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:
- 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);
- 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
- 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)
- 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.
- Get a certified copy of the final disposition in your case from the clerk of court where your case was handled.
- Prepare the petition.
- Sign and date the petition.
- Leave the case number and judge blank. This is a civil petition and is not part of the original 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 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).
- Make three copies of your original documents.
- 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.
- 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
- 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.
- 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 that restriction is appropriate, he or she will sign an order. It must be filed with the clerk of the superior court.
- 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.
- 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.
- 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.
- If the judge denies your petition you may appeal the decision under O.C.G.A. §5-6-34.
- Draft Order.
- Certified copy of the disposition in your case.
Posted in: Restriction