1. What is an expungement?
The process of legally destroying, obliterating or striking out records or information in files, computers and other depositories relating to criminal charges.
2. Do the records just “disappear"?
No. The records cannot be accessed for general law enforcement or civil use. The records are to be expunged by destroying the fingerprint cards, photographs, and documents relating exclusively to the person. Any material which cannot be physically destroyed or which the prosecuting attorney determines must be preserved for constitutional reasons shall be restricted by the agency and shall not be subject to disclosure to any person except by direction of the prosecuting attorney or as ordered by a court. O.C.G.A. § 35-3-37.
What records may be expunged? Records of arrest, including any fingerprints or photographs of the individual taken in relation to the arrest. However, there will not be any destruction of incident reports or other records that a crime was committed or reported to law enforcement. Custodial records maintained by county or municipal jail or detention centers are not subject to expungement. O.C.G.A. § 35-3-37. DNA profiles of persons whose convictions are reversed and cases are dismissed may be expunged. O.C.G.A. § 24-4-65. Records of juveniles not adjudged to be guilty of delinquency may also be expunged. O.C.G.A. § 15-11-83.
3. Who is eligible for an expungement?
If the GCIC shows you were arrested but not convicted, you may be able to expunge it. You do not have a right to expungement - it is more of a favor. O.C.G.A. § 35-3-37 (d) lays out when it can be granted. If:
a. A person who can show their records are inaccurate or incomplete;
b. A person with no conviction because charges disposed of or dismissed, has no charges pending, and has been not convicted of anything in U.S. in last five years, excluding incarceration time;
c. A juvenile if a petition alleging delinquency is not filed, or the proceedings are dismissed after either a petition is filed, or the case is transferred to the juvenile court as provided in Code Section 15-11-30.4, or the child is adjudicated not to be a delinquent child.
4. Who is not eligible for an expungement?
a. Charges were nolle prosequi, dead-docketed, or dismissed because of plea agreement resulting in conviction;
b. the government was barred from introducing material evidence;
c. a material witness refused to testify or was unavailable to testify without legal right to do so;
d. the attorney elected not to prosecute for reasons of judicial economy because defendant was incarcerated;
e. the person completed a pretrial diversion program, the terms of which did not specifically provide for expungement;
f. conduct which resulted in the arrest of the individual was part of a pattern of criminal activity which was prosecuted in another court; or,
g. diplomatic, consular, or similar immunity prevented a conviction. O.C.G.A. § 35-3-37.
4. How do I get records expunged?
You must approach the agency that arrested you (i.e. police department, sheriff's office or state troopers) and they will give you the forms you need to fill out. You need to know the name of the arresting department, date of the arrest and the offense. The department sends the papers to the district attorney or solicitor and it is up to them to decide whether you meet the criteria for expungement.
If the prosecutor decides to approve your request they will notify the GCIC. Within several months, GCIC will expunge your arrest record.
If the prosecuting attorney denies your request, you can file a lawsuit in the Superior Court of the county where the arresting police department is located. The lawsuit must be filed within thirty (30) days of receiving the denial. Seeking a writ of mandamus is an expensive and complicated course of action so be sure to hire a good lawyer at that phase.
Generally speaking, it is always a good idea to have attorney assist you with any legal matter you may be facing, as such, the best thing for you to do is consult and hire an attorney in your area. Your attorney will be able to discern all the applicable laws and/or issues that you may encounter in attempting to expunge your record. I hope this helps and good luck!