Expungement / Record Sealing Petition and Eligibility Memo — Georgia

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Expungement / Record Sealing Petition and Eligibility Memo (GEORGIA)

Quick-Reference Summary

Part A — Eligibility Memo

1. Statutory Framework and Terminology

Georgia does not use the term "expungement." Two remedies exist under state law:

• Record Restriction (O.C.G.A. § 35-3-37) — the criminal history record maintained by the Georgia Crime Information Center (GCIC) is restricted from public and most-employer access. Law enforcement, prosecutors, criminal-justice agencies, and certain regulated employers retain access.
• Sealing (O.C.G.A. § 35-3-37(m)) — a separate court order, available after GCIC restriction has been granted, that restricts the court's case file from public access.

Both remedies were expanded by SB 288 ("Second Chance for Georgia Act"), 2020 Ga. Laws 437, effective January 1, 2021, which added misdemeanor-conviction restriction (previously limited to non-convictions and certain youthful misdemeanors).

2. Three Eligibility Tracks

TRACK 1 — Non-Conviction Dispositions (O.C.G.A. § 35-3-37(h)).
The following are eligible for restriction:

• Charges dismissed or nolle prosequi-ed;
• Acquittals (not guilty at trial);
• Cases placed on the dead docket for more than 12 months;
• Cases resolved through successful completion of pretrial diversion (PTD) or conditional discharge under O.C.G.A. § 16-13-2 (first-offender drug treatment);
• Charges referred to juvenile court (where eligible).

For arrests after July 1, 2013, restriction is automatic at the GCIC level when the prosecutor reports the disposition. If the agency fails to restrict, applicant contacts the prosecuting attorney to request manual restriction.

For arrests on or before July 1, 2013, the applicant must file a Request to Restrict Arrest Record with the arresting law-enforcement agency, which forwards to the prosecuting attorney for approval; the GBI then processes the restriction (typically with a $50 GBI fee).

TRACK 2 — Misdemeanor Convictions (O.C.G.A. § 35-3-37(j)(4)(B); SB 288).
Effective January 1, 2021, an individual may petition the original sentencing court to restrict and seal up to two (2) misdemeanor convictions over the individual's lifetime, subject to:

• A 4-year waiting period from the date of completion of the sentence (probation, fines, restitution, jail/prison time);
• No new convictions during the waiting period and no pending charges at the time of petition;
• The offense must NOT be on the categorical-bar list (see Section 3);
• The court applies a balancing test: the harm to the petitioner of continued public access vs. the public's legitimate interest in the record.

TRACK 3 — Felony Convictions (Pardon Pathway) (O.C.G.A. § 35-3-37(j)(4)(A)).
Felony convictions cannot be restricted under SB 288 directly. The applicant must:

1. Apply to the Georgia State Board of Pardons and Paroles for a pardon. Pardon eligibility requires (i) at least 5 years since completion of all sentence terms, (ii) a law-abiding life since completion, and (iii) no pending charges. The Board has broad discretion;
2. After the pardon is granted, petition the original sentencing court for restriction and sealing.

Even after pardon, restriction is unavailable for:

• Serious violent felonies under O.C.G.A. § 17-10-6.1 (murder, armed robbery, kidnapping, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery);
• Sexual offenses requiring registration under O.C.G.A. § 42-1-12 (Sex Offender Registry).

3. Categorical Exclusions — Misdemeanor Restriction

The following misdemeanors are ineligible for SB 288 restriction (O.C.G.A. § 35-3-37(j)(4)(A)(iv)):

• Driving Under the Influence (O.C.G.A. § 40-6-391);
• Serious traffic offenses including reckless driving (O.C.G.A. § 40-6-390), homicide by vehicle (O.C.G.A. § 40-6-393);
• Family violence battery, simple battery, simple assault, and stalking under O.C.G.A. § 19-13-1, UNLESS petitioner was under 21 at the time of arrest;
• Sexual battery (O.C.G.A. § 16-6-22.1);
• Public indecency (O.C.G.A. § 16-6-8);
• Child molestation; enticing a child for indecent purposes;
• "Peeping Tom" offenses (O.C.G.A. § 16-11-61);
• Pimping, pandering, keeping a place of prostitution (O.C.G.A. § 16-6-10 to -12);
• Most types of theft (O.C.G.A. § 16-8-1 et seq.) — shoplifting (O.C.G.A. § 16-8-14) may qualify if otherwise eligible;
• Crimes against minors;
• Obstructing or hindering persons making an emergency 911 call.

