Bill Text: GA SB118 | 2011-2012 | Regular Session | Introduced
Bill Title: Georgia Crime Information Center; inspection, purging, modifying, or supplemental criminal records; provisions
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2011-02-22 - Senate Read and Referred [SB118 Detail]
Download: Georgia-2011-SB118-Introduced.html
11 LC 29
4497
Senate
Bill 118
By:
Senators Jackson of the 2nd and Jones of the 10th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 2 of Chapter 3 of Title 35 of the Official Code of Georgia
Annotated, relating to the Georgia Crime Information Center, so as to change
provisions relating to inspection, purging, modifying, or supplementing criminal
records; to provide for time frames within which certain actions must be taken
with respect to expungement, modification, or supplementation of criminal
records; to provide for procedure; to provide for individuals who have been
found not guilty or exonerated to request expungement; to provide for related
matters; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
2 of Chapter 3 of Title 35 of the Official Code of Georgia Annotated, relating
to the Georgia Crime Information Center, is amended by revising Code Section
35-3-37, relating to inspection, purging, modifying, or supplementing criminal
records, as follows:
"35-3-37.
(a)
Nothing in this article shall be construed so as to authorize any person,
agency, corporation, or other legal entity to invade the privacy of any citizen
as defined by the General Assembly or the courts other than to the extent
provided in this article.
(b)
The center shall make
a
person's
an
individual's criminal records available
for inspection by such
person
individual
or his or her attorney upon written application to the center. Should the
person
individual
or his or her attorney contest the accuracy of any portion of the records, it
shall be mandatory upon the center to make available to the
person or
such person's
individual or
his or her attorney a copy of the
contested record upon written application identifying the portion of the record
contested and showing the reason for the contest of accuracy. Forms,
procedures, identification, and other related aspects pertinent to access to
records may be prescribed by the center.
(c)
If an individual believes his or her criminal records to be inaccurate or
incomplete, he or she may request the original agency having custody or control
of the detail records to purge, modify, or supplement them and to notify the
center of such changes. Should the agency decline to act
within 60 days
of such request or should the individual
believe the agency's
or prosecuting
attorney's decision to be unsatisfactory,
the individual or his or her attorney may, within 30 days of such decision,
enter an appeal to the superior court of the county of his or her residence or
to the court in the county where the agency exists, with notice to the agency
and proper
prosecuting attorney, if applicable, to
acquire an order by the court that the subject information be expunged,
modified, or supplemented by the agency of record. The court shall conduct a de
novo hearing and may order such relief as it finds to be required by
law,
including, but not limited to, ordering that all records in the custody of the
court be sealed and removed from public
disclosure. Such appeals shall be entered
in the same manner as appeals are entered from the probate court, except that
the appellant shall not be required to post bond or pay the costs in advance.
If the aggrieved
person
individual
desires, the appeal may be heard by the judge at the first term or in chambers.
A notice sent by registered or certified mail or statutory overnight delivery
shall be sufficient service on the agency
and
prosecuting attorney, if applicable,
having custody or control of
the
disputed record that such appeal has been entered.
By a
preponderance of the evidence, should
Should
the record in question be found to be inaccurate, incomplete, or misleading as
set forth in paragraph (3) of subsection (d) of this Code section, the court
shall order
it
such
record to be appropriately expunged,
modified, or supplemented by an explanatory notation. Each agency or individual
in
the
this
state with custody, possession, or control of any such record shall
promptly
cause each and every copy thereof in his or her custody, possession, or control
to be altered in accordance with the court's order
within 60 days
of the entry of the order and shall certify to the court within such 60 day
period that the required expungement, modification, or supplementation has been
completed. Notification of each such
deletion, amendment, and supplementary notation shall be promptly disseminated
to any individuals or agencies, including the center, to which the records in
question have been communicated, as well as to the individual whose records have
been ordered so altered.
If the court
declines to expunge, modify, or supplement an individual's criminal record, or
if the court's order is contrary to the desires of the agency or prosecuting
attorney, a party may file an action in the superior court where the agency is
located as provided in Code Section 50-13-19. The ruling of the court shall not
be reversed absent a showing of an abuse of discretion.
(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;
(C)
The defendant in an indictment or accusation which was placed on the dead docket
or nolle prossed;
(D)
Found not guilty of the charges by a judge or jury;
(E)
Successful in completing a pretrial diversion program, the terms of which did
not specifically provide for the expungement of the arrest record;
or
(F)
Convicted of an offense, but such conviction was reversed by an appellate court
and the decision has been made final and the prosecuting attorney has elected
not to pursue the charges further
may
request the original agency in writing to expunge
all
of the records of such arrest, including
any fingerprints or photographs of the individual taken in conjunction with such
arrest, and
any records relating to the arrest, charge, or other matters arising out of the
arrest or charge 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.
