Georgia Record Restriction as of 2021
This law is new as of 2021 and I am overjoyed to tell you about it. We have a 90 percent success rate in having troublesome misdemeanors removed from people’s record. My latest case was a disabled, rideshare driver who had a misdemeanor case over ten years ago. He had been moving along just fine until his company did another records check and fired him. He had been without work for three months when he sought help from my office. Many times the State will just agree to these petitions, but not this time. This case required a Motion’s hearing and after the Judge heard from witnesses the judge agreed to our Petition for Restriction. It gave me such pleasure to send the order over to my client. He is now back at work and the fear of losing everything is in his rear view mirror.
The actual law is below but please call us to see if you qualify.
Effective: July 1, 2021
Ga. Code Ann., § 35-3-37
§ 35-3-37. Criminal history record information
(1) “Drug court treatment program” means a treatment program operated by a drug court division in accordance with the provisions of Code Section 15-1-15.
(3) “Mental health treatment program” means a treatment program operated by a mental health court division in accordance with the provisions of Code Section 15-1-16.
(4) “Nonserious traffic offense” means any offense in violation of Title 40 which is not prohibited by Article 15 of Chapter 6 of Title 40 and any similar such offense under the laws of a state which would not be considered a serious traffic offense under the laws of this state if committed in this state.
(5) “Prosecuting attorney” means the Attorney General, a district attorney, or the solicitor-general who had jurisdiction where the criminal history record information is sought to be modified, corrected, supplemented, amended, or restricted. If the offense was a violation of a criminal law of this state which, by general law, may be tried by a municipal, magistrate, probate, or other court that is not a court of record, the term “prosecuting attorney” shall include the prosecuting officer of such court or, in the absence of such prosecuting attorney, the district attorney of the judicial circuit in which such court is located.
(6) “Restrict,” “restricted,” or “restriction” means that the criminal history record information of an individual relating to a particular offense shall be available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the center and shall not be disclosed or otherwise made available to any private persons or businesses pursuant to Code Section 35-3-34 or to governmental agencies or licensing and regulating agencies pursuant to Code Section 35-3-35.
(7) “Serious violent felony” shall have the same meaning as set forth in Code Section 17-10-6.1.
(9) “Veterans treatment program” means a treatment program operated by a veterans court division in accordance with the provisions of Code Section 15-1-17.
(d) If an individual believes his or her criminal history record information to be inaccurate, incomplete, or misleading, he or she may request a criminal history record information inspection at the center. The center at which criminal history record information is sought to be inspected may prescribe reasonable hours and places of inspection and may impose such additional procedures or restrictions, including fingerprinting, as are reasonably necessary to assure the security of the criminal history record information, to verify the identities of those who seek to inspect such information, and to maintain an orderly and efficient mechanism for inspection of criminal history record information. The fee for inspection of criminal history record information shall not exceed $15.00, which shall not include the cost of the fingerprinting.
(e) If the criminal history record information is believed to be inaccurate, incomplete, or misleading, the individual may request that the entity having custody or control of the challenged information modify, correct, supplement, or amend the information and notify the center of such changes within 60 days of such request. In the case of county and municipal jails and detention centers, such notice to the center shall not be required. If the entity declines to act within 60 days of such request or if the individual believes the entity’s decision to be unsatisfactory, within 30 days of the end of the 60 day period or of the issuance of the unsatisfactory decision, whichever occurs last, the individual shall have the right to appeal to the court with original jurisdiction of the criminal offenses in the county where the entity is located.
(f) An appeal pursuant to subsection (e) of this Code section shall be to acquire an order from the court with original jurisdiction of the criminal offenses that the subject information be modified, corrected, supplemented, or amended by the entity with custody of such information. Notice of the appeal shall be provided to the entity and the prosecuting attorney. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient service on the entity having custody or control of the disputed criminal history record information. The court shall conduct a de novo review and, if requested by a party, the proceedings shall be recorded.
