CAN I CLEAN UP OR EXPUNGE MY CRIMINAL RECORD?
I get asked all the time by people who have a criminal history, how can they clean up their record? Can they get a conviction expunged or erased? The good news is after many years of being behind other states in doing this, Georgia finally updated it's laws in 2020 to allow for more ways to clean up a past criminal history. The "new" 2020 laws are contained in an updated statute (O.C.G.A. 35-3-37), and it has given people more options in getting their record cleaned up.
HOW DO I GET MY RECORD EXPUNGED IN GEORGIA?
The word "expungement" isn't often used in Georgia. Instead of expunged or expungement, the language "restrict" and "seal" is used. Georgia doesn't totally erase (expunge) the records. In Georgia, the access to the record is changed so that employers, schools, the general public, etc. can no longer see your conviction when doing a background search. "Sealing" a record means that when someone goes onto a court or jail website, they will no longer be able to search and find your case. However, the conviction still exists even though most people won't be able to find it. Law enforcement, prosecutors, judges, and some government departments will still be able to see the convictions and access sealed files. For most people, the fact that law enforcement or the government can still see it doesn't really matter to them. The huge benefit for most people is just getting it off their background check with employers, since that helps greatly with job opportunities. I'll use the word "expunge" below since it's a term many people use, but just remember that the legal process itself is really restricting and sealing.
CAN I GET A REALLY OLD CONVICTION EXPUNGED?
I am happy to report that I recently helped a client get a 1986 conviction restricted and sealed. There is no time limit on how old the conviction may be. It gets trickier in accessing the documents if the cases are really old, but it can be done!
IS IT THE SAME EXPUNGEMENT PROCESS FOR A FELONY AS IT IS FOR A MISDEMEANOR?
No. The laws are also different depending on whether you have a misdemeanor or a felony criminal record. I'll break it down for you below.
HOW DO I KNOW IF I CAN EXPUNGE / RESTRICT MY MISDEMEANOR RECORD?
Here is a checklist of things to consider when thinking about expunging / restricting your misdemeanor record:
1) What Crime Was It? You need to be sure that the misdemeanors that are on your record are eligible for restriction and sealing. There is a specific list of misdemeanor crimes that are NOT allowed to be restricted. I'll put the whole list at the bottom of this blog post so you can see it. But generally, DUI and theft crimes are excluded - EXCEPT shoplifting and refund fraud CAN be expunged / restricted. All family violence batteries are also excluded unless you were under 21 when you were arrested. Child molestation, and other similar sex-related misdemeanors are also excluded.
2) How Many Misdemeanor Convictions Do You Have? The law allows for up to 2 misdemeanor convictions to be restricted and sealed. Even if you have more than 2 misdemeanor convictions, it might still be a good idea to consider having a couple of them restricted. Anything that reduces the number of convictions on your record, or makes it look like it's been a very long time since the last conviction, might be helpful when an employer looks at your background.
3) How Long Ago Did You Finish Your Sentence? The law now says that you are eligible to have your misdemeanor convictions restricted if it has been at least four years since you completed your sentence. It is also important that you haven't had any new charges since you completed your sentence and you don't have any new charges pending.
IF I'M ELIGIBLE FOR MISDEMEANOR EXPUNGEMENT, WHAT DO I DO NOW?
A lawyer can help you access the documents you need. The lawyer will then file the proper paperwork with the court. For misdemeanors, a motion to restrict must be filed with the original court that issued the conviction. It will also require working with the prosecutor assigned to that court. The laws for restricting vs. the laws for sealing are not identical, and an experienced lawyer will know how to go about getting both requested and provide the correct language to have that completed. It is up to the court to decide if the harm to you for having these convictions on your record is greater to than any interest the public may have in knowing about the convictions.
HOW DO I KNOW IF I CAN EXPUNGE / RESTRICT MY FELONY CRIMINAL HISTORY?
Here is a checklist of things to consider when thinking about expunging / restricting your felony record:
1) What Crime Was It? Serious violent felonies are not eligible for expungment / restriction. This includes murder, armed robbery, kidnapping, rape, aggravated child molestation, and some other serious crimes. I will include a full list below.
2) You Must Get a Pardon First: For felony expungement, there is a two step process. You must first go through the process of obtaining a pardon from the State Board of Pardons and Paroles before you can go through the process of expungement / restriction for a felony. You can go to Georgia Pardons & Restoration of Rights page to learn more about that process. You can apply for a pardon five years after you have completed your sentence as long as you don't have any new charges since then. It will be up to the State Board to make a decision about your pardon.
3) Petition The Court: If your pardon is granted, then you can contact an attorney to help you request that the felony be restricted and sealed from your record. Note that even if you were pardoned for one of the serious violent felonies mentioned below, you still will not be eligible for record restriction. If the felony conviction for which you were pardoned is eligible for restriction, it will then be up to the court to weigh your interests in having your record restricted against the public interest in knowing about your conviction.
WHICH MISDEMEANOR CRIMES ARE NOT ELIGIBLE FOR RESTRICTION?
Under O.C.G.A. 35-3-37(j)(4) Record restriction shall not be appropriate if someone was convicted of:
WHAT FELONY CRIMES ARE NOT ELIGIBLE FOR RESTRICTION?
WHAT DO I DO IF I'M NOT SURE ABOUT EXPUNGEMENT?
The law and the process can be confusing. It's ok not to be sure. The best bet is to call an attorney and ask them what they think. It shouldn't cost you a dime to get an idea from an attorney whether it's even possible to file a motion in your case. I offer free 30 minute consultations and we can discuss all your options for expungement or record restriction. Call me at 404-904-2862, and I'm happy to talk with you about it.
