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Criminal History & Expungments

Posted By Joette Melendez, Tuesday, July 18, 2017

NEW YEAR….NEW YOU 

 

That is a promise a lot of people make to themselves on New Year’s Day. As you try to improve yourself, one thing holding many people back is their criminal history. You vow to get better job, go back to school, or move to a different area, but you may feel like a past brush with the law prevents you from moving forward. Although Georgia is one of the strictest states in the country as it relates expungement, there are several ways in Georgia to get past a spotted criminal history. 

 

The most common roadblocks on one’s criminal history are arrests with no convictions. Generally, if you were arrested for an offense, but you were never convicted, you can have this arrest removed from your criminal history. This applies to both felony and misdemeanor charges. The case may have been dismissed because you completed a pre-trial diversion program, or the victim did not want to press charges, or because the prosecutor decided there was not enough evidence to prove the case against you. Whatever the reason, most arrests that do not end with convictions can be removed from your criminal history.1 If the arrest occurred before July 1, 2013, you must apply to have this arrest removed. If the arrested occurred after July 1, 2013, the Georgia Criminal Information Center (the agency that maintains criminal history records in Georgia) will automatically remove the arrest within 30 days of the dismissal without you having to submit a separate application. 

 

Even if you were arrested AND convicted of an offense, all hope is not lost. You may still be able to have the conviction removed from your criminal history depending on the severity of the charge, your age, and how much time has passed since the conviction. 

 

First, let’s talk about misdemeanor convictions. If you were convicted of a misdemeanor offense before you turned 21, you are considered to be a youthful offender and you can file a petition to have that convicted removed from your criminal history. This applies to most misdemeanor offenses like shoplifting, possession of marijuana, battery, assault, and obstruction, just to name a few. However convictions for DUI and any misdemeanor offense that is sexual in nature (i.e., pandering or sexual battery) cannot be removed, no matter how old you were at the time of conviction. Also, to qualify you must have successfully completed your misdemeanor sentence and have no arrests (other than arrests for non-serious traffic offense) for the five years after completing your sentence. 

 

Now, let’s tackle the most difficult obstacle to overcome on your criminal history; a felony conviction. Felony convictions in Georgia may be restricted on your criminal history only under very extraordinary circumstances. Currently, the only remedy available to you is to apply for retroactive first offender treatment for your felony conviction under a fairly new law. Although it may only help a few Georgians, in 2015, the legislature passed a law that allowed for retroactive first offender treatment. If you were convicted and sentenced for a felony, and you could have been sentenced as a first offender at the time, but it was not offered to you, you can NOW apply to use first offender treatment on that old case; even if that case is decades old. In essence, the judge goes back and grants you a privilege that you  could and should have taken advantage of initially. The application ultimately requires approval from both the prosecutor and a judge, but if it is granted, it will clear a felony conviction from your record. 

 

 1 There a few uncommon situations where your charges may be dismissed, but the arrest is still not eligible to be removed. These can be found at O.C.G.A. § 35-3-37(i)(1)-(3)

 

If you are not eligible for retroactive first offender treatment and your felony conviction cannot be cleared from your record, you should apply for a pardon. A pardon can help erase the stigma that a felony conviction brings to your life. A pardon does not clear or erase a felony conviction from your record, but a pardon is a notation on your record that the State of Georgia has pardoned or officially forgiven you for that offense. To qualify for a pardon, you must have completed your sentence at least five years before applying, and you must have lived a law-abiding life during the five years prior to applying. If a potential employer searches your criminal history, a pardoned offense will still show, but there will be a notation that the State of Georgia has pardoned you, which may go a long way with many businesses and entities in proving that you are a new you. 

 

It’s important to note that none of the relief laid out above applies to federal offenses or to cases that occurred outside of Georgia. 

 

Finally, I want to make sure you know what record restriction and expungement means in Georgia. Many people believe that parts of their criminal record can be completely deleted or sealed. While that may be true in other States, in Georgia the best that someone with a criminal record can achieve is to have parts of that record “restricted.” If you are able to take advantage of any of the remedies laid out in this article, and parts or all of your criminal history become restricted, it is not literally wiped away clean. Those portions of your criminal history that have been restricted will no longer be seen by the public, including most employers, agencies, and organizations. However, criminal records that have been restricted can still be accessed by law enforcement agencies (police departments, probation officers, FBI, etc.) for criminal justice purposes only. My use of the terms “erase”, “remove” and “clear” throughout this piece all refer to restriction as it is known in Georgia. 

 

This content was written by one of our panel members, Laila Kelly, an attorney in Decatur, Georgia.

 

 

***If you or someone you know is faced with criminal law issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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