If you have been arrested and charged with DUI on or after July 1, 2012, there could be new hope in having the DUI charge removed from your record. Prior to July 1, DUIs were almost never eligible for expungement; however, Senate Bill 1176, signed into law on May 2, 2102 could change the rules.
To understand the importance of expungement, you must first know what the term means in Georgia. The new law’s language refers to the restricting of a person’s criminal record. Restricting access to your record is used interchangeably with the term expungement within this law. Restricting, as defined by the law, means that “the criminal history information of an individual relating to a particular charge shall be available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment … and shall not be disclosed or otherwise made available to any private persons or businesses….” This means that while courts and law enforcement can always view your whole record, the outside (public) world will not have access to charges that have been restricted.
Under Georgia’s pre-2012 law, DUI charges could not be removed, erased, or hidden from your record unless you happened to be accepted into some diversion or other pretrial program. I have not handled a case in the Metro Atlanta area where this is possible. Prosecutor’s offices are against any type program that allows DUI charges to be expunged. Not even a successful stint in DUI Court will enable expungement.
With the new law comes an opportunity to have your DUI erased from your record if all of the charges were dismissed or nolle prossed (not prosecuted by the prosecuting agency) or if you are acquitted of all charges by a judge or jury. This change is huge. While prosecutors are not likely to dismiss your case to help you have charges expunged, they cannot control a verdict at trial. In other words, you and your lawyer now have a very strong reason to go to trial in most DUI cases. According to the new law, if you are found not guilty of the charges, you can apply to have access to your record restricted. The prosecutor would then have the burden of showing that your record being sealed is contrary to the public’s best interest under certain circumstances.
It is important to note that SB 1176, as signed into law, does not allow restriction of your record if you plea to a reduced or lowered charge like a reckless driving, or if the prosecutor could not introduce evidence that was excluded or suppressed by the trial judge. Additionally, if you are acquitted of the DUI, but still convicted to a charge from the same arrest, it appears that the DUI would not be eligible for expungement.
I field many calls from distressed people who pled to a DUI or even a lowered charge and are now experiencing the impact of the conviction on their record. With the passing of Georgia’s new law, a door is opened to those who have pending DUI cases. While the best strategy for defending your case will depend on the particular facts and circumstances surrounding your arrest, this new law gives hope that if you are acquitted of all charges, you can have your DUI removed from your record. If you have a DUI or similar charge, call me today to discuss this possibility in your case.