By: Larry Kohn, veteran expungement attorney and award-winning criminal defense attorney, has provided focused legal advice on Georgian criminal law for over 20 years
The state of Georgia has a criminal deletion process that allows one or more prior arrests to be removed from your criminal history with the Georgia Crime Information Center (GCIC). However, the situations in which that arrest can be removed from a search of the Georgia public criminal record are limited. First, let’s look at two different sources for our delete definition.
This important article will help you see if your previous arrest qualifies for deletion. First, this American Bar Association description offers some guidance on defining what deletion means: “Delete means to erase or remove completely. In law, ‘erasure’ is the process by which a record of a criminal conviction is destroyed or sealed…”
Wikipedia points out that a deletion is not a pardon. The ubiquitous online resource states the following: “When a deletion is granted, the person whose entry is being deleted may, for most purposes, treat the event as if it never happened.” Of course, this statement only applies to expuntion on local level (state, commonwealth or province), but usually does not reach federal records.
The Peach State is among the most conservative states in the nation. Until former Gov. Nathan Deal urged the Georgia legislature to find ways to help citizens clean up their past arrests and criminal records, there was virtually no good method for restricting records in GA. Governor Deal’s efforts resulted in the passage of OCGA 35-5-37. The law does not distinguish between misdemeanor and crime.
This new law states that you may be entitled (after a criminal record check) to erase an arrest record from the Georgia criminal record if no charges or charges have been filed or filed against you. When submitting documents to the relevant departments, mistakes can be made by the arresting authority. After your criminal record check, you can attempt to get your criminal background check correct, but take this time and only spend this money if you meet the following criteria:
A, If a nolle prosequi (dismissal of charges) has been issued by the public prosecutor’s office or the case has been put dead or an injunction referred to as NOD (not on docket) after the expiry of the statute of limitations (2 years a charge of misdemeanor). The charge must have been dismissed (again, for this right, the dismissal must be done before an indictment or charges are brought);
B. You must not have any other criminal charges pending at the time you request deletion;
C. Within the past five years (based on date of arrest) you have not been convicted of the same or a similar crime in Georgia or any other state.
How to get a deleted record in GA
After a record check or refusal to work (following routine background checks), prospective clients call our law firm to remove an arrest from their Georgia criminal record. Frequently, a DUI charge is the source of their inquiries about Georgia deletion laws.
On a drunk driving or stoned driving conviction or granted a nolo contendere plea for drink driving (drunk driving), that DUI case cannot have the record erased.
But if you were arrested for DUI in Georgia and never convicted of that crime, you have the option to have the DUI Georgia charges dropped may exist. Questions about the disposition of your case may be raised by the county or city attorney’s office, such as: B. “Have you installed an ignition interlock device?”. but no Georgia case states that an administrative driver’s license action at DDS Georgia disqualifies you.
Next, however, is a second potential eliminator to overcome: If the DUI charge has been reduced or reduced to a lesser offense (eg, reckless driving GA), you are NOT eligible to remove those criminal records.
So if you are completely acquitted of every charge, or if the prosecutor was forced to drop the charges because the law enforcement officer who made your arrest is unavailable, then a Georgia record deletion is possible. Officers leave a police department every month and may never return to their court cases. In addition, you may request deletion from a NOD (as described in Section A above) for failure to prosecute within the two-year time limit set by GA laws.
Before your deletion is processed by the GCIC, the district attorney’s office will review all records and determine if you qualify for deletion. So, you need to meet certain qualifications to be able to delete records in Georgia. Note that if your criminal case is dismissed after a grand jury indictment or after a formal indictment in court, there are additional conditions that must be met in order to clear all hurdles.
This means that the prosecutor has no choice in the matter and your file will be deleted. However, if your case was dismissed after being charged or accused, additional conditions must be met. If you have pleaded not guilty or nolo, please read below carefully before calling our law firm.
A subsection of Georgia’s erasure statute at OCGA 35 5 37, (d)(1) states: “After the filing of an indictment or indictment, a record will not be erased unless the prosecutor establishes that the charges were not filed, terminated, or otherwise dismissed.” , because:
(A) a plea agreement leading to a conviction for a criminal offense arising out of the same underlying transaction or incident as the conviction;
(B) The Government was barred on legal grounds from presenting material evidence against the person, including but not limited to granting a motion for suppression or a motion for injunctive relief;
(C) A key witness refused to testify or was unavailable to testify against the person unless that witness declined to testify as a result of his or her legal right;
(D) the person was detained on other criminal charges and the prosecutor decided against the charge on grounds of the economy of justice;
(E) the person successfully completed a pre-trial diversionary program the terms of which did not expressly provide for the deletion of the arrest record;
(F) the conduct leading to the person’s arrest was part of a criminal activity being prosecuted in any other court of that state, the United States, any other state or foreign nation; or
(G) The person had diplomatic, consular or similar immunity or inviolability
Can I appeal the prosecutor’s denial of my expunition?
Yes, Georgian law provides that you can appeal (within 30 days of rejection) against the prosecutor’s decision. This appeal is per certiorari in Georgia County Superior Court, where the contested arrest occurred.
Larry Kohn, an experienced cancellation attorney from our criminal defense group, can explain this process and the costs if needed. A former police officer and now a partner in our legal team can also help you. Call our office and ask to speak to our criminal justice attorneys in my area as soon as possible to: a FREE Advice. 404-567-5515.
There are several pitfalls when attempting to clear your criminal record. Finally, you may find that a deletion is not possible for the deletion of your Georgia listing. Our Atlanta attorneys try to save you the time, expense and disappointment when the provisions of the GA Record Restriction Act are stacked against you.
Finally, while other states have more favorable expunction laws (e.g., Maryland’s parole before judgment, Florida’s diversion law), that doesn’t mean you’ll find parallel laws in Georgia. Aside from our juvenile laws, which were more favorable to a felony vs. misdemeanor court order of dismissal, Georgia is very restrictive in allowing for criminal records to be wiped.
