If you have a criminal record it can make it difficult to get a job, rent an apartment, and even go to college. In today’s electronic world, it seems anyone can access your criminal history to find out if you have a conviction. You may wonder whether you can get your criminal record expunged or removed. There are several options; however, in general, none of them will provide you with a completely clear record. It is worth investigating your choices with help from a knowledgeable criminal defense attorney in Carrollton.
What Is an Expungement?
Many people think that they can expunge their records and get a clean slate. That is not true. There is no way to completely erase your record. However, there is something called a record restriction. A record restriction limits the people or agencies that can view your record. Your criminal record will still be in the system, however, in some cases, there will be limited access. Not every case is subject to restriction. When a record is restricted, it is still available to members of law enforcement, judges, and others in the criminal justice system.
In some cases, your record may be eligible for automatic restriction. This applies to cases where you were acquitted of charges after the trial or when the trial is delayed. However, if the trial is delayed, your record will only be restricted until the case is concluded. At that time, your record will again reappear. If you were convicted of a crime prior to the age of 21, you may be eligible to have your record restricted. This can be extremely beneficial for young people who are now ready to begin adulthood with a fresh start.
Expungement Due to Errors
If a mistake was made on your record, Georgia law allows you to file a petition to correct the error. For example, if you were originally charged with a felony, but the charges were later reduced to a misdemeanor, your record might still show the felony listed. This could be a problem when someone performs a background check. Even though you were not convicted of a felony, it could appear that way on your record. You can file to have the record reviewed. If it is deemed that an error was made, your record will be corrected.
What is the difference between sealing, expungement, and restriction?
Sealing. Georgia law permits a person to have his or her records in specific misdemeanor, juvenile, or other violations in Criminal and Traffic cases to be sealed. Sealed records are closed and restricted from public access, but are not destroyed.
Expungement. If a judge grants your expungement petition and orders the State Police to “expunge” your records, both the State Police and the arresting agency will destroy your records or return them to you. When an expungement occurs, you are allowed to deny the incident occurred when applying for employment or housing. In Georgia, expungement is not an option because your criminal record stays with you forever.
Restriction. A record restriction means that eligible records on your official criminal history report can be restricted from public view. They would only be accessible to law enforcement for criminal justice purposes. Private employers and most public employers would not have access to your restricted record. However, you will not be able to legally state that you “don’t have a criminal record.” It is the same as a sealed record.
Eligibility for Restriction
The eligibility criteria for restriction varies because misdemeanors, juvenile offenses, and felonies are all handled differently.
Juvenile Offenses: Certain misdemeanor convictions that occurred before you turned twenty-one qualify for restriction. The following charges cannot be restricted:
- Driving under the Influence
- Reckless or Aggressive Driving
- Vehicular homicide or serious injury by vehicle
- Sexual Crimes
Misdemeanors. Most misdemeanors can be restricted. Certain misdemeanor charges are not eligible for restriction, such as driving under the influence, reckless driving, and several sexually related crimes.
Felonies. Georgia does not allow felony charges to be restricted.
How does a Record Restriction Work?
There are two ways a criminal record can be restricted:
- An Automatic Record Restriction happens if you were arrested, but your case was not referred for prosecution. The record of your arrest is automatically be restricted after a designated period.
- A Record Restriction by Petitionmeans your record is not eligible for automatic restriction. You will need to file a petition with the appropriate court.
The Process of Having Your Criminal Record Restricted
Obtain Your Criminal Record
The first step in determining eligibility for restriction is to obtain your criminal record. Criminal records list offenses you were arrested for, the offenses you were charged with, and the outcome of the cases, including any sentences you received. You or your attorney can obtain your record from the State Police or local law enforcement agency.
Obtain the forms to have your Georgia Record Restricted
Georgia law does not allow the restriction of a person’s complete criminal history. Each eligible offense must be applied for separately for record restriction.
You will need to obtain the names and addresses of all legal parties that were involved in your criminal case, including the law enforcement agency that arrested you, the attorney representing the county, and the prosecutor in your case. You will also need the date of the arrest and the offense. You or your attorney can obtain the necessary forms from the police department.
File and submit the request for restriction forms
Once all the documents and forms have been submitted, the court has 60 days to review your petition to make a decision. If the court orders your record restriction, the involving agencies have an additional 60 days to vacate or modify that order.
If the GCIC denies your request, you can file a lawsuit in the Superior Court of the county the arresting police department is located in. You have thirty days from the date of receiving the denial to file the lawsuit.
The process of restricting your criminal record can be complicated, and it can take an extensive amount of time to complete. A knowledgeable criminal defense attorney can determine whether you are eligible for restriction, walk you through the restriction process if you qualify, and represent you in court as needed.
There are many other situations that could warrant a review and change to your record. These types of changes are not automatic, so you must file a petition with the court. It is important to know that there are time limits on how long you have to file a petition. In some cases, you must file within 4 years of the arrest. If you filed a petition but it was denied, you have the right to appeal. Expungement and removal proceedings can be difficult and complex. It is helpful to get guidance from an experienced Carrollton criminal defense attorney. Your lawyer will review your situation and let you know your options so you can make the decision that meets your needs. Contact our legal team at Moffitt Law, LLC for a free initial case evaluation.