(g)(1) Should the court find by a preponderance of the evidence that the criminal history record information in question is inaccurate, incomplete, or misleading, the court shall order such information to be appropriately modified, corrected, supplemented, or amended as the court deems appropriate. Any entity with custody, possession, or control of any such criminal history record information shall cause each and every copy thereof in its custody, possession, or control to be altered in accordance with the court’s order within 60 days of the entry of the order.
(2) To the extent that it is known by the requesting individual that an entity has previously disseminated inaccurate, incomplete, or misleading criminal history record information, he or she shall, by written request, provide to the entity the name of the individual, agency, or company to which such information was disseminated. Within 60 days of the written request, the entity shall disseminate the modification, correction, supplement, or amendment to the individual’s criminal history record information to such individual, agency, or company to which the information in question has been previously communicated, as well as to the individual whose information has been ordered so altered.
(i) The offense against such individual is closed by the arresting law enforcement agency. It shall be the duty of the head of the arresting law enforcement agency to notify the center whenever a record is to be restricted pursuant to this division within 30 days of such decision. A copy of the notice shall be sent to the accused and the accused’s attorney, if any, by mailing the same by first-class mail within seven days of notifying the center; or
(ii) The center does not receive notice from the arresting law enforcement agency 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, or any political subdivision thereof for prosecution and the following period of time has elapsed from the date of the arrest of such individual:
(II) If the offense is a felony, other than a serious violent felony or a felony sexual offense specified in Code Section 17-3-2.1 involving a victim under 16 years of age, four years; or
(III) If the offense is a serious violent felony or a felony sexual offense specified in Code Section 17-3-2.1 involving a victim under 16 years of age, seven years.
If the center receives notice of the filing of an indictment subsequent to the restriction of a record pursuant to this division, the center shall make such record available in accordance with Code Section 35-3-34 or 35-3-35. If the center does not receive notice of a charging instrument within 30 days of the applicable time periods set forth in this division, such record shall be restricted by the center for noncriminal justice purposes;
(B) The individual was sentenced in accordance with the provisions of subsection (a) or subsection (c) of Code Section 16-13-2, and either the court ordered restriction upon sentencing as permitted in Code Section 16-13-2 or the individual successfully completed the terms and conditions of his or her probation;
(C) The individual pleaded guilty to or was found guilty of a violation of paragraph (2) or (3) of subsection (a) of Code Section 3-3-23 and was sentenced in accordance with the provisions of subsection (c) of Code Section 3-3-23.1, and either the court ordered restriction upon sentencing as permitted in Code Section 3-3-23.1 or the individual successfully completed the terms and conditions of his or her probation;
(D) The individual successfully completed a drug court treatment program, mental health treatment program, or veterans treatment program, the individual’s offense has been dismissed or nolle prossed, and he or she has not been arrested during such program, excluding any arrest for a nonserious traffic offense; or
(E) The individual was acquitted of all of the charged offenses by a judge or jury unless, within ten days of the verdict, the prosecuting attorney demonstrates to the trial court through clear and convincing evidence that the harm otherwise resulting to the individual is clearly outweighed by the public interest in the criminal history record information being publicly available because either:
(j)(1) When an individual had a felony charge dismissed or nolle prossed or was found not guilty of such charge but was convicted of a misdemeanor offense that was not a lesser included offense of the felony charge, such individual may petition the court in which he or she was accused or convicted, as applicable, or, if such charge was dismissed, the superior court in the county where the arrest occurred to restrict access to criminal history record information for the felony charge within four years of the arrest. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the arresting law enforcement agency and the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall grant an order restricting such criminal history record information if the court determines that the misdemeanor conviction was not a lesser included offense of the felony charge and that the harm otherwise resulting to the individual clearly outweighs the public interest in the criminal history record information being publicly available.
