Being convicted of a misdemeanor, although not as serious as a felony conviction, will leave a critical mark on your criminal record. This may severely jeopardize your future as your record will be visible on a background check when looking to obtain a job, buy or rent a house, apply for a loan, apply for higher education, and more. If you find yourself in this situation, you may wonder if there is any way around it to lessen or remove the effects of your conviction. Thankfully, in the state of Georgia, there is. With Senate Bill 288 passed in 2021, it is possible to have misdemeanor convictions “expunged” from your criminal record (record restriction). Note that while this article mainly covers misdemeanor convictions, record restriction also applies to some felony convictions, non-convictions (dismissed, nolo prossed, dead pocket, etc.), youthful (juvenile) offenses, and more. Concern a skilled lawyer for specifics regarding these circumstances.
What Is Expungement?
Expungement is a legal process by which a criminal conviction is removed from one’s records. This terminology implies that one’s convictions will be completely deleted from their information; however, this is not the case for the state of Georgia. To more accurately depict the legal process, the term “expungement” has been shifted to “record restriction”.
What Does Record Restriction Do?
Record restriction is slightly different from the literal definition of expungement. Instead of the complete removal of your criminal offenses, the records will be restricted from public view: only certain establishments and authorized personnel will be able to view your misdemeanor records, such as law enforcement and government agencies. This means that your restricted criminal record will not be accessible on a standard background check to potential employers, lenders, and more. This process is extremely beneficial when looking to increase your opportunities and lead a better life after a devastating blow to your criminal record.
Requirements For Eligibility
In Georgia, the law allows individuals to restrict up to two (2) misdemeanor convictions. However, your conviction must be a crime that is eligible for record restriction. While most misdemeanors qualify for this, some, however, can never be restricted. Below is a list of these crimes:
- Family violence assault and/or battery (unless the offender was under the age of 21)
- Family violence stalking
- Sexual battery
- Public indecency
- Child molestation
- Enticing a child for indecent purposes
- “Peeping Tom” crimes
- Any offense against minors
- Obstructing or hindering persons making an emergency telephone call
- Some cases of theft
- See the full list at O.C.G.A. § 35-3-37
If your offense is not one of the exceptions, there are three (3) additional criteria to be met to be eligible for a record restriction fully:
- A person must have completed the terms of their sentence
- A person must not have been convicted of any offenses for at least four (4) years prior to filing the petition (excluding minor traffic offenses)
- A person does not have any pending charged offenses
If you are unsure if you qualify for a restriction, consult a skilled attorney for assistance. If you successfully meet everything mentioned above, you can officially start your record restriction process.
Steps to Record Restricting a Misdemeanor
The record restriction process varies according to the date of your initial arrest. If your date is before July 1, 2013, you will need the arresting agency to process your request. If your date is after July 1, 2013, you will need to contact the prosecuting attorney’s office to start the process. Below are the steps you need to take to restrict your criminal record:
- Step 1: Obtain a copy of your criminal history from the Georgia Crime Information Center (GCIC). You can request this through your local law enforcement agency. Your criminal record will provide valuable information needed for record restriction, such as the date of your arrest. Viewing this, identify the misdemeanor charge you wish to restrict.
- Step 2: Contact either the arresting agency to obtain an application (before July 1, 2013) or the prosecuting attorney’s office (after July 1, 2013) to officially start the process.
- Step 3: File a request to restrict your record(s). Arrests before July 1, 2013, will require you to fill out a “Request to Restrict Arrest Record Form” found here. Arrests after July 1, 2013, do not have a formal application process, and individuals will complete actions that are required by the prosecuting attorney’s office.
- Step 4: Your request will be processed and approved or denied by the court within 90 days. If your request is approved, your prosecuting attorney will submit your application to the GCIC database, and your record will be successfully restricted. If the prosecuting attorney is not able to submit the application on your behalf, you will have to send your application to GCIC yourself. This includes paying a processing fee.
You must apply separately for each arrest you wish to restrict. The court will thoroughly review your petition and will grant a record restriction if they determine that the “harm otherwise resulting to the individual clearly outweighs the public’s interest in the criminal history record information being publicly available”.
My Request Was Denied: What Do I Do?
There are several possible reasons why your request for record restriction was denied. Perhaps your offense was not eligible in the first place or you did not meet all the requirements. Perhaps the prosecuting office objected to your request due to a variety of factors such as the outcome of your original trial. In these situations, an attorney can fight for approval on your behalf or assist you in finding alternative legal pathways that will lessen the consequences of your record. If your request for record restriction gets denied by the court, you will be able to request again (for the same conviction) two (2) years after the date at which the court dismissed it. A skilled attorney can help increase your chances of your request getting approved the second time.
Drawbacks of Record Restriction
As previously mentioned, record restriction will not completely erase your criminal history–only from public view. This does not mean you are 100% safe from your past offenses. Record restriction only applies to court records; any other places that have mentioned your restricted charges are not legally required to remove anything from their respective platforms. So while a future employer will not be able to view the restricted records from running a standard background check, they may still be able to access coverage of your charges through social media posts, news articles, and more. Many additional steps will need to be taken on your behalf if you wish to rid of every trace of your criminal history.
Record Restriction Regarding Pardons
Record restriction/expungement is very different from a pardon. A pardon is an official statement issued by the state that declares an individual officially forgiven of the crime committed. This will not remove/expunge a criminal record from your history; the statement will simply be attached to your criminal record. While a pardon will increase one’s opportunities in employment, education, and more, some may wish to restrict a pardoned offense as well. This is not a rare occurrence, and most pardoned crimes will qualify for record restriction.
While you are not required to obtain legal assistance to apply for record restriction, the process may be difficult to handle yourself. A skilled attorney can assist you with navigating the record restriction process and ensure that it runs smoothly with minimal pitfalls. In addition, they can further assist you if your conviction is not eligible, your previous request was denied, or there are unique circumstances to your case.
This article is written below for informational purposes. As always, it is you are advised to consult with a local and experienced criminal law attorney. Call us today at 770-609-1247 to speak with one of our experienced criminal law attorneys. Contact >>