Georgia Law – The Expungement Myth

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Lawyers are asked about expungements all the time. This is likely because there is a common misunderstanding about how criminal records work. Many people believe that there is an easy way to erase a criminal history. In almost all cases, this is false and has been false for quite some time.

In nearly all Georgia cases, there is no way to erase a criminal record entirely. The only form of relief in Georgia is what is called record restriction. Record restriction is not the same thing as expungement. It offers limited protection for background checks initiated by private employers. However, even when the record is restricted, it will still be available to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes; or to criminal justice agencies for the purposes of employment.

2 Types of Restrictions

Of those limited cases that may be restricted there are two types of restrictions. Automatic restrictions and those obtained by petition.

blankAutomatic Restriction Prior to Indictment

If the case is not referred to the prosecutor or it takes a great deal of time for the prosecutor to file charges (more than 2 years for misdemeanors, more than 4 years for non-serious or non-sexual felonies, and more than 7 years for serious violent or sexual felonies) the case may be eligible for automatic restriction. This is temporary, however, and as soon as the case is disposed of it will reappear on the criminal record. Thus, if your case has exceeded the statutory time limits you may find that an arrest is not showing up when your employer runs your record. Be aware that this is a temporary restriction and it will likely reappear.

blankAutomatic Restriction After  Indictment

Where the prosecutor has filed charges, but later ALL of those charges are dismissed or the defendant is acquitted of all charges after trial, the case may be eligible for automatic restriction. Cases sentenced under conditional discharge may enjoy the same status. Similarly, cases completed through the drug court or mental health court can be restricted as long as the client is not arrested for five subsequent years.

blankExceptions

If the client entered a plea to a charge, even though all the original charges were dismissed, he is NOT eligible for restriction. Further, if the case was dismissed because the prosecutor was prohibited from using certain evidence at trial then the case will not be eligible for restriction.

blankRestriction by Petition

It is important to be mindful of the difference between automatic restriction and restrictions that occur by petition.

blankFelony Charge Dismissed

If one was originally charged with a felony, but is later found guilty of a non-lesser included misdemeanor, then the Superior Court that handled the original charges may hold a hearing to determine whether the harm to the individual is outweighed by the public’s right to know. This must be done within 4 years of the original arrest. The Petition must be served both on the arresting agency and the prosecutor.

blankConviction Vacated or Reversed

If the client was originally convicted, but that conviction is later vacated or reversed, and the case has not been retried in over 2 years from the date of the reversal, then a petition may be filed with the Superior Court in the county that handled the case and it must be served on the prosecutor. The Court must determine whether to restrict the record weighing the reasons the judgment was vacated or overturned; the reason the case has not been retried and the public’s interest in knowing.

blankDead Docketed

Similarly, where a case has been dead docketed for more than 12 months, a petition for record restriction may be appropriate. It should be served on the prosecutor and filed in the Superior Court in the county where the case is pending. The court must consider the reasons why the case was dead docketed. If there is an active arrest warrant for the petitioner, the court will deny the petition for record restriction.

blankUnder 21

What about crimes committed by a youthful offender? If a client had committed a misdemeanor when he was under 21, he may be eligible for record restriction. Sometimes humorously referred to as the “Athens Exception,” this type of record restriction is designed to protect those with mild youthful indiscretions. The petition must be filed in the Superior Court in the original county that handled the misdemeanor. It must be served on the prosecutor. The client must have successfully completed the sentence and not been arrested within the last 5 years. The court shall weigh the client’s conduct against the public’s interest in knowing when determining whether record restriction is appropriate.

blankAppeal Process

While there is a process to appeal an undesirable decision, the petitioner must file a civil suit in Superior Court in order to appeal that initial decision. Be aware that civil filing fees will apply.

 

 

blankCorrecting mistakes on an individual’s history may be as simple as contacting the arresting agency and requesting the correction. Sometimes the error may be obvious, such as mistakenly coding an arrest for felony possession of marijuana when in fact it was a misdemeanor arrest. If the arresting agency does not recognize an error, the client may petition the court to correct it.

