How To’s: Restriction

Restriction

How to Restrict (Expunge) Records of a Case that was Dismissed or Otherwise Closed without Conviction and Seal the Court Records

When a charge is dismissed or otherwise closed without conviction, you may qualify for restriction (expungement). See O.C.G.A. 35-3-37(h).

ELIGIBILITY:

  1. Case was dismissed, not prosecuted, not presented to the grand jury (NPGJ), or twice no-billed by the grand jury; or
  2. You were acquitted (found not guilty) of all charges.

NOTE: You do not qualify for restriction if your charge was indicted but later closed without conviction because:

  • You pled guilty to another charge in the case;
  • You were involved in a pattern of criminal activity prosecuted in another jurisdiction;
  • The prosecution could not use important evidence against you (evidence was suppressed);
  • You were acquitted, but there was evidence of jury tampering or judicial misconduct.
  • You had some form of immunity

PROCESS FOR GCIC/ARRESTING AGENCY RECORDS:

Eligible arrests occurring after July 1, 2013 will be restricted (expunged) from your criminal history by the Georgia Crime Information Center (GCIC) as soon as the disposition is entered into the GCIC database, and the arresting agency within thirty (30) days of the entry.

Eligible arrests occurring before July 1, 2013 must be restricted by completing a multi-step application process.The process can take up to 150 days and is as follows:

  1. Contact the arresting law enforcement agency for the requirements to restrict a record.
  2. Submit the application and any other required documentation. There is usually a processing fee of $25.00, though the agency can charge up to $50.00. A copy of the Application is included with these instructions. Applications can also be found at:                 https://gbi.georgia.gov/sites/gbi.georgia.gov/files/related_files/site_page/Request%20to%20Restrict%20Arrest%20Record%20Instructions%20and%20Request%20Form.pdf
  3. Within thirty days (30) of receiving the application, the arresting agency must forward the application to the prosecuting attorney’s office to verify that charges qualify for restriction.
  4. Within ninety (90) days of receipt from the arresting agency, the prosecuting attorney must decide whether the record will be restricted (expunged) – based on the criteria in the law – and return the application to the arresting agency. If approved, the arresting agency must restrict the information within thirty (30) days and return the application to you at the address you provided on the application.
  5. If the application is approved, you must send it to GCIC with a $25.00 money order to restrict the charge from your official Georgia criminal history record. If the application is denied, you have thirty (30) days to appeal by civil action in superior court.

PROCESS FOR COURT RECORDS

To get the file of your restricted charges sealed you must file an action and show the court that the harm suffered by the clerk’s record remaining public (i.e., denial of jobs, licensing, housing, etc.) outweighs the interest in the record being publicly available. In other words, you need the file sealed more than the public needs access to the file. See O.C.G.A. 35-3-37(m).

The process to seal the records of the court is as follows:

  1. Get a certified copy of the final disposition in your case from the clerk of court where your case was handled.
  2. Prepare the motion. A sample motion is included in these instructions.
  3. Sign and date the motion.
  4. Indicate the case number assigned to the criminal case.
  5. Attach the final disposition and any other required documentation. (NOTE: Do not attach a copy of your criminal history.)
  6. Attach any additional documentation showing that the presence of the record on your GCIC criminal history record is causing you harm (such as letters of employment or housing denials based on your background).
  7. Make three copies of your original documents.
  8. File the Motion and Draft Order in the criminal division of the clerk of court that handled the case. There should not be a filing fee. (NOTE: If the case was a felony, you should file the motion in the superior court. If the case was a misdemeanor, the motion should be filed in the state court.)
  9. Deliver or send a copy of your Motion and Draft Order to the office of the prosecuting attorney in the original case and the clerk of court.
  10. If you requested a hearing, the judge will hear testimony about whether record restriction is appropriate in your case.
  11. If the judge finds that restriction is appropriate, he or she will sign the order. It must be filed with the clerk of the court that handled the case.

PROCESS FOR JAIL RECORDS

You can restrict records maintained by jails and detention centers if the records have already been restricted. See “How to Restrict (Expunge) Records Kept by the Jail” on page 110.

