How to Keep Your Record Clean in Georgia (pt. 4): Record Restriction

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In previous posts we covered how to avoid getting convictions on your record. In this post we will discuss record restrictions (formerly known as “expungement”).

In Georgia, just because your case has been dismissed, nolle prossed, or dead-docketed, it does not mean that there is no record of it. If you have been arrested, it may still be visible to employers and others who seek a background check. Records of your arrest can remain on your record even if you’ve had your case dismissed or otherwise resolved. Requesting a record restriction can make it so the arrest or dismissal can only be seen and used for law enforcement and criminal justice purposes. Record restrictions can either happen automatically or by request. Georgia Statute 35-3-37, which went into effect on July 1, 2013, governs these issues.

Automatic Restrictions

35-3-37 requires that arrests that were not “referred for prosecution” be automatically restricted after certain time periods. All you have to do in these cases is wait! For misdemeanors (2 years), most felonies (4 years), serious violent felonies and sex crimes (7 years). Arrests “not referred for prosecution” means that the alleged crime was never pursued, accused, or indicted by prosecutors. Automatic restrictions apply for arrest dates before and after July 1, 2013.

Requested Restrictions

If prosecutors accused or indicted your case already, you no longer qualify to have your record automatically restricted. However, unless one of the exceptions below applies, you can simply contact the prosecutor about having the record restricted if the arrest occurred after July 1, 2013. There is no fee or application required for this, and you can do it with or without an attorney. If the arrest occurred before July 1, 2013, you must apply for a record restriction with the arresting agency. However, there are certain record restriction requests which only a judge can grant.

Petitioning The Court

Some scenarios are not necessarily prohibited from record restriction, but require a judge’s order. There are four primary scenarios. First, when a defendant had a felony dismissed or was acquitted, but was convicted of a misdemeanor that was not a lesser included of the felony. Second, if the appellate court reversed a conviction and the prosecutor hasn’t retried the case within two years. Third, when a case has been dead docketed for more than 12 months. Lastly, when an individual was convicted of one or more misdemeanors and the individual is a “youthful offender.” With this final scenario, there are a few more necessary conditions and requirements.

The youthful offender must have successfully completed the terms and conditions of probation and, subsequently not been arrested for any other offenses for five years, outside of non-serious traffic offenses. What’s more, the original conviction can’t be a prohibited misdemeanor, most of which deal with misdemeanor sexual offenses and serious traffic offenses.

If any of these scenarios apply in your case, you can ask your attorney to petition the court to order a record restriction. The court can order a hearing to consider the nature of the crime and the public interest in having the record available to the public.

When Record Restrictions Are Not Allowed

There are certain instances in which the statute does not permit record restrictions. The first and most obvious instance is for felony convictions. Even if a charge has been nolle prossed or otherwise dismissed there are certain instances when record restriction is also not allowed. Second, when there is a plea agreement to a lesser charge that resulted out of the same transaction or occurrence of the felony charge.

Third, when the prosecutor dismisses the case because the judge has granted a motion to suppress or a motion in limine. Fourth, when the dismissed charge is part of a pattern or crime spree and there are charges in other jurisdictions. Fifth, when the defendant at trial is convicted of some but not all of the charges against them. Sixth, a defendant is acquitted, but it is found out later that there was jury tampering. Seventh, the Defendant has some kind of diplomatic or other immunity.

The Bottom Line

If you were arrested for but not convicted of a crime, there is a good chance that you can get the record of it restricted. As discussed above, this either occurs automatically, by entry of the prosecutor, or by petitioning the court. If you have been arrested for a crime but your charge was dismissed, consult with an attorney about your options.

How to Keep Your Record Clean in Georgia (pt. 3): Sealing Your Record

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Having Your Record Sealed

In our previous posts, we discussed two important ways to avoid getting a criminal record in Georgia. In this post, we cover how to have your record sealed after pleading guilty as a first offender.

The primary benefit of first offender is that it can protect you from having a criminal record. However, your record will show your first offender status until you finish your sentence. Put another way, you must finish all your probation before you get the full benefits of first offender. The only alternative is for your attorney to ask the judge for your record to be sealed while you are on probation.

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What Does Having Your Record Sealed Do?

O.C.G.A. 42-8-62.1 permits the sentencing judge to order that public access to your first offender status be limited while you finish your sentence. At sentencing, the judge can order up to three things. First, she can prohibit the spreading of the first offender sentence. Second, she can require that all of the case information be sealed by the clerk of court and be made unavailable to the public. Third, she can order law enforcement agencies to limit public access to any information regarding your first offender status.

