What Is Records Restriction?
A criminal record can prevent you from getting a proper job, schooling, and even housing. If you are considering getting your record restricted, this guide is for you.
Record restriction, formerly expungement, is the process of limiting public access to eligible records on a person’s official criminal history report. If successful, restricted criminal record information will only be visible to law enforcement for criminal justice purposes.
After a record restriction, you no longer have to worry about background checks when applying for a job, school, or mortgage. Attorneys at Farnsworth & Murphy, LLC, are here to answer your questions and help you restrict your record.
How Record Restriction Law Works in Georgia
According to OCGA §35-3-37(n), record restriction requests for arrests that took place before July 1, 2013, can be made directly at the arresting law enforcement agency. However, for arrests that happened after this date, record restriction requests must be made to the prosecuting attorney of the county where the arrest occurred.
The law allows you to restrict up to two misdemeanor convictions in your lifetime, provided you meet the eligibility criteria.
Cases Eligible for Restriction Under Georgia Law
Georgia law allows certain criminal history records to be restricted if the person and the offense for which they were arrested or convicted qualify. OCGA §35-3-37(j) describes the cases that qualify for record restriction, and they include:
- An offense that was not referred to the prosecuting attorney for prosecution
- A charge that was dismissed without an indictment or accusation
- A qualifying misdemeanor conviction
- A first-offender and conditional discharge conviction that was not previously restricted
- A conviction that was vacated by the trial court or reversed by an appellate court
- A conviction for an offense committed while the person was a victim of trafficking
- A pardoned felony conviction that’s not a sexual or serious violent felony
- An acquittal by judge or jury
Offenses Not Eligible for Restriction in Georgia
If you were arrested or convicted for any of the following offenses, you will not be eligible for record restriction in Georgia:
- People with supervisory responsibility or authority who commit sex crimes against children
- Certain DUI cases
- Family violence stalking, simple assault, simple battery, and battery, under the offender is under 21
- Violating a family violence restraining order
- Theft offenses other than shoplifting and refund fraud
- Crimes against minors
- Improper Sexual Contact
- Obstructing one from making an emergency phone call
- Sexual battery
- Public indecency
- Child molestation
- Serious violent felony convictions such as murder
- Serious Traffic Offenses such as DUI, vehicular homicide, reckless driving, etc.
In most cases, felony convictions are eligible for restriction unless they were pardoned and you meet the requirements explained below.
Eligibility Requirements for Record Restriction in Georgia
Besides having a qualifying case or offense for record restriction, the applicant must meet the following eligibility criteria:
- They have no pending criminal charges
- They have not been convicted for at least four years before filing
- They completed their term if sentenced
The record cannot be restricted if the charges are nolle prossed (declined for prosecution), dead docketed (indefinitely pending), or dismissed due to any of the following reasons:
- A plea agreement
- A primary witness refused or could not testify
- Suppressed evidence
- The accused was sentenced on other criminal charges, and the prosecuting attorney elected not to prosecute
- The offense was part of criminal activity that was prosecuted in another court
- The accused had some form of immunity, such as diplomatic immunity
How the Georgia Record Restriction Application Works
The application process for record restrictions in Georgia depends on when you were arrested.
For arrests prior to July 1, 2013, you must apply directly to the arresting agency using this application form.
You may be required to pay an application fee set by the arresting agency, provided that it doesn’t exceed $50.
There are three sections in the record restriction application form. You or your attorney completes the first section, and the arresting agency fills in the second. The application is then forwarded to the prosecutor.
The prosecuting attorney fills in the third section and indicates whether the application is:
- Forwarded without objection to the Georgia Crime Information Center (GCIC) due to lack of information
- Approved with no further action anticipated
- Returned to arresting agency for further research.
Consider working with an experienced attorney during the process for further help and guidance.
If you were arrested after July 1, 2013, you must contact the county’s prosecutor or solicitor to request a record restriction. For example, if you were arrested in Fulton County, you should first request an application package from the Fulton County Solicitor’s office, fill in the application, and then email it back to the office.
Other counties may have different application processes, so it’s best to consult a local attorney for guidance.
Farnsworth & Murphy, LLC can Help You
If you want to get your criminal record restricted in Georgia and determine your eligibility, our lawyers at Farnsworth and Murphy, LLC, can help you. Our legal team is well-versed in all aspects of record restriction laws.
It is understandably complicated to navigate Georgia criminal history record restriction laws and eligibility requirements. However, this should not stop you from seeking a restriction and saving your future.
Contact us today to schedule a free consultation.
Who Can See a Restricted Record in Georgia?
Criminal records in Georgia are restricted for all non-criminal justice purposes, including employment background checks. This means that no one can access a restricted criminal record except law enforcement agencies, courts, and prosecutors.
What Is the Automatic Record Restriction in Georgia?
According to OCGA § 35-3-37 (h)(1)(A)(ii), the criminal records of cases that were referred to prosecution within certain time limits are automatically restricted. For misdemeanors, the time limit is two years, whereas for felonies, it’s four. The time limit for a serious violent felony or a sexual felony involving a minor under 16 is seven years.