How to Restrict (Expunge) Records of a Vacated or Reversed Conviction and Seal the Court Records

If your conviction was vacated by the trial court or reversed by an appellate court, the record may be eligible for restriction (expungement). See O.C.G.A. 35-3-37(j)(2).

ELIGIBILITY:

  1. You were convicted of an offense not punishable by death;
  2. The conviction was vacated by the trial court or reversed by final decision of an appellate court;
  3. The prosecution did not retry the case within a two (2) year period after the order vacating/reversing the conviction became final; and
  4. The record is causing you harm. For instance, you are unable to get a job and/or housing because of the record.  Harm may be demonstrated through your testimony in court or by providing denial letters from employers or housing providers.

PROCESS:

  1. File an action (motion/petition) in the superior court in the county where the record is located for an order to restrict the record.
    1. If the vacated/reversed conviction was handled in superior court see “How to Restrict (Expunge) Charge(s) Handled in Superior Court (Usually Felonies)” on page 101.
    2. If the vacated/reversed conviction was not handled in superior court, see “How to Restrict (Expunge) Charge(s) NOT Handled in Superior Court (Usually Misdemeanors)” on page 103.
  2. Deliver a copy of the action to the prosecuting attorney’s office.
  3. If requested, a hearing will be held within ninety (90) days of filing.
  4. The court will hear evidence to determine if restriction is appropriate. The court will consider the reason the conviction was reversed or vacated, why the prosecution did not retry the case within the two (2) year period, and whether the public has an interest in the record being available.
  5. If the court orders the records restricted, you can submit a written request for restriction to the jail/detention center and the law requires the records be restricted within thirty (30) days of your request. See “How to Restrict (Expunge) Records Kept by the Jail” on page 110.

REQUIRED DOCUMENTATION:

  1. Certified copy of the final disposition from the clerk of court.
  2. Order Vacating/Reversing Conviction.
  3. Motion/Petition to Restrict. (Sample documents are included with these instructions)

How to Restrict (Expunge) Records of a Case Placed on the Dead Docket and Seal the Court Records

Placing a case on the “dead docket” means the prosecution suspends the case indefinitely, but it can be reinstated at any time by the court. The case is still pending while on the dead docket and some employers may not hire you for this reason. If your case was placed on the dead docket, you can ask the court to restrict (expunge) the record after it has been on the dead docket for a period of twelve (12) months. See O.C.G.A. 35-337(j)(3).

ELIGIBILITY:

  1. The case was placed on the dead docket;
  2. The case has been on the dead docket for twelve (12) months; and
  3. You do not have an active warrant.

PROCESS:

  1. File an action (motion/petition) in the superior court in the county where the record is located for an order to restrict the record.
    1. If the dead docketed charge(s) was handled in superior court, see “How to Restrict (Expunge) Charge(s) Handled in Superior Court (Usually Felonies)” on page 101.
    2. If the dead docketed charge(s) was not handled in superior court, see “How to Restrict (Expunge)  Charge(s) NOT Handled in Superior Court (Usually Misdemeanors)” on page 103.
  2. Deliver a copy of the action to the prosecutor’s office.
  3. If a hearing is requested, it must occur within ninety (90) days of the filing.
  4. The court will consider the reason the case was placed on the dead docket and grant restriction if appropriate.
  5. If the court orders the records restricted, you can submit a written request for restriction to the jail/detention center and the law requires the records be restricted within thirty (30) days of your request. See “How to Restrict (Expunge) Records Kept by the Jail” on page 110.

REQUIRED DOCUMENTATION:

  1. Certified copy of the final disposition from the clerk of court.
  2. Motion/Petition to Restrict. (Sample documents are included with these instructions)

How to Restrict (Expunge) Youthful Offender Convictions and Seal the Court Records

If you were convicted of certain misdemeanor charges when you were under the age of twenty-one (21), you can petition to have the record(s) restricted (expunged). See O.C.G.A. §35-3-37(j)(4).

