What You Need to Know About Expunging a Domestic Violence Charge in Georgia
Domestic violence charges, which Georgia law terms family violence, encompass various offenses committed by family members on their close relatives. Here’s how to expunge a domestic violence charge in Georgia.
In Georgia, expungement, or record restriction, prevents the public from accessing information related to a restricted charge, such as arrest or conviction. Georgia law always allows individuals to apply for the restriction of a non-conviction related to a domestic violence incident. However, convictions are more difficult to expunge, as many family violence offenses are ineligible for record restriction.
Domestic Violence Under Georgia Law
Ohio law doesn’t outline a specific domestic violence charge but identifies certain offenses as “family violence.” Family violence is often an aggravating circumstance in the prosecution of these offenses.
The Official Code of Georgia Annotated (O.C.G.A.) §19-13-1 defines family violence as:
- one of the following acts:
- any felony;
- an offense of battery, simple battery, assault, simple assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass;
- when committed between:
- past or present spouses;
- individuals who are parents of the same child;
- parents and children;
- stepparents and stepchildren;
- foster parents and foster children
- other persons living or formerly living in the same household.
Family violence thus covers different offenses, which Ohio law defines as either misdemeanors or felonies. Common domestic violence charges include child abuse, battery, violation of a protective order, marital rape, stalking, and assault.
Related: Domestic Violence During COVID-19
Expungement Laws in Georgia
What Is Expungement?
Expungement is a process by which individuals may remove past arrests, charges, and convictions from their criminal records, which prevents the public from accessing them. Georgia law terms this procedure “record restriction,” as courts and law enforcement agencies don’t wholly erase restricted charges or convictions.
Under O.C.G.A. §35-3-37, a restricted criminal record will only be available to judicial officials and criminal justice or law enforcement agencies for employment. Private third parties and other government or licensing agencies don’t have access to restricted records when they conduct criminal background checks.
Individuals with publicly accessible criminal records face many impediments in employment search, access to quality housing, and loan eligibility. Georgia law allows them to apply for record restrictions under certain circumstances, depending on the offense and the final disposition of their case.
Expungement Eligibility In Georgia
The Georgia Code distinguishes between restriction of non-convictions and restriction of convictions. Non-convictions typically include Not Guilty verdicts and dismissed charges. Expungement laws also apply differently to convictions depending on the type of offense—either a misdemeanor or a felony.
Restricting domestic violence charges is complex because family violence covers broadly different offenses and situations. For instance, a defendant who committed a felony may face more difficulties restricting a domestic violence charge than a misdemeanor offense. In the most serious cases, record restriction is not even available.
Expunging a Domestic Violence Non-Conviction in Georgia
In cases of acquittal or dismissal of charges, an individual may obtain the restriction of arrests related to domestic violence incidents. The restriction procedure depends on the date of arrest.
For arrests before 1st July 2013, individuals must apply through the arresting agency, which will send the application file to the prosecutor’s office. The application procedure is as follows:
1. individuals must:
a. fill out a Request to Restrict Arrest Record Form;
b. send the form and a copy of valid ID to the arresting agency’s Record Restriction Unit;
c. pay a processing fee of up to $50.
2. once they approve the application, the prosecutor will notify applicants that the restriction is complete.
For arrests after 1st July 2013, there is no application process. Automatic record restriction applies to all non-convictions after a determined period:
1. two years for misdemeanor charges;
2. four years for felony charges;
3. seven years for serious violent and sex-related felonies.
Individuals willing to restrict their domestic violence charges before the end of the period may send a record restriction form directly to the prosecutor’s office.
Expunging a Domestic Violence Conviction in Georgia
Eligibility to expunge a domestic violence conviction depends on the type of offense at hand. Felony offenders are subject to harsher conditions than misdemeanor offenders in the record restriction procedure.
1. Misdemeanor conviction
Under O.C.G.A. §35-3-37, misdemeanor offenders may petition the court to restrict a conviction record four years after their sentence. Record restriction is only available to individuals who didn’t receive any other conviction within the last four years and do not have pending charges. Individuals may obtain the restriction of up to two misdemeanors in their lifetime.
However, O.C.G.A. §35-3-37 (j) (4) (B) outlines a list of offenses ineligible for record restriction. They include:
- Family violence simple assault
- Family violence battery
- Family violence simple battery
- Family violence stalking
- Violating a family violence order
- Child molestation
- Improper sexual conduct by a foster parent
- Sexual battery
- Any misdemeanor offense related to minor
As such, many domestic violence offenses are ineligible for record restriction, although exceptions exist for offenders below 21. Ineligible convictions remain on record forever.
Certain misdemeanor low-level family violence offenses are not on the list of ineligibility, such as criminal damage to property. These offenders may request record restrictions from the court in the conditions stated above.
2. Felony convictions
Individuals willing to restrict a felony conviction must obtain a pardon from the Georgia Board of Pardons and Parole. Once pardoned, individuals may petition the court to restrict their felony conviction, provided they didn’t receive any other conviction since the pardon and have no pending charges.
O.C.G.A. § (j) (7) specifies that serious violent felonies and sexual offenses are not eligible for record restriction. These include rape, aggravated child molestation, aggravated sexual battery, aggravated assault with the intention to rape, and incest. As such, many domestic violence felony convictions are ineligible for record restriction.
Record restriction is thus only available to offenders who committed a family violence felony that doesn’t qualify as a serious violent felony or a sexual offense. They may apply for a pardon and petition the court in the conditions stated above.