The passage of HB 1176 means that the current expungement laws in Georgia (O.C.G.A. 35-3-37) will disappear in July 2013.  In fact, the ability to expunge (remove, erase, strike out) an arrest off of a criminal record will be gone under the new O.C.G.A. 35-3-37 which takes effect in July 2013.

Under the new law, the Georgia Crime Information Center (“the Center”) will “restrict” the criminal history record information of an individual relating to a particular charge.  Therefore, the information will be available only to judicial officers and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the center and shall not be disclosed or otherwise made available to any private persons or businesses pursuant to Code Section 35-3-34.  (O.C.G.A. 35-3-37(a)(6)-effective July 1, 2013).

Under the old law, the impetus was on the individual to request expungement of eligible offenses.  A review of the new law shows that the duty is now on the Center to restrict the information.  “Access to an individual’s criminal history information…SHALL BE RESTRICTED BY THE CENTER… (O.C.G.A. 35-3-37(h)-effective July 1, 2013).  Further placing the impetus on the State agencies involved, if the case is never indicted or accused, and never referred to the prosecutor by the arresting agency, the arresting agency shall contact the center and inform the center that the record should be restricted.  If the Center does not receive notice from the arresting agency (meaning the agency does not follow its statutorily mandated duty to report to the Center) then the Center must restrict the record after 2 years on misdemeanor charges or 4 years on felony charges.  (NOTE: there are restrictions on felony offenses including serious violent felonies and felony sexual offenses).

After an indictment or accusation, the CENTER SHALL RESTRICT THE RECORD if:  the case is dismissed or nolle prossed, the offender was sentenced under 16-13-2 and successfully completed the terms and conditions, or the individual successfully completed drug court treatment or mental health court treatment program.

The new law also requires the restriction of the record if the individual was acquitted of all charges by a judge or jury.  However, the prosecuting attorney can, within 10 days of the verdict, demonstrate to the court by clear and convincing evidence that the harm otherwise resulting to the individual is clearly outweighed by the public interest in the criminal history record being publicly available because either: 1) the prosecutor was barred from introducing material evidence on legal grounds (granting of motion to suppress or motion in limine) OR 2) the individual has been formally charged with the same offense within the previous five years.

Similar to the old law, the new law does not allow for restriction of the record if the charges were dismissed or nolle prossed because of a plea agreement, the granting of a motion to suppress or motion in limine, the conduct was part of a pattern of conduct which led to prosecution by another state, or the individual had immunity from prosecution.  Furthermore, if the individual was tried and acquitted of some, but not all of the charges.

Another twist in the new law allows for restriction of the record where an individual had felony charges dismissed or was acquitted of the felony charges BUT was convicted of misdemeanor charges arising out of the same conduct.  NOTE, in this instance the impetus is back on the individual and they must petition the Superior Court of the county where the arrest occurred to restrict access to the felony charges within four years of the arrest.  Additionally, if  an individual’s case has been on the dead docket for more than 12 months, the individual may petition the Superior Court of the county where the case is pending to restrict access to criminal history record information for such offense.

As with any dramatic change in the law, the implementation of the new “record restriction” will face challenges as individuals attempt to restrict access to their criminal history.  The attorneys at W. Scott Smith, P.C. are well versed in the new law and will be able to assist you navigate the hurdles of the new law.  Please do not hesitate to contact W. Scott Smith, P.C. with questions about the current expungement law or with questions about the new record restriction law.