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Hit and Run – Leaving the Scene of an Accident

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The consequences can be significant when you are charged or arrested for hit and run (also known as leaving the scene of an accident). One terrifying aspect of this charge is not knowing the severity of those consequences. There is a wide range of penalties, including the possibility of jail or probation. But the law distinguishes between different kinds of hit and run charges, so understanding the type the state charged you with is the first step toward a resolution.

The laws addressing hit and run violations are confusing – and not just for drivers. Officers frequently misdiagnose a situation and charge a driver with the incorrect code section. So before you panic about the citation, you should first evaluate the various hit and run code sections to determine if the officer charged you correctly.

For example, it is common for the officer to write a citation for the most severe hit and run offense. You can find this charge in the code section under O.C.G.A. 40-6-270. This offense has some of the most unsparing misdemeanor penalties, including an automatic license suspension, a fine ranging from $300 to $1000, and jail or a probation sentence of 12 months.

Driving Without A License Range of Penalties

However, the more serious charge only applies when two vehicles collide, there was at least one person in each vehicle, and there was damage to the other vehicle or bodily injury to the other person. Under those circumstances, a driver must immediately stop at the scene and (1) provide her name and address and the registration number of the car; (2) show the folks in the other vehicle her license upon request; (3) offer to help anyone who was injured – including providing transportation to treatment if necessary; and (4) call for assistance if someone appears unable to call for help themselves ( e.g. unconscious, unable to communicate).

Failure to stop and comply with the statute may lead to a license suspension and jail time. Depending on the severity of the injury, the state may charge the driver with a felony.

It makes sense that the law reserves the most weighty consequences for a driver who leaves the scene of an accident where someone was hurt. We want to encourage drivers to stay and help people. So it is not difficult to understand why this is the most significant type of hit and run.

Hit and Run - leave a note

However, what happens if you run into a parked vehicle? What are your responsibilities? And what are the potential consequences of leaving the scene of the accident? If you hit a parked car and there is nobody inside the vehicle, O.C.G.A. 40-6-271 requires you to notify the vehicle owner and leave your name and address. If you do not own the car, the law also requires you to leave the car owner’s information. And, if you are unable to locate the owner of the vehicle that you hit, you must leave a note “in a conspicuous place on the vehicle” with that same identifying information.

If you fail to leave a note or otherwise locate the car’s owner, the officer may charge you with a misdemeanor, pursuant to O.C.G.A. 40-6-271. However, there is no automatic license suspension, and there is no minimum fine. As a result, you could face anywhere between 0 to 12 months in jail (or probation) and a $0 to $1000 penalty.

If you are worried that you may be charged with hit and run or an officer has charged you and you are contemplating what to do next, reach out to an attorney that handles these types of cases. Almost all hit and run charges can have unknown collateral consequences, and you may want to think twice about going to court without consulting an attorney. You can reach out to EHG Law for a free consultation here.

 

 

 

 

 

Let Us Resolve Your FTA Suspension in Georgia for You

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FTA license suspensionWe are experts at removing FTA warrants and license suspensions and keeping you out of court while we do it!

One of the most frustrating experiences for some unlucky drivers is when you find out that the state suspended your license due to a missed court date. The law refers to this offense as a “failure to appear,” or an “FTA” suspension.

These suspensions are imposed daily across the country. The purpose is to solve the problem of drivers failing to show up to court, as it is common for drivers to forget or overlook traffic tickets.

As a result, there are a surprisingly high number of FTA cases in traffic court. And when the court has the authority to suspend your license for missing a court date, it provides a powerful incentive to the driver to return and address the citation.

However, the problem with FTA suspensions is that you are often unaware that you are driving on a suspended license. If you were aware, you would likely have dealt with the ticket immediately.

For this reason, if you are pulled over for a normal traffic stop, it is usually a surprise to learn that, in addition to the new traffic violation, you are charged with driving on a suspended license, also referred to as “no license.” In many cases, the officer will arrest you and impound your vehicle.

How can a driver resolve an FTA on their own?