In order for the Judge to seal a record, the statute requires that she “weigh the public’s interest in the defendant’s criminal history record information being publicly available,” on the one hand. And on the other hand weigh “the harm to the defendant’s privacy and issue written findings of fact thereupon.” Your attorney should be ready to argue how leaving your record unsealed would harm you. For example, you may not be able to get a good job or provide for your family if your record is left unsealed. Your attorney should also make an argument regarding the lack of interest the public has in knowing your criminal record. For example, the crime may be victimless, a low-level misdemeanor, or a one-time occurrence.

Having your record sealed is a great tool your attorney can use to keep your record clean while you finish your first offender sentence. By restricting public access to your first offender status, record sealing can help you get your life back to normal as quickly as possible.

Case Law Update: Garr v. State – First Offender

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Gist of the Law

In today’s post, we discuss a new case from the Georgia Court of Appeals, Garr v. State, which concerns First Offender. This case states that the trial court must give a reason on the record for why it is denying First Offender. In specific, Garr prohibits judges from denying First Offender in two instances: First, when there is a “general refusal to consider first offender treatment.” And second, if there was “an erroneous expression of belief that the law did not permit the exercise of such discretion.” In short, automatic denial of First Offender — either by policy or getting the law wrong — is abuse of discretion and grounds for reversal.

Gist of the Facts

Applying this standard to the facts of the case, the Court found that the trial court did not abuse its discretion. Although the trial court said it would not “consider first offender treatment in the case,” it explained that the Defendant had not accepted responsibility. It also explained that because he was serving a straight confinement sentence, there was not the usual benefit of First Offender as there is with a split sentence. The Court found that because the trial court didn’t get the law wrong or fail to give reasons for denying First Offender, there was no abuse of discretion.

Practical Application

Despite the ruling against the Appellant in this case, your attorney can use Garr v. State to your advantage. If you are in a courtroom where the judge just doesn’t give First Offender for certain crimes, your attorney may be able to use this case. For example, some judges may, as a matter of policy, deny First Offender in family violence cases without making any particularized factual findings on the record. According to Garr v. State, this is error. Similarly, if a judge gets the law wrong and thinks that the law prohibits First Offender in certain cases where it actually doesn’t, this is also error. For example, this would occur if a judge thought she may not grant First Offender in all aggravated assault cases. While this is true of aggravated assault on a peace officer, it is not true of aggravated assault generally (see O.C.G.A. 42-8-60).

Garr v. State is important because it protects criminal Defendants from an abuse of discretion by the trial court. This new decision not only requires judges to give particularized reasons before denying First Offender, but also requires that they understand the law correctly.

How to Keep your Criminal Record Clean in Georgia (Pt. 2): Pretrial Diversion and Accountability Courts

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In our last post, we discussed the ways in which people charged with a felony or misdemeanor in Georgia can use First Offender and Conditional Discharge to avoid having a criminal record. In this post, we will discuss other methods of protecting one’s record, which include pretrial diversion and accountability courts.

Many counties in Georgia offer programs that can lead to a dismissal or a “nolle pros” in your case, even if the evidence against you is very strong. When evidence is weak or non-existent in a case, it is good practice for your criminal defense attorney to push for the case to be dismissed. Unfortunately, this is not a very common result in most cases. However, many prosecutors’ offices still offer dismissals in cases if you qualify for and complete a program. Always be sure to ask your attorney if you might qualify for pretrial diversion or accountability courts.

Pretrial diversion is generally offered to first-time offenders for low-level misdemeanors such as shoplifting, theft, disorderly conduct, simple assault, and battery. Every county handles pretrial diversion differently so it is important that you consult with an attorney who is familiar with the county in which you are charged.

Most pretrial diversion programs require that you pay a fine, attend a class or classes, perform a small amount of community service, and undergo a short period of supervision. At the end of the supervision and if all the requirements are completed, the prosecutor agrees to dismiss the charge against you. This means that it will not enter in as a conviction on your record. Pretrial diversion is also usually less onerous than probation and cannot result in jail time if you fail to report or pay. The consequence for failing to complete pretrial diversion is that the case reverts back to being prosecuted as usual.

Many counties in Georgia have what are called accountability courts. Like with pretrial diversion, these programs take your case out of the normal court system and often result in a dismissal of your case upon completion of the program. Accountability courts include programs such as drug court, mental health court, veterans court, and DUI court. Each type of court and each county have specific requirements for entrance. Individuals with substantial criminal histories are frequently denied acceptance.

Drug court, for example, requires that you have a drug addiction and that the drug problem is the underlying issue behind the charge in your case. Drug court can be a great option for you if there is strong evidence against you in your case and if you are ready to beat your addiction. Drug courts in Georgia offer various forms of treatment, counseling, and drug screening to help people achieve sobriety. Drug court is anywhere between 18 months and 2 years, and is usually available to people charged with drug related crimes such as possession, theft, and fraud. Drug court is usually not available for serious violent felonies or drug sale or trafficking, but the requirements vary by county.