ELIGIBILITY:

1. You were convicted of a misdemeanor or a series of misdemeanors arising from a single incident.

The following misdemeanor offenses are not eligible for restriction:

  • Serious Traffic Offenses including:
  • Driving Under the Influence (DUI)
  • Reckless Driving
  • Aggressive Driving
  • Theft (does not include Shoplifting)
  • Child Molestation
  • Enticing a Child for Indecent Purposes
  • Pimping
  • Keeping a Place of Prostitution
  • Pandering by Compulsion
  • Masturbation for Hire
  • Giving Massages in a Place used for Lewd Sexual Acts
  • Sexual Battery
  • Sexual Assault by Persons with Supervisory or Disciplinary Authority
  • Sexual Exploitation of Children
  • Electronically Furnishing Obscene Material to Minors
  • Obscene Telephone Contact with a Minor
  • Computer Pornography 

2. You were under the age of twenty-one (21) when convicted;

3. You successfully completed the sentence; and

4. You have not been charged with a criminal offense in the last five (5) years before you are petitioning for restriction (excluding non-serious traffic offenses).

PROCESS:

  1. File a petition in the superior court in the county where the case occurred for an order to restrict the records. See “How to Restrict (Expunge) Charges NOT handled in Superior Court” on page 103.
  2. Deliver a copy of the petition to the prosecuting attorney’s office.
  3. If requested, hearing must occur within ninety (90) days of filing the petition.
  4. The court will grant restriction if appropriate, considering your conduct since conviction and the public’s interest in the record being available.
  5. If the court orders the records restricted, you can submit a written request for restriction to the jail/detention center and the law requires the records be restricted within thirty (30) days of your request. See “How to Restrict (Expunge) Records Kept by the Jail” on page 110.

REQUIRED DOCUMENTATION:

  1. Certified copy of the final disposition from the clerk of court.
  2. Proof of successful completion of the sentence.
  3. Petition to restrict. (Sample petition is included with these instructions)
  4. Evidence that the charge causes you harm (such as preventing employment).

How to Restrict (Expunge) a Felony Charge When Only Convicted of an Unrelated Misdemeanor and Seal the Court Records

You can have a felony charge restricted on your criminal history if it was closed without conviction and you were convicted only of an unrelated misdemeanor offense in the case. See O.C.G.A. §35-3-37(j)(1).

ELIGIBILITY:

  1. You were arrested within the last four (4) years;
  2. You were charged with a felony offense(s) but not convicted of the felony;
  3. You were convicted of an unrelated misdemeanor(s) in the case; and
  4. The record of the felony charge(s) is causing you harm. For instance, you are unable to secure employment and/or housing because of the record, which can be demonstrated through your testimony or denial letters from employers or housing providers.

PROCESS:

  1. File an action (motion/petition) in the superior court in the county where the record is located for an order to restrict the felony charge.
    1. If the felony charges were indicted (i.e., the charge(s) was assigned a court case number), see “How to Restrict (Expunge) Charge(s) Handled in Superior Court (Usually Felonies)” on page 101.
    2. If the felony charges were never indicted (i.e., the charge(s) dismissed before the assignment of a court case number) or you are not sure whether the charges were indicted, see “How to Restrict (Expunge) Charge(s) NOT Handled in Superior Court (Usually Misdemeanors)” on page 103.
  2. Deliver a copy of the action to the prosecuting attorney’s office
  3. If requested, a hearing must be held within ninety (90) days of filing the request.
  4. The court will grant restriction if it determines that the misdemeanor conviction is not related to the felony (not a lesser included offense) and the harm you suffer clearly outweighs the public interest in the record.
  5. If the court orders the record restricted, you can submit a written request for restriction to the jail/detention center and the law requires the record be restricted within thirty (30) days of your request. See “How to Restrict (Expunge) Records Kept by the Jail” on Page 110.

REQUIRED DOCUMENTATION:

  1. Certified copy of the final disposition from the clerk of court.
  2. Motion/Petition to Restrict. (Sample documents are included in these instructions)
  3. Evidence that the charge is causing you harm (such as keeping you from finding employment).

How to Restrict (Expunge) Records of Charges Handled in Superior Court (Usually Felonies)

Under the new record restriction law effective July 1, 2013, most eligible charges will be restricted from your record as soon as the prosecutor or the clerk of court enters the eligible disposition onto your GCIC criminal history record. In certain circumstances, however, the law requires that you get a court order to restrict records.

