I cannot count the number of times I get calls from clients that are desperate to get an arrest removed from their criminal history. Often, they are having routine background checks performed at work and want to avoid the embarrassment of having to answer questions about an old arrest. Worse, some are actually trying to get a job and know that an employer may consider an arrest when choosing between candidates for a job.
Fortunately, the State of Georgia sets out a statutory process by which you can get an arrest removed from your criminal history.
Unfortunately, the prosecuting agency for the county of arrest gets to make the decision whether or not you qualify for expungement, and you have to meet certain qualifications to be successful.
The Official Code of Georgia section 35-3-37 tells you that you have the right to expunge an arrest where no indictment or accusation has been filed against you if you meet the following criteria:
• The charge has to have been dismissed (again, for this right to apply the dismissal must take place before an indictment or accusation is filed)
• No other criminal charges can be pending
• Within the last five years, you cannot have been convicted of the same or similar offense anywhere.
This means that the Prosecutor has no choice in the matter and your record will be cleared.
However, if your case was dismissed after being Indicted or Accused, more conditions must be met.
The law in Georgia states:
"After the filing of an indictment or an accusation, a record shall not be expunged if the prosecuting attorney shows that the charges were nolle prossed, dead docketed, or otherwise dismissed because:
(A) Of a plea agreement resulting in a conviction for an offense arising out of the same underlying transaction or occurrence as the conviction;
(B) The government was barred from introducing material evidence against the individual on legal grounds including but not limited to the grant of a motion to suppress or motion in limine;
(C) A material witness refused to testify or was unavailable to testify against the individual unless such witness refused to testify based on his or her statutory right to do so;
(D) The individual was incarcerated on other criminal charges and the prosecuting attorney elected not to prosecute for reasons of judicial economy;
(E) The individual successfully completed a pretrial diversion program, the terms of which did not specifically provide for expungement of the arrest record;(F) The conduct which resulted in the arrest of the individual was part of a pattern of criminal activity which was prosecuted in another court of this state, the United States, another state, or foreign nation; or
(G) The individual had diplomatic, consular, or similar immunity or inviolability from arrest or prosecution."
As you can see, there are a laundry list of conditions that the Prosecutor can site as reason not to grant the request.
Should the Prosecutor not grant the request there is still hope. Georgia law provides that an appeal of the prosecutor’s decision is possible if brought within thirty days to the Superior Court of the county where the arrest occurred.
Clearly, there are a number of pitfalls that may occur when trying to clear your record. Ultimately, you may discover that an expungement is not the best option for your situation. There is still hope though, as an expungement is but one of many options available through Georgia and sometimes even Federal law. Contact an attorney for a consultation and discover which option works best for you.