The following is a video transcript.
Expungements and Record Restrictions
Can you clean up a criminal record in Georgia? Under certain circumstances, you absolutely can do that. Prior to July 1st, 2013, record restrictions in Georgia were known as expungements. Historically, expungements were quite the chore. For a record to be expunged, the burden lay with the defendant to complete a convoluted restriction process.
On July 1st, 2013, the rules changed. Now, an expungement is known as a record restriction. The process has been simplified to allow the prosecuting attorney and the Clerk of Court to report a restrictable offense to the GCIC (Georgia Criminal Information Center) directly and electronically.
Types of Record Restrictions
Record restriction is allowed in three broad areas. First, non-convictions: these are cases completed without a conviction and include cases that are dismissed (also known by the Latin phrase, nolle prosequi, or no prosecution), cases closed by law enforcement without any charges, cases not presented to a grand jury, or cases placed on the dead docket.
The second types of restrictions are youthful offender restrictions. Some Georgia misdemeanor convictions that occurred when the defendant was a youthful offender, meaning under the age of 21, can be restricted. The sentence must be complete with no further offenses in the five years prior to requesting the restriction other than what are considered minor traffic offenses. There are many exceptions to the rule, allowing for youthful offender restriction, charges in fact for which no restriction is available. So be sure to consult the law and an attorney if you can before requesting restriction for a misdemeanor conviction as a youthful offender.
The third type of restriction would be for no felony conviction after a felony arrest, but conviction on an unrelated misdemeanor offense. This would not apply to conviction of a lesser-included offense of the felony arrest, and the court must make a balancing test to determine whether the harm to you, if this information continues to reside in the public domain, is greater than the right of the public to have the information.
Record Restriction Law
Under the Record Restriction Law, if your arrest is not prosecuted, it will be restricted from your GCIC criminal history record automatically after a period of two years for misdemeanors and either four or seven years for felonies, depending on the specific charge. This is the new law after July 1st, 2013 and would apply to those types of arrests. There are many special factors that limit eligibility for record restriction. Consulting with an attorney could be very helpful.
Retroactive First Offender
Now let’s discuss Retroactive First Offender. In 2015, the Georgia General Assembly passed a law allowing the retroactive application of First Offender treatment. What is First Offender treatment? The First Offender Act allows an individual without any prior felony convictions to dispose of a misdemeanor or felony charge, subject to certain limitations, without a conviction. If Retroactive First Offender treatment is granted, the offenses will be retroactively discharged (meaning no conviction for the petitioner), and the matter will be sealed from the petitioner’s Georgia Criminal Information Center history, where subsequently only law enforcement and judicial agencies should have access to the record.
Your 2A Rights
Finally, Georgia law allows the records held in the clerk’s file, the physical records in the courthouse, to be sealed in certain circumstances for cases as they are completed or for cases that had been completed in the past. Now, how does any of this affect your firearms rights? If, for instance, you are a convicted felon or you have been convicted of a misdemeanor crime of domestic violence, by law, you cannot possess firearms or ammunition. If, however, you are eligible to apply a retroactive First Offender to your prior conviction, you may be able to undo the damage to your Second Amendment rights done by that conviction, however many years ago it may have occurred, and to have your rights to firearms restored. That’s a positive effect on your ability to possess firearms. Only a clear understanding of your record and the action you can take can help you. That’s why it’s so very important you understand your specific needs and what can be done to help.
If you have any questions about the process of expungement in Georgia, record restriction, retroactive First Offender treatment, or sealing records, call U.S. LawShield and ask to speak to an Independent Program Attorney.