Expungement, known in Georgia as “record restriction,” is the process of removing a criminal conviction from someone’s publicly available criminal history. This means that a restricted charge will not show up on a background check to housing providers, employers, or the general public. Only law enforcement and judicial offices retain access to the restricted records.
Record Restrictions for Misdemeanor Convictions
One may petition the court to remove a misdemeanor conviction from their record if certain requirements are met. Eligibility is determined under O.C.G.A. § 35-3-37(j)(4). First, you must have completed the sentence imposed for the original conviction. Additionally, it must have been at least four years since your sentence was imposed and you cannot have any other criminal convictions (except for minor traffic offenses) during that time. As long as there are no charges pending against you, the restriction process can then begin. You must submit your record restriction request to the court where the original conviction occurred, which may then set a hearing on the matter. Most misdemeanor offenses are eligible for restriction through this process, but there are some exceptions, including family violence offenses and major traffic violations. See O.C.G.A. § 35-3-37(j)(4)(B) for the complete list of ineligible offenses. A person may request up to two misdemeanor restrictions in their lifetime.
Pardoned Convictions
Felony convictions for which you have been granted a pardon may also be eligible for record
restriction under O.C.G.A. § 35-3-37(j)(7). The process begins by submitting a pardon application to the Board of Pardons and Paroles. An applicant must first ensure that it has been at least five years since they completed their sentence (including probation and parole), that they have not been convicted of any other crimes during the five-year waiting period, and that there are no pending charges against them (minor traffic offenses excluded). Once you have been granted a pardon, you may then petition the court for restriction using the same process laid out for misdemeanor offenses. Certain offenses, including serious violent felonies and certain sexual offenses, cannot be restricted even with a pardon. It is advisable to hire an attorney before submitting your pardon application, in order to maximize your chances of success.
Other Routes
If you do not meet the requirements of O.C.G.A. § 35-3-37, you may still be able to restrict your criminal history through a petition for Retroactive First Offender Treatment under O.C.G.A. § 42-8-66. If you were eligible to be treated as a First Offender at the time of your conviction, but were not advised of this, you may ask the court to retroactively sentence you as a First Offender, even if you have completed your entire sentence already. You must first obtain consent from the prosecutor to file a petition but, if successful, First Offender Treatment can restrict a case from your criminal history even if it would not normally be eligible for restriction.
If you have further questions about whether you are eligible for relief under Georgia’s expungement laws, please call our office and schedule a free consultation today.