What is the expungement process in Georgia?
Full Question:
Answer:
Expungement is the process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges. Once expunged, 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. Records of arrest, including any fingerprints or photographs of the individual taken in relation to the arrest can be expunged. However, incident reports or other records that a crime was committed or reported to law enforcement will not be expunged. Custodial records maintained by county or municipal jail or detention centers are not subject to expungement. DNA profiles of persons whose convictions are reversed and cases are dismissed may be expunged, as well as records of juveniles not adjudged to be quilty of delinquency may also be expunged.
In order to be eligible for expungement, a person must be able to show that their records are inaccurate or incomplete, or they have no conviction because charges were disposed of or dismissed, they have no charges pending, and have not been convicted of anything in U.S. in last five years, excluding incarceration time. A juvenile is eligible 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 the charges were nolled, dead-docketed, or dismissed because of plea agreement resulting in conviction; the government was barred from introducing material evidence; a material witness refused to testify or was unavailable to testify without legal right to do so; the attorney elected not to prosecute for reasons of judicial economy because defendant was incarcerated; the person completed a pretrial diversion program, the terms of which did not specifically provide for expungement; conduct which resulted in the arrest of the individual was part of a pattern of criminal activity which was prosecuted in another court; or diplomatic, consular, or similar immunity prevented a conviction.
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.
The following are Georgia statutes:
35-3-37. (a) Nothing in this article shall be construed so as to
authorize....
(a) Nothing in this article shall be construed so as to authorize any
person, agency, corporation, or other legal entity to invade the privacy
of any citizen as defined by the General Assembly or the courts other
than to the extent provided in this article.
(b) The center shall make a person's criminal records available for
inspection by such person or his or her attorney upon written application
to the center. Should the person or his or her attorney contest the
accuracy of any portion of the records, it shall be mandatory upon the
center to make available to the person or such person's attorney a copy
of the contested record upon written application identifying the portion
of the record contested and showing the reason for the contest of
accuracy. Forms, procedures, identification, and other related aspects
pertinent to access to records may be prescribed by the center.
(c) If an individual believes his or her criminal records to be
inaccurate or incomplete, he or she may request the original agency
having custody or control of the detail records to purge, modify, or
supplement them and to notify the center of such changes. Should the
agency decline to act or should the individual believe the agency's
decision to be unsatisfactory, the individual or his or her attorney
may, within 30 days of such decision, enter an appeal 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, to acquire an order
by the court that the subject information be expunged, modified, or
supplemented by the agency of record. The court shall conduct a de novo
hearing and may order such relief as it finds to be required by law. Such
appeals shall be entered in the same manner as appeals are entered from
the probate court, except that the appellant shall not be required to
post bond or pay the costs in advance. If the aggrieved person desires,
the appeal may be heard by the judge at the first term or in chambers. A
notice sent by registered or certified mail or statutory overnight
delivery shall be sufficient service on the agency having custody or
control of disputed record that such appeal has been entered. Should the
record in question be found to be inaccurate, incomplete, or misleading
as set forth in paragraph (3) of subsection (d) of this Code section, the
court shall order it to be appropriately expunged, modified, or
supplemented by an explanatory notation. Each agency or individual in the
state with custody, possession, or control of any such record shall
promptly cause each and every copy thereof in his or her custody,
possession, or control to be altered in accordance with the court's
order. Notification of each such deletion, amendment, and supplementary
notation shall be promptly disseminated to any individuals or agencies,
including the center, to which the records in question have been
communicated, as well as to the individual whose records have been
ordered so altered.
(1) An individual who was:
(A) Arrested for an offense under the laws of this state but subsequent
to such arrest is released by the arresting agency without such offense
being referred to the prosecuting attorney for prosecution; or
(B) After such offense referred to the proper prosecuting attorney, and
the prosecuting attorney dismisses the charges without seeking an
indictment or filing an accusation may request the original agency in
writing to expunge the records of such arrest, including any fingerprints
or photographs of the individual taken in conjunction with such arrest,
from the agency files. Such request shall be in such form as the center
shall prescribe. Reasonable fees shall be charged by the original agency
and the center for the actual costs of the purging of such records,
provided that such fees shall not exceed $50.00.
(2) Upon receipt of such written request, the agency shall provide a
copy of the request to the proper prosecuting attorney. Upon receipt of a
copy of the request to expunge a criminal record, the prosecuting
attorney shall promptly review the request to determine if it meets the
criteria for expungement set forth in paragraph (3) of this subsection.
If the request meets those criteria, the prosecuting attorney shall
review the records of the arrest to determine if any of the material
contained therein must be preserved in order to protect the
constitutional rights of an accused under Brady v. Maryland.