Under O.C.G.A. 35-3-37, only a Superior Court judge may order restriction. If your charges were originally handled in Superior Court you can file a motion to restrict your charges under the original case number, with the judge that originally heard your case. A motion is a written request to the court to take an action. In this case, you are requesting that the court order restriction of charge(s) for a particular arrest. Although not required, you can hire an attorney to file a motion to restrict your felony record. If you would like to proceed on your own or cannot afford an attorney, you can file a pro se motion. Pro se means “for yourself.”

CIRCUMSTANCES THAT REQUIRE A COURT ORDER:

  1. Felony charges placed on the dead docket for at least twelve (12) months, O.C.G.A. § 35-3-37(j)(3) (See, “How to Restrict (Expunge) Records of a Case Placed on the Dead Docket and Seal Court Records” on page 65);
  2. Felony convictions that were vacated by the trial court or reversed by an appellate court, O.C.G.A. § 35-3-37(j)(2) (See, “How to Restrict (Expunge) Records of a Vacated or Reversed Conviction and Seal the Court Records” on page 51); and
  3. Indicted felony charges when there is a conviction only for an unrelated misdemeanor, O.C.G.A. § 35-3-37(j)(1) (See, “How to Restrict (Expunge) Records of a Felony Charge When Only Convicted of an Unrelated Misdemeanor and Seal the Court Records” on page 87.)

PROCESS:

  1. Get a copy of your official GCIC criminal history record from a local law enforcement agency so you will know the arresting agency, arrest date, and what specific information is included in your record.
  2. Get a certified copy of the final disposition in your case from the clerk of court where your case was handled.
  3. Prepare the motion. A sample motion is included with these instructions.
  4. Sign and date the motion.
  5. Indicate the case number of the criminal case.
  6. Include the Offender Tracking Number (OTN) for the particular arrest you are seeking to have restricted. The OTN is important because this is the reference number GCIC will use to identify the information to restrict. (NOTE: The OTN is located on your GCIC criminal history record just before the arrest information.) 
  7. Attach the final disposition and any other required documentation. (NOTE: Do not attach a copy of your criminal history.)
  8. Attach any additional documentation showing the presence of the record on your GCIC is causing you harm (such as letters of employment or housing denials based on your background).
  9. Make three (3) copies of your original documents.
  10. File the Motion, Certificate of Service, and Draft Order (the suggested language for the court to use when granting the motion) in the criminal division of the superior court in your county. There should not be a filing fee.
  11. Deliver or send a copy of your Motion and Draft Order to the office of the prosecuting attorney in the original case. (NOTE: Motions filed for felony charges when convicted of an unrelated misdemeanor require service to the arresting agency. (See O.C.G.A. § 35-3-37(j)(1))
  12. If you requested a hearing, the judge will hear testimony about whether record restriction is appropriate in your case within ninety (90) days.
  13. If the judge finds restriction is appropriate, he or she will sign an order. It must be filed with the clerk of the superior court.
  14. You should also take a certified copy of the Order to Restrict to the jail or detention center. See, “How to Restrict (Expunge) Records Kept by the Jail” on page 110.
  15. Obtain a new copy of your GCIC about three (3) weeks after the order is filed to be sure the charges no longer show up.

REQUIRED DOCUMENTATION:

  1. Motion.
  2. Draft Order.
  3. Certified copy of the disposition in your case.

How to Restrict (Expunge) Records of Charges NOT Handled in Superior Court (Usually Misdemeanors)

Under the new record restriction law, effective July 1, 2013, many eligible charges will be restricted from your record as soon as the prosecutor or the clerk of court enters the eligible disposition onto your GCIC criminal history record. In certain circumstances, however, the law requires that you file an action in superior court to restrict records.

Under O.C.G.A. 35-3-37 only a Superior Court judge may order restriction. If your charges were originally handled in Superior Court you can simply file a motion under the original case number for the judge to consider your  request, but if the charges were originally handled in a court other than Superior Court, you must file a civil petition in the Superior Court in the county in which your case was handled. Filing a civil petition opens a case in Superior Court so a judge can consider your petition to restrict the record.

