Criminal Defense Lawyer Servicing Commerce, Georgia

If you have ever been arrested, fingerprinted, and charged with any felony offense or certain misdemeanors in Georgia, an official criminal record exists. Misdemeanor offenses that will appear on your criminal history are those designated as “fingerprintable offenses” by the Attorney General of Georgia. You have a criminal record even if you did not serve time in jail or if the charges against you were dismissed.

When requesting a copy of your criminal history, it is important to know that there are both official and unofficial versions. The official state and national reports are provided by state and federal bureaus of investigation, and the unofficial reports are provided by private background check companies. Most of the information that follows covers how to understand and deal with your official criminal history report.

• State of Georgia: In Georgia, official criminal history information is kept and distributed by the Georgia Crime Information Center (“GCIC”), the state agency that keeps criminal history record information. GCIC is a division of the Georgia Bureau of Investigation (“GBI”). You can get a copy of your official GCIC criminal history record from most law enforcement agencies such as police departments, and sheriff’s departments for a fee.
• National: The official national criminal history is kept and distributed by the Federal Bureau of Investigation (“FBI”) through the Interstate Identification Index (“III”). Georgia criminal records information is pulled from GCIC’s database. This national report, known as the “III Report” is only available to the individual named in the record and to a specific list of employers and agencies.
• Unofficial Sources: Many private companies provide background checks for a fee. The information these companies have on file may differ from the information contained in your official criminal history report. These companies’ websites allow you to request a copy of your unofficial criminal history.

Your official Georgia criminal history record contains information about every incident for which you were arrested and charged with any felony offense or with certain misdemeanor offenses. It should include the final disposition and also custodial information if you were incarcerated in a Georgia correctional facility. The official Georgia criminal history may be incomplete, or it may not include the information regarding the final disposition, if the final disposition was not reported to GCIC by the law enforcement or criminal justice agency maintaining the information.

When conducting a background check for employment and licensing, there are two ways an employer can access your official Georgia criminal history record. The most common is a name-based check using your personal identifying information (i.e. full name, date of birth and/or social security number). The other method is a fingerprint-based check. For both, the employer must have your signed consent to access your criminal history record from GCIC. No consent is required, however, to access records of felony convictions.

Each state has its own laws regarding criminal history records. Eligibility for expungement, sealing, and pardons varies from state to state. If you were arrested in another state, you should contact an attorney in that state for assistance.

Depending on the situation, you may be eligible to have the record of a particular case restricted, which means that it will not be publicly available to any private individual, business, licensing board, etc.– that is, it won’t show up on a background check. This process used to be called “expungement” in Georgia, but they changed the name in 2013 because “expunged” makes it sound like records are being shredded, deleted, or otherwise obliterated, which is not what is going on here. The Georgia Crime Information Center (GCIC) still has the information on file, but they won’t show it to anyone but law enforcement. If anyone other than a law enforcement agency runs a criminal history check on you, restricted records will not show up. 

When we talk about having a record sealed, we mean the “local record” of court documents and reports from the police or sheriff’s department that made the arrest. Most cases where restriction applies are also eligible for being sealed. Ideally, you’ll want to do both.

If you are arrested but no charges are brought, the arrest will be automatically removed from your criminal history in the GCIC after a certain period of time – two years for misdemeanor arrests, four for most felonies, and seven years for serious violent and sex-related felonies.

If you are charged with a crime but not convicted, and your case qualifies for record restriction, then the relevant arrest will be restricted by GCIC as soon as the court’s final disposition is entered into their database. “Disposition” means the document showing the final decision in the case. If you are found not guilty, the charges are dropped, or a similar outcome that qualifies, your record will be restricted as soon as the disposition is filed.

Georgia law allows for restriction of records on a case-by-case basis. Applications must be done separately for each individual arrest. 

Georgia law allows for restriction of a record in three circumstances:

1. Non-Conviction: This is exactly what it sounds like: the case ended without a conviction. This can take place in several ways: a not guilty verdict, the charges being dismissed or dropped, a prosecutor’s decision not to pursue the case, a reversed or vacated conviction, and other similar scenarios. 

Cases with no conviction are almost always eligible for restriction, with just a couple of exceptions defined by Georgia law: 

If a charge was dismissed due to one of the following reasons, restriction is not available:

• You pled guilty to another charge in the case
• You were involved in a pattern of criminal activity prosecuted in another jurisdiction
• Key evidence against you was suppressed
• You had some form of immunity

If you were acquitted, but it is later determined that there was jury tampering or judicial misconduct, restriction is not available.

2. Youthful Offenders:  Many misdemeanor convictions are eligible for restriction if the individual was under 21 years of age at the time of their conviction. If you go five years after your conviction without getting in trouble for anything beyond minor traffic tickets, and the conviction doesn’t fall under one of the categories listed below, then it is eligible for restriction. 

Restriction is not available for convictions that fall into the following categories: 

• Serious traffic offenses such as DUI, reckless driving, fleeing/attempting to elude, serious injury by vehicle, or vehicular homicide. 
• Theft (but not shoplifting
• Child Molestation or Enticing a Child for Indecent Purposes
• Pimping or 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, or having obscene telephone contact with, a minor
• Child Pornography

3. Charged with a Felony, but Convicted of an Unrelated Misdemeanor:  If you are arrested and charged with a felony, but only convicted of an unrelated misdemeanor offense in the same case, you can have the felony charge restricted. That is, if you are arrested and charged with a misdemeanor and a felony, but are only convicted of the misdemeanor, the felony arrest/charge can be restricted. This does not apply if you are convicted of a lesser version of the felony charge. 

If you were arrested and released without ever having to go to court, the record will be automatically restricted after a certain period of time by GCIC and the arresting agency.

The Conditional Discharge Act allows for some first-time drug offenders to be released without a conviction appearing on their record if they plead guilty and successfully complete their sentence. People who are released without conviction under the Conditional Discharge Act will automatically have the record of the charges restricted as soon as they have completed their sentence. 

If you successfully complete a drug court or mental health court treatment program, the record of charges against you will be restricted five years after you complete the program, so long as you don’t get in trouble for anything beyond minor traffic offenses during that five year period.

Being sentenced to time already served unfortunately means that you were convicted of an offense. Convictions cannot be restricted unless you meet the criteria for “youthful offender” described above.

An Alford Plea happens when a defendant pleads guilty to concede that a court will likely find against them, but does not acknowledge actual guilt or fault. Nolo Contendere (“no contest”) is another type of plea that does not admit guilt. Both of these situations do still involve a conviction, though, and so are ineligible for restriction unless they fall under the youthful offender criteria.

Cases where you had the charges dismissed after completing a pretrial intervention or pretrial diversion program are eligible for restriction.