Thursday, August 16, 2012

Expunction of Records

Expunction Generally

Expunction is governed by O.C.G.A. § 35-3-37 and was entirely rewritten in 2012.  There's quite a bit of confusion and misinformation out there about how long charges remain on a person's criminal record.  First, be aware that there is no "expiration date" for criminal records.  An arrest from 20, 30, or even 40 years ago may still appear on your criminal record. 

Second, be aware that even though the criminal case against a person might be dismissed, dead docketed, terminated by nolle prosequi, or the person was acquitted at trial, the charges against the person may still remain on their criminal record. Criminal records are maintained by the Georgia Crime Information Center (GCIC). If your record is inaccurate, incomplete, or misleading, you may seek expunction, modification, or supplementation of your record.

In order to get the record expunged, you must apply to the police agency or prosecuting agency that handled the case.

A person can request expunction if they were:

·      Arrested, but after arrest, were released by the arresting agency without such arrest being referred to the prosecutor for prosecution; or

·      Arrested, but the prosecutor dismissed the charges without seeking an indictment or filing an accusation.

You can be charged fees of up to $50.00 to have any fingerprints or photographs of the individual expunged from the police files.

When a police agency receives a request for expunction they refer the request to the prosecutor. The prosecutor then reviews the request to determine if it meets the criteria for expunction.

Expunction Before an Indictment or Accusation is Filed:  

A person has a right to have the record of their arrest expunged only when:

  The police agency didn’t refer the case to the prosecutor, or the charge was referred to the prosecutor, but dismissed without the prosecutor seeking an indictment or filing an accusation;

  No other criminal charges are pending against the individual; and

  The person has not been previously convicted of the same or similar offense within the last five years.

Expunction After an Indictment or Accusation is Filed:

For cases that progress beyond where the prosecutor files an indictment or accusation, an arrest record will not be expunged if the charges were dismissed because:

    Of a plea agreement resulting in a conviction;

    The prosecutor was not allowed to introduce evidence because of some legal ground. For example, a motion to suppress was granted;

    A key witness refused to testify or was not available to testify;

    The person was incarcerated on other charges, so the prosecutor chose not to prosecute;

    The person completed a pretrial diversion program and the program did not include a condition that the arrest record would be expunged;

    The person was prosecuted in another county, state, or in federal court; or

    The individual had immunity.

If the case was indicted, then dismissed, dead docketed or a nolle prosequi was entered, but not for one of the exclusions above, the individual may apply to get an expunction. For example, if the case was dismissed, dead docketed or a nolle prosequi was entered because of insufficient evidence, the person charged can seek an expunction. The person should contact the prosecuting agency. The prosecutor will review the request. If the prosecutor determines that expunction is appropriate he/she will contact the police agency. The police agency then has to notify GCIC that the records are being expunged.

Appealing the Denial of A Request for Expunction

If the police agency or prosecutor refuses to expunge the arrest record, or if the person feels the police or prosecutor’s decision was unsatisfactory, he/she can file an appeal within 30 days of the decision.[1] The appeal should be filed in the Superior Court of the county where the person lives or in the Superior Court of the county where the police agency is located. The police agency must be notified of the appeal. The decision of the prosecutor not to expunge the record will be upheld if the judge determines by clear and convincing evidence that the person did not meet the requirements for expunction. However, if the judge finds the criminal record to be inaccurate, incomplete or misleading, the judge shall order it to be expunged, modified, or supplemented.

According to the Georgia Supreme Court, “because expunction is the most drastic of the three available remedies, logically it should be the appropriate remedy only in the exceptional cases in which the remedies of modification or supplementation are inadequate to protect the interests of the individual.”[2] The Supreme Court said in Meinken that in deciding if expunction is the appropriate remedy, “a superior court should balance the competing interests involved, namely those of the state in maintaining extensive arrest records to aid in effective law enforcement and those of the individual in being free from the harm that may be caused from the existence of those records.” Special factors must exist that either diminish the state's interest in maintaining the records or heighten the impact of the existence of those records on the defendant and thus warrant expunction.

[1] O.C.G.A. § 35-3-37 (C)
[2] Meinken v. Burgess, 262 Ga. 863 (1993).

- John Steakley
Steakley Law - Stalnaker App Studios