2020 Georgia Code
Title 35 - Law Enforcement Officers and Agencies
Chapter 3 - Georgia Bureau of Investigation
Article 2 - Georgia Crime Information Center
§ 35-3-37. (For Effective Date, See note.) Review of Individual's Criminal History Record Information; Definitions; Privacy Considerations; Written Application Requesting Review; Inspection

Universal Citation: GA Code § 35-3-37 (2020)
  1. As used in this Code section, the term:
    1. "Drug court treatment program" means a treatment program operated by a drug court division in accordance with the provisions of Code Section 15-1-15.
    2. "Entity" means the arresting law enforcement agency, including county and municipal jails and detention centers.
    3. "Mental health treatment program" means a treatment program operated by a mental health court division in accordance with the provisions of Code Section 15-1-16.
    4. "Nonserious traffic offense" means any offense in violation of Title 40 which is not prohibited by Article 15 of Chapter 6 of Title 40 and any similar such offense under the laws of a state which would not be considered a serious traffic offense under the laws of this state if committed in this state.
    5. "Prosecuting attorney" means the Attorney General, a district attorney, or the solicitor-general who had jurisdiction where the criminal history record information is sought to be modified, corrected, supplemented, amended, or restricted. If the offense was a violation of a criminal law of this state which, by general law, may be tried by a municipal, magistrate, probate, or other court that is not a court of record, the term 'prosecuting attorney' shall include the prosecuting officer of such court or, in the absence of such prosecuting attorney, the district attorney of the judicial circuit in which such court is located.
    6. "Restrict," "restricted," or "restriction" means that the criminal history record information of an individual relating to a particular offense shall be available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the center and shall not be disclosed or otherwise made available to any private persons or businesses pursuant to Code Section 35-3-34 or to governmental agencies or licensing and regulating agencies pursuant to Code Section 35-3-35.
    7. "Serious violent felony" shall have the same meaning as set forth in Code Section 17-10-6.1.
    8. "State" includes any state, the United States or any district, commonwealth, territory, or insular possession of the United States, and the Trust Territory of the Pacific Islands.
    9. "Veterans treatment program" means a treatment program operated by a veterans court division in accordance with the provisions of Code Section 15-1-17.
    10. "Youthful offender" means any offender who was less than 21 years of age at the time of his or her arrest.
  2. Nothing in this article shall be construed so as to authorize any person, agency, corporation, or other legal entity of this state to invade the privacy of any citizen as defined by the General Assembly or as defined by the courts other than to the extent provided in this article.
  3. The center shall make an individual's criminal history record information available for review by such individual or his or her designee upon written application to the center.
  4. If an individual believes his or her criminal history record information to be inaccurate, incomplete, or misleading, he or she may request a criminal history record information inspection at the center. The center at which criminal history record information is sought to be inspected may prescribe reasonable hours and places of inspection and may impose such additional procedures or restrictions, including fingerprinting, as are reasonably necessary to assure the security of the criminal history record information, to verify the identities of those who seek to inspect such information, and to maintain an orderly and efficient mechanism for inspection of criminal history record information. The fee for inspection of criminal history record information shall not exceed $15.00, which shall not include the cost of the fingerprinting.
  5. If the criminal history record information is believed to be inaccurate, incomplete, or misleading, the individual may request that the entity having custody or control of the challenged information modify, correct, supplement, or amend the information and notify the center of such changes within 60 days of such request. In the case of county and municipal jails and detention centers, such notice to the center shall not be required. If the entity declines to act within 60 days of such request or if the individual believes the entity's decision to be unsatisfactory, within 30 days of the end of the 60 day period or of the issuance of the unsatisfactory decision, whichever occurs last, the individual shall have the right to appeal to the court with original jurisdiction of the criminal offenses in the county where the entity is located.
  6. An appeal pursuant to subsection (e) of this Code section shall be to acquire an order from the court with original jurisdiction of the criminal offenses that the subject information be modified, corrected, supplemented, or amended by the entity with custody of such information. Notice of the appeal shall be provided to the entity and the prosecuting attorney. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient service on the entity having custody or control of the disputed criminal history record information. The court shall conduct a de novo review and, if requested by a party, the proceedings shall be recorded.
    1. Should the court find by a preponderance of the evidence that the criminal history record information in question is inaccurate, incomplete, or misleading, the court shall order such information to be appropriately modified, corrected, supplemented, or amended as the court deems appropriate. Any entity with custody, possession, or control of any such criminal history record information shall cause each and every copy thereof in its custody, possession, or control to be altered in accordance with the court's order within 60 days of the entry of the order.
    2. To the extent that it is known by the requesting individual that an entity has previously disseminated inaccurate, incomplete, or misleading criminal history record information, he or she shall, by written request, provide to the entity the name of the individual, agency, or company to which such information was disseminated. Within 60 days of the written request, the entity shall disseminate the modification, correction, supplement, or amendment to the individual's criminal history record information to such individual, agency, or company to which the information in question has been previously communicated, as well as to the individual whose information has been ordered so altered.
  7. Access to an individual's criminal history record information, including any fingerprints or photographs of the individual taken in conjunction with the arrest, shall be restricted by the center for the following types of dispositions:
    1. Prior to indictment, accusation, or other charging instrument:
      1. The offense was never referred for further prosecution to the proper prosecuting attorney by the arresting law enforcement agency and:
  8. The offense against such individual is closed by the arresting law enforcement agency. It shall be the duty of the head of the arresting law enforcement agency to notify the center whenever a record is to be restricted pursuant to this division within 30 days of such decision. A copy of the notice shall be sent to the accused and the accused's attorney, if any, by mailing the same by first-class mail within seven days of notifying the center; or

