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:
- 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);
- 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
- 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.)
- 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.
- Get a certified copy of the final disposition in your case from the clerk of court where your case was handled.
- Prepare the motion. A sample motion is included with these instructions.
- Sign and date the motion.
- Indicate the case number of the criminal case.
- 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.)
- Attach the final disposition and any other required documentation. (NOTE: Do not attach a copy of your criminal history.)
- 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).
- Make three (3) copies of your original documents.
- 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.
- 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))
- If you requested a hearing, the judge will hear testimony about whether record restriction is appropriate in your case within ninety (90) days.
- 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.
- 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.
- 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.
- Draft Order.
- Certified copy of the disposition in your case.
Posted in: Restriction