When an adult (17 or older), who has been charged with a crime, has their case dismissed, one of the most common questions is: “who will know about this in the future?” or “what kinds of records will exist about this?”
The answer is not always as clear as it should be. With some exceptions, the general rule is that if a prosecutor agrees to dismiss a case, then the offense is “restricted” from that person’s Georgia criminal history record, which is maintained by the Georgia Bureau of Investigation. What that means is if most people do a search of the person’s official criminal history, the arrest, charge, and dismissal will not show up. If it is the person’s only charge, then the criminal history search should be returned showing “No Record.” The major exception to this is if the search is conducted by law enforcement agencies, prosecutors’ offices, or judicial officials.
What people often do not realize is that some private companies who conduct background checks do not always run official Georgia criminal history checks. Instead, they may go directly to the courthouse or jail in the county the person resides or the surrounding counties and look for any public records that may be available regarding arrests or criminal cases. One of the sad things is that these are not legally allowed to be considered in many instances and these records are sometimes misinterpreted, causing someone who would otherwise be qualified for a job to miss out on an opportunity because of these records being inappropriately considered or misinterpreted. The ability to go to the courthouse to obtain this information is not just limited to background check companies, as any member of the public can do this.
This leads to the question: “what can be done to restrict public access to my records?” While you can never undo information that may already be in the public domain, such as the internet, you can take steps to seek to have your court records and arrest records sealed, so that they will not be publicly available, if someone comes looking for them in the future.
Cases that will typically qualify to request to have the court records and arrest records sealed are ones where: the entire case was dismissed; the individual plead guilty under conditional discharge for a drug offense and successfully completed the terms of probation; the person successfully completed a drug court treatment program, mental health court treatment program, or veterans court treatment program, which resulted in the individual’s case being dismissed, and the individual has not been arrested for at least five years; or the individual was acquitted of all of the charges by a judge or jury. There are some additional ways that these restrictions can be sought and there are some exceptions to these general rules, but if a person falls in to one of these categories, looking in to their qualifications for this process may be worthwhile.
Completing the process is two-fold. One request must be made to the arresting agency, while the other request must be filed in court.
To have the arrest records restricted, a written request must be made the the appropriate county or municipal jail, or detention center, to have their records restricted. The jail or detention center then has 30 days to comply with this request. An individual pursuing this should ensure that confirmation is provided that the request has been completed.
To have the court records restricted (or sealed), a petition must be filed in the court that had jurisdiction over the charges, in the county where the clerk of court is located. This petition must be served upon the clerk of court and the prosecuting attorney. The court then makes a determination about whether the case is one where criminal record has been restricted, pursuant to law, and where the harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record being publicly available. If the court determines those things to be more likely true than not, then the court should order the clerk to seal the court records.
While there is nothing an individual must do to accomplish this, the law does require that an arresting agency restrict some of their information automatically, after a case has been restricted from a person’s criminal history. Someone who wants to ensure that everything has been done to seal their records will also take steps to confirm that this has been completed by the arresting agency as well.
In today’s information age, having some privacy about being arrested can help provide some peace of mind that fewer people will ever find out about the situation. Having an attorney handle this process is often the best way to make sure that it is accomplished successfully and confirm that everything that can be sealed has been sealed.
This article was written by Paul Ghanouni and originally appeared in the Cherokee Tribune March 6, 2016.