    If the center receives notice of the filing of an indictment subsequent to the restriction of a record pursuant to this division, the center shall make such record available in accordance with Code Section 35-3-34 or 35-3-35. If the center does not receive notice of a charging instrument within 30 days of the applicable time periods set forth in this division, such record shall be restricted by the center for noncriminal justice purposes;

    1. The prosecuting attorney affirmatively indicates that the offense was dismissed, nolle prossed, or reduced to a violation of a local ordinance because:
      1. Of a plea agreement resulting in a conviction of the individual for an offense arising out of the same underlying transaction or occurrence as the conviction;
      2. The prosecuting attorney was barred from introducing material evidence against the individual on legal grounds, including, without limitation, the granting of a motion to suppress or motion in limine;
      3. 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 the state or a foreign nation; or
      4. The individual had diplomatic, consular, or similar immunity or inviolability from arrest or prosecution;
    2. The charged offenses were tried and some, but not all, of the offenses resulted in an acquittal; or
    3. The individual was acquitted of all charged offenses but it was later determined that the acquittal was the result of jury tampering or judicial misconduct.
    1. When an individual had a felony charge dismissed or nolle prossed or was found not guilty of such charge but was convicted of a misdemeanor offense that was not a lesser included offense of the felony charge, such individual may petition the court in which he or she was accused or convicted, as applicable, or, if such charge was dismissed, the superior court in the county where the arrest occurred to restrict access to criminal history record information for the felony charge within four years of the arrest. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the arresting law enforcement agency and the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall grant an order restricting such criminal history record information if the court determines that the misdemeanor conviction was not a lesser included offense of the felony charge and that the harm otherwise resulting to the individual clearly outweighs the public interest in the criminal history record information being publicly available.
    2. When an individual was convicted of an offense and was sentenced to punishment other than the death penalty, but such conviction was vacated by the trial court or reversed by an appellate court or other post-conviction court, the decision of which has become final by the completion of the appellate process, and the prosecuting attorney has not retried the case within two years of the date the order vacating or reversing the conviction became final, such individual may petition the court in which he or she was convicted to restrict access to criminal history record information for such offense. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall determine whether granting an order restricting such criminal history record information is appropriate, giving due consideration to the reason the judgment was reversed or vacated, the reason the prosecuting attorney has not retried the case, and the public's interest in the criminal history record information being publicly available.
    3. When an individual's charged offense has remained on the dead docket for more than 12 months, such individual may petition the court in which the charged offense is pending to restrict access to criminal history record information for such charged offense. Such petition shall be served on the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall determine whether granting an order restricting such criminal history record information is appropriate, giving due consideration to the reason the offense was placed on the dead docket; provided, however, that the court shall not grant such motion if an active warrant is pending for such individual.
      1. When an individual was convicted in this state of a misdemeanor or a series of misdemeanors arising from a single incident, provided that such conviction was not for any offense listed in subparagraph (B) of this paragraph, and such individual has completed the terms of his or her sentence and has not been convicted of any crime in any jurisdiction for at least four years prior to filing a petition under this subparagraph, excluding any conviction for a nonserious traffic offense, and provided, further, that he or she has no pending charged offenses, he or she may petition the court in which the conviction occurred to restrict access to criminal history record information. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall grant an order restricting such criminal history record information if it determines that the harm otherwise resulting to the individual clearly outweighs the public's interest in the criminal history record information being publicly available.
      2. Record restriction under this subsection shall not be appropriate if the individual was convicted of:
        1. Family violence simple assault in violation of subsection (d) of Code Section 16-5-20, unless the individual was a youthful offender;
        2. Family violence simple battery in violation of subsection (f) of Code Section 16-5-23, unless the individual was a youthful offender;
        3. Family violence battery in violation of subsection (f) of Code Section 16-5-23.1, unless the individual was a youthful offender;
        4. Family violence stalking in violation of Code Section 16-5-90;
        5. Violating a family violence order in violation of Code Section 16-5-95;
        6. Child molestation in violation of Code Section 16-6-4;
        7. Enticing a child for indecent purposes in violation of Code Section 16-6-5;
        8. Improper sexual contact by employee or agent and improper sexual contact by a foster parent in violation of Code Section 16-6-5.1;
        9. Public indecency in violation of subsection (b) of Code Section 16-6-8;
        10. Keeping a place of prostitution in violation of Code Section 16-6-10;
        11. Pimping in violation of Code Section 16-6-11;
        12. Pandering by compulsion in violation of Code Section 16-6-12;
        13. Sexual battery in violation of Code Section 16-6-22.1;
        14. Obstructing or hindering persons making emergency telephone call in violation of Code Section 16-10-24.3;
        15. Peeping Toms in violation of Code Section 16-11-61;
        16. Any offense related to minors generally in violation of Part 2 of Article 3 of Chapter 12 of Title 16;
        17. Theft in violation of Chapter 8 of Title 16; provided, however, that such prohibition shall not apply to a misdemeanor conviction of shoplifting or refund fraud in violation of Code Section 16-8-14 or 16-8-14.1, as applicable; or
        18. Any serious traffic offense in violation of Article 15 of Chapter 6 of Title 40.
      3. An individual shall be limited to filing a petition under this paragraph to a lifetime maximum of requesting record restriction on two convictions for a misdemeanor or a series of misdemeanors arising from a single incident. For the purposes of this subparagraph, the conviction of two or more offenses charged in separate counts of one or more accusations consolidated for trial shall be deemed to be one conviction. If a petition under this subsection has been denied, an individual may file a subsequent petition on the same conviction for a misdemeanor or series of misdemeanors arising from a single incident after the expiration of two years from the date of the final order from the previous petition.
