Georgia Code
Article 2 - Georgia Crime Information Center
§ 35-3-37. Review of Individual’s Criminal History Record Information; Definitions; Privacy Considerations; Written Application Requesting Review; Inspection

(ii) The center does not receive notice from the arresting law enforcement agency that the offense has been referred to the prosecuting attorney or transferred to another law enforcement or prosecutorial agency of this state, any other state or a foreign nation, or any political subdivision thereof for prosecution and the following period of time has elapsed from the date of the arrest of such individual:
If the center receives notice of the filing of an indictment subsequent to the restriction of a record pursuant to this division, the center shall make such record available in accordance with Code Section 35-3-34 or 35-3-35. If the center does not receive notice of a charging instrument within 30 days of the applicable time periods set forth in this division, such record shall be restricted by the center for noncriminal justice purposes;
(B) The offense was referred to the prosecuting attorney but was later dismissed;
(C) The grand jury returned two no bills; or
(D) The grand jury returned one no bill and the applicable time period set forth in division (ii) of subparagraph (A) of this paragraph has expired; and
(2) After indictment or accusation:
(i) After the filing of an indictment or accusation, an individual’s criminal history record information shall not be restricted if:
(A) Of a plea agreement resulting in a conviction of the individual for an offense arising out of the same underlying transaction or occurrence as the conviction;
(B) The prosecuting attorney was barred from introducing material evidence against the individual on legal grounds, including, without limitation, the granting of a motion to suppress or motion in limine;
(C) 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 the state or a foreign nation; or
(D) The individual had diplomatic, consular, or similar immunity or inviolability from arrest or prosecution;
(C) If the prosecuting attorney, to the court, consents in writing to the restriction of such conviction and sentence or fails to respond to such petition within 30 days of service, the court imposing the conviction and sentence shall, without notice or hearing, issue an order restricting the conviction and sentence.
(D) If the prosecuting attorney, to the court, objects in writing to the petition, the court shall determine, by a preponderance of the evidence, whether the defendant committed such offense while such individual was a victim of an offense of trafficking under Code Section 16-5-46. If the court finds, by a preponderance of the evidence, that the defendant committed such offense while such individual was a victim of an offense of trafficking under Code Section 16-5-46, the court may issue an order restricting the conviction and sentence. The court shall hold a hearing within 90 days of the filing of the petition to hear evidence for purposes of making a determination under this subparagraph or make a determination upon the pleadings or record.
(E) When the petition provided for under subparagraph (A) of this paragraph is filed, it shall be filed under seal.
(F) For purposes of considering such petition, testimony from the defendant or any other party may be taken by the court by remote electronic means.
(G) No fee shall be charged to an individual for restricting access to criminal history record information under this paragraph.
History. Code 1981, § 35-3-37 , enacted by Ga. L. 2012, p. 899, § 6-2/HB 1176; Ga. L. 2013, p. 222, § 14/HB 349; Ga. L. 2014, p. 79, § 3/SB 320; Ga. L. 2014, p. 404, § 2-2/SB 382; Ga. L. 2016, p. 443, § 6B-7/SB 367; Ga. L. 2018, p. 550, § 2-8/SB 407; Ga. L. 2019, p. 912, § 4/SB 9; Ga. L. 2020, p. 90, § 3/SB 435; Ga. L. 2020, p. 245, § 2/HB 911; Ga. L. 2020, p. 753, § 1-1/SB 288; Ga. L. 2021, p. 516, § 3/SB 117; Ga. L. 2021, p. 922, § 35/HB 497.
The 2018 amendment, effective July 1, 2018, inserted “court in which he or she was accused or convicted, as applicable, or, if such charge was dismissed, the” in the middle of the first sentence of paragraph (j)(1); substituted “petition the court in which he or she was convicted” for “petition the superior court in the county where the conviction occurred” near the end of the first sentence of paragraph (j)(2); and substituted “petition the court in which” for “petition the superior court in the county where” in the middle of the first sentence of paragraph (j)(3) and near the end of the first sentence of subparagraph (j)(4)(A).
The 2019 amendment, effective July 1, 2019, rewrote division (j)(4)(B)(iii), which read: “Sexual assault by persons with supervisory or disciplinary authority in violation of Code Section 16-6-5.1;”.
The 2020 amendments.