After you are released from jail, or you learn of your FTA you may want to hire an attorney to do all the heavy lifting. Or you may prefer to see if you can solve the problem on your own.

You will first need to find out which traffic court sent in the FTA suspension to the Department of Driver Services (DDS). The easiest way to do this is to get a copy of your Georgia driving record (for out-of-state drivers this can be a bit tricky).

The FTA suspension should be visible on your driving history, and it should identify which court initiated it. Every court will have a different FTA removal process. For instance, the Municipal Court of Atlanta’s FTA process is wholly unique from any other traffic court in Fulton County.

In some courts, resolving the FTA suspension may be as simple as paying a fine. Depending on the court, however, the suspension will not be lifted until you deal with the underlying citation. That typically means entering a guilty plea.

This part of the process is where things can get tricky. If the underlying citation is a simple, non-reportable traffic offense, then often a guilty plea may have few negative consequences – other than an additional fine. However, in many cases, a guilty plea can have far-reaching consequences, including a new license suspension. And because you missed your initial court date, your opportunity to negotiate a more favorable resolution is limited. This is because the prosecutor is the only one with the authority to reduce the ticket.

And they are often unavailable to consider such requests when you are trying to clear up the suspension with the clerk’s office. Normally, the clerk’s office is open during business hours, five days a week. However, the prosecutor is usually only available during court hours, which may be as infrequent as twice per month.

This is where you can inadvertently make the situation worse. Drivers tend to want to reinstate their license as quickly as possible. But acting with haste at this point in the process can lead to devastating consequences, especially if you are unaware of the collateral repercussions of pleading guilty to the underlying offense.

For instance, if you are under 21 years old, it is likely that a guilty plea to two or more offenses or any single four-point offense will suspend your Georgia driving privileges. Other charges, such as a hit-and-run, will get your license suspended no matter your age or number of points.

Additionally, if you live out-of-state, clearing up a failure to appear suspension can be even more difficult. First, you have to worry about how your home state will react to the Georgia conviction. Second, you have to worry about being at a disadvantage if the court requires you to appear before the judge. Rather than hiring an attorney to appear in your stead, now you have to travel back to Georgia and handle the situation yourself.

FTA license suspensions can be messy or straightforward. The risks often involve unexpected license consequences, as well as time-consuming and painful to resolve. That being said, generally speaking, the sooner you work to resolve the FTA, the easier it will be to close this chapter and move on with your life.

Reinstatement Steps in Georgia 

If your license was suspended for FTA (failure to appear) you must:

(1) get a clearance letter from the court or a 912 license reinstatement form; and

(2) submit the form directly to DDS along with the reinstatement fee (the Court will NOT automatically clear up your suspension with DDS – rather the onus is on the driver to submit the paperwork to DDS or your home licensing agency).

For more information, you may contact DDS at 678-413-8400, or call our office if you would like to hire an attorney to help you reinstate your license.

Top 5 Things to Be Aware of Before Going to Traffic Court in Georgia

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Understand how to protect your rights when you go to traffic court – a lot can be at stake!

1. Under 21 Drivers Are More Likely to Have Their License Suspended After Going to Traffic Court

Under 21 Drivers

One of the  common mistakes young drivers make is going to court on a traffic ticket without fully researching what the consequences would be for an under-21 driver. In many cases, a minor speeding ticket or traffic violation can trigger an unexpected license suspension. This is especially problematic because often the driver will not be told of that their license will be suspended and in most instances that suspension does not take effect until weeks after the court date.

Although an attorney can file a motion to vacate the plea, often this is much more costly and time consuming than it would have been if the driver had researched the consequences of the traffic ticket in advance of court. Remember, although the court staff and prosecutor will usually try to advise the driver of all the relevant information, on a busy arraignment day in court, these types of advisements can fall by the wayside.

For instance, any of the below can trigger an automatic suspension of a driver under 21:

 

2. Understand the current status of your driving history

Understanding your GA Driving History In other words, you should know exactly how many points you currently have on your license – so that you can know if you should be worried about the accumulation of additional points as the result of this new ticket. Although people often worry about “points” on their driving record, this fear is normally misplaced. Typically drivers assume that their insurance rates will go up if they get any “points.” This is not necessarily true.