    4. When an individual was arrested on a fugitive from justice warrant as provided in Code Section 17-13-4, such individual may petition the superior court in the county where the arrest occurred to restrict access to criminal history record information for such warrant. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the arresting law enforcement agency and the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall grant an order restricting such criminal history record information if the court determines that circumstances warrant restriction and that the harm otherwise resulting to the individual clearly outweighs the public interest in the criminal history record information being publicly available.
      1. A defendant convicted of an offense and sentenced while such individual was a victim of an offense of trafficking under Code Section 16-5-46 may petition the court imposing the sentence to restrict such conviction. Such court shall maintain the jurisdiction, power, and authority to restrict such conviction and sentence.
      2. The defendant shall serve the petition provided for under paragraph (1) of this subsection upon the prosecuting attorney, and such petition:
        1. Shall be submitted on a form promulgated by the Attorney General; and
        2. May include documentation of a defendant's status as a victim of an offense of trafficking under Code Section 16-5-46 at the time of the offense; provided, however, that official documentation shall not be required to obtain relief under this paragraph. Such documentation shall create a rebuttable presumption that the defendant was a victim of trafficking under Code Section 16-5-46. As used in this subparagraph, the term "official documentation" includes, but is not limited to, the following:
      3. A copy of an official record, certification, or eligibility letter from a federal, state, tribal, or local proceeding showing that the defendant was a victim of trafficking under Code Section 16-5-46;
      4. An affidavit, a letter, or sworn testimony from a member of the clergy, medical professional, member of a victim services organization, or certified, licensed, or registered professional from whom the defendant has sought assistance, counseling, or legal counsel related to his or her victimization; or
      5. Any other evidence that the court determines is of sufficient credibility or probative value.
      6. If the prosecuting attorney, to the court, consents in writing to the restriction of such conviction and sentence or fails to respond to such petition within 30 days of service, the court imposing the conviction and sentence shall, without notice or hearing, issue an order restricting the conviction and sentence.
      7. If the prosecuting attorney, to the court, objects in writing to the petition, the court shall determine, by a preponderance of the evidence, whether the defendant committed such offense while such individual was a victim of an offense of trafficking under Code Section 16-5-46. If the court finds, by a preponderance of the evidence, that the defendant committed such offense while such individual was a victim of an offense of trafficking under Code Section 16-5-46, the court may issue an order restricting the conviction and sentence. The court shall hold a hearing within 90 days of the filing of the petition to hear evidence for purposes of making a determination under this subparagraph or make a determination upon the pleadings or record.
      8. When the petition provided for under subparagraph (A) of this paragraph is filed, it shall be filed under seal.
      9. For purposes of considering such petition, testimony from the defendant or any other party may be taken by the court by remote electronic means.
      10. No fee shall be charged to an individual for restricting access to criminal history record information under this paragraph.
    5. When an individual was convicted in this state of an offense for which that individual has been granted a pardon from the State Board of Pardons and Paroles as provided in the Constitution and Code Section 42-9-42, provided that the offense was not a serious violent felony as such term is defined in Code Section 17-10-6.1 or a sexual offense as such term is defined in Code Section 17-10-6.2, and provided, further, that such individual has not been convicted of any crime in any jurisdiction, excluding any conviction for a nonserious traffic offense, since the pardon was granted, and provided, further, that he or she has no pending charged offenses, he or she may petition the court in which the conviction occurred to restrict access to criminal history record information.Such court shall maintain jurisdiction over the case for this limited purpose and duration.Such petition shall be served on the prosecuting attorney.If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition.The court shall hear evidence and shall grant an order restricting such criminal history record information if it determines that the harm otherwise resulting to the individual clearly outweighs the public's interest in the criminal history record information being publicly available.
    1. The center shall notify the arresting law enforcement agency of any criminal history record information, access to which has been restricted pursuant to this Code section, within 30 days of the date access to such information is restricted. Upon receipt of notice from the center that access to criminal history record information has been restricted, the arresting law enforcement agency or other law enforcement agency shall, within 30 days, restrict access to all such information maintained by such arresting law enforcement agency or other law enforcement agency for such individual's offense that has been restricted.
    2. An individual who has had criminal history record information restricted pursuant to this Code section may submit a written request to the appropriate county or municipal jail or detention center to have all records for such individual's offense that has been restricted maintained by the appropriate county or municipal jail or detention center restricted. Within 30 days of such request, the appropriate county or municipal jail or detention center shall restrict access to all such criminal history record information maintained by such appropriate county or municipal jail or detention center for such individual's offense that has been restricted.
    3. The center shall be authorized to unrestrict criminal history record information based on the receipt of a disposition report showing that the individual was convicted of an offense which was restricted pursuant to this Code section.
  9. If criminal history record information is restricted pursuant to this Code section and if the entity declines to restrict access to such information, the individual may file a civil action in the superior court where the entity is located. A copy of the civil action shall be served on the entity and prosecuting attorney for the jurisdiction where the civil action is filed, and they may become parties to the action. A decision of the entity shall be upheld only if it is determined by clear and convincing evidence that the individual did not meet the criteria set forth in subsection (h) or (j) of this Code section.
    1. For criminal history record information maintained by the clerk of court, an individual who has a record restricted pursuant to this Code section may petition the court with original jurisdiction over the offenses in the county where the clerk of court is located for an order to seal all criminal history record information maintained by the clerk of court for such individual's charged offense. Notice of such petition shall be sent to the clerk of court and the prosecuting attorney. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient notice.