The first 2020 amendment, effective June 29, 2020, added paragraph (j)(6). The second 2020 amendment, effective January 1, 2021, inserted “and improper sexual contact by a foster parent” in division (j)(4)(B)(iii) (now division (j)(4)(B)(viii)). The third 2020 amendment, effective January 1, 2021, substituted “particular offense” for “particular charge” near the beginning of paragraph (a)(6); substituted “her arrest” for “her conviction” at the end of paragraph (a)(10); substituted “criminal offenses” for “criminal charges” near the end of the last sentence of subsection (e) and in the middle of the first sentence of subsection (f); substituted “The offense” for “The case” in subparagraphs (h)(1)(A) and (h)(1)(B); substituted a semicolon for “and shall be considered sealed.” at the end of the ending undesignated text of subparagraph (h)(1)(A); rewrote paragraph (h)(2), which read: “After indictment or accusation:
“(A) Except as provided in subsection (i) of this Code section, all charges were dismissed or nolle prossed;
“(B) The individual was sentenced in accordance with the provisions of subsection (a) or (c) of Code Section 16-13-2, and the individual successfully completed the terms and conditions of his or her probation;
“(C) The individual pleaded guilty to or was found guilty of a violation of paragraph (2) or (3) of subsection (a) of Code Section 3-3-23 and was sentenced in accordance with the provisions of subsection (c) of Code Section 3-3-23.1, and the individual successfully completed the terms and conditions of his or her probation;
“(D) The individual successfully completed a drug court treatment program, mental health treatment program, or veterans treatment program, the individual’s case has been dismissed or nolle prossed, and he or she has not been arrested during such program, excluding any arrest for a nonserious traffic offense; or
“(E) The individual was acquitted of all of the charges by a judge or jury unless, within ten days of the verdict, the prosecuting attorney demonstrates to the trial court through clear and convincing evidence that the harm otherwise resulting to the individual is clearly outweighed by the public interest in the criminal history record information being publicly available because either:
“(i) The prosecuting attorney was barred from introducing material evidence against the individual on legal grounds, including, without limitation, the granting of a motion to suppress or motion in limine; or
“(ii) The individual has been formally charged with the same or similar offense within the previous five years.”; rewrote paragraph (i)(1), which read: “The charges were nolle prossed or otherwise dismissed because:”; in paragraph (i)(2), substituted “charged offenses” for “charges” near the beginning, inserted two commas, and substituted “offenses” for “charges”; substituted “charged offenses but it was” for “charges but it is” near the middle of paragraph (i)(3); in paragraph (j)(3), in the first sentence, substituted “charged offense” for “case” twice and inserted “charged” near the end and substituted “the offense” for “the case” in the fourth sentence; rewrote paragraph (j)(4), which read: “(A) When an individual was convicted in this state of a misdemeanor or a series of misdemeanors arising from a single incident, and at the time of such conviction such individual was a youthful offender, provided that such individual successfully completed the terms of his or her sentence and, since completing the terms of his or her sentence, has not been arrested for at least five years, excluding any arrest for a nonserious traffic offense, and provided, further, that he or she was not convicted in this state of a misdemeanor violation or under any other state’s law with similar provisions of one or more of the offenses listed in subparagraph (B) of this paragraph, he or she may petition the court in which the conviction occurred to restrict access to criminal history record information. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall determine whether granting an order restricting such criminal history record information is appropriate, giving due consideration to the individual’s conduct and the public’s interest in the criminal history record information being publicly available.
“(B) Record restriction shall not be appropriate if the individual was convicted of:
“(i) Child molestation in violation of Code Section 16-6-4;
“(ii) Enticing a child for indecent purposes in violation of Code Section 16-6-5;
“(iii) Improper sexual contact by employee or agent in violation of Code Section 16-6-5.1;
“(iv) Keeping a place of prostitution in violation of Code Section 16-6-10;
“(v) Pimping in violation of Code Section 16-6-11;
“(vi) Pandering by compulsion in violation of Code Section 16-6-14;
“(vii) Masturbation for hire in violation of Code Section 16-6-16;
“(viii) Giving massages in a place used for lewdness, prostitution, assignation, or masturbation for hire in violation of Code Section 16-6-17;
“(ix) Sexual battery in violation of Code Section 16-6-22.1;
“(x) Any offense related to minors generally in violation of Part 2 of Article 3 of Chapter 12 of Title 16;
“(xi) Theft in violation of Chapter 8 of Title 16; provided, however, that such prohibition shall not apply to a misdemeanor conviction of shoplifting or refund fraud in violation of Code Section 16-8-14 or 16-8-14.1, as applicable; or
“(xii) Any serious traffic offense in violation of Article 15 of Chapter 6 of Title 40.”; added (j)(6); substituted “offense that has been restricted” for “charge” at the end of the last sentence in paragraph (k)(1) and twice in paragraph (k)(2); substituted “which” for “arising out of an arrest of which the information” near the end of paragraph (k)(3); in the first sentence of paragraph (m)(1), substituted “offenses” for “charges” and “charged offense” for “charge”; deleted former paragraph (m)(4), which read: “The person who is the subject of such sealed criminal history record information may petition the court for inspection of the criminal history record information included in the court order. Such information shall always be available for inspection, copying, and use by criminal justice agencies and the Judicial Qualifications Commission.”; and added subsections (s) through (w).
