HB1469: HB1469 Crimes; restriction and seal of certain records upon sentencing of a first conditional discharge for possession of controlled substances and certain nonviolent property crimes; provide

26 LC 48 1776 House Bill 1469 By: Representatives Santos of the 117th, Reeves of the 99th, Holcomb of the 101st, Leverett of the 123rd, and Hagan of the 156th A BILL TO BE ENTITLED AN ACT To amend Article 1 of Chapter 13 of Title 16 of the Official Co de of Georgia Annotated,1 relating to general provisions relative to controlled substance s, so as to provide for the2 restriction and seal of certain records upon sentencing of a fi rst conditional discharge for3 possession of controlled substances and certain nonviolent property crimes until such status4 is revoked; to provide for exceptions; to amend Chapter 3 of Title 35 of the Official Code of5 Georgia Annotated, relating to the Georgia Bureau of Investigation, so as to provide for the6 restriction and seal of a sentence entered upon a first conditional discharge for possession of7 a controlled substance until such status is revoked; to provide for exceptions; to provide for8 definitions; to provide for related matters; to repeal conflicting laws; and for other purposes.9 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:10 SECTION 1.11 Article 1 of Chapter 13 of Title 16 of the Official Code of Geo rgia Annotated, relating to12 general provisions relative to controlled substances, is amende d by revising Code Section13 16-13-2, relating to conditional discharge for possession of co ntrolled substances as first14 offense and certain nonviolent property crimes, dismissal of ch arges and restitution to15 victims, as follows:16 H. B. 1469 - 1 - 26 LC 48 1776 "16-13-2.17 (a) Whenever any person who has not previously been convicted of any offense under18 Article 2 or Article 3 of this chapter or of any statute of the United States or of any state19 relating to narcotic drugs, marijuana, or stimulant, depressant , or hallucinogenic drugs,20 pleads guilty to or is found guilty of possession of a narcotic drug, marijuana, or stimulant,21 depressant, or hallucinogenic drug, the court may without entering a judgment of guilt and22 with the consent of such person defer further proceedings and p lace him or her o n23 probation upon such reasonable terms and conditions as the court may require, preferably24 terms which require the person to undergo a comprehensive rehab ilitation program,25 including, if necessary, medical treatment, not to exceed three years, designed to acquaint26 him or her with the ill effects of drug abuse use and to provide him or her with knowledge27 of the gains and benefits which can be achieved by being a good member of society28 without the use of drugs. Upon violation of a term or condition, the court may enter a n29 adjudication of guilt and proceed accordingly. Upon fulfillmen t o f t h e t e r m s a n d30 conditions, the court shall discharge the person and dismiss the proceedings against him31 or her. Discharge and dismissal under this Code section shall be without court adjudication32 of guilt and shall not be deemed a conviction for purposes of t his Code section or for33 purposes of disqualifications or disabilities imposed by law up on conviction of a crime. 34 Discharge and dismissal under this Code section may occur only once with respect to any35 person.36 (b) Notwithstanding any law to the contrary, any person who is charged with possession37 of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor38 and punished by imprisonment confinement for a period not to exceed 12 months or a fine39 not to exceed $1,000.00, or both, or public works not to exceed 12 months.40 (c) Persons charged with an offense enumerated provided for in subsection (a) of this Code41 section and persons charged for the first time with nonviolent property crimes which, in the42 judgment of the court exercising jurisdiction over such offense s, were related to the43 H. B. 1469 - 2 - 26 LC 48 1776 accused's addiction to a controlled substance or alcohol who ar e eligible for any court44 approved drug treatment program may, in the discretion of the court and with the consent45 of the accused, be sentenced in accordance with subsection (a) (b) of this Code section. 46 The probated sentence imposed may be for a period of up to five years. No discharge and47 dismissal without court adjudication of guilt shall be entered under this subsection until the48 accused has made full restitution to all victims of the charged offenses. Discharge and49 dismissal under this Code section shall be without court adjudication of guilt and shall not50 be deemed a conviction for purposes of this Code section or for purposes of51 disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and52 dismissal under this Code section may not be used to disqualify a person in any application53 for employment or appointment to office in either the public or private sector.54 (d)(1) As used in this subsection, the term:55 (A) 'Criminal history record information' shall have the same meaning as set forth in56 Code Section 35-3-30.57 (B) 'Restrict' or 'restriction' shall have the same meaning as set forth in Code Section58 35-3-37.59 (C) 'Victim' shall have the same meaning as set forth in Code Section 17-17-3.60 (2)(A) At the time of sentencing, the defendant may seek to court shall limit public61 access to his or her the defendant's sentencing information, and the court may, in its62 discretion, order by ordering that:63 (i)(A) The defendant's records shall be restricted in accordance wit h Code Section64 35-3-37 and subsection (j) of this Code section;65 (ii)(B) The criminal file, docket books, criminal minutes, final record, all other records66 of the court, and the defendant's criminal history record information in the custody of67 the clerk of court, including within