    2. The court shall order all criminal history record information in the custody of the clerk of court, including within any index, to be restricted and unavailable to the public if the court finds by a preponderance of the evidence that:
      1. The criminal history record information has been restricted pursuant to this Code section; and
      2. The harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record information being publicly available.
    3. Within 60 days of the court's order, the clerk of court shall cause every document, physical or electronic, in its custody, possession, or control to be restricted.
    1. Except as provided in subsection (j) of this Code section, as to arrests occurring before July 1, 2013, an individual may, in writing, request the arresting law enforcement agency to restrict the criminal history record information of an arrest, including any fingerprints or photographs taken in conjunction with such arrest. Reasonable fees shall be charged by the arresting law enforcement agency and the center for the actual costs of restricting such records, provided that such fee shall not exceed $50.00.
    2. Within 30 days of receipt of such written request, the arresting law enforcement agency shall provide a copy of the request to the prosecuting attorney. Within 90 days of receiving the request, the prosecuting attorney shall review the request to determine if the request meets the criteria set forth in subsection (h) of this Code section for record restriction, and the prosecuting attorney shall notify the arresting law enforcement agency of his or her decision within such 90 day period. If the prosecuting attorney denies such request, he or she shall cite with specificity the reason for such denial in writing and attach to such denial any relevant documentation in his or her possession used to make such denial. There shall be a presumption that the prosecuting attorney does not object to the request to restrict the criminal history record information if he or she fails to respond to the request for a determination within the 90 day period set forth in this paragraph. The arresting law enforcement agency shall inform the individual of the prosecuting attorney's decision, and, if record restriction is approved by the prosecuting attorney, the arresting law enforcement agency shall restrict the criminal history record information within 30 days of receipt of the prosecuting attorney's decision.
    3. If a prosecuting attorney declines an individual's request to restrict access to criminal history record information, such individual may file a civil action in the superior court where the entity is located. A copy of the civil action shall be served on the entity and prosecuting attorney for the jurisdiction where the civil action is filed, and they may become parties to the action. A decision of the prosecuting attorney to decline a request to restrict access to criminal history record information shall be upheld unless the individual demonstrates by clear and convincing evidence that the arrest is eligible for record restriction pursuant to subsection (h) of this Code section and the harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record information being publicly available.
    4. To restrict criminal history record information at the center, an individual shall submit a prosecuting attorney's approved record restriction request or a court order issued pursuant to paragraph (3) of this subsection to the center. The center shall restrict access to such criminal history record information within 30 days of receiving such information.
  10. Nothing in this Code section shall give rise to any right which may be asserted as a defense to a criminal prosecution or serve as the basis for any motion that may be filed in any criminal proceeding. The modification, correction, supplementation, amendment, or restriction of criminal history record information shall not abate or serve as the basis for the reversal of any criminal conviction.
  11. Any application to the center for access to or restriction of criminal history record information made pursuant to this Code section shall be made in writing on a form approved by the center. The center shall be authorized to develop and publish such procedures as may be necessary to carry out the provisions of this Code section. In adopting such procedures and forms, the provisions of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," shall not apply.
  12. It shall be the duty of the entity to take such action as may be reasonable to prevent disclosure of information to the public which would identify any individual whose criminal history record information is restricted pursuant to this Code section.
  13. If the center has notified a firearms dealer that an individual is prohibited from purchasing or possessing a handgun pursuant to Part 5 of Article 4 of Chapter 11 of Title 16 and if the prohibition is the result of such individual being involuntarily hospitalized within the immediately preceding five years, upon such individual or his or her attorney making an application to inspect his or her records, the center shall provide the record of involuntary hospitalization and also inform the individual or attorney of his or her right to a hearing before the judge of the probate court or superior court relative to such individual's eligibility to possess or transport a handgun.
  14. The center shall be authorized to provide such individual's criminal history record information to the employers and entities and under the conditions set forth in subsections (u) and (v) of this Code section.
  15. In the course of a civil action and upon request, the court shall order that any relevant criminal history record information that has been restricted or sealed pursuant to this Code section for any witness in that civil action shall be provided to the parties in that proceeding for use only in that proceeding. Any information disclosed in such order shall not be published outside the proceedings and any subsequent appeal.
  16. A restriction or sealing pursuant to this Code section may be used to disqualify an individual for employment or appointment to office in the same manner that a discharge under Article 3 of Chapter 8 of Title 42 may be used to disqualify an individual from employment as set forth in Code Section 42-8-63.1, and such restriction or sealing shall not supersede any disclosure or consideration of criminal history record information required by federal law, including, but not limited to, those disclosures required by financial institutions, as such term is defined in Code Section 7-1-4.
    1. Information restricted and sealed pursuant to this Code section shall always be available for inspection, copying, and use:
      1. For the purpose of imposing a sentence under Article 3 of Chapter 8 of Title 42;
      2. By the Judicial Qualifications Commission;
      3. By an attorney representing an accused individual who submits a sworn affidavit to the clerk of court attesting that such information is relevant to a criminal proceeding;
      4. By a prosecuting attorney or a public defender;
      5. Pursuant to a court order; and
      6. By an individual who is the subject of restricted criminal history record information or sealed court files.
    2. The confidentiality of such information shall be maintained insofar as practicable.
  17. This Code section shall apply to sentences imposed before, on, or after July 1, 2020.

