The previous law in Georgia used the term (criminal record) "expungement." However, this led many to believe that their records would be deleted or destroyed. In reality, records were neither deleted nor destroyed; this actually meant records were not available to the public but were open to law enforcement. As of July 1, 2013, the term expungement has been removed from the law and replaced by "record restriction." The law has changed in name only.
So, what does record restriction mean exactly? Eligible criminal records are restricted from public view and accessible to law enforcement to effect criminal justice. It is important to note that record restriction does not apply to your "whole" criminal record history. Restricting an entire criminal history is not allowed in Georgia. You have to make an application for each eligible arrest or charge.
What does the term "eligible criminal records" mean?
In the state of Georgia, felony convictions are NOT eligible for restriction. You may apply to the State Board of Pardons to determine eligibility for a pardon.
Georgia Code Section 35-3-37 states the following:
Record restriction shall not be appropriate if the individual was convicted of:
(i) Child molestation;
(ii) Enticing a child for indecent purposes;
(iii) Sexual assault by persons with supervisory or disciplinary authority;
(iv) Keeping a place of prostitution;
(vi) Pandering by compulsion (by duress or coercion causes a person to perform an act of prostitution);
(vii) Masturbation for hire;
(viii) Giving massages in a place used for lewdness, prostitution, assignation, or masturbation for hire;
(ix) Sexual battery;
(x) Any offense related to minors generally;
(xi) Theft in violation of Chapter 8 of Title 16; provided, however, that such prohibition shall not apply to a misdemeanor conviction of shoplifting or refund fraud; or
(xii) Any serious traffic offense (including but not limited to homicide by vehicle, feticide by vehicle, fleeing/attempting to elude police/impersonating police officer, driving a school bus while under the influence of drugs or alcohol).
Records may be restricted in two ways: 1) automatically or 2) by petition:
1) Automatically Restricted
If the case was never referred for further prosecution to the proper prosecuting attorney by the arresting law enforcement agency AND the offense is closed by the arresting law enforcement agency, or the arresting law enforcement agency does not provide notice that the offense has been referred to the prosecuting attorney or transferred to another law enforcement or prosecutorial agency of this state, any other state or a foreign nation.
If this applies, then the record will be automatically restricted after a period of time:
a) Misdemeanor or a misdemeanor of a high and aggravated nature: two (2) years
b) Felony other than a serious violent felony or a felony sexual offense: four (4) years
c) Serious violent felony or a felony sexual offense involving a victim under 16 years of age: seven (7) years
Please note: if the prosecuting attorney decides to take up your case for prosecution, your records will be unrestricted pending results of the action.
There are several other circumstances in which a record may be automatically restricted.
If your record does not qualify for automatic restriction, you will need to file a petition with the court
Why is this important?
When a person gets arrested, law enforcement collects identifying information (full name, date of birth, social security number, fingerprints, etc.). So, having a criminal record could have a significant impact on your life in areas such as employment, professional licensing, other licensing, housing, immigration, etc. Agencies organizations routinely request your identifying information to determine your eligibility or fitness.
Do you need an attorney to file for record restriction: No, you can pursue this action independent of an attorney; however, due to the complexities involved, it is advisable to seek advisement from an attorney.
Seeking Record Restriction?