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HB 1176 – Criminal Record / Expungement Reform / Fee Increase

This is our first post in a series discussing the criminal justice reforms enacted in House Bill 1176 and SB 236 and how those reforms will affect DUI prosecution and defense in Georgia. First,  HB 1176, deals with a criminal record, expungement, and court fines and costs.

Before HB 1176, which will take effect July 1, 2013, overhauled the expungement process, going so far as to remove the word from the law itself, a DUI arrest, regardless of plea or reduced sentencing, would produce a virtually permanent arrest record. The arrest could be made available to insurance companies, creditors, and most importantly, employers seeking a background check for their clients or employees. For many people, the stigma of a DUI arrest on their record was a stiff obstacle to getting hired or receiving reasonable rates on services like insurance or loans. And the process of expungement, having any records of requested arrests and/or convictions removed from criminal history, was notoriously hard. After a case is closed, an individual could petition that his/her prosecuting attorney approve a request for expungement. If the prosecutor denied the request, the defendant could appeal to the Superior Court of the county where he/she was tried, but if the court denied the appeal there was no further chance for expungement. Though many of the same obstacles are still in place, the Georgia Legislature adjusted the process by specifying and tweaking the various situations in which an individual’s records are eligible for expungement.

According to the Prosecuting Attorney’s Council of Georgia summary of 2012 Georgia legislation, HB 1176 “puts in place a new procedure which will require that most criminal history records be automatically restricted so they cannot be accessed by the public (especially employers) unless the arrest resulted in a conviction.” Whether a criminal history is held by a clerk of court or an arresting law enforcement agency, an individual may be eligible to have his/her record restricted, so that the information is only available to criminal justice agencies. Basically, for certain drug offenses, if an individual pleads or is found guilty and completes his/her probation without error, his/her record will be restricted. Also, if an individual is found not guilty of all charges by a trial court, his/her record will be restricted. Unfortunately, in between these two outcomes lie a multitude of limitations.

Here are the main limitations for the immediate eligibility of record restrictions:

  • If an individual is convicted of DUI, reckless driving, or any other serious traffic defense as defined by Article 15 of Chapter 6 of Georgia Title 40;
  • If an individual is convicted of any crime listed in HB 1176 starting on line 1464 (link above);
  • If a plea agreement is reached which resulted in the conviction of an individual for an offense arising out an underlying transaction or occurrence which was dismissed – i.e. a reduced plea of reckless driving resulting from a DUI arrest;
  • If in the course of the legal proceedings, the prosecutor was barred from introducing evidence through a motion to suppress or motion in limine; or
  • If charges were tried and some but not all of the charges resulted in an acquittal.

But despite these limitations, individuals may file a request with the arresting law enforcement agency that their records be restricted. The right to file a request is also given to individuals arrested before July 1, 2013. Within 30 days of receiving the request, the arresting law enforcement agency is required to provide a copy of the prosecuting attorney. Within 90 days the prosecuting attorney is required to inform the arresting agency as to his or her decision. If a prosecuting attorney denies an individual’s request to restrict their records, an individual may file a civil action in the Superior Court of the county in which he or she was arrested. If it is determined by clear and convincing evidence that the harm otherwise resulting to the privacy of the individual outweighs the public interest in the criminal history being publicly available, the decision of the prosecuting attorney to deny an individual’s request to restrict his or her records will not be upheld.

These opportunities, and corresponding limitations, for restricting criminal history could drastically change how clients and defense attorneys choose to structure their defense. Before HB 1176, when charged with a DUI, pleading to reckless driving would arguably be considered a victory. Motions could be used to goad the prosecution into a plea deal or get the charges dropped outright. Since there was very little chance of expunging an arrest record, the reduced sentencing and attorney’s fees that came with pleading to a lesser charge or pursuing a motion hearing were appealing for defendants. Now, with the prospect of restricted access to criminal histories and the limitations inherent to eligibility for this restriction, defendants must balance the pros and cons of pursuing a lesser charge, filing a motion hearing, pleading guilty, and subsequently, in certain cases filing a civil action to restrict records. A plausible outcome of these reforms is that more individuals charged with misdemeanors like petty drug offenses and DUI will plead guilty or push for trial. The reforms go into effect July 1, 2013. Though they rightfully aim to reassess the overbearing stigma of public arrest records in regards to employment and status, as is evidenced by their limitations, they were not enacted without serious calculation.

As expressed in two recent U.S Supreme Court cases, Missouri v. Frye and Lafler v. Cooper, our court system has largely become one of plea-bargaining rather than trials. In 2006 94 percent of convictions in State courts resulted from pleas. So while the expungement overhaul is welcome in comparison to the stonewalling defendants dealt with prior, cordoning off opportunities for arrest record restrictions with a cost-benefit analysis that undermines plea-bargaining is hardly comprehensive. Georgia lawmakers are not lost on sustaining the tradition of gamesmanship in the Justice System.

HB 1176 also stipulates that there will be a 50% increase in fines for DUI. This means that the range of fines for a first DUI in 5 years is $450-$1500; $900-$1500 for a second in 5; and $1500-$7500 for a 3rd in 5.

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