Record restriction in Georgia is the process of restricting criminal records from public view. Not all criminal records will be eligible, but those which are can be be “sealed” away from public view.
This means you will no longer have to disclose convictions, arrests, or records that have been restricted. They will only be accessible by certain arms of law enforcement for criminal justice purposes.
Is Record Restriction the Same as Expungement?
In the state of Georgia, record restriction is the same as expungement. In fact, the original term for record restriction is “expungement,” and people still use the term today.
On July 1, 2013, a new law came into effect in Georgia changing the name from expungement to record restrictions. Along with the change of name, there were also some changes to which records were eligible for restriction.
They changed the law because the word “expungement” comes with the implication that criminal records were destroyed or permanently removed in some way.
This isn’t accurate, because records that are expunged or restricted are not destroyed. They’re simply made unavailable to the public and you no longer have to disclose them. Restricted records can still be accessed by law enforcement if required.
Which Criminal Records Eligible for Restriction?
Each individual case needs to be looked at individually. However, as a general rule, under Georgia law records are eligible for restriction under the following situations:
Non-Convictions
Cases that are closed without convictions are eligible for restriction. This includes charges that have been dismissed, closed, ruled nolle prosequi/nolle prossed, placed on “dead docket”, or closed for any other reasons.
There are some exceptions to these rules. It’s always advisable to speak with an attorney and have them look into the specifics of your case.
Youthful Offenders
Certain misdemeanors that happened before the age of 21 will be eligible for restriction. There are some rules for qualification to be aware of, however. You must have completed your sentence and not been charged with certain further offenses since.
Again, there are some exceptions that you will need to run through with an experienced lawyer.
You Had a Felony Charge Dismissed but Were Found Guilty of an Unrelated Misdemeanor
If you were charged with a felony but ended up being convicted of an unrelated misdemeanor in that case, you may be able to have that felony charge restricted.
In cases like this, a court will often weigh up what impact the record is having on your quality of life to make a decision. It’s important you work with an attorney to help fight your case.
Senate Bill 288 (SB288) the “Second Chance Law” Is Now in Effect
On the 1st January 2021, SB288 which is known as the “second chance law” came into effect in Georgia.
This legislation aligns Georgia with 41 other states and effectively widens the number of misdemeanor offenses that Georgian residents can have restricted from their criminal records.
With around 40% of adults living in Georgia having a criminal record, SB288 is expected to have a huge impact on the state. For some individuals, it’s going to have a life-changing impact.
There are some misdemeanors that are excluded, and some charges will come down to looking at the circumstances of the case in question.
But without doubt, if you have any misdemeanors on your record now is the time to speak with an attorney to see if those charges are eligible for record restriction.
Why Should You Have Your Record Restricted?
Having a criminal record can impact your quality of life. There are a number of situations where people may ask if you have a criminal record. Unless you have the record restricted, you will have to disclose it.
A criminal record may affect some of your the day-to-day life, such as:
- Applying for jobs
- Child custody disputes
- Immigration issues
- Renting a property
- Applying for finance
- Paying higher insurance premiums
- Damage to your reputation
There’s really no reason not to have any eligible records restricted. Even if the above situations are not present in your life right now, there may come a time when they are.
Does Record Restriction Happen Automatically?
Under Georgia law, there are some records that will be restricted automatically. This only applies to arrest records where your case did not face prosecution.
It’s also advisable that you work with an attorney to pull a criminal history report and check that records have been restricted before assuming they have.
The length of time per type of charge is:
- Misdemeanors – Two years
- Felonies – Four years
- Serious violent and sex-related felonies – Seven years
It’s also important to be aware that when these records are restricted, it doesn’t mean the case is closed forever.
A prosecuting attorney can still decide to take up your case if new evidence comes to light or some other reason that causes them to look into your case.
Can I Reapply if I Was Previously Denied Expungement or Restriction?
If you’ve had an application for a record restriction denied in the past, you may be able to apply again. It’s going to come down to the reason why you were denied and whether or not your record is eligible for restriction.
There are also different rules depending on your arrest date being before or after July 1, 2013, when the law changed.
These rules are in O.C.G.A. §35-3-37 as follows:
If you were arrested after July 1, 2013, there is no application process. You need to contact the prosecutor involved in your arrest to apply for a restriction.
If you have an arrest before July 1, 2013, you must apply for your record restriction at the arresting agency.
It’s also important that you understand the process and have a lawyer check your record is eligible for restriction. Making mistakes when filing the paperwork can hold up the process and cause your application to be denied.
Find Out if You’re Eligible for Record Restriction
If you want to find out if any or all of your criminal history record is eligible for record restriction you need to work with a lawyer experienced in handling record restriction cases.
Michael LaScala has been helping clients have their records restricted in Atlanta for a number of years.
Contact the LaScala Firm at (404) 881-8866 or by submitting a contact form. We’ll get right back to you to arrange a time to discuss your case.