(2) When an individual was convicted of an offense and was sentenced to punishment other than the death penalty, but such conviction was vacated by the trial court or reversed by an appellate court or other post-conviction court, the decision of which has become final by the completion of the appellate process, and the prosecuting attorney has not retried the case within two years of the date the order vacating or reversing the conviction became final, such individual may petition the court in which he or she was convicted to restrict access to criminal history record information for such offense. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall determine whether granting an order restricting such criminal history record information is appropriate, giving due consideration to the reason the judgment was reversed or vacated, the reason the prosecuting attorney has not retried the case, and the public’s interest in the criminal history record information being publicly available.
(3) When an individual’s charged offense has remained on the dead docket for more than 12 months, such individual may petition the court in which the charged offense is pending to restrict access to criminal history record information for such charged offense. Such petition shall be served on the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall determine whether granting an order restricting such criminal history record information is appropriate, giving due consideration to the reason the offense was placed on the dead docket; provided, however, that the court shall not grant such motion if an active warrant is pending for such individual.
(4)(A) When an individual was convicted in this state of a misdemeanor or a series of misdemeanors arising from a single incident, provided that such conviction was not for any offense listed in subparagraph (B) of this paragraph, and such individual has completed the terms of his or her sentence and has not been convicted of any crime in any jurisdiction for at least four years prior to filing a petition under this subparagraph, excluding any conviction for a nonserious traffic offense, and provided, further, that he or she has no pending charged offenses, he or she may petition the court in which the conviction occurred to restrict access to criminal history record information. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall grant an order restricting such criminal history record information if it determines that the harm otherwise resulting to the individual clearly outweighs the public’s interest in the criminal history record information being publicly available.
(i) Family violence simple assault in violation of subsection (d) of Code Section 16-5-20, unless the individual was a youthful offender;
(ii) Family violence simple battery in violation of subsection (f) of Code Section 16-5-23, unless the individual was a youthful offender;
(iii) Family violence battery in violation of subsection (f) of Code Section 16-5-23.1, unless the individual was a youthful offender;
(iv) Family violence stalking in violation of Code Section 16-5-90;
(v) Violating a family violence order in violation of Code Section 16-5-95;
(vi) Child molestation in violation of Code Section 16-6-4;
(vii) Enticing a child for indecent purposes in violation of Code Section 16-6-5;
(viii) Improper sexual contact by employee or agent, improper sexual contact by a foster parent, and improper sexual contact by person in a position of trust in violation of Code Section 16-6-5.1;
(ix) Public indecency in violation of subsection (b) of Code Section 16-6-8;
(x) Keeping a place of prostitution in violation of Code Section 16-6-10;
(xi) Pimping in violation of Code Section 16-6-11;
(xii) Pandering by compulsion in violation of Code Section 16-6-12;
(xiii) Sexual battery in violation of Code Section 16-6-22.1;
(xiv) Obstructing or hindering persons making emergency telephone call in violation of Code Section 16-10-24.3;
(xv) Peeping Toms in violation of Code Section 16-11-61;
(xvii) 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 in violation of Code Section 16-8-14 or 16-8-14.1, as applicable; or
(C) An individual shall be limited to filing a petition under this paragraph to a lifetime maximum of requesting record restriction on two convictions for a misdemeanor or a series of misdemeanors arising from a single incident. For the purposes of this subparagraph, the conviction of two or more offenses charged in separate counts of one or more accusations consolidated for trial shall be deemed to be one conviction. If a petition under this subsection has been denied, an individual may file a subsequent petition on the same conviction for a misdemeanor or series of misdemeanors arising from a single incident after the expiration of two years from the date of the final order from the previous petition.
(5) When an individual was arrested on a fugitive from justice warrant as provided in Code Section 17-13-4, such individual may petition the superior court in the county where the arrest occurred to restrict access to criminal history record information for such warrant. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the arresting law enforcement agency and the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall grant an order restricting such criminal history record information if the court determines that circumstances warrant restriction and that the harm otherwise resulting to the individual clearly outweighs the public interest in the criminal history record information being publicly available.
(6)(A) A defendant convicted of an offense and sentenced while such individual was a victim of an offense of trafficking under Code Section 16-5-46 may petition the court imposing the sentence to restrict such conviction. Such court shall maintain the jurisdiction, power, and authority to restrict such conviction and sentence.
