Alternative to Record Restriction/Expungement

Many people call attorneys in hopes of assistance in getting a criminal arrest or conviction "expunged" or restricted from their record. The word "expungement" no longer exists in Georgia law, as the proper term is "record restriction." That situation only applies, however, when you have an arrest that did not result in a conviction. What happens when you have an old criminal conviction that is causing problem with job applications? The Georgia legislature passed a new law that went in to effect in 2015 that allows for retroactive treatment under the First Offender Act. This allows for discharge of the conviction, so there is no conviction on that person's criminal record. The First Offender Act can only be used once in a person's lifetime.

While O.C.G.A. 42-8-66 requires that the person must have not been informed of their eligibility to plead guilty under the First Offender Act when otherwise eligibile, it does allow the presiding Judge to retroactively grant First Offender if he/she finds that the person was eligible at the time of sentencing and "the ends of justice and the welfare of society are served by granting such petition." That petition also requires consent by the prosecuting attorney to be filed. If you have subsequently been convicted of a felony since the charge for which you're seeking First Offender treatment, or the charge is one that was never eligible for First Offender Treatment (such as Murder and many sexual offenses), this petition is not an option.

Finally, it is discretionary as to whether the Judge will allow it, so probation violations and life choices since the initial guilty conviction are important factors for the Judge to consider.


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