The 2021 amendments.
The first 2021 amendment, effective July 1, 2021, substituted “or agent, improper sexual contact by a foster parent, and improper sexual contact by person in a position of trust” for “or agent and improper sexual contact by a foster parent” in division (j)(4)(B)(viii). The second 2021 amendment, effective May 10, 2021, part of an Act to revise, modernize, and correct the Code, substituted double quotation marks for single quotation marks preceding and following the phrase “prosecuting attorney” in the middle of paragraph (a)(5); substituted “Code Section 16-13-2 or” for “Code Section 16-13-2, or” in subparagraph (h)(2)(B); and substituted “Code Section 3-3-23.1 or” for “Code Section 3-3-23.1, or” in subparagraph (h)(2)(C).
Code Commission notes.
Pursuant to Code Section 28-9-5, in 2012, a period was added at the end of paragraph (j)(3).
Pursuant to Code Section 28-9-5, in 2020, paragraph (j)(6) as added by Ga. L. 2020, p. 753, § 1-1/SB 288, was redesignated as paragraph (j)(7) given the addition of paragraph (j)(6) by Ga. L. 2020, p. 90, § 3/SB 435.
Editor’s notes.
Ga. L. 1995, p. 139, § 7, not codified by the General Assembly, provides that no local ordinance which was in effect on March 22, 1995, shall be affected by Code Section 16-11-184 until January 1, 1996, at which time, unless enacted subsequent to March 22, 1995, as provided by that Code section, any such ordinance shall be of no further force or effect, and further provides that no ordinance or regulation attempting to regulate firearms in any manner shall be enacted by any county, city, or municipality after July 1, 1995.
Ga. L. 1995, p. 139, § 8, not codified by the General Assembly, provides that subsection (f) of this Code section shall be repealed automatically upon a final judicial determination that such Act is invalid for any reason.
Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.
Ga. L. 2012, p. 899, § 6-2/HB 1176, effective July 1, 2013, repealed the former Code section and enacted the current Code section. The former Code section was based on Ga. L. 1973, p. 1301, § 6; Ga. L. 1995, p. 139, § 4; Ga. L. 1997, p. 1345, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2012, p. 775, § 35/HB 942.
Ga. L. 2012, p. 899, § 9-1/HB 1176, not codified by the General Assembly, provides, in part, that Part VI of this Act, which amended this Code section, shall become fully effective on July 1, 2013; provided, however, that for the purpose of preparing for implementation of Part VI of this Act, said part shall become effective on July 1, 2012.
Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides that: “This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense.”
Ga. L. 2014, p. 79, § 1/SB 320, not codified by the General Assembly, provides that: “The General Assembly recognizes that veterans have provided and continue to provide an invaluable service to our country and this state. In connection with a veteran’s service, some servicemen and servicewomen have incurred physical, emotional, or mental impairments which cause or contribute to behaviors that may draw a veteran into the criminal justice system. The General Assembly has determined that having dedicated veterans court divisions is important to address the specialized treatment needs of veterans and that there are resources, services, and treatment options that are unique to veterans that may best facilitate a veteran’s reentry into society.”
Ga. L. 2014, p. 404, § 3-1/SB 382, not codified by the General Assembly, provides that: “This Act shall become effective on July 1, 2014, and shall apply to all conduct occurring on or after such date.”
Ga. L. 2020, p. 90, § 1/SB 435, not codified by the General Assembly, provides: “This Act shall be known and may be cited as ‘The Survivors First Act.’ ”
Law reviews.
For article on the 2012 enactment of this Code section, see 29 Ga. St. U. L. Rev. 290 (2012).
For article, “Appeal and Error: Appeal or Certiorari by State in Criminal Cases,” see 30 Ga. St. U. L. Rev. 17 (2013).
For annual survey on criminal law, see 66 Mercer L. Rev. 37 (2014).
For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 139 (2016).
For note, “Give It to Me, I’m Worth It: The Need to Amend Georgia’s Record Restriction Statute to Provide Ex-Offenders with a Second Chance in the Employment Sector,” see 52 Ga. L. Rev. 267 (2017).
For article with annual survey on labor and employment law, see 73 Mercer L. Rev. 137 (2021).