The center does not receive notice from the arresting law enforcement agency that the offense has been referred to the prosecuting attorney or transferred to another law enforcement or prosecutorial agency of this state, any other state or a foreign nation, or any political subdivision thereof for prosecution and the following period of time has elapsed from the date of the arrest of such individual:

If the offense is a misdemeanor or a misdemeanor of a high and aggravated nature, two years;

If the offense is a felony, other than a serious violent felony or a felony sexual offense specified in Code Section 17-3-2.1 involving a victim under 16 years of age, four years; or

If the offense is a serious violent felony or a felony sexual offense specified in Code Section 17-3-2.1 involving a victim under 16 years of age, seven years.

The offense was referred to the prosecuting attorney but was later dismissed;

The grand jury returned two no bills; or

The grand jury returned one no bill and the applicable time period set forth in division (ii) of subparagraph (A) of this paragraph has expired; and

After indictment or accusation:

Except as provided in subsection (i) of this Code section, all charged offenses were dismissed, nolle prossed, or reduced to a violation of a local ordinance;

The individual was sentenced in accordance with the provisions of subsection (a) or subsection (c) of Code Section 16-13-2, and either the court ordered restriction upon sentencing as permitted in Code Section 16-13-2, or the individual successfully completed the terms and conditions of his or her probation;

The individual pleaded guilty to or was found guilty of a violation of paragraph (2) or (3) of subsection (a) of Code Section 3-3-23 and was sentenced in accordance with the provisions of subsection (c) of Code Section 3-3-23.1, and either the court ordered restriction upon sentencing as permitted in Code Section 3-3-23.1, or the individual successfully completed the terms and conditions of his or her probation;

The individual successfully completed a drug court treatment program, mental health treatment program, or veterans treatment program, the individual's offense has been dismissed or nolle prossed, and he or she has not been arrested during such program, excluding any arrest for a nonserious traffic offense; or

The individual was acquitted of all of the charged offenses by a judge or jury unless, within ten days of the verdict, the prosecuting attorney demonstrates to the trial court through clear and convincing evidence that the harm otherwise resulting to the individual is clearly outweighed by the public interest in the criminal history record information being publicly available because either:

The prosecuting attorney was barred from introducing material evidence against the individual on legal grounds, including, without limitation, the granting of a motion to suppress or motion in limine; or

The individual has been formally charged with the same or similar offense within the previous five years.

