One of the big changes coming to Georgia law courtesy of the 2012 Criminal Justice Reform Act (HB 1176) is the elimination of expungement.  It will be replaced by a new concept called records restriction.  This change will not become effective until July 1, 2013.

Expungement, We Hardly Knew You

Expungement was of limited use in Georgia.  Firstly, it was not available if you had been convicted of any offense arising out of the incident conduct.  Say, you were arrested for aggravated assault, and you plead down to simple assault (verbal threats).  You would not have been eligible to expunge the records relating to the aggravated assault or the simple assault.  Basically, you could get expungement if the charges were dismissed against you prior to being formally accused or indicted.  Since the case facts aren't always fully explored or examined prior to that point, that made a lot of people ineligible for expungement of their records even where the charges were dismissed against them.The vast majority of people that I have spoken to about expungement over the years had to be told no.

Records Restriction:  What Expungement Should Have Been

Under the new law, which goes into effect on July 1, 2012, the qualifications for restriction of records has been expanded.

Cases Disposed of Prior to a Formal Charging Instrument Being Filed

In Georgia, a court prosecution is begun, in most cases, with the filing of an accusation or an indictment.  An indictment is a charge which has been voted on by a grand jury as a true bill.  If the charge was never referred by the law enforcement agency to a prosecutor (Solicitor General or District Attorney) and was dismissed at the request of the agency, then the person is eligible for restriction of the records if a specified amount of time has passed.  That amount of time is roughly analogous to the statute of limitations.  So, for misdemeanors, the period is two years.  For most felonies, the period is four years.  For serious violent felonies or felony sexual offenses involving a victim under 16 years of age, the period is seven years.Alternatively, if the case has been presented to a grand jury and no billed twice, then records restriction is available.  No bill means the grand jury voted against approving the criminal charges.

Cases Dismissed After Formal Charging Instrument

If all charges were dimissed or nolle prossed, then records restriction is available.

Conditional Discharge

The person received and completed as sentence on a drug possession charge under 16-13-2 (drug offense conditional discharge).  This disposition is a type of first offender treatment where the person ends up not being convicted of the offense.  The person must have successfully completed the probation.

Drug Court or Mental Health Court

A person may also be eligible by completing a drug court or mental health court program successfully, had his or her charges dismissed or nolle prossed, and has gone five years from the dismissal with no serious arrests.

Defendant Acquitted of All Charges

Additionally, if a person goes to trial and is found not guilty of all charges, they may be eligible for records restriction.  However, the prosecutor can petition the court within ten days not to restrict the records.  In this event, the prosecutor must show by clear and convincing evidence that the public interest in the information being available outweighs the individual's interest in restriction because (1) the prosecution was barred form introducing material evidence against the individual on legal grounds or (2) the individual has been charged with the same or similar offense within the previous five years.The first exception is basically there for situations where law enforcement screwed up the case somehow.  For instance, they conducted an illegal search and the murder weapon or contraband is excluded from evidence.  In some of these situations, records restriction can still be appropriate.  But the argument for not restricting may be strong in some cases.  Say, the murder weapon is restricted from evidence because the police searched a location without consent or a search warrant.  There may still be a public interest in knowing that this is a violent individual.  The second exception makes less sense.  If a person has been charged with a drug offense within five years, and the original charge was dismissed, and then he or she is charged again and is found not guilty by a jury, it does not seem that the person should be barred from obtaining records restriction.  It would seem that the prosecution would need to overcome a strong presumption to get that relief.Defendant was only convicted of misdemeanors

If a person is charged with one or more felonies but is only convicted of a misdemeanor offense or offenses, then the person can petition the Superior Court where the arrest occurred within four years to restrict the records. The language of this subsection is a little troubling.  Contextually, it would seem to be that the petition would be brought in the county where the charges were made.  That is not always the same location as where the arrest occurred.  A person could be charged in Rabun County and be arrested in Dallas, Texas, or Atlanta, Georgia.  I think most courts will base venue on where the warrant was issued.This is an important practice pointer for criminal defense attorneys.  Where they plead a felony down to a misdemeanor or a felony trial ends with only misdemeanor convictions, they need to discuss with their clients this narrow window.It is also not clear how this time limit will be applied to cases that predate the effective date of the law.

A major restriction on this avenue of relief is that the misdemeanor conviction must not be a lesser included offense of an acquitted felony charge.  In other words, if a person goes to trial on a charging instrument setting out a felony and related, but not included, misdemeanors, and is acquitted of the felony but convicted of one or more of the non-included misdemeanors, the felony charge may be subject to restriction.

On the other hand, if someone goes to trial on a felony charge, and the jury acquits him of the felony charge but convicts of a lesser included offense, then the record of the felony would not be subject to restriction.  For instance, a person is initially overcharged with aggravated assault.  By either plea bargain or jury decision, the defendant is convicted instead of simple battery, then they will not be eligible to seek to have the felony charge restricted.

This can, therefore, be very important in plea negotiations as the charge that the defendant will plead to is determined.

