RECORD RESTRICTION IN GEORGIA*
You might ask, “What is record restriction and why is it important to me?”
Georgia law O.C.G.A. Section 35-3-37 creates a process which allows individuals to correct, supplement and restrict certain criminal records from public access. This process offers relief to many Georgians who have faced challenges when trying to apply for jobs, professional licenses, housing and loans. The goal is to remove barriers which prevent individuals from becoming productive members of society and to reduce criminal recidivism rates in Georgia.
If you have ever been arrested in the State of Georgia, a record of that arrest is maintained by the Georgia Criminal Information Center (GCIC), the arresting agency such as your sheriff’s office or police department, and any jail or detention facility in which you were housed. If your charge was sent to a prosecution office, such as the District Attorney or Solicitor’s Office, that office and the court clerk’s office may also have records of that arrest. Without some form of record modification/restriction, most, if not all, of those records are accessible by the public.
Before talking about what types of records can be restricted, you should know criminal convictions, guilty pleas and nolo contendere pleas are not eligible for record restriction. The only exception to this, is that some youthful misdemeanors may be eligible for restriction.
The following types of criminal record information can be restricted from public access:
- In general, all complete dismissals of criminal charges are eligible for record restriction;
- Arrests which were not forwarded to a court or prosecutor and were dismissed by the arresting agency are eligible for record restriction;
- Arrests that were forwarded for prosecution but were later dismissed or nol prossed by the prosecutor are eligible for record restriction
- If an individual had their charges dropped because of a conditional discharge, diversion program, completion of a drug or mental health court or because of an acquittal at trial, the record is eligible for restriction;
- Finally, ,arrest records should be automatically restricted at GCIC if a certain amount of time passes without a court disposition or result being entered. For misdemeanors, this time limit is two years, general felonies, it is four years, and for certain violent and sexual felonies, it is seven years.
If you believe that your GCIC criminal history information is incomplete, inaccurate, misleading or eligible for record restriction, you should start by obtaining a copy of your criminal history information from your local sheriff’s office or police department. They will charge you a fee, up to $25, for this service. Once you have reviewed the information and still believe it to be lacking or restriction eligible, you can obtain a form from the Georgia Bureau of Investigation (GBI) website or from the arresting law enforcement agency (the sheriff’s office or police department that originally issued the warrant for your arrest) to begin the process of restriction. You should fill out the form and submit it to back to the arresting agency. The arresting agency will charge a fee, up to $25, to process the form. They will then submit the form to the prosecutor for review. If the prosecutor has no objection, the form will be returned to the arresting agency. The arresting agency will restrict its arrest records and will forward the approval for restriction to GCIC. If the prosecutor denies your request for record restriction, you can file an appeal with the court which had jurisdiction over your case.
To restrict records maintained by the clerk of a court and/or a jail or detention facility, you will have to file an action in the court which had jurisdiction over your case. If the court agrees that record restriction is appropriate, it will issue an order to the clerk of court and the jail or detention facility to restrict your information from public view.
The process for record restriction can be tricky and is dependent on the facts of each individual case. It is recommended that an individual seeking record restriction consult with an attorney who regularly practices in this area of the law.
As a reminder, record restriction is not currently available for most criminal convictions and should not be considered, when granted, as a pardon.
The importance of record restriction should not be dismissed. The information reflected on an individual’s criminal history can be critical to their ability to access opportunity in Georgia. Now, because of criminal justice reform, individuals previously unable to succeed, due to misleading criminal histories, will be assured that their criminal history information is consistent, accurate and complete. The revisions to the law will improve public safety and reduce recidivism in Georgia because people who have are able to obtain stable employment, are less likely to commit crimes. And, we all benefit from that.
*Please note, the above is not legal advice. Your reliance on it is at your own risk. Provision of this article as a public benefit does not create a contract between you and the attorneys at The Read Law Firm, P.C. Law changes and the intricacies of a particular case should always be discussed with a competent attorney.