Georgia’s New Second Chance Law – Misdemeanor Record Restriction (Expungement)

By: Mary Agramonte

A new expungement law is on the way, which will come as great news to the millions of Georgians who have a criminal history. Governor Kemp recently signed SB 288 into law after state leaders unanimously approved the bill. Georgia’s new “Second Chance Law” will become effective on January 1, 2021 providing Georgians with an opportunity to expunge certain misdemeanor cases, both a victory and a first in Georgia.

Georgia historically has not had favorable expungement laws on the books. Under current Georgia law, criminal convictions stay on a person’s record forever. Convictions never ‘age off’ no matter the time that has elapsed, or the strides made for rehabilitation. This places a staggering number of Georgians at a disadvantage for employment, housing, higher education, and other opportunities.

Georgia’s current law disallowing expungement has been troublesome for the hundreds of thousands of people who get caught up in our justice system each year. In fact, Georgia leads the nation, by far, in placing people on probation following conviction.  The United States Bureau of Justice Statistics reported that 433,200 people in Georgia were on probation at the end of 2018. According to Second Chance for Georgia (INSERT link: https://www.secondchancegeorgia.org/), 4.3 million people have a criminal record in Georgia. This means that an astounding 40% of Georgia’s adult population carry a criminal history through life, resulting in more than 1/3 of the State’s population having barriers to advancement in careers and other opportunities.

This new change in Georgia law will allow individuals to petition the court to have certain misdemeanor convictions restricted and sealed off their record after living a crime free life for four years. This is a process sometimes referred to as “expungement,” but is called “record restriction” in Georgia.  So long as a person has completed the terms of their sentence and has had no new convictions for at least four years, then SB 288 allows the individual to petition the Court to restrict the misdemeanor off their record.

Upon petition and a request for a hearing, the Court will conduct a balancing test to determine whether to restrict the misdemeanors off the criminal history. The hearing must take place within 90 days of the request. Under the new SB 288 law, the Court must grant the petition to restrict the criminal history records if it determines that the harm resulting to the individual clearly outweighs the public’s interest in the criminal history being publicly available. Factors such as the nature of crime, the loss of career opportunities, time elapsed since conviction, and proven rehabilitation will all become relevant inquiries for the Court.

Under SB 288, certain crimes will continue to be ineligible for record restriction in Georgia. This means that the following crimes cannot be expunged following a conviction:

  • Family Violence Assault and Battery
  • Family Violence Stalking
  • Hindering 911 call
  • Child Molestation or Enticing a child for indecent purposes
  • Public indecency
  • Pimping and pandering
  • Sexual Battery
  • Theft by Taking, Theft by Deception, Theft by Conversion
  • Serious Traffic Offenses (Reckless Driving, DUI, Homicide by Vehicle, Serious Injury by Vehicle, Fleeing or Attempting to Elude, and Aggressive Driving)

Crimes that will be eligible under the new law for potential record restriction include but are not limited to:

  • Possession of Marijuana
  • Possession of Drug Related Objects
  • Shoplifting
  • Non-Domestic Battery and Assault
  • Minor in Possession of Alcohol
  • Giving False Name, False Report, or False Statement
  • Criminal Trespass
  • Loitering
  • Terroristic Threats
  • Disorderly Conduct
  • Driving with a Suspended License

 

Some felonies are included in this expansion as well. For example, if someone has been convicted of a felony charge, but were issued a pardon, they too can petition a Judge to restrict and seal the charge off their record under the new law.

Who is eligible to petition the court for record restriction or expungement?

Anyone who was convicted of a misdemeanor crime, (other than the crimes explicitly exempt under the statute), and have had no new convictions in the past four years.

How many cases can I ask to be restricted?

Individuals will be allowed to petition the court for record restriction on two misdemeanor cases (a case can include multiple misdemeanor offenses under one accusation).

What happens if the Judge denies the request for record restriction?

You can request the record restriction again after waiting two years from the Judge’s denial.

How do I obtain record restriction under SB 288?

The new law requires you file a motion into the court you were convicted requesting the misdemeanor be restricted and expunged. A court order is required in order for your criminal history to be expunged under the new law.

Keep in mind that record restriction is not limited to misdemeanor convictions discussed in this blog under the new SB288 law and can be, at times, automatic. For example, if you were arrested after July 1, 2013, and the case against you was dismissed, or you were fully acquitted at trial, the charge will be automatically restricted when the clerk enters that disposition into the GCIC system. Arrests prior to July 1, 2013 that resulted in dismissal require a request and separate process for restrictions, but are eligible.

