What is Georgia’s Misdemeanor Record Restriction or “Second Chance” Law?
Effective January 1, 2021 Georgia has a new “second chance” misdemeanor record restriction law on the books. Typically, arrests and convictions for state law misdemeanors and felonies are on a person’s Georgia criminal history forever. They do not age off like traffic offenses on a driving history. Convictions from 10, 20, 30, even 50 years ago will still be on your Georgia criminal history even if your life has changed significantly from when you were younger. Georgia’s new law, SB288 changes that, and allows for some misdemeanor offenses to be restricted from your criminal history if certain requirements are met.
SB 288 will allow people who have been convicted of certain misdemeanor offenses in their past to petition the court to have those convictions restricted and sealed four years after the completion of their sentence, provided they have no new convictions on their criminal history and no pending charges. SB288 is not applicable to all misdemeanor convictions. Sex crimes, domestic or family violence cases, crimes against children, and DUI convictions are not eligible for SB288’s second chance opportunity. But this means many other charges are available to be restricted under the law. The misdemeanor charges eligible to be restricted include:
Misdemeanor Possession of Marijuana, Possession of Drug Related Objects, Theft by Shoplifting, Simple Assault, Simple Battery, Minor in Possession of Alcohol, False Name, False Report of Crime, False Statement, Criminal Trespass, Loitering and Prowling, Terroristic Threats, Disorderly Conduct, Driving While License Suspended, No Insurance, Suspended Registration, and other non-serious traffic offenses where the Driver was arrested
Some of these misdemeanor offenses also have felony charges with the same name. Only the misdemeanor offense is applicable for record restriction under SB288.
There are two steps required in order to have your eligible Georgia misdemeanor conviction restricted and sealed under the law. First, you must wait four years from the date of conviction. During that time period and the entirety of the process you cannot have any new convictions or any pending charges. New convictions or charges would restart the clock for requesting record restriction. Once that four year waiting period has been completed, you must petition the court in the city or county in which you were convicted to request your record be restricted and sealed. A hearing must be set under the law within 90 days of the motion. The Court will then hear your argument on why this past conviction should be restricted. Under the new SB 288 law, the Court must grant the petition to restrict the criminal history records if it determines that the harm resulting to the individual clearly outweighs the public’s interest in the criminal history being publicly available. Factors such as the nature of crime, the loss of career opportunities, time elapsed since conviction, and proof of rehabilitation are factors the Court can take into consideration when making their decision.
If the Judge grants your motion, they will issue an order directed to the clerk’s office to seal your record and send a restriction request to the Georgia Bureau of Investigation (GBI) to restrict your Georgia Criminal History. Record restriction is not the same as expungement. State and federal governments, prosecutorial offices, and law enforcement agencies will still be able to see the unrestricted criminal history. Also certain employers in vulnerable areas will still have access to the unrestricted copy of your criminal history. If the Judge denies your motion, you are eligible to file a new motion under the law after two more years have passed.
SB288 allows you to have two convictions restricted under the law. This does not other arrests are not eligible for record restriction. If you are concerned about cleaning up your criminal history, the best way to do so is to go to any sheriff’s office or police department in Georgia and request a couple of your criminal history under the “E” code. The "E” code is for employers and anything already restricted off your record will not be shown there. If you would like to see your full Georgia criminal history, you can request a copy under a “U” code which is unrestricted and should show everything. If you get a copy of your criminal history under an “E” code I would be happy to take a look at it with you and see if there’s anything that can be done to clean up your criminal history. Give me a call at 678-753-6431 and I would be happy to discuss record restriction and your criminal history with you.
