Expungement / Record Sealing Petition and Eligibility Memo — Georgia

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), (j)(3), and (n)).
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, through the court-petition route in § 35-3-37(j)(3);
• The specific conditional-discharge and treatment-program dispositions listed in § 35-3-37(h)(2).

For arrests after July 1, 2013, official GBI guidance says there is no arresting-agency application process; the applicant should contact the prosecutor responsible for the disposition if restriction is not reflected.

For arrests before July 1, 2013, the applicant files a Request to Restrict Arrest Record with the arresting law-enforcement agency, which forwards it to the prosecuting attorney. An arresting-agency fee may not exceed $50. Current Georgia Courts guidance lists a $25 GCIC fee only when the approved request must be submitted directly to GCIC.

TRACK 2 — Misdemeanor Convictions (O.C.G.A. § 35-3-37(j)(4)(A)-(C); SB 288).
Effective January 1, 2021, an individual may petition the court in which the conviction occurred to restrict access to criminal-history information for no more than two lifetime misdemeanor convictions or qualifying series arising from single incidents, subject to:

• Completion of every term of the sentence;
• No conviction in any jurisdiction during the four years immediately before filing, excluding a nonserious traffic offense, and no pending charge;
• 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 — Pardoned Convictions (O.C.G.A. § 35-3-37(j)(7)).
Felony convictions cannot be restricted under SB 288 directly. The applicant must:

1. Apply to the Georgia State Board of Pardons and Paroles under the Board's current eligibility and application rules;
2. After the pardon is granted, petition the court in which the conviction occurred for restriction. If restriction is granted, court-record sealing requires a separate § 35-3-37(m) petition.

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 as defined in O.C.G.A. § 17-10-6.2.

3. Categorical Exclusions — Misdemeanor Restriction

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

• 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);
• The listed family-violence offenses; the youthful-offender exception applies only to the offenses for which § 35-3-37(j)(4)(B) expressly provides it;
• 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 with original jurisdiction over the offense in the county where the clerk is located to seal the clerk's criminal-history record information. The sealing order:

• Must issue if the court finds by a preponderance of the evidence that the record is restricted and the privacy harm clearly outweighs the public interest in access;
• Does NOT destroy the file; court retains access for limited statutory purposes;
• Covers the clerk's documents and index entries; the clerk has 60 days after the order to implement it.

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 CRIMINAL-HISTORY RECORD INFORMATION

Petitioner, [PETITIONER FULL LEGAL NAME], by and through [self / undersigned counsel], respectfully petitions this Court under O.C.G.A. § 35-3-37(j)([4 / 7]) to restrict access to the identified criminal-history record information. Court-record sealing under § 35-3-37(m) requires a separate petition after restriction. 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):

☐ SB 288 misdemeanor track (O.C.G.A. § 35-3-37(j)(4)): Petitioner completed the sentence; has no pending charge; has no conviction during the four years immediately before filing, excluding a nonserious traffic offense; the offense is not excluded under § 35-3-37(j)(4)(B); and the lifetime limit in § 35-3-37(j)(4)(C) is satisfied.
☐ Pardon track (O.C.G.A. § 35-3-37(j)(7)): 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 or a sexual offense under O.C.G.A. § 17-10-6.2; Petitioner has no post-pardon disqualifying conviction and no pending charge.

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: this request complies with the lifetime limit in § 35-3-37(j)(4)(C). ☐ True ☐ False (specify 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) a copy of this Petition to be served on the prosecuting attorney required by § 35-3-37(j): [NAME / OFFICE / ADDRESS].

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 access to the identified criminal-history record information under O.C.G.A. § 35-3-37(j)([4 / 7]); and
D. Grant such further relief as is authorized by § 35-3-37.

Signature and Verification

Respectfully submitted,

OPTIONAL VERIFICATION — USE ONLY IF REQUIRED BY CURRENT LOCAL RULE OR FORM. I, [PETITIONER NAME], swear that I have read the foregoing Petition and that the factual statements are true and correct to the best of my knowledge.

___________________________________ (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 is not excluded by § 35-3-37(j)(4)(B), or by § 17-10-6.1 or § 17-10-6.2 for the pardon route
☐ Confirm sentence completion and a four-year conviction-free lookback before filing for the misdemeanor route
☐ 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
☐ Confirm the arresting-agency fee and whether the current $25 GCIC submission fee is required
☐ Follow up with GBI for confirmation

SB 288 Misdemeanor Track (Track 2)

☐ Draft Petition to Restrict Misdemeanor Conviction
☐ Attach: certified disposition; GCIC report; rehabilitation evidence; letters of support
☐ File in original sentencing court
☐ Confirm the current local filing fee and indigency procedure
☐ Serve the prosecuting attorney as required by § 35-3-37(j)

Pardon Track (Track 3)

☐ Apply to Georgia State Board of Pardons and Paroles under the Board's current eligibility rules
☐ After pardon granted, file Petition to Restrict in the court in which the conviction occurred
☐ 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

☐ If a hearing is requested under § 35-3-37(j)(4) or (j)(7), calendar the statutory 90-day hearing period
☐ 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/