Mental health court (also known as resource court) is very similar to drug court, but requires that you have a professional medical diagnosis of a mental health problem such as bi-polar, schizophrenia, PTSD, or depression. In addition to substance abuse help, they focus on the mental health aspects that lead to criminality and provide counselors and medical treatment. Like with drug court, people accused of serious violent felonies usually do not qualify for mental health court. Veterans court treats both mental health and substance abuse, but is reserved for those who have served in the United States military.

While accountability courts could be a great option for you, there are consequences (called sanctions) if you fail drug tests, miss court dates, or commit new crimes. Failing to comply with program guidelines can lead to termination from the program and immediate sentencing for the underlying offense. Talk with your attorney about the pros and cons of accountability courts in deciding if applying to enter one is right for you. Accountability courts can be demanding, but frequently provide useful tools for those who are in need of mental health help or addiction recovery.

One of the greatest benefits of pretrial diversion and accountability courts is that they can help you keep your record clean through a dismissal at the end of the program. Dismissals are most common when a client does not have a criminal record. If a client has a criminal record already, accountability courts often replace the jail or prison sentence, but do not result in a dismissal. Just like First Offender and Conditional Discharge, pretrial diversion and accountability courts are additional tools that may help you keep your record clean in Georgia.

In our next blog post, we will discuss how your attorney can ask the judge to seal your First Offender record, which shields your arrest and First Offender status (while on probation) from public view.

How to Keep Your Record Clean in Georgia (Pt. 1): First Offender and Conditional Discharge

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Being charged with a felony in Georgia and pleading guilty to it can easily lead to you becoming a convicted felon. A felony conviction can stay with you long after you have been convicted — potentially for life — and can continue to negatively affect many areas of your life including employment, housing, education, gun rights, voting rights, and much more. Before you plead guilty to a felony (or a serious misdemeanor), you need to explore ways with your lawyer to have the guilty plea not enter in as a conviction on your record.

The two primary ways to do this in Georgia is either through the First Offender Act (O.C.G.A. 42-8-60) and Conditional Discharge (O.C.G.A. 16-13-2). These two statutes operate differently in Georgia, but lead to the same important result: No felony conviction on your record. However, the downside is that if you violate probation while you are on it (such as by committing a new crime) the court can bring you back in, adjudicate you as guilty, and re-sentence you. If you are someone who is committed to complying with probation and avoiding any future arrests, First Offender and Conditional Discharge could be a great option for you. Now, lets discuss the differences between Conditional Discharge and First Offender.

Conditional Discharge

This statute is geared specifically toward first-time drug offenses, or property offenses that were caused by an underlying drug problem — it doesn’t apply to other kinds of felonies. You can qualify for Conditional Discharge if you have never been convicted of any drug offense in Georgia or any other state or federal court. If the court chooses to use conditional discharge in your case, they may put you on probation for a period not to exceed three years and mandate any treatment they see as necessary. If you complete that probation without violating any terms and conditions, no conviction will enter in on your record. You are only allowed to plead guilty under this statute once.

First Offender

First Offender is like Conditional Discharge, but can be used for virtually any felony except for with more serious felonies such as murder, rape, armed robbery, and sex crimes etc. It is important to remember that the granting of First Offender is within the trial judge’s discretion, and the judge can choose not to give it for any reason. However, if a Defendant in Georgia has never been convicted of a felony in any state, and has committed a less serious felony such as drug possession or a property crime, most Defendants can expect to be treated as a First Offender. Another thing to be aware of is even if you have never committed a felony before but have an extensive misdemeanor criminal history, this may be a reason that a judge chooses not to give you First Offender. Your attorney should be prepared with an argument for the Judge as to why you should get First Offender or Conditional Discharge.

Which One Is Best?

If you are pleading guilty to a first-time drug offense, it is probably better that you use the Conditional Discharge statute rather than First Offender. This is for two reasons. First, the Conditional Discharge statute does not say anything about the judge sentencing you to any jail or prison time, and, in fact, most people get straight probation when being sentenced to Conditional Discharge. The First Offender statute allows the judge to sentence you to probation, jail/prison, or a split sentence. Second, and most importantly, you can conceivably use the First Offender statute after having used the Conditional Discharge already. Once you have used First Offender, it is probably less likely you would get Conditional Discharge. But, again, all of this is up to each individual judge.

In conclusion, remember that while First Offender and Conditional Discharge are great options to keep your record clean in Georgia, there are serious downsides if you violate the terms of your probation or commit a new crime while on probation. In coming posts we will be discussing pre-trial diversion, accountability courts, and record sealing as other ways to keep your record clean in Georgia.