After the filing of an indictment or accusation, an individual's criminal history record information shall not be restricted if:

(Code 1981, §35-3-37, enacted by Ga. L. 2012, p. 899, § 6-2/HB 1176; Ga. L. 2013, p. 222, § 14/HB 349; Ga. L. 2014, p. 79, § 3/SB 320; Ga. L. 2014, p. 404, § 2-2/SB 382; Ga. L. 2016, p. 443, § 6B-7/SB 367; Ga. L. 2018, p. 550, § 2-8/SB 407; Ga. L. 2019, p. 912, § 4/SB 9; Ga. L. 2020, p. 90, § 3/SB 435; Ga. L. 2020, p. 245, § 2/HB 911; Ga. L. 2020, p. 753, § 1-1/SB 288.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2012, a period was added at the end of paragraph (j)(3).

Pursuant to Code Section 28-9-5, in 2020, paragraph (j)(6) as added by Ga. L. 2020, p. 753, § 1-1/SB 288, was redesignated as paragraph (j)(7) given the addition of paragraph (j)(6) by Ga. L. 2020, p. 90, § 3/SB 435.

Editor's notes.

- Ga. L. 1995, p. 139, § 7, not codified by the General Assembly, provides that no local ordinance which was in effect on March 22, 1995, shall be affected by Code Section 16-11-184 until January 1, 1996, at which time, unless enacted subsequent to March 22, 1995, as provided by that Code section, any such ordinance shall be of no further force or effect, and further provides that no ordinance or regulation attempting to regulate firearms in any manner shall be enacted by any county, city, or municipality after July 1, 1995.

Ga. L. 1995, p. 139, § 8, not codified by the General Assembly, provides that subsection (f) of this Code section shall be repealed automatically upon a final judicial determination that such Act is invalid for any reason.

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2012, p. 899, § 6-2/HB 1176, effective July 1, 2013, repealed the former Code section and enacted the current Code section. The former Code section was based on Ga. L. 1973, p. 1301, § 6; Ga. L. 1995, p. 139, § 4; Ga. L. 1997, p. 1345, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2012, p. 775, § 35/HB 942.

Ga. L. 2012, p. 899, § 9-1/HB 1176, not codified by the General Assembly, provides, in part, that Part VI of this Act, which amended this Code section, shall become fully effective on July 1, 2013; provided, however, that for the purpose of preparing for implementation of Part VI of this Act, said part shall become effective on July 1, 2012.

Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense."

Ga. L. 2014, p. 79, § 1/SB 320, not codified by the General Assembly, provides that: "The General Assembly recognizes that veterans have provided and continue to provide an invaluable service to our country and this state. In connection with a veteran's service, some servicemen and servicewomen have incurred physical, emotional, or mental impairments which cause or contribute to behaviors that may draw a veteran into the criminal justice system. The General Assembly has determined that having dedicated veterans court divisions is important to address the specialized treatment needs of veterans and that there are resources, services, and treatment options that are unique to veterans that may best facilitate a veteran's reentry into society."

Ga. L. 2014, p. 404, § 3-1/SB 382, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2014, and shall apply to all conduct occurring on or after such date."

Ga. L. 2020, p. 90, § 1/SB 435, not codified by the General Assembly, provides: "This Act shall be known and may be cited as 'The Survivors First Act.'"

Law reviews.

- For article on the 2012 enactment of this Code section, see 29 Ga. St. U. L. Rev. 290 (2012). For article, "Appeal and Error: Appeal or Certiorari by State in Criminal Cases," see 30 Ga. St. U. L. Rev. 17 (2013). For annual survey on criminal law, see 66 Mercer L. Rev. 37 (2014). For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 139 (2016). For note, "Give It to Me, I'm Worth It: The Need to Amend Georgia's Record Restriction Statute to Provide Ex-Offenders with a Second Chance in the Employment Sector," see 52 Ga. L. Rev. 267 (2017).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code Section 35-3-37, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Application of amendments.

- Recent amendments to Georgia's criminal history record information statute, O.C.G.A. § 35-3-37, are to be applied to information regarding arrests occurring prior to the amendments' effective date as the statute itself made clear that the statute does apply to information regarding arrests pre-dating the amendments, and such application presents no constitutional problem. Mosley v. Lowe, 298 Ga. 363, 782 S.E.2d 43 (2016).

County erred and should have granted the defendant's request to have the defendant's arrest record restricted pursuant to O.C.G.A. § 35-3-37(h) because it was undisputed that the 1996 assault charge against the defendant was nolle prossed and, as such, that disposition did not fall within any of the exceptions enumerated in paragraph (i)(1) of the statute and the defendant was eligible for record restriction under the current statute. Mosley v. Lowe, 298 Ga. 363, 782 S.E.2d 43 (2016).

Georgia Bureau of Investigation required to restrict record.

- To the extent the trial court denied the defendant's motion as to the Georgia Bureau of Investigation, the order denying expungement was affirmed because the Georgia Crime Information Center was required to restrict the defendant's record and even if the record was not subject to automatic restriction, nothing in the statute permitted the state court to order the Georgia Crime Information Center/Georgia Bureau of Investigation to restrict a record that was not subject to an automatic restriction. Ledbetter v. State, 349 Ga. App. 154, 825 S.E.2d 530 (2019).

Investigatory case file open unless privacy invaded.