A petition is a written request to the court to take an action. Although not required, you can hire an attorney to file a petition to restrict your misdemeanor record. If you would like to proceed on your own or cannot afford an attorney, you can file a pro se petition. Pro se means “for yourself.”

CIRCUMSTANCES THAT REQUIRE COURT ORDER:

  1. Misdemeanor charges placed on the dead docket for at least twelve (12) months, O.C.G.A. § 35-3-37(j)(3) (See, “How to Restrict (Expunge) Records of a Case Placed on the Dead Docket and Seal the Court Records” on page 65);
  2. Misdemeanor convictions that were vacated by the trial court or reversed by an appellate court, O.C.G.A. § 35-3-37(j)(2) (See, “How to Restrict (Expunge) Records of a Vacated or Reversed Conviction and Seal the Court Records” on page 51); and
  3. Certain misdemeanor convictions if you were convicted before you turned twentyone (21) years old, “Youthful Offender Restriction,” O.C.G.A. § 35-3-37(j)(4) (See, “How to Restrict (Expunge) Records of a Youthful Offender Conviction and Seal the Court Records” on page 78); and 4. Unindicted felony charge(s) if you were only convicted of an unrelated misdemeanor, O.C.G.A. § 35-3-37(j)(1). (See, “How to Restrict (Expunge) Records of Felony Charge and Seal Court Records” on page 87)

PROCESS:

  1. Get a copy of your official GCIC criminal history record from a local law enforcement agency so you will know the arresting agency, arrest date, and what specific information is showing up on your record.
  2. Get a certified copy of the final disposition in your case from the clerk of court where your case was handled.
  3. Prepare the petition.
  4. Sign and date the petition.
  5. Leave the case number and judge blank. This is a civil petition and is not part of the original criminal case.
  6. Include the Offender Tracking Number (OTN) for the particular arrest you are seeking to have restricted. The OTN is important because this is the reference number GCIC will use to identify the information to restrict. (NOTE: the OTN is located on your GCIC criminal history record just before the arrest information.
  7. Attach the final disposition and any other required documentation. (Note: Do not attach a copy of your criminal history)
  8. Attach any additional documentation showing that the presence of the record on your GCIC criminal history record is causing you harm (such as letters of employment or housing denials based on your background).
  9. Make three copies of your original documents.
  10. File the Petition and Draft Order (the suggested language for the court to use when granting the petition) in the civil division of the superior court in the county where the case was handled.
  11. There will be a filing fee, usually around $200.00. If you cannot afford the fee, file a Petition to Proceed In Forma Pauperis and Affidavit of Indigency with your petition for restriction. Sample documents are included with these instructions
  12. Deliver or send by certified mail or overnight delivery a copy of your Petition and Draft Order to the office of the prosecuting attorney in the original case.
  13. If you requested a hearing, the judge will hear testimony about whether record restriction is appropriate in your case within ninety (90) days.
  14. If the judge finds that restriction is appropriate, he or she will sign an order. It must be filed with the clerk of the superior court.
  15. Since your original case was not handled in superior court, take a certified copy of the filed order to the clerk of court for the court that resolved your case.
  16. You should also take a certified copy of the order to the jail or detention center. See, “How to Restrict (Expunge) Records Kept by the Jail” on page 110.
  17. Pull a new copy of your GCIC about three (3) weeks after the order is filed to be sure the charges are no longer showing up.
  18. If the judge denies your petition you may appeal the decision under O.C.G.A. §5-6-34.

REQUIRED DOCUMENTATION:

  1. Petition.
  2. Draft Order.
  3. Certified copy of the disposition in your case.

How to Restrict (Expunge) Records Kept by the Jail

You can restrict records maintained by jails and detention centers if the records have already been restricted. See O.C.G.A. 35-3-37(k)(2).

ELIGIBILITY:

  1. Record has been restricted pursuant to the law. (See O.C.G.A. §35-3-37).

PROCESS:

  1. Submit a written request to restrict the records kept by the jail/detention center.
  2. The request must be granted within thirty (30) days.

REQUIRED DOCUMENTATION:

  1. Letter requesting restriction. A sample letter is included with these instructions but contact the jail/detention center because they may have their own form.