Lawmakers advanced a pair of eleventh-hour proposals which, advocates claim, would make it easier for people convicted of minor offenses to move on with their lives.
The House Judiciary Non-Civil Committee unanimously approved Senate Bill 157, intended to give Georgians convicted of minor offenses more access to professional licenses needed to work in one of every six jobs in Georgia. A few hours later, the Senate Judiciary Committee approved House Bill 909, which would allow many more Georgians to keep their records sealed prior to their criminal sentence being completed under Georgia’s First Offender Act.
Both bills enjoy bipartisan support. The proposals are endorsed by the Georgia Justice Project as a step toward modernizing Georgia’s longstanding First Offender Act. Under the First Offender Act, some nonviolent felony convictions can be removed from the public record if the person has served their sentence.
Both measures can still win legislative approval before the 2024 session terminates in the spring of 2024.
Formal Expungement in Georgia
The statute of limitations applies to criminal cases. If Bill hits his girlfriend and authorities don’t immediately prosecute him, after the two-year SOL runs, he never has to worry about criminal charges again, at least charges related to that incident.
But the statute of limitations doesn’t apply to criminal convictions. If Bill is convicted of assault, that incident stains his permanent record for the rest of his life, unless a Marietta criminal defense attorney acts on his behalf.
Incidentally, the SOL also doesn’t apply to criminal charges. If prosecutors charge Bill with assault, Bill skips a court date, and the judge issues an arrest warrant, the warrant remains active until served. But that’s the subject of another blog.
Technically, there is no “expungement” in Georgia. There’s no way to erase a conviction from a criminal record. However, a 2013 law greatly expanded the record restriction process, which is basically redacting a criminal record.
Actually, we should say that record restriction poorly redacts a criminal record. Some agencies, mostly criminal justice agencies, can see through the white-out. Our readers under 40 who don’t know what white-out is can Google it and find out.
Automatic and by-request record restriction is usually available in Georgia. Some offenses, such as child molestation, sexual assault, sexual battery, certain theft crimes, and certain serious traffic offenses, are ineligible for either form of relief.
Usually, automatic restriction is a fall-through-the-cracks matter. If a defendant is arrested but never charged, the state automatically restricts the record after:
- Two years for misdemeanors,
- Four years for most felonies, or
- Six years for serious felonies.
The state can un-restrict the record if it takes up the case and the statute of limitations hasn’t run. Automatic restriction is also available if:
- Your case was referred for prosecution but was subsequently dismissed due to a lack of probable cause or a lack of evidence,
- Two grand juries no billed the case,
- The statute of limitations has expired,
- You completed a drug court treatment program, mental health treatment program, or veterans’ treatment program, the case was dismissed for cause, AND you were not arrested while you were enrolled in the program, or
- You were found not guilty after a trial, unless the prosecution challenges restriction within ten days of that verdict.
In a few cases, the judge may also grant a petition for restriction. The minimum eligibility requirements are:
- Appeals Court Reversal: A favorable appeals court decision doesn’t automatically restrict a record. In fact, if you are found guilty at a later trial or plead guilty as part of a plea agreement, the two most likely outcomes, you lose eligibility for restriction altogether.
- Felony Dismissal and Unrelated Misdemeanor Conviction: Bill might be eligible for record restriction if prosecutors charged him with aggravated assault and, as part of a plea bargain agreement, he pleaded guilty to something like reckless conduct. He’s not eligible if he pleaded guilty to something like ordinary assault.
- Juvenile Misdemeanor: Misinformation abounds in this area as well. In some states, juvenile convictions automatically fall off permanent records at age 18 or 21. In Georgia, these convictions don’t go away on their own. However, unless the conviction was for a violent crime, a record restriction petition is available.
These qualifications are just the minimum qualifications. A Marietta criminal defense lawyer must convince the judge that the petition is in the best interests of society and in the best interests of the defendant. Usually, if the defendant’s probation officer signs off on the petition, the judge signs off on it as well.
The First Offender Act
This 1968 law gives individuals who have committed a crime a chance to redeem themselves and shed the burden of a criminal conviction, or at least shed most of that burden, as outlined above.
First Offender Act probation, which is available in all jurisdictions, is similar to deferred disposition probation, which is available in some jurisdictions.
The defendant pleads guilty, but the judge doesn’t say the magic words “I find you guilty.” Then, if the defendant successfully completes probation, the judge dismisses the case. Record searchers usually see a disposition like DISM or NFOG (no finding of guilt).
First Offender Act probation is like a trump card. Many people hold their trump cards in reserve until they truly need them, and many people keep FOA probation in reserve.
Assume Reggie the drug dealer is charged with possession of marijuana. Unless he truly repents, he may want to keep his FOA card in his hand instead of playing it at that time. He’ll need that card if the law comes bustin’ in on a future drug deal. That’s a conversation Reggie must have with his Maritta criminal defense lawyer.
The Best Defense…
…Is a good offense, right? Sometimes, this aphorism is appropriate in Cobb County criminal cases. Since record restriction is available on such a limited basis, aggressively challenging the state’s case is usually the best option.
Most criminal cases have procedural defenses, such as illegal police searches, and/or substantive defenses, such as a lack of evidence. A lawyer can leverage these defenses at trial and convince a judge to dismiss the case, or during pretrial negotiations and convince prosecutors to give away the farm during plea bargaining.
Criminal matters usually, but certainly not always, permanently stain permanent records. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.