(3) An individual has the right to have his or her record of such
arrest expunged, including any fingerprints or photographs of the
individual taken in conjunction with such arrest, if the prosecuting
attorney determines that the following criteria have been satisfied:
(A) The charge was dismissed under the conditions set forth in
paragraph (1) of this subsection;
(B) No other criminal charges are pending against the individual;
and
(C) The individual has not been previously convicted of the same or
similar offense under the laws of this state, the United States, or
any other state within the last five years, excluding any period of
incarceration.
(4) The agency shall expunge the record by destroying the fingerprint
cards, photographs, and documents relating exclusively to such person.
Any material which cannot be physically destroyed or which the
prosecuting attorney determines must be preserved under Brady v. Maryland
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 of record of this state.
(5) It shall be the duty of the agency to notify promptly the center of
any records which are expunged pursuant to this subsection. Upon receipt
of notice from an agency that a record has been expunged, the center
shall, within a reasonable time, restrict access to the criminal history
of such person relating to such charge. Records for which access is
restricted pursuant to this subsection shall be made available only to
criminal justice officials upon written application for official judicial
law enforcement or criminal investigative purposes.
(6) If the agency declines to expunge such arrest record, the
individual may file an action in the superior court where the agency is
located as provided in Code Section 50-13-19. A decision of the agency
shall be upheld only if it is determined by clear and convincing evidence
that the individual did not meet the criteria set forth in paragraph (3)
of this subsection or subparagraphs (A) through (G) of paragraph (7) of
this subsection. The court in its discretion may award reasonable court
costs including attorney's fees to the individual if he or she prevails
in the appellate process. Any such action shall be served upon the
agency, the center, the prosecuting attorney having jurisdiction over the
offense sought to be expunged, and the Attorney General who may become
parties to the action.
(7) After the filing of an indictment or an accusation, a record
shall not be expunged if the prosecuting attorney shows that the
charges were nolle prossed, dead docketed, or otherwise dismissed
because:
(A) Of a plea agreement resulting in a conviction for an offense
arising out of the same underlying transaction or occurrence as the
conviction;
(B) The government was barred from introducing material evidence
against the individual on legal grounds including but not limited to
the grant of a motion to suppress or motion in limine;
(C) A material witness refused to testify or was unavailable to testify
against the individual unless such witness refused to testify based on
his or her statutory right to do so;
(D) The individual was incarcerated on other criminal charges and
the prosecuting attorney elected not to prosecute for reasons of
judicial economy;
(E) The individual successfully completed a pretrial diversion
program, the terms of which did not specifically provide for expungement
of the arrest record;
(F) The conduct which resulted in the arrest of the individual was
part of a pattern of criminal activity which was prosecuted in another court
of this state, the United States, another state, or foreign nation; or
(G) The individual had diplomatic, consular, or similar immunity or
inviolability from arrest or prosecution.
(8) If the prosecuting attorney having jurisdiction determines that the
records should not be expunged because the criteria set forth in
paragraph (3) or subparagraphs (A) through (G) of paragraph (7) of this
subsection were not met, and the agency or center fails to follow the
prosecuting attorney's recommendation, the prosecuting attorney having
jurisdiction over the offense sought to be expunged or the Attorney
General may appeal a decision by the agency or center to expunge a
criminal history as provided in Code Section 50-13-19.
(9) An individual who has been indicted or charged by accusation that
was subsequently dismissed, dead docketed, or nolle prossed may request
an expungement as provided by paragraphs (1) through (3) of this
subsection; provided, however, that if the prosecuting attorney objects
to the expungement request within 60 days after receiving a copy of said
request from the agency, the agency shall decline to expunge and the
individual shall have the right to appeal as provided by paragraph (6) of
this subsection.
(10) Nothing in this subsection shall be construed as requiring the
destruction of incident reports or other records that a crime was
committed or reported to law enforcement. Further, nothing in this
subsection shall be construed to apply to custodial records maintained by
county or municipal jail or detention centers. It shall be the duty of
the agency to take such action as may be reasonable to prevent disclosure
of information to the public which would identify such person whose
records were expunged.
(e) Agencies, including the center, at which criminal offender records
are sought to be inspected may prescribe reasonable hours and places of
inspection and may impose such additional procedures, fees not to exceed
$3.00, or restrictions including fingerprinting as are reasonably
necessary to assure the records' security, to verify the identities of
those who seek to inspect them, and to maintain an orderly and efficient
mechanism for inspection of records.
(f) The provisions of Chapter 13 of Title 50, the "Georgia
Administrative Procedure Act," shall not apply to proceedings under this
Code section.
(g) If the center has notified a firearms dealer that a person is
prohibited from purchasing or possessing a handgun pursuant to Part 5 of
Article 4 of Chapter 11 of Title 16 and if the prohibition is the result
of such person's being involuntarily hospitalized within the immediately
preceding five years, upon such person or his or her attorney making an
application to inspect his or her records, the center shall provide the
record of involuntary hospitalization and also inform the person or
attorney of his or her right to a hearing before the judge of the probate
court or superior court relative to such person's eligibility to possess
or transport a handgun.
