In previous posts, we’ve covered how to avoid convictions on your record. In this post, we will discuss recording limitations (formerly known as “erasure”).
Just because your case was dismissed, still prosed, or deadlocked in Georgia doesn’t mean there aren’t records of it. If you’ve been arrested, it may still be visible to employers and others requesting a background check. Records of your arrest may remain on your file even if your case is dismissed or otherwise resolved. Requesting a recording restriction may result in the arrest or release being viewed and used for law enforcement and criminal justice purposes only. Recording restrictions can be either automatic or upon request. These issues are governed by Georgia Statute 35-3-37, which became effective July 1, 2013.
Automatic Restrictions
35-3-37 requires arrests that have not been “submitted for prosecution” to be automatically restricted after specified periods of time. In these cases you have to wait and see! For misdemeanors (2 years), most crimes (4 years), serious violent crimes and sexual offenses (7 years). Arrests “not referred to prosecution” means the alleged crime was never prosecuted, charged or charged by prosecutors. Automatic limits apply to arrest dates before and after July 1, 2013.
Requested Restrictions
If prosecutors have already charged or charged your case, you are no longer entitled to the automatic restriction of your file. However, provided none of the exceptions below apply, you can simply contact the prosecutor to have the records 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 a lawyer. If you were arrested before July 1, 2013, you must request a freeze period from the arresting authority. However, there are certain requests to restrict recordings that only a judge can grant.
petition to the court
Some scenarios are not necessarily exempt from the recording limit but require a court order. There are four main scenarios. First, when a defendant has been dismissed or acquitted of a crime but has been convicted of an offense not less than the crime. Second, when the Court of Appeals overturned a conviction and the prosecutor has not reopened the case within two years. Third, when a case has been on hold for more than 12 months. Finally, when a person has been convicted of one or more offenses and the person is a ‘juvenile offender’. In this last scenario, there are some other necessary conditions and requirements.
The juvenile offender must have passed the conditions of probation and have not been arrested for any other offense other than non-serious traffic offenses for a period of five years thereafter. In addition, the original conviction must not be a prohibited misdemeanor, most of which relate to misdemeanors, sexual offenses and serious traffic offences.
If any of these scenarios apply to your case, you can ask your attorney to petition the court for a recording restriction order. The court may order a hearing to consider the nature of the offense and the public interest in making the recordings publicly available.
When recording restrictions are not allowed
There are certain cases where the law does not allow recording restrictions. The first and most obvious case is felony convictions. Even where a charge has not been filed or otherwise dismissed, there are certain instances where a record limitation is also not permitted. Second, if there is an agreement for a lower fee resulting from the same transaction or the occurrence of the felony charge.
Third, when the prosecutor dismisses the case because the judge granted a motion for suppression or a motion for injunctive relief. Fourth, when the charge dismissed is part of a pattern or series of crimes and there are charges in other jurisdictions. Fifth, if the accused is convicted in court of some but not all of the charges against him. Sixth, a defendant is acquitted, but it is later found that jury rigging. Seventh, the defendant has some form of diplomatic or other immunity.
The final result
If you’ve been arrested for a crime but not convicted, there’s a good chance you can have the records restricted. As discussed above, this is done either automatically, by registration of the prosecutor, or by an application to the court. If you have been arrested for a crime but your charges have been dismissed, consult an attorney about your options.