- When "criminal history record information" has been incorporated by a law-enforcement agency into an investigatory case file, it should be open for public inspection unless its disclosure would constitute an invasion of privacy. Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987) (decided under former O.C.G.A. § 35-3-37).

Hearing was mandatory under former O.C.G.A. § 35-3-37(c). Strohecker v. Gwinnett County Police Dep't, 182 Ga. App. 853, 357 S.E.2d 305 (1987) (decided under former O.C.G.A. § 35-3-37).

No modification following nolle prosequi.

- Petitioner was not entitled to modification or expungement of criminal record to reflect entry of nolle prosequi on certain charges. Drake v. State, 170 Ga. App. 846, 318 S.E.2d 721 (1984) (decided under former O.C.G.A. § 35-3-37).

Sealing clerk's records.

- Because the provisions of O.C.G.A. § 35-3-37(m)(2) applied to arrests that pre-dated July 1, 2013, the trial court should have considered the merits of the defendant's motion to seal the clerk's records, and the order denying the defendant's motion to seal the clerk of court's records was vacated. Woodhouse v. State, 336 Ga. App. 880, 785 S.E.2d 429 (2016).

Trial court did not abuse the court's discretion by denying the defendant's motion to seal the clerk's file because the defendant did not testify at the hearing on the motion, there was not an affidavit from the defenant in the record, and the attorney's representations about what the defendant relayed to the attorney were not in evidence. Even assuming the representations were testified to by the defendant, the representations lacked sufficient detail and specificity to meet the burden of showing by a preponderance of the evidence that the defendant's privacy interests clearly outweighed the public's interest in the records. Rich v. State, Ga. App. , S.E.2d (Aug. 27, 2020).

Sheriff's office's refusal to expunge subject to appeal to superior court.

- Trial court erred in dismissing an indictee's appeal from the sheriff's office's refusal to expunge the indictee's record without determining whether the charges had been nolle prossed for a reason set forth in former O.C.G.A. § 35-3-37(d)(7)(A) through (G). If the charges had not been nolle prossed for one of these reasons, the refusal to expunge could not be affirmed. Grimes v. Catoosa County Sheriff's Office, 307 Ga. App. 481, 705 S.E.2d 670 (2010) (decided under former O.C.G.A. § 35-3-37).

Proper procedure not followed.

- Order denying the defendant's motion to restrict a criminal record under O.C.G.A. § 35-3-37 was affirmed as to the county sheriff's office, county police department, and any other entity as defined by § 35-3-37(a)(2) because nothing in the record showed that the defendant followed the proper procedure by first making a request of an appropriate entity. Ledbetter v. State, 349 Ga. App. 154, 825 S.E.2d 530 (2019).

Expungement not supported.

- Former defendant's petition under O.C.G.A. § 35-3-37(j)(2) to expunge the defendant's record was denied; because the defendant had been tried twice already, and the child molestation victim and similar crimes witnesses did not wish to go through a third trial, the prosecutor decided not to press the charges after a reversal for ineffective assistance of counsel. Gibbs v. Bright, 330 Ga. App. 851, 769 S.E.2d 590 (2015).

Because imposition of a sentence upon a plea of nolo contendere was not a dismissal or a nolle prosse, O.C.G.A. § 35-3-37(h)(2)(A), providing for restriction of access to certain criminal history records, did not apply to an applicant's plea of nolo contendre to theft by taking; and the applicant's civil rights claim was barred by the statute of limitations, O.C.G.A. § 9-3-33. Nasir v. Gwinnett County State Court, 341 Ga. App. 63, 798 S.E.2d 695 (2017).

Discretionary appeal procedures.

- Appeal of a superior court decision reviewing a decision of an agency denying a request to expunge criminal records requires the discretionary appeal procedures of O.C.G.A. § 5-6-35. Strohecker v. Gwinnett County Police Dep't, 182 Ga. App. 853, 357 S.E.2d 305 (1987) (decided under former O.C.G.A. § 35-3-37).

Appeal to superior court.

- By the former statute's express provisions, an appeal from the denial of a request to expunge a criminal record under former O.C.G.A. § 35-3-37(d)(6) was as provided in O.C.G.A. § 50-13-19. In such case, the review should be conducted by the court without a jury and should be confined to the record. Grimes v. Catoosa County Sheriff's Office, 307 Ga. App. 481, 705 S.E.2d 670 (2010) (decided under former O.C.G.A. § 35-3-37).

Appellate jurisdiction was in Court of Appeals absent viable constitutional challenge.

- Because an appeal of the denial of a motion to seal a criminal record under O.C.G.A. § 35-3-37(m) failed to present a viable challenge to the statute's constitutionality, Ga. Const. 1983, Art. VI, Sec. VI, Para. II(1), because the challenge (a separation of powers argument, Ga. Const. 1983, Art. I, Sec. II, Para. III, based on the Supreme Court's record-keeping authority under Ga. Const. 1983, Art. VI, Sec. IX, Para. I, and Ga. Unif. Super. Ct. R. 21.4) was not raised below, jurisdiction was properly before the Court of Appeals, pursuant to O.C.G.A. § 5-6-34(a)(12). Doe v. State, 303 Ga. 237, 811 S.E.2d 413 (2018).