The best way to know what is on your criminal history is to request a copy of your GCIC under Purpose Code “E” from a local police department or sheriff’s office.  If you or a loved one is one of the millions of people carrying a criminal history through life in Georgia, the Second Chance law may come as a reprieve. The attorneys at W. Scott Smith are versed on all aspects of Georgia’s expungement and record restriction laws and are available for a FREE CONSULTATION by calling 404-581-0999.

Pre-Trial Diversion in Georgia

Being arrested for the first time can be one of the most stressful experiences in one’s life. An arrest has the potential to change everything – where you work, go to school, your car insurance, where you live, and how others see you. If this is the first time you have found yourself in the position, do not walk into court and plea Guilty or Nolo Contendere, because there may be another option for you. A Georgia criminal defense attorney may be able to negotiate something different – something that doesn’t require you to plead guilty. If you enter a plea of Guilty or Nolo, the arrests and convictions do not age off your record; they remain on there forever. There are only a few ways that an arrest is restricted off your record from the public seeing it. Participating in a pretrial diversion program is one of those ways and might be an option to explore for your criminal case. Several counties and cities across Georgia have pretrial diversion programs designed to give you a second chance, and serve as an alternative to jail and convictions.

Pretrial diversion is an alternative to the traditional court process. It allows some first offenders, and even still others who have a history, to complete requirements prior to a court date in exchange for their case being completely dismissed. Requirements may include community service, theft class, or anger management. Pretrial diversion may be available for you if you were arrested in Georgia for Possession of Marijuana, Possession of drugs, Shoplifting, Battery, Assault, Minor in Possession, and the list goes on. A criminal defense attorney who is knowledgeable with the court can negotiate that the prosecutors potentially divert you from prosecution altogether, resulting in your case being dismissed.

Once you successfully complete a pretrial diversion program in Georgia as a first offender, the arrest itself disappears off your criminal record from the public’s view, and you can truthfully state with pride that you have never been convicted of a crime before. Your case will be dismissed in its entirety and you can breathe a sigh of relief.

If you are interested in resolving your case through pretrial diversion in Georgia, call us today for a free consultation at 404-581-0999. W. Scott Smith and his team have years and years of experience negotiating clients into pretrial diversion programs with the most favorable terms, even if the clients were ineligible under the State’s traditional guidelines.

 

by Mary Agramonte

First Offender Sentencing in Georgia

First offender treatment is available in Georgia for anyone who has not been previously convicted of a felony and is not charged with a serious violent felony. Serious violent felonies are murder, felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery. Anyone charged with one of those offenses is automatically ineligible for first offender unless the charge is reduced to a lesser offense.

If a defendant receives first offender treatment, it can be both a blessing and a curse. If there are no issues during the period of probation, then no official conviction will ever be reported and the record itself will seal from public view. However, if the defendant commits a new offense while on probation or has any issues at all, then the judge has discretion to revoke the first offender status and re-sentence the defendant up the maximum sentence allowed by law.

While serving the sentence which will undoubtedly involve a period of probation, the defendant is not technically convicted of a crime but still cannot possess a firearm. After successful completion, all gun rights are restored.

Finally, first offender status can be granted retroactively if the defendant was eligible for first offender treatment at the time of the original plea but was not informed of his or her eligibility. Still, there is discretion, and the judge must find by a preponderance of the evidence that the ends of justice and the welfare of society are served by granting retroactive first offender status.

If you are charged with a crime in Georgia, then you should always consult with an attorney as to whether you are a candidate for first offender treatment. If you have already pled guilty, then you should still reach out to discuss whether you can receive retroactive first offender treatment. Give us a call today at 404-581-0999.

Restoration of Rights and Pardons from the State of Georgia

by Mary Agramonte

Mary Agramonte is an attorney with W. Scott Smith P.C.

Mary Agramonte is an attorney with W. Scott Smith P.C.

A felony conviction on your record comes with many consequences. You served the time, but now you are finding more and more ways that your record is stopping you from getting to where you want to be. For example, convicted felons lose various civil and political rights. Felons cannot vote while they are still incarcerated or on parole or probation. A convicted felon is unable to run for and hold public office or serve on a jury.