4. First Offender Act (O.C.G.A. § 42-8-60 et seq.)

Separate from § 35-3-37, the First Offender Act allows a defendant with no prior felony to be sentenced without entry of an adjudication of guilt. Upon successful completion of the First Offender sentence:

• The defendant is discharged without court adjudication of guilt (O.C.G.A. § 42-8-62);
• The record is automatically restricted from public access (but remains accessible to law enforcement and courts);
• The defendant is not considered to have a criminal "conviction" for most civil purposes.

Retroactive First Offender (O.C.G.A. § 42-8-62.1) permits eligible defendants who were sentenced before May 2, 2017 (or otherwise not informed of First Offender eligibility) to apply for retroactive treatment.

Excluded from First Offender treatment: serious violent felonies (O.C.G.A. § 17-10-6.1); sexual offenses requiring registration; DUI; family violence offenses; some others.

5. Sealing of the Court Record (O.C.G.A. § 35-3-37(m))

After restriction is granted, the petitioner may petition the court of record to seal the court's case file from public access. The sealing order:

• Is discretionary; court applies the same balancing test;
• Does NOT destroy the file; court retains access for limited statutory purposes;
• Removes the case from court's online docket and from indexes accessible to the public.

6. Effect of Restriction and Sealing

Restricted records do NOT appear on routine background checks (private employers, landlords, credit reporting, consumer-facing GCIC checks). They REMAIN accessible to:

• Law enforcement agencies and prosecutors;
• Criminal-justice agencies hiring or licensing peace officers;
• Courts and judicial-branch employers;
• Private security companies licensed under O.C.G.A. § 43-38-7.1;
• Certain financial-services and vulnerable-population employers under O.C.G.A. § 35-3-34.1 (care of children, the elderly, or persons with disabilities);
• Federal background-check requests by FBI/NICS.

Restricted/sealed records may still be disclosed in subsequent criminal proceedings as priors for sentencing enhancement, recidivism, and habitual-offender statutes.

7. Subsequent-Conviction Consequences

A subsequent misdemeanor conviction does not automatically reverse a prior restriction, but a subsequent felony conviction may render the petitioner ineligible for further restrictions and may permit the prosecuting attorney to seek revocation of restriction in limited circumstances. The two-lifetime-restriction cap under SB 288 is permanent.

8. Procedure Summary

Part B — Petition Template

PETITION TO RESTRICT AND SEAL CRIMINAL HISTORY RECORD

Petitioner, [PETITIONER FULL LEGAL NAME], by and through [self / undersigned counsel], respectfully petitions this Honorable Court pursuant to O.C.G.A. § 35-3-37 for entry of an Order (1) restricting Petitioner's criminal history record maintained by the Georgia Crime Information Center, and (2) sealing the court's record of the case. In support, Petitioner states:

I. Petitioner

1. Full legal name: [________________________________].
2. All other names used: [________________________________].
3. Date of birth: [__/__/____].
4. Race: [____]. Sex: [____].
5. GCIC / OBTS tracking number: [________________________________].
6. Driver's license / state ID number: [________________________________].
7. Current address: [________________________________].
8. Phone: [________________________________]. Email: [________________________________].

