Dear Readers, Being arrested is embarrassing enough for most of us, but the odor of the arrest can linger far more than we’d like. Even when the arrest was wrongfully done.
In today’s world, there are even outfits that publish mug shots on the internet, and it is a true pain to get these companies’ attention to pull it down. In other words, its not just about law enforcement records, there is also a public domain about which to be concerned.
Thankfully, the Georgia legislature has recognized that our existing laws about access to criminal histories were unfair. This July, some brand new provisions were put into law, making for a far fairer approach to how criminal records are archived.
This revised law now uses the more accurate term of “restricted” records. And, one of the changes is that certain types of actions, like dismissal of warrants, are supposed to automatically be restricted, without any other type action. If this does not happen automatically, you apply to have it done and the agency has to act promptly within a specified period of time.
Prior to July 1, 2013, there was no such thing as “automatic” restriction, where the burden is on the State – it used to be that all requests for restriction had to be initiated by the individual.
The right to have one’s criminal history restricted used to depend on when and how the case was disposed. This is still true for arrests made prior to July 1, 2013.
Now, though, the rules have been relaxed, even if charges are filed by the prosecutor, you can seek restriction if: 1) the case is dismissed or nolle prosequi (this would include any pre-trial diversion programs, where restriction is permitted upon successful completion); 2) placed on a dead docket for 12 months; 3) dismissal after successful completion of a mental health or drug court; 4) acquittal (yep, prior to this statute, you could not have your record sealed after an acquittal; 5) successful completion of a misdemeanor conditional discharge sentence; 6) youthful offenders (under 21) convicted of certain misdemeanors with 5 years “clean”; 7) conviction of a misdemeanor after being charged with a felony; and, 8) a conviction reversed or vacated.
I would add that nothing about this new law lets someone convicted of a crime have their criminal history restricted. Sadly, we get phone calls, pretty regularly, from people who pleaded guilty to crime, not understanding that this conviction is permanent and cannot be removed.
To the extent that you have to act proactively, the new law still requires you to apply for the “restriction” with the Sheriff’s Department in the County of arrest. There used to be a fee associated with all applications for sealing a criminal history, but there is now only a $50 fee associated with those restrictions that are not supposed to be done so automatically.
These July revisions, to access to criminal records, have also broadened of whom records are restricted. It used to be that this was just true for the actual arresting agency. Now, jails and courthouses are included, which is important, since this is where most of the investigation occurs to ferret out information about arrests.
Either way, if your arrest is “restricted,” your criminal history is cleared and all of your arrest papers/pictures/prints are destroyed, wiping out any record of your arrest – certain governments and law enforcement will, however, always see the record of arrest. Hence, the term “restriction.”
On the other end of things, the Georgia legislature has also passed some laws permitting its citizens to ask for these “mugshot” outfits to remove your pictures – or else. It is not clear how effective these laws will be, in terms of getting relief.
This last session, it seems that the Georgia legislature has gotten some things right when it comes to criminal laws and citizens sucked into the system, but not convicted. Those of us who might be wrongfully charged or convicted will no longer have to endure a lifetime of stain on their character.
Good job Georgia lawmakers!
Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions, and to review former articles and Frequently Asked Questions.
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