Changes to Georgia Expungement and Restriction of Certain Criminal Records

Changes to Georgia Expungement and Restriction of Certain Criminal Records

On May 2, 2012 Governor Nathan Deal signed into law significant changes to O.C.G.A. §35-3-37, the law that governs expungement, restriction, correction and supplementation of criminal records in the state of Georgia. This legislative reform is aimed at removing barriers to employment and housing for individuals with criminal history in order to reduce recidivism rates in the state. The Georgia Justice Project (GJP) focuses its mission on breaking the cycle of poverty and crime. GJP sites that at the time of their arrest, 90% of individuals are considered below the poverty line. When certain criminal history information like arrest and dismissed records follows individuals, it further reduces their chances of obtaining stable employment. Without the ability to provide for themselves and their families, the likelihood for recidivism increases.

The new law, which goes into effect July 1, 2013, affects those with criminal history in two key ways. First, it effectively shifts the current burden of the expungement process from the subject of the criminal record to the agencies that will now be responsible for restricting criminal data eligible for expungement and restriction. Secondly, it expands the types of criminal history eligible for restriction/expungement.

Currently, if a record qualifies for expungement in the state of Georgia, the subject of the record is responsible for the potentially costly and typically time-consuming and slow moving process of petitioning the court for record expungement. Additionally, even after a record has been officially expunged at the court level, it may have previously been collected by companies that own and maintain criminal record databases, and these firms may not update the changes in a timely manner. Therefore, if background screening companies and employers obtain their information from these databases that do not possess the most up-to-date information, the subject of the record is still potentially harmed even if his/her record is already expunged.

Effective July 1, 2013, under the following conditions, the arresting agency and the Georgia Crime Information Center will automatically restrict the following information:

- certain arrests are not referred for formal charge 
- the prosecution dismisses without seeking formal charges
- the Grand Jury returns two “no-bills,”

Further, the new law directs the following agencies to restrict/expunge certain eligible criminal data after formal charges:

- The arresting agency -The Georgia Crime Information Center
- Jails and detention centers (must restrict within 30 days of request by individual)
- Clerks of Court (must restrict within 60 days of an order of the court)

There are eight (8) types of cases where an individual may qualify for expungement/restriction after formal charge, and this includes cases that are dismissed or not prosecuted (nolle prosequi). There are also notable exceptions to the overall qualifications for expungment/restiction. Detailed and comprehensive information compiled by the Georgia Justice Project can be found here. Georgia employers and schools are highly advised to consult this document to gain a complete understanding of the information to which you will no longer have access come July 1, 2013.

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Photo credit: Jimmy Emerson.