Applicability to inaccurate, incomplete, or misleading records.

- If a criminal record is inaccurate, incomplete, or misleading, a superior court has three available remedies - expungement, modification, or supplementation - so long as the court finds the remedy to be "required by law" and "appropriate." Meinken v. Burgess, 262 Ga. 863, 426 S.E.2d 876 (1993) (decided under former O.C.G.A. § 35-3-37).

Expungement remedy exceptional.

- Expungement should be reserved for exceptional cases based upon competing state and citizen interests, and the fact that the defendant's arrest record did not reflect that the defendant was acquitted by operation of law did not constitute an exceptional circumstance warranting the remedy of expungement instead of modification or supplement. Meinken v. Burgess, 262 Ga. 863, 426 S.E.2d 876 (1993) (decided under former O.C.G.A. § 35-3-37).

Cited in Sosniak v. State, 292 Ga. 35, 734 S.E.2d 362 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Ga. L. 1973, p. 1301, § 6 and former Code Section 35-3-37, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Confidentiality of information obtained from Georgia Crime Information Center.

- Since information supplied by the Georgia Crime Information Center to local law enforcement agencies may often contain nonconviction data, such as arrests resulting in acquittals, dismissals, or arrests resulting in no prosecutions, such material is of a sensitive nature and disclosure would be an unwarranted invasion of privacy of a citizen. 1981 Op. Att'y Gen. No. U81-47 (decided under former Ga. L. 1973, p. 1301, § 6).

Information obtained pursuant to criminal history background check, required by O.C.G.A. § 16-11-129, from taking of fingerprints and checking of these fingerprints with those presently on file with the Georgia Crime Information Center is of a confidential nature and prohibited from public disclosure. 1981 Op. Att'y Gen. Op. No. U81-47 (decided under former Ga. L. 1973, p. 1301, § 6).

Center may allow private researchers access to information under imposed conditions.

- Georgia Crime Information Center is permitted to allow private researchers access to criminal history record information and to impose such conditions on that access as the center deems appropriate. 1975 Op. Att'y Gen. No. U75-78 (decided under former Ga. L. 1973, p. 1301, § 6).

Only superior court judges may order records expunged or modified.

- Only superior court judges may order criminal history records to be expunged or otherwise modified, and then only after strict compliance with the procedure set forth in former O.C.G.A. § 35-3-37(c). 1989 Op. Att'y Gen. No. 89-60 (decided under former O.C.G.A. § 35-3-37).

Expungement by city solicitor's office.

- City of Atlanta Solicitor's office does not have the authority to approve the expungement by an original agency of a criminal arrest record involving a felony or misdemeanor state offense which is dismissed in municipal court and for which no indictment or accusation has been drawn. 1998 Op. Att'y Gen. No. U98-11 (decided under former O.C.G.A. § 35-3-37).

Only basis upon which Georgia Crime Information Center shall expunge a record is upon clear finding by court that said record is inaccurate, incomplete, or misleading, and setting forth the factual basis for such finding. 1982 Op. Att'y Gen. No. 82-8 (decided under former O.C.G.A. § 35-3-37).

Purging of records.

- Center should purge the center's records only when the records are inaccurate. 1975 Op. Att'y Gen. No. 75-110 (decided under former Ga. L. 1973, p. 1301, § 6).

RESEARCH REFERENCES

Am. Jur. 2d.

- 66 Am. Jur. 2d, Records and Recording Laws, § 2.

C.J.S.

- 76 C.J.S., Records, §§ 76, 82 et seq., 116, 126, 130, 131, 152.

ALR.

- Judicial expunction of criminal record of convicted adult, 11 A.L.R.4th 956.

Judicial expunction of criminal record of convicted adult in absence of authorizing statute, 68 A.L.R.6th 1.

Judicial expunction of criminal record of convicted adult under statute - General principles, and expunction of criminal records under statutes providing for such relief where criminal proceeding is terminated in favor of defendant, upon completion of probation, upon suspended sentence, and where expungement relief predicated upon type, and number, of offenses, 69 A.L.R.6th 1.

Judicial expunction of criminal record of convicted adult under statute - Expunction under statutes addressing "first offenders" and "innocent persons," where conviction was for minor drug or other offense, where indictment has not been presented against accused or accused has been released from custody, and where court considered impact of nolle prosequi, partial dismissal, pardon, rehabilitation, and lesser-included offenses, 70 A.L.R.6th 1.

Expunction of federal arrest records in absence of conviction, 97 A.L.R. Fed. 652.

Effect of expungement of conviction on § 241(a)(4), (11) of Immigration and Nationality Act of 1952 (8 USC § 1251(a)(4), (11)), making aliens deportable for crimes involving moral turpitude or drugs, 98 A.L.R. Fed. 750.

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