In Georgia, felons can apply to restore these civil rights that were lost at the time of their conviction. The right to vote is automatically restored upon completion of the sentence. However, if you are looking to restore your civil and political rights, a special application must be submitted asking the State of Georgia to allow you to serve on a jury and hold a public office. To be eligible to have your civil and political rights restored, you must have completed your sentence within two (2) years prior to applying, and you must demonstrate that you have been living a law-abiding life. There is no fee to apply to have your civil and political rights restored through the State Board of Pardons and Paroles.

If you are finding that your criminal history is following you, but that you are not eligible for Record Restriction, which is Georgia’s version of expungement, Georgia Record Restriction Blog there may be a way for you to advance in your employment and education, despite the felony conviction on your record. In limited circumstances, the State of Georgia can pardon your offense, which is an official forgiveness granted to you. The pardon does not expunge or erase the crime from your record. However, a pardon will serve as an Official Statement attached to your criminal record that states the State of Georgia has pardoned, or forgiven, your crime. The State will make this decision based on the fact that you have maintained a good reputation after completing your sentence, and have truly changed your life after the conviction. Pardons have a better chance of being granted if there is clear proof that the felony is disallowing your qualification for employment in your chosen field. An official pardon will also automatically restore your civil and political rights. In order to apply for a pardon, you must have completed your sentence at least five years ago, and have not gotten into trouble at all in the last five years. All restitution must be paid in full by the time you apply.  Letters of recommendation, school documents, resumes, and awards and certificates, are all helpful to show the State how important a pardon would be in your life.

There is no fee and the State uses the same application for restoring civil and political rights, and for pardons. The application can be found here: Restoration of Rights Application

Our law firm consists of seven criminal defense attorneys who represent individuals facing felony and misdemeanor charges in Georgia. We hope this information helps you restore your civil or political rights in Georgia. If you are currently facing criminal charges, our knowledgeable and experienced criminal defense lawyers have what it takes to defend against the most serious offenses. Call us today for a free consultation at 404-581-0999.

Can My Criminal Record be Expunged? Record Restriction and Sealed Records in Georgia

by Mary Agramonte

We know how hard it is to rebuild your life when you have a criminal history following you. In Georgia, your complete criminal history is released for employment and licensing purposes, no matter how long ago you were arrested, unless your record is restricted or sealed. If you have recently been arrested and just want a second chance, Georgia has several options available. These options allow certain individuals who have been arrested to avoid having potential employers see their criminal record. Even if you were arrested in the past, you may be eligible to have your record restricted or sealed from people being able to access it.

Mary Agramonte is an attorney with W. Scott Smith P.C.

Mary Agramonte is an attorney with W. Scott Smith P.C.

Under Georgia’s Record Restriction law, O.C.G.A. §  35-3-37, you may be qualified to hide your arrest record from potential employers. This is available for you if your case was dismissed, not presented to a grand jury, twice no-billed by the grand jury, or if you had a trial and were found not guilty on each and every charge. If you were arrested after July 1, 2013, your record is automatically restricted, meaning your official Georgia criminal history report (GCIC)  will not be released to any employers or licensing boards. If you were arrested prior to July 1, 2013, and your case was dismissed or you were found not guilty on every charge, then you will need to apply to have your record restricted on your official criminal history report.

However, even if your record is restricted, your court records will remain in the clerk’s office as public records. Unfortunately, many employers do not use official background checks through GCIC. Instead, they use private companies. If your record is restricted, there is an additional step that is not automatic that can protect you and your criminal history from finding its way onto the internet and into the hands of potential employers. This process is known as petitioning the court to seal your records and can also be found under O.C.G.A. §  35-3-37(m).

There is another new and exciting law in place that truly helps individuals who have struggled with getting jobs over the years based on a conviction in their past. This is known as the Retroactive First Offender statute. To qualify, you must have been eligible for First Offender treatment, yet were not informed of it, and the prosecuting attorney must consent. If you were convicted of the crime or pled guilty to it in the past, Georgia only allows for record restriction if you are eligible under the Retroactive First Offender Statute.

We are experienced lawyers here to help. We know how hard it is to move on with your life when you have an arrest record or conviction holding you back. There are laws in place that help past offenders clean up their record and move on once and for all. If this is a new arrest, there are also several avenues to take if you are concerned about your criminal history and how it’s going to affect your career and your future. Call us today at 404-581-0999 for a FREE CONSULTATION to see how we can help with your criminal record.