Expungement of Criminal Records – General – Georgia
1. What is an expungement?
The process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges.
2. Do the records just “disappear”?
No. The records cannot be accessed for general law enforcement or civil use. The records are to be expunged by destroying the fingerprint cards, photographs, and documents relating exclusively to the person. Any material which cannot be physically destroyed or which the prosecuting attorney determines must be preserved for constitutional reasons shall be restricted by the agency and shall not be subject to disclosure to any person except by direction of the prosecuting attorney or as ordered by a court. Georgia Code § 35-3-37.
What records may be expunged? Records of arrest, including any fingerprints or photographs of the individual taken in relation to the arrest. However, there will not be any destruction of incident reports or other records that a crime was committed or reported to law enforcement. Custodial records maintained by county or municipal jail or detention centers are not subject to expungement. Georgia Code § 35-3-37. DNA profiles of persons whose convictions are reversed and cases are dismissed may be expunged. Georgia Code § 24-4-65. Records of juveniles not adjudged to be quilty of delinquency may also be expunged. § Georgia Code 15-11-83.
3. Who is eligible for an expungement?
1. A person who can show their records are inaccurate or incomplete.
2. A person with no conviction because charges disposed of or dismissed, has no charges pending, and has been not convicted of anything in U.S. in last five years, excluding incarceration time.
3. A juvenile if a petition alleging delinquency is not filed, or the proceedings are dismissed after either a petition is filed, or the case is transferred to the juvenile court as provided in Code Section 15-11-30.4, or the child is adjudicated not to be a delinquent child.
A person is not eligible for expungement if
a)charges were nolled, dead-docketed, or dismissed because of plea agreement resulting in conviction,
b)the government was barred from introducing material evidence,
c)a material witness refused to testify or was unavailable to testify without legal right to do so,
d)the attorney elected not to prosecute for reasons of judicial economy because defendant was incarcerated,
e) the person completed a pretrial diversion program, the terms of which did not specifically provide for expungement,
f) conduct which resulted in the arrest of the individual was part of a pattern of criminal activity which was prosecuted in another court, or
g) diplomatic, consular, or similar immunity prevented a conviction. Georgia Code § 35-3-37.
4. How do I get records expunged?
In the case of DNA profiles or juvenile records, the person who is the subject of such records must request expungement.
In the case of incomplete or inaccurate records, the subject of the records may request the agency having custody or control of the records to purge, modify, or supplement them and to notify the Georgia Criminal Information Center (GCIC)of such changes. The individual or his or her attorney may, within 30 days of such decision, enter an appeal of the agency’s decision to the superior court of the county of his or her residence or to the court in the county where the agency exists, with notice to the agency. The court shall conduct a hearing and may order such relief as it finds to be required by law. Notification of any deletion, amendment, and supplementary notation will be promptly given to any individuals or agencies, including the GCIC, to which the records in question have been communicated, as well as to the person whose records have been ordered altered.
In the case of a person arrested and not convicted, they may make a written request for expungement to the original agency having jurisdiction in the case. Upon receipt of the written request, the agency shall provide a copy of the request to the proper prosecuting attorney. The prosecuting attorney will then review the request to determine if it meets the criteria for expungement. If the request meets those criteria, the prosecuting attorney will then review the records of the arrest to determine if any of the material must be preserved in order to protect the constitutional rights of an accused. If the agency declines to expunge the arrest record, the individual may file an action in the superior court where the agency is located.