One of the biggest problems that some of our citizens face when they are arrested for a crime is the difficulty in obtaining employment. I have spoken with and counseled hundreds of people who have sought to have their records expunged in order to get on with their lives. Under current law, expungements can be difficult to obtain and only a small percentage of people even qualify.
However, with the enactment of HB 1176, the old expungement statute is being replaced with a new law that will be effective July 1, 2013. This new law seems to do away with the term “expungement” and the process altogether. n its place, the new OCGA 35-3-37 will focus on restricting the criminal history information on people who are eligible. Under the statute, the term “restrict” means that the information will be available only to judicial officers and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the agency and shall not be disclosed or otherwise made available to any private persons or businesses.
This will be a huge benefit to thousands of Georgians looking for employment.
The new law appears to operate opposite to the old law. Under the old law, an individual had to petition or take some other action to obtain an expungement. Under the new law, The Georgia Crime Information Center (GCIC) is responsible for restricting criminal records under the appropriate circumstances.
While this new law is lengthy and full of exceptions, the three main provisions that the public may be most interested in include the following:
(1) In general, if a case is never indicted or accused, and never referred to the prosecutor by the arresting agency, the arresting agency shall contact GCIC and inform them that the record should be restricted. There are remedies if this is not done properly;
(2) After an indictment or accusation, GCIC shall restrict the record if: the case is dismissed, the offender was sentenced under the conditional discharge act (the first offender provision for drug cases), and successfully completed the terms and conditions, or the individual successfully completed drug court treatment or a mental health court treatment program (there are some significant exceptions to this provision); and
(3) If a person’s case has been on the dead docket for more than 12 months, the person may request that GCIC restrict information regarding that case as well.
It is also important to note that record restriction shall not be appropriate if the individual was convicted of certain sexual and other serious offenses listed in the statute.
Because the statute is so fraught with exceptions and somewhat complicated scenarios, it would be impossible for me to detail each of its sections and subsections in such a short column. Additionally, I foresee that the appellate courts will have to interpret some portions of the statute. This will require a careful watch of how the statute progresses.
It is vitally important for those accused of crimes to go over this new law with their criminal defense attorney before making a decision regarding the resolution of the criminal case. The future consequences can have an enormous impact.
Overall, I am grateful for this new law. It will provide hope for more of our citizens laboring under the stigma of being labeled a criminal. It should also boost employment in our state. When we have more people working, we have more people taking care of their families, staying out of trouble, in less need of government services, and paying state income taxes.
That sounds like a good thing for Georgia.
Swindle is a local attorney at law.