer varies by jurisdiction. The District Attorney is an elected official and prosecutes felonies in Superior Court. The District Attorney is also charged with prosecuting misdemeanors in areas where there is not an designated misdemeanor prosecutor.  The Solicitor General prosecutes misdemeanors in counties that have elected to create a State Court. These prosecutors review applications to determine whether a charge is eligible to be removed from your criminal record.

What kind of records can be expunged in Georgia?

In Georgia, several factors are taken into consideration to determine whether a record can be restricted.  Both the timing of when a case is dismissed and the reason a case is dismissed are important. Additionally, participation in a treatment court or successful completion of a deferred adjudication program can create an opportunity for restriction of an arrest and associated charges at a later date.

Can you get your record restricted if you plead guilty?

Charges can be resolved at varying stages during the course of a prosecution.  Examples include the following:

  • A person may be arrested for a particular offense, but formal charges never follow and the case is dismissed for insufficient evidence.   
  • A person may be arrested for a particular offense, and the charges are upgraded by the charging document or indictment, but a enters a guilty plea to a lesser included offense.  
  • One agency may initiate a prosecution but the charges are later pursued by a different agency.  
  • A person may be acquitted of all charges during a trial because the prosecutor could not meet the burden of proof requiring guilt beyond a reasonable doubt.
  • A person may acquitted of some charges, and found guilty of lesser included offenses of other charges during a trial.
  • An aggressive and effective motions practice may result in the suppression of evidence recovered by law enforcement. Evidence recovered during the bad search can no longer be used at trial and the case is dismissed.

In the above examples, some of those accused are eligible to have their charges and arrests restricted while others are not. Additionally, a person sentenced pursuant to the First Offender Act has some protections while under sentence and increasing protections once the conditions imposed by the court have been successfully completed.

Does record restriction happen automatically?

Record restrictions also have a time component.  Some arrests are automatically restricted while others actually require an application.  The older the arrest, the more likely it is to need review. The law regarding expungements changed in 2013.  The exact date of arrest determines whether an offense will be automatically restricted upon certain dispositions or will require an application.

Can I appeal a denial of a record restriction?

Evidentiary hearings before the court can be requested to challenge the interpretation and application of certain record restriction provisions.  The court is empowered to engage in a balancing test weighing public policy and community interests against the harm to the accused. Most often a record restriction occurs after a final disposition of a charge.  However, if a conviction has been overturned by an appellate court and the case has not been retried in a timely fashion, a restriction may be available to the accused.

The attorneys at Davis, Chapman, and Wilder, LLC understand that your past does not predict your future and that sometimes people find themselves in unanticipated situations.  Don’t let an old arrest keep you from reaching your maximum potential. Davis, Chapman, and Wilder, LLC has the experience and expertise to review your criminal history and help you clean up your record.  Call us today at 706-200-1578 to find out how we can help you.

CategoryCriminal Law