II. Underlying Case

III. Eligibility Statement

9. Petitioner avers eligibility for the relief sought based on the following (check applicable):

☐ Non-conviction track (O.C.G.A. § 35-3-37(h)): Charges were [dismissed / nolle prossed / resolved with acquittal / dead-docketed > 12 months / resolved through completed PTD or conditional discharge under O.C.G.A. § 16-13-2] on [__/__/____].
☐ SB 288 misdemeanor track (O.C.G.A. § 35-3-37(j)(4)(B)): Petitioner was convicted of an eligible misdemeanor; at least 4 years have elapsed since completion of all sentence terms; Petitioner has no pending charges and no new convictions during the waiting period; the offense is NOT excluded under § 35-3-37(j)(4)(A)(iv) (DUI, family violence, sexual offenses, peeping tom, public indecency, pimping/pandering, theft (except shoplifting), serious traffic offenses, obstructing 911).
☐ Pardon track: Petitioner has been granted a pardon by the Georgia State Board of Pardons and Paroles (Pardon No. [____________], dated [__/__/____]); the offense is not a serious violent felony under O.C.G.A. § 17-10-6.1 and not a registrable sex offense under O.C.G.A. § 42-1-12.
☐ First Offender discharge: Petitioner successfully completed a sentence under O.C.G.A. § 42-8-60 et seq. and was discharged without adjudication of guilt on [__/__/____].
☐ Retroactive First Offender (O.C.G.A. § 42-8-62.1): Petitioner was eligible for First Offender treatment but was not informed at sentencing; Petitioner separately petitions for retroactive sentencing relief.

10. Petitioner has no criminal cases currently pending in any jurisdiction.
11. Petitioner has paid all fines, fees, and restitution ordered in the underlying case(s).
12. The offense for which restriction is sought is not within the categorical exclusions of § 35-3-37 or § 17-10-6.1.
13. If invoking SB 288: Petitioner has not previously had two misdemeanor convictions restricted under § 35-3-37(j)(4)(B). ☐ True ☐ False (specify any prior restrictions): [________________________________].

IV. Grounds — Balancing Test

14. The harm to Petitioner of continued public access to the record substantially outweighs the legitimate interest of the public in continued access. Specifically:
    - Time since disposition: [____] years
    - Petitioner's employment, education, and community involvement: [________________________________]
    - Specific barriers caused by the record: [employment denial / housing denial / professional license denial / educational denial / military enlistment / immigration relief / other]: [________________________________]
    - Petitioner's rehabilitation: [________________________________]
    - Letters of support: attached as Exhibit [____]
    - Treatment/counseling completed: [________________________________]
15. No identifiable victim, prosecuting agency, or law enforcement entity will be prejudiced by the requested relief because: [________________________________].

V. Service of Notice

16. Petitioner has caused (or will cause within [____] days) a copy of this Petition to be served on:

☐ District Attorney / Solicitor-General of [COUNTY] County
☐ Arresting agency: [________________________________]
☐ Clerk of [COURT NAME] (for sealing of court record)
☐ Georgia Crime Information Center (GBI), 3121 Panthersville Rd., Decatur, GA 30034
☐ Victim (if any, pursuant to Crime Victims' Bill of Rights): [________________________________]

17. Method of service: ☐ Personal service ☐ Statutory mail ☐ Certified mail, return receipt requested. Proofs of service attached as Exhibit [____].

VI. Requested Relief

WHEREFORE, Petitioner respectfully prays that this Court:

A. Find Petitioner eligible for record restriction under O.C.G.A. § 35-3-37;
B. Find that the harm to Petitioner of continued public access to the record outweighs the public's legitimate need to know;
C. Enter an Order RESTRICTING Petitioner's criminal history record at the Georgia Crime Information Center pursuant to O.C.G.A. § 35-3-37, directing the Georgia Bureau of Investigation, the arresting agency, the Clerk of Court, and all other custodians to restrict access to the record consistent with the statute;
D. Enter an Order SEALING the court record of the case pursuant to O.C.G.A. § 35-3-37(m);
E. Direct the Clerk to remove the case from public-access dockets and indexes;
F. Waive any applicable filing fee on a showing of indigency under O.C.G.A. § 9-15-2 (Affidavit of Poverty attached, if applicable); and
G. Grant such further relief as is just and equitable.

Signature and Verification

Respectfully submitted,

VERIFICATION (O.C.G.A. § 9-10-110). I, [PETITIONER NAME], under penalty of perjury under the laws of the State of Georgia, hereby verify that I have read the foregoing Petition and that the matters stated therein are true and correct to the best of my knowledge, information, and belief.