The 2013 amendment also added a balancing test for the court on the restriction issue to determine whether the harm otherwise resulting to the individual clearly outweighs the public interest in the criminal history record being publicly available.

Defendant Convicted, But Conviction Reversed on Appeal

Where a person is convicted and sentenced to something other than the death penalty, and successfully appeals the conviction, the person will be eligible for records restriction if the State does not retry the case within two years.  The court must determine whether records restriction is appropriate considering the reason for the reversal or vacating of the conviction, the reasons that the case has not been retried, and the public's interest in the information being publicly available.

Case Dead Docketed for More than Twelve Months

Where a case has been placed on the dead docket for more than twelve months, the person can petition the court to restrict the records.  This relief is not available if there is an active arrest warrant outstanding.  The court will consider why the case was placed on the dead docket in deciding if records restriction is inappropriate.

Youthful Offender Provision

Where a person is convicted of only misdemeanors at a young age, has completed all sentences and has not been arrested for five years (excluding minor traffic offenses), the person can petition for records restriction.The big problem with this provision is the definition of youthful offender.  Youthful offender is defined as a person who was less than 21 years of age at the time of conviction.  Basing the decision on the age at the time of conviction is unfair for a number of reasons. First example.  Jay and Silent Bob get busted for misdemeanor marijuana possession outside the convenience store.  Jay is 20 years and five months old.  Bob is 20 years and eleven months old.  They both come to court for the first time three months later.  They both plead guilty, serve their sentence (not conditional discharge), and go five years without getting in trouble again.  Jay can have his records restricted as a youthful offender, Bob cannot.  Why?  It makes no sense.  It should be based on the age at time of arrest.Second example.  Jay and Silent Bob have the same birth date and are the same age.  They both get arrested for marijuana possession.  Jay is arrested in Gwinnett County, he has no defense, and pleads guilty prior to turning twenty-one.  Silent Bob, is arrested in a rural county with a major case backlog.  His case sits on a prosecutor's desk for six months before an accusation is drafted and filed.  The case then doesn't get called for arraignment for several months.  He goes to court and gets an appointed lawyer.  The lawyer puts the case off to investigate whether there is a defense.  In the meantime, Bob turns twenty-one.  He returns to court, his lawyer tells him there is no defense, and pleads him.  Jay gets records restriction, but Bob does not.  Why?  Jay and Silent Bob were equally youthful at the time of their transgressions.  But Bob happened to be arrested in a jurisdiction where cases move slowly.

Records Restriction Not Appropriate for Certain Offenses

The statute sets out that records restriction will not be appropriate for convictions for:Child Molestation, Enticing a Child for Indecent Purposes, Sexual Assault by a person with Supervisory or Disciplinary Authority, Keeping a Place of Prostitution/Pimping/Pandering by Compulsion, Masturbation for Hire, Giving Massages in Place Used for Lewdness, Prostitution, etc., Sexual Battery Offenses Related to Minors set out in Part 2 of Artticle 3 of Chapter 12 of Title 16, Theft (except misdemeanor theft by shoplifting), Serious Traffic Offenses listed in Article 15 of Chapter 6 of Title 40. The last section includes reckless driving, DUI, vehicular homicide, serious injury by vehicle, feticide by vehicle, Fleeing and attempting to elude, aggressive driving, and homicide or serious injury by interfering with traffic control device or railroad sign or signal.

This list of offenses must be considered closely when an attorney engages in charge bargaining on behalf of a client.  The possible availability of records restriction should be discussed with a client prior to entering a plea or prior to going to trial.  If a plea will result in the person being ineligible for records restriction, the attorney has a duty to convey that information to the person.  While records restriction is a collateral consequence of a conviction, recent United States Supreme Court cases indicate that criminal defense attorneys have an obligation to advise their clients as to collateral consequences.

Procedural Issues

The request goes first to the law enforcement agency which created the arrest record.  Within 30 days, it is to provide a copy to the prosecuting attorney's office.  The prosecutor has ninety days to determine if the request meets the requirements of the law.  A failure to act on the request within ninety days creates a presumption that the prosecuting attorney does not object to the request.  If the prosecutor objects to the request, he or she is obligated to state with specificity the basis for the denial of the request..

If there is a denial, the law enforcement agency notifies the individual of that decision and its reasons.

If there is an approval or a failure to act, the the agency is to restrict the records within 30 days of the prosecutor's decision.

If there is a denial, the individual can appeal the prosecutor's decision in the superior court where the law enforcement agency is located by filing a civil action and serving the agency and the prosecutor's office.  The 2013 amendment to the law switches the burden of proof to the individual to establish by clear and convincing evidence that the arrest is eligible for restriction under the law and that the harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record information being publicly available.

Updates

This post has been updated to reflect the changes made by HB 349 in 2013.

Author

Sean A. Black is a Georgia licensed attorney practicing in Northeast Georgia.  His office is in Toccoa, Georgia.  Telephone number is 866-234-4481.  He was named in 2011 and 2012 to the Georgia Super Lawyers for Criminal Defense.  He is a 1992 graduate of the Emory School of Law.