(ii) May include documentation of a defendant’s status as a victim of an offense of trafficking under Code Section 16-5-46 at the time of the offense; provided, however, that official documentation shall not be required to obtain relief under this paragraph. Such documentation shall create a rebuttable presumption that the defendant was a victim of trafficking under Code Section 16-5-46. As used in this subparagraph, the term “official documentation” includes, but is not limited to, the following:
(I) A copy of an official record, certification, or eligibility letter from a federal, state, tribal, or local proceeding showing that the defendant was a victim of trafficking under Code Section 16-5-46;
(II) An affidavit, a letter, or sworn testimony from a member of the clergy, medical professional, member of a victim services organization, or certified, licensed, or registered professional from whom the defendant has sought assistance, counseling, or legal counsel related to his or her victimization; or
(C) If the prosecuting attorney, to the court, consents in writing to the restriction of such conviction and sentence or fails to respond to such petition within 30 days of service, the court imposing the conviction and sentence shall, without notice or hearing, issue an order restricting the conviction and sentence.
(D) If the prosecuting attorney, to the court, objects in writing to the petition, the court shall determine, by a preponderance of the evidence, whether the defendant committed such offense while such individual was a victim of an offense of trafficking under Code Section 16-5-46. If the court finds, by a preponderance of the evidence, that the defendant committed such offense while such individual was a victim of an offense of trafficking under Code Section 16-5-46, the court may issue an order restricting the conviction and sentence. The court shall hold a hearing within 90 days of the filing of the petition to hear evidence for purposes of making a determination under this subparagraph or make a determination upon the pleadings or record.
(7) When an individual was convicted in this state of an offense for which that individual has been granted a pardon from the State Board of Pardons and Paroles as provided in the Constitution and Code Section 42-9-42, provided that the offense was not a serious violent felony as such term is defined in Code Section 17-10-6.1 or a sexual offense as such term is defined in Code Section 17-10-6.2, and provided, further, that such individual has not been convicted of any crime in any jurisdiction, excluding any conviction for a nonserious traffic offense, since the pardon was granted, and provided, further, that he or she has no pending charged offenses, he or she may petition the court in which the conviction occurred to restrict access to criminal history record information. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall grant an order restricting such criminal history record information if it determines that the harm otherwise resulting to the individual clearly outweighs the public’s interest in the criminal history record information being publicly available.
(k)(1) The center shall notify the arresting law enforcement agency of any criminal history record information, access to which has been restricted pursuant to this Code section, within 30 days of the date access to such information is restricted. Upon receipt of notice from the center that access to criminal history record information has been restricted, the arresting law enforcement agency or other law enforcement agency shall, within 30 days, restrict access to all such information maintained by such arresting law enforcement agency or other law enforcement agency for such individual’s offense that has been restricted.
(2) An individual who has had criminal history record information restricted pursuant to this Code section may submit a written request to the appropriate county or municipal jail or detention center to have all records for such individual’s offense that has been restricted maintained by the appropriate county or municipal jail or detention center restricted. Within 30 days of such request, the appropriate county or municipal jail or detention center shall restrict access to all such criminal history record information maintained by such appropriate county or municipal jail or detention center for such individual’s offense that has been restricted.
(l) If criminal history record information is restricted pursuant to this Code section and if the entity declines to restrict access to such information, the individual may file a civil action in the superior court where the entity is located. A copy of the civil action shall be served on the entity and prosecuting attorney for the jurisdiction where the civil action is filed, and they may become parties to the action. A decision of the entity shall be upheld only if it is determined by clear and convincing evidence that the individual did not meet the criteria set forth in subsection (h) or (j) of this Code section.
(m)(1) For criminal history record information maintained by the clerk of court, an individual who has a record restricted pursuant to this Code section may petition the court with original jurisdiction over the offenses in the county where the clerk of court is located for an order to seal all criminal history record information maintained by the clerk of court for such individual’s charged offense. Notice of such petition shall be sent to the clerk of court and the prosecuting attorney. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient notice.
