One of the most important and frequent questions people ask me is why they cannot get a job even though they avoided a conviction under Georgia’s First Offender Act.
When a defendant enters a plea to a criminal offense, the conviction is reported to the Georgia Crime Information Center (GCIC) which is controlled by the Georgia Bureau of Investigation (GBI). The arrest was reported and became part of the defendant’s criminal history even before the conviction.
This criminal record oftentimes prevents talented people from obtaining work, providing for their families, and paying taxes.
Fortunately, our state provides an exception for some defendants who have never been convicted of a felony. If their criminal defense attorney can convince the judge to sentence them as a first offender, he or she will not be convicted of the crime at the time the plea is entered. Instead, the judge will withhold adjudication of guilt. If the defendant completes the sentence without violating criminal laws or conditions of probation, the judge will sign an order stating that the first offender sentence has been completed. The first-time offender will not become a convicted felon.
This is a tremendous benefit to a person who has had a one-time brush with the law.
However, their GCIC will still show their arrest and disposition as a First Offender during and after probation for life. When employers see this information, many will decide not to hire the candidate.
Thus, serving and completing a first offender sentence provides little assistance when looking for employment.
However, there is a little known statute that can change the lives of men and women in our community. This law was brought to my attention by Judge Cynthia Adams when representing a client in Douglas County.
In Georgia, a defendant who is sentenced as a first offender can have his or her record sealed from the public the day the plea is entered.
The following has been paraphrased for the purpose of clarity.
O.C.G.A. 42-8-62.1 provides in pertinent part:
At the time of sentencing, the defendant may seek to limit public access to his or her first offender sentencing information, and the court may, in its discretion, order any of the following:
• Restrict dissemination of the defendant’s first offender records;
• The criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant’s criminal history record information in the custody of the clerk of court, including within any index, be sealed and unavailable to the public; and
• Law enforcement agencies, jails, or detention centers to restrict the defendant’s criminal history record information of arrest, including any fingerprints or photographs taken in conjunction with such arrest.
When considering the defendant’s request under this subsection, the court shall weigh the public’s interest in the defendant’s criminal history record information being publicly available and the harm to the defendant’s privacy and issue written findings of fact.
The court shall specify the date that such prohibited dissemination, sealing, and restrictions will take effect.
This means that at the moment a person enters a first offender plea, he or she can have the existence of their brush with the law sealed and protected.
There are exceptions to this law. For instance, law enforcement agencies will always have access to these records. Also, under very limited circumstances, a criminal record can be unsealed by a court order.
If used, O.C.G.A. 42-8-62.1 will save the financial well being of families across the state, decrease the cost to taxpayers who pay for welfare benefits, provide the self esteem that comes with employment, and honor the promise of a second chance which was the General Assembly’s intent in passing Georgia’s First Offender Act.