HOW DO I PROTECT MY RECORD?
This is actually one of the questions I get asked most often, and its easy to understand why. When you are arrested for the first time, there is a lot of anxiety about what will happen to your future if you are convicted of a crime. Will you be able to get a job or keep the one you have? Will it affect school? Your benefits? Your housing?
These are common concerns for everyone, including first time drug arrests, people arrested for shoplifting or theft, and even people arrested for weapons charges, fighting, and other felonies. The first thing you need to know is that there are many different options out there for you and your attorney to discuss when it comes to protecting your future by keeping a conviction off your record. This blog post will help you to get a basic understanding of some of those opportunities. Even if you do have a criminal history, it's still possible that some of these options can work for you. Feel free to call me if you want to talk about your case specifically.
In Georgia, there are two different laws that can help someone protect their record when facing a conviction. One is called First Offender (Georgia law 42-8-60) and the other is called Conditional Discharge (Georgia law 16-13-2). A third option may be pretrial diversion, which avoids any plea, and results in a dismissal of your case.
If you are in a situation where you are thinking you may plead guilty or be found guilty of a crime, you should always discuss with your attorney whether you are eligible to use First Offender. If you have never been convicted of a felony anywhere before, and you have never used your First Offender in a prior criminal case, you may be eligible to use it. Using your First Offender does not change your sentence. Whatever custody and/or probation that you are ordered to serve will be the same when using First Offender. However, at the time of sentencing under First Offender, the judge will withhold the adjudication of guilt. This means that they don't consider you "convicted" while you are serving your sentence under First Offender. If you successfully complete your sentence with no problems, the First Offender law means that the court will then exonerate (release you) from that guilty plea. They will also restrict your record so if schools or employers run a background check with the police, they won't see that you originally pled to the charges. You will have no conviction and the case is discharged. This is especially important for people facing felony charges because it means you will not be a convicted felon at the completion of your case under First Offender. This is key to protecting your job, your education, your rights, and your future.
However, it's important to know that First Offender can also come with steep penalties if you don't do well during your sentence. If you violate your probation while on First Offender, the law gives the judge the power to revoke your First Offender and adjudicate you guilty, meaning the conviction goes on your record. The judge also has the power to actually resentence you to the maximum allowed under the law, which could mean even more jail or probation than your original sentence had. For most people, First Offender is a great option even with the possible penalties. Doing well on probation is not difficult for most people, and the reward of having the conviction removed by First Offender is incredibly valuable for their future.
There are some situations where you cannot use First Offender, and some situations where even if you can use it, it's not a good idea. Be sure to call an attorney to discuss what options may be available to you.
Conditional discharge is a Georgia law that is similar to First Offender, in that if you plead under Conditional Discharge, your conviction will be set aside to see if you successfully complete your sentence (custody or probation) without any problems. If you do complete your sentence without any problems, the court will discharge your case without a conviction and restrict your record so schools and employers won't see that you originally pled to the charges. Also like First Offender, Conditional Discharge doesn't affect your sentence, just how the conviction is handled.
However, Conditional Discharge is different than First Offender in that it is used only in drug cases or property crimes where drug use is involved. Conditional Discharge cannot be used if you have already have a conviction in your past for drugs. If you have used First Offender before, or have prior convictions, you may still be eligible for Conditional Discharge. There are strategic reasons for choosing between First Offender and Conditional Discharge if both are available to you, so make sure you discuss that with your attorney.
PRETRIAL DIVERSION PROGRAMS
Pretrial Diversion is not a specific Georgia law. Instead, pretrial diversion programs are usually run by the prosecutor's office where your case is pending. They may be available for felony cases and for misdemeanor cases. Each jurisdiction (the county or city where you were charged) handles their pretrial diversion programs differently and not all jurisdictions have them. It is up to the prosecutor's office to decide whether to allow you to do a diversion program instead of handling the case through traditional prosecution.
Generally speaking, someone who has little or no criminal history can be accepted into a diversion program. There is often a fee to participate if you are accepted. Some programs will tell you in advance what you will be required to do to complete the program depending on your charges, other programs customize the requirements depending on your specific case. Normally, you will be required to do some combination of community service hours, some counseling or classes, a drug/alcohol evaluation and random drug testing. The programs usually give you 6 to 9 months to complete your requirements. If you succeed in completing all your requirements, the prosecutor will then dismiss your case. You are not found guilty and you will not have a conviction on your record. For people who have almost no criminal record (usually traffic offenses don't count) pretrial diversion programs are a great option for keeping your record clean, and not having to use First Offender or Conditional Discharge to do so.
**Whether you use First Offender, Conditional Discharge, or Diversion, there may still be ways for people to find out about your case, even if it has been discharged or dismissed and your record restricted. Talk to an attorney about other steps you can take to seal your record from people finding out about your case.**