(n)(1) Except as provided in subsection (j) of this Code section, as to arrests occurring before July 1, 2013, an individual may, in writing, request the arresting law enforcement agency to restrict the criminal history record information of an arrest, including any fingerprints or photographs taken in conjunction with such arrest. Reasonable fees shall be charged by the arresting law enforcement agency and the center for the actual costs of restricting such records, provided that such fee shall not exceed $50.00.
(2) Within 30 days of receipt of such written request, the arresting law enforcement agency shall provide a copy of the request to the prosecuting attorney. Within 90 days of receiving the request, the prosecuting attorney shall review the request to determine if the request meets the criteria set forth in subsection (h) of this Code section for record restriction, and the prosecuting attorney shall notify the arresting law enforcement agency of his or her decision within such 90 day period. If the prosecuting attorney denies such request, he or she shall cite with specificity the reason for such denial in writing and attach to such denial any relevant documentation in his or her possession used to make such denial. There shall be a presumption that the prosecuting attorney does not object to the request to restrict the criminal history record information if he or she fails to respond to the request for a determination within the 90 day period set forth in this paragraph. The arresting law enforcement agency shall inform the individual of the prosecuting attorney’s decision, and, if record restriction is approved by the prosecuting attorney, the arresting law enforcement agency shall restrict the criminal history record information within 30 days of receipt of the prosecuting attorney’s decision.
(3) If a prosecuting attorney declines an individual’s request to restrict access to criminal history record information, such individual may file a civil action in the superior court where the entity is located. A copy of the civil action shall be served on the entity and prosecuting attorney for the jurisdiction where the civil action is filed, and they may become parties to the action. A decision of the prosecuting attorney to decline a request to restrict access to criminal history record information shall be upheld unless the individual demonstrates by clear and convincing evidence that the arrest is eligible for record restriction pursuant to subsection (h) of this Code section and the harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record information being publicly available.
(4) To restrict criminal history record information at the center, an individual shall submit a prosecuting attorney’s approved record restriction request or a court order issued pursuant to paragraph (3) of this subsection to the center. The center shall restrict access to such criminal history record information within 30 days of receiving such information.
(o) Nothing in this Code section shall give rise to any right which may be asserted as a defense to a criminal prosecution or serve as the basis for any motion that may be filed in any criminal proceeding. The modification, correction, supplementation, amendment, or restriction of criminal history record information shall not abate or serve as the basis for the reversal of any criminal conviction.
(p) Any application to the center for access to or restriction of criminal history record information made pursuant to this Code section shall be made in writing on a form approved by the center. The center shall be authorized to develop and publish such procedures as may be necessary to carry out the provisions of this Code section. In adopting such procedures and forms, the provisions of Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” shall not apply.
(r) If the center has notified a firearms dealer that an individual is prohibited from purchasing or possessing a handgun pursuant to Part 5 of Article 4 of Chapter 11 of Title 16 and if the prohibition is the result of such individual being involuntarily hospitalized within the immediately preceding five years, upon such individual or his or her attorney making an application to inspect his or her records, the center shall provide the record of involuntary hospitalization and also inform the individual or attorney of his or her right to a hearing before the judge of the probate court or superior court relative to such individual’s eligibility to possess or transport a handgun.
(t) In the course of a civil action and upon request, the court shall order that any relevant criminal history record information that has been restricted or sealed pursuant to this Code section for any witness in that civil action shall be provided to the parties in that proceeding for use only in that proceeding. Any information disclosed in such order shall not be published outside the proceedings and any subsequent appeal.
(u) A restriction or sealing pursuant to this Code section may be used to disqualify an individual for employment or appointment to office in the same manner that a discharge under Article 3 of Chapter 8 of Title 42 may be used to disqualify an individual from employment as set forth in Code Section 42-8-63.1, and such restriction or sealing shall not supersede any disclosure or consideration of criminal history record information required by federal law, including, but not limited to, those disclosures required by financial institutions, as such term is defined in Code Section 7-1-4.