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P. Simmons
P. Simmons, Lawyer
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State of Georgia code 35-3-37(d)7 states that a criminal arrest

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State of Georgia code 35-3-37(d)7 states that a criminal arrest record will not be expunged if the individual successfully completed a pretrial diversion program, the terms of which did not specifically provide for expungement of the arrest record. What about an 11-year old arrest for a misdemeanor for which charges were dropped due to completion of such pre-trial diversion program (with no other arrests or convictions on record since) given the context of section (d)9 just after the above section in the code. Also, what about sealing such records if expungement is still not available under (d)9?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  P. Simmons replied 5 years ago.
Thanks for the chance to assist

Indeed you have the correct statute for expungement. GA law is more strict than many states on this matter. Its also far more complicated than many states.

To answer this question, its best to look at the statute in sequence

SO

(d) (1) An individual who was:

(A) Arrested for an offense under the laws of this state but subsequent to such arrest is released by the arresting agency without such offense being referred to the prosecuting attorney for prosecution; or

(B) After such offense referred to the proper prosecuting attorney, and the prosecuting attorney dismisses the charges without seeking an indictment or filing an accusation

may request the original agency in writing to expunge the records of such arrest, including any fingerprints or photographs of the individual taken in conjunction with such arrest, from the agency files. Such request shall be in such form as the center shall prescribe. Reasonable fees shall be charged by the original agency and the center for the actual costs of the purging of such records, provided that such fees shall not exceed $50.00.


If you meet the above you can file to expunge


Now, if

(7) After the filing of an indictment or an accusation, a record shall not be expunged if the prosecuting attorney shows that the charges were nolle prossed, dead docketed, or otherwise dismissed because:

(A) Of a plea agreement resulting in a conviction for an offense arising out of the same underlying transaction or occurrence as the conviction;

(B) The government was barred from introducing material evidence against the individual on legal grounds including but not limited to the grant of a motion to suppress or motion in limine;

(C) A material witness refused to testify or was unavailable to testify against the individual unless such witness refused to testify based on his or her statutory right to do so;

(D) The individual was incarcerated on other criminal charges and the prosecuting attorney elected not to prosecute for reasons of judicial economy;

(E) The individual successfully completed a pretrial diversion program, the terms of which did not specifically provide for expungement of the arrest record;

(F) 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 this state, the United States, another state, or foreign nation; or

(G) The individual had diplomatic, consular, or similar immunity or inviolability from arrest or prosecution.



SO, if this is the case in your case (you had a plea agreement that did not explicitly provide for expungement) you would not typically merit an expungement as a matter of law.

BUT...you can file and under
(9) An individual who has been indicted or charged by accusation that was subsequently dismissed, dead docketed, or nolle prossed may request an expungement as provided by paragraphs (1) through (3) of this subsection; provided, however, that if the prosecuting attorney objects to the expungement request within 60 days after receiving a copy of said request from the agency, the agency shall decline to expunge and the individual shall have the right to appeal as provided by paragraph (6) of this subsection.


And put the ball into their court. This will force them to respond and if they do not, you get your records sealed. SO this would be worth the $50 charge I suspect.



But I think your ahead of the game here since

§ 17-8-6. Authority of municipal court to seal criminal records


(a) Any judge of a municipal court of any municipality of this state or any judge hearing cases for any such court wherein a municipal court is a court of first instance in criminal cases shall have the authority to seal, to all persons except criminal justice officials, all criminal records of the municipality, including, but not limited to, records of arrest, fingerprints, and photographs, whether maintained in the police agency of the municipality or elsewhere in the municipality, related to any individual, upon a finding by such a judge that one of the following conditions exists:

(1) When, upon the call of a case for trial, criminal charges against the individual are dismissed either:

(A) Upon the motion of the arresting officer; or

(B) Because of the lack of prosecution of such charges by the arresting officer or the municipality; or

(2) When criminal charges against the individual are the subject of a pretrial disposition by the municipal prosecutor, provided that the terms and conditions of the pretrial disposition are satisfied.

(b) Any order sealing the records of an individual, as provided for in subsection (a) of this Code section, shall in no way constitute an adjudication of any illegal or wrongful action on the part of the arresting officer or the municipality.


may be the better route. para (2) above (in bold) seems clear to me to meet your circumstances. I would start wtih this and then work up.


Best of luck



Please let me know if you have more questions and I will do my best to answer, if not please accept so I can get credit for my work















P. Simmons, Lawyer
Category: Criminal Law
Satisfied Customers: 26821
Experience: 16 yrs. of experience including criminal law.
P. Simmons and 8 other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.

Mr. Simmons:

 

You answered the above question 3 years ago. For varying reasons, I have not followed up on the options available. My follow-up question now is, based on the above remedies (knowing that the facts and circumstances remain the same with no other incident or arrest since 1997), what would be the best course of action in your opinion? Should I use an attorney to pursue remedy under GA Code 17-8-6 (a) (2)? I don't want to spend the money, but have no idea how to make this happen otherwise. What do you think? The ultimate goal is to have a "clean" record that will not disclose a 1997 arrest (disposed due to pre-trial diversion program completion) if a background check is run. If I can't pay you for this "question", I will pay you using the bonus option. Thanks!

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