___________________________________ (Petitioner signature)
Sworn to and subscribed before me this [____] day of [_______________], [____].

___________________________________
Notary Public, State of Georgia
My commission expires: [__/__/____]

Part C — Filing Checklist

Pre-Filing

☐ Obtain GCIC criminal history report (Georgia Applicant Processing Service / GAPS or local sheriff)
☐ Obtain certified copy of accusation/indictment and final disposition from clerk of court
☐ Confirm offense NOT within § 35-3-37(j)(4)(A)(iv) or § 17-10-6.1 categorical bars
☐ Confirm waiting period elapsed (4 years from sentence completion for SB 288)
☐ Confirm no pending charges and no disqualifying subsequent convictions
☐ If felony: confirm pardon granted (or apply to Board of Pardons & Paroles first)
☐ If under 21 at family-violence offense: confirm and gather proof of age
☐ Determine whether arrest was before or after July 1, 2013 (for non-conviction track)

Non-Conviction Track (Track 1)

☐ For post-7/1/2013 arrests: confirm GCIC shows restriction; if not, contact prosecutor for manual restriction
☐ For pre-7/1/2013 arrests: complete GBI "Request to Restrict Arrest Record" and file with arresting agency
☐ Pay GBI processing fee (≈$50)
☐ Follow up with GBI for confirmation

SB 288 Misdemeanor Track (Track 2)

☐ Draft Petition to Restrict and Seal Misdemeanor Conviction
☐ Attach: certified disposition; GCIC report; rehabilitation evidence; letters of support
☐ File in original sentencing court
☐ Pay county civil filing fee (≈$200-$300) or Affidavit of Poverty
☐ Serve District Attorney/Solicitor; arresting agency; GBI; victim (if any)

Pardon Track (Track 3)

☐ Apply to Georgia State Board of Pardons and Paroles (waiting period 5+ years)
☐ After pardon granted, file Petition to Restrict and Seal in original sentencing court
☐ Attach pardon order

Sealing of Court Record

☐ After restriction granted, file separate Petition to Seal Court Record under § 35-3-37(m)
☐ Attach order granting restriction
☐ Serve clerk of court and prosecutor

Hearing

☐ Calendar 30-day prosecutor response window (where applicable)
☐ Prepare balancing-test argument: harm to petitioner vs. public interest
☐ Submit proposed order

Post-Order

☐ Serve certified order on GCIC/GBI, arresting agency, clerk of court, prosecutor, and all custodians
☐ Confirm GCIC restriction reflected on follow-up criminal history report (60-90 days)
☐ Verify case removed from court's public-access docket
☐ Advise Petitioner of restriction's effect (limited exceptions for criminal-justice, vulnerable-population, and financial-services employment)

Sources and References

• O.C.G.A. § 35-3-37 — Record Restriction and Sealing: https://law.justia.com/codes/georgia/title-35/chapter-3/article-2/section-35-3-37/
• SB 288 (2020) — Second Chance for Georgia Act: https://legiscan.com/GA/text/SB288/id/2196641
• Georgia Bureau of Investigation — Criminal History Record Restrictions: https://gbi.georgia.gov/services/georgia-criminal-history-record-restrictions
• GBI "Request to Restrict Arrest Record" form: https://gbi.georgia.gov/document/publication/request-restrict-arrest-record-instructions-and-request-form/download
• O.C.G.A. § 42-8-60 et seq. — First Offender Act: https://law.justia.com/codes/georgia/title-42/chapter-8/article-3/
• Georgia State Board of Pardons and Paroles — Pardon information: https://pap.georgia.gov/applying-pardon
• O.C.G.A. § 17-10-6.1 — Serious Violent Felonies: https://law.justia.com/codes/georgia/title-17/chapter-10/article-1/section-17-10-6-1/
• Georgia Justice Project — SB 288 explainer: https://gjp.org/sb-288/
• O.C.G.A. § 35-3-34.1 — Vulnerable-population background-check exception: https://law.justia.com/codes/georgia/title-35/chapter-3/article-2/section-35-3-34-1/