(2)
Upon receipt of such written request, the agency shall provide a copy of the
request to the proper prosecuting attorney. Upon receipt of a copy of the
request to expunge a criminal record, the prosecuting attorney shall
promptly
review the request to determine if it meets the criteria for expungement set
forth in paragraph (3) of this subsection
within 60 days
of the date of receiving such request and shall object in writing to such
request within such 60 day period. The prosecuting attorney shall be deemed to
have consented to such request if he or she fails to object to such request in
the requisite period of time. The prosecuting attorney shall serve the
individual seeking the expungement with a copy of the
objection. If
the request
meets those criteria
no objection
is filed in the requisite period of time,
the prosecuting attorney shall review the records of the arrest to determine if
any of the material contained therein must be preserved in order to protect the
constitutional rights of an accused under
Brady v.
Maryland.
If an
objection is filed in the requisite period of time, the individual shall have
the right to appeal as provided in subsection (c) of this Code
section.
(3)
An individual has the right to have his or her record of such arrest expunged,
including any fingerprints or photographs of the individual taken in conjunction
with such arrest, if the prosecuting attorney determines that the following
criteria have been satisfied:
(A)
The charge was
dismissed
resolved
under the conditions set forth in paragraph (1) of this subsection;
(B)
No other criminal charges are pending against the individual; and
(C)
The individual has not been previously convicted of the same or similar offense
under the laws of this state, the United States, or any other state within the
last five years
from the date
of the expungement request, excluding any
period of incarceration.
(4)
The agency shall expunge the record by destroying the fingerprint cards,
photographs, and documents relating exclusively to such
person
individual.
Any material which cannot be physically destroyed or which the prosecuting
attorney determines must be preserved under
Brady v.
Maryland shall be restricted by the agency
and shall not be subject to disclosure to any person except by direction of the
prosecuting attorney or as ordered by a court of record of this
state.
(5)
It shall be the duty of the agency to notify promptly the center of any records
which are expunged pursuant to this subsection. Upon receipt of notice from an
agency that a record has been expunged, the center shall, within
a
reasonable time
30
days, restrict access to the criminal
history of such
person
individual
relating to such charge. Records for which access is restricted pursuant to
this subsection shall be made available only to criminal justice officials upon
written application for official judicial law enforcement or criminal
investigative purposes.
(6)
If the agency declines to expunge such arrest record, the individual may file an
action in
the superior court where the agency is
located as provided in
Code
Section 50-13-19
subsection (c)
of this Code section. A decision of the
agency shall be upheld only if it is determined by clear and convincing evidence
that the individual did not meet the criteria set forth in paragraph (3) of this
subsection or subparagraphs (A) through
(G)
(D)
of paragraph (7) of this subsection. The court in its discretion may award
reasonable court
costs,
including attorney's
fees,
to the individual if he or she prevails in the appellate process. Any such
action shall be served upon the agency, the center, the prosecuting attorney
having jurisdiction over the offense sought to be expunged, and the Attorney
General who may become parties to the action.
(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)(B)
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)(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 this state, the
United States, another state, or
a
foreign nation; or
(G)(D)
The individual had diplomatic, consular, or similar immunity or inviolability
from arrest or prosecution.
(8)
If the prosecuting attorney having jurisdiction determines that the records
should not be expunged because the criteria set forth in paragraph (3) or
subparagraphs (A)
through (G)
(D)
of paragraph (7) of this subsection were not met, and the agency or center fails
to follow the prosecuting attorney's recommendation, the prosecuting attorney
having jurisdiction over the offense sought to be expunged or the Attorney
General may appeal a decision by the agency or center to expunge a criminal
history as provided in Code Section 50-13-19.
(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.
(10)
Nothing in this subsection shall be construed as requiring the destruction of
incident reports or other records that a crime was committed or reported to law
enforcement. Further, nothing in this subsection shall be construed to apply to
custodial records maintained by county or municipal jail or detention centers.
It shall be the duty of the agency
and
center to take such action as may be
reasonable to prevent disclosure of information to the public which would
identify such
person
individual
whose records were expunged.
(e)
Agencies, including the center, at which criminal offender records are sought to
be inspected may prescribe reasonable hours and places of inspection and may
impose such additional procedures, fees not to exceed $3.00, or
restrictions,
including
fingerprinting,
as are reasonably necessary to assure the records' security, to verify the
identities of those who seek to inspect them, and to maintain an orderly and
efficient mechanism for inspection of records.
(f)
The
provisions of Chapter 13 of Title 50, the 'Georgia Administrative Procedure
Act,' shall not apply to proceedings under this Code section.
(g)
If the center has notified a firearms dealer that
a
person
an
individual is prohibited from purchasing
or possessing a handgun pursuant to Part 5 of Article 4 of Chapter 11 of Title
16 and if the prohibition is the result of such
person's
individual
being involuntarily hospitalized within the immediately preceding five years,
upon such
person
individual
or his or her attorney making an application to inspect his or her records, the
center shall provide the record of involuntary hospitalization and also inform
the
person
individual
or attorney of his or her right to a hearing before the judge of the probate
court or superior court relative to such
person's
individual's
eligibility to possess or transport a handgun.
(g)
Any individual whose record was expunged pursuant to this Code section shall not
have to disclose the fact of the arrest, record, or any matter relating thereto
on an application for
employment."
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.