The insurance company is not normally concerned with the points Georgia assesses for individual offenses, but rather insurance companies tend to be preoccupied by what actual traffic offenses are listed on your record. This makes sense since the insurance company’s priority is assessing how risky of a driver you are. Unfortunately, people often plead “nolo,” believing that it will save them from a hike in insurance rates. Unbeknownst to those drivers, their insurance company will treat “nolo” pleas the same as “guilty” pleas when determining how and when to increase the premiums (see below).

Over 21 drivers should worry about the accumulation of points if they are close to having 15 points on their license within a 2-year period. That many points within two years will suspend the license (weeks after the final court date).

3. Is a “Nolo” Plea Right for Your Case?

Is a NOLO plea right for your Georgia Traffic Ticket Case?

One of the most common missteps people make is assuming that a “nolo” plea is right for them. What typically happens in traffic court is the driver goes to court determined to avoid a guilty plea. But once in court, the driver is told about the possibility of pleading “nolo” and it is explained that a “nolo” plea will keep points off the driver’s record.

This sounds like a fantastic compromise since the driver is usually preoccupied with keeping insurance rates down. Even more compelling is the fact that many of the other drivers in court readily agree to plea “nolo” – thus creating a false sense of security that if the driver’s peers are doing it, then the “nolo” plea is the way to go.

The problem with a “nolo” plea is that it does not offer any protection when it comes to insurance rates. Since the conviction is still listed on your driving record, it is highly visible to insurance companies. Even worse, each driver only gets to plea “nolo” once every 5 years. And while a “nolo” plea is useless when it comes to hiding infractions from your insurance company, it is very valuable in limited situations and drivers should be careful not to waste their “nolo” plea merely to avoid points (unless the driver is close to accumulating 15 points within a 2 year period).

For example, if a driver is charged with driving on a suspended license, having a “nolo” available will prevent a 6 month additional suspension of the license. Similarly, a “nolo” plea can be valuable in accident cases.

4. Bring All Relevant Paperwork to Court

Bring your paperwork to GA traffic Court

All too often drivers forget to bring critical paperwork to court. For instance, if a driver is charged with an equipment violation – e.g., broken headlight, or a tint violation this may be the kind of case that can be resolved by providing proof that the vehicle is now repaired. Another example is when the driver is charged with no insurance, but in reality the driver had valid insurance at the time – then similarly the driver should bring insurance documentation to court.

If the driver missed his original court date – but there is a very reasonable explanation – such as a hospital stay or some other personal emergency, then the driver should absolutely bring paperwork documenting that event and present it to the court.

5. What Are The Benefits of Transferring The Case Up to a Higher Court?

Understand your options before going to GA Traffic Court

In every municipal court in Georgia, the driver has the right to transfer his case out of that court and up to the higher county court.This is important because although it is counter-intuitive, many municipal courts impose  more harsh penalties than the higher county court would. Understanding the reputation of your municipal court as it compares to the county court is critical to making a good decision about how to resolve your case.

Most people don’t think about going to court as the first step in a multi-step process. As a result there is an assumption that a final decision needs to be made about the case at that initial court date. This assumption is problematic because it often leads drivers to agree to very onerous and unfair conditions at that initial court date, including high fine amounts, simply because they don’t understand that there are better alternatives. For instance, many of the municipal courts impose much more harsh traffic ticket penalties than the county court would.

But if you are unfamiliar with the landscape of the municipal court and how it compares to the county court, you are missing the opportunity make a much better decision about whether to accept the prosecutor’s offer. Normally folks assume that requesting a jury trial is too much of a big deal for their ticket, or that they won’t have an opportunity to negotiate a plea deal if a jury trial is requested. The truth is, the request for a jury trial is not scary at all. In fact, most lawyers who practice in that jurisdiction will know that there are a lot of benefits to transferring a case, even a simple traffic case out of municipal court. But, of course, this very much depends on the jurisdiction.