any index, be sealed and unavailable to the public,68 except as provided in subsection (j) of this Code section; and69 H. B. 1469 - 3 - 26 LC 48 1776 (iii)(C) The defendant's criminal history record information of arrest , including any70 fingerprints or photographs taken in conjunction with such arrest, be restricted by law71 enforcement agencies, jails, or detention centers, except as provided by subsection (j)72 of this Code section.73 (B) When considering the defendant's request under this paragr aph, the court shall74 weigh the public's interest in the defendant's criminal history record information being75 publicly available and the harm to the defendant's privacy and issue written findings of76 fact thereupon.77 (C) The court shall specify the date that such prohibited diss emination, sealing, and78 restrictions will take effect.79 (e) A person who was sentenced pursuant to this chapter prior to July 1, 2026, and who has80 not had his or her sentence revoked or adjudicated guilty may p etition the court that81 ordered such sentence for an order to limit public access to hi s or her criminal history82 record information pursuant to subsection (j) of this Code section. Notice of such petition83 shall be sent to the clerk of court and the prosecuting attorne y by registered or certified84 mail or statutory overnight delivery.85 (f) Within 90 days of the filing of a petition pursuant to subsection (e) of this Code section,86 the court shall order restriction and sealing of the criminal f ile, docket books, criminal87 minutes, final record, all other records of the court, and the defendant's criminal history88 record information in the custody of the clerk of court, including within any index, to be89 sealed and made unavailable to the public, except as provided in subsection (j) of this Code90 section.91 (g)(1) Within 60 days of the filing of the court's order under subsection (f) of this Code92 section, the clerk of court shall cause every document in conne ction with such93 individual's case, physical or electronic, in its custody, possession, or control to be sealed94 to the public except as provided in subsection (j) of this Code section.95 H. B. 1469 - 4 - 26 LC 48 1776 (2) Upon sealing, the clerk of court shall display on the file in bold print on the cover of96 the file a notice to all court personnel that such file is seal ed from the public view and97 dissemination of the contents of such file to anyone other than those authorized by this98 Code section is prohibited. Such notice shall be sealed from p ublic view and only99 available to the parties listed in subsection (j) of this Code section who shall maintain100 access to the record.101 (h) When a court order sealing of court records under subsection (f) of this Code section,102 the court shall also order that records maintained by law enforcement agencies, jails, and103 detention centers be restricted and unavailable to the public. Such entities shall comply104 with such order within 30 days of receiving a copy of such order.105 (i) If a court of competent jurisdiction revokes a sentence up on a first conditional106 discharge for possession of controlled substances and certain nonviolent property crimes107 and adjudicates the defendant guilty of the underlying a first conditional discharge for108 possession of controlled substances and certain nonviolent property crimes offense while109 such defendant is serving such a sentence, restriction and sealing of such court records shall110 be removed, and such records may be disseminated by the court, law enforcement agencies,111 jails, and detention centers.112 (j)(1) The following entities shall be entitled to access the criminal file, docket books,113 criminal minutes, final record, and all other records of the court during the period of time114 a defendant has been sentenced pursuant to this chapter but has not been exonerated and115 discharged without court adjudication of guilt as a matter of l aw or pursuant to a court116 order. No court order or affidavit shall be required for the f ollowing entities to access117 such records unless otherwise provided:118 (A) To criminal justice agencies, as such term is defined in Code Section 35-3-30;119 (B) To any prosecuting attorney who shall be authorized to sha re relevant case120 information with the victim of the underlying first offender of fense pursuant to the121 'Crime Victims' Bill of Rights,' as provided in Code Section 17-17-1;122 H. B. 1469 - 5 - 26 LC 48 1776 (C) To any judge or court personnel;123 (D) To any public defender;124 (E) To a person who is the subject of sealed court files or re stricted criminal history125 record information;126 (F) To the Judicial Qualifications Commission;127 (G) To the Department of Community Supervision;128 (H) To the State Board of Pardons and Paroles;129 (I) Pursuant to any disclosure or consideration of criminal history record information130 required by federal or state law, including, but not limited to, those disclosures required131 for federally insured financial institutions;132 (J) For the purpose of any determination regarding the transfe r of a firearm or the133 issuance of a license pursuant to Code Section 16-11-129; or134 (K) When such records are made available for inspection, copying, and use pursuant135 to a court order.136 (2) The confidentiality of such information shall be maintained insofar as practical."137 SECTION 2.138 Chapter 3 of Title 35 of the Official Code of Georgia Annotated , relating to the Georgia139 Bureau of Investigation, is amended by revising subparagraph (a )(1)(B) of Code Section140 35-3-34, relating to disclosure and dissemination of criminal records to private persons and141 businesses, resulting responsibility and liability of issuing center, and provision of certain142 information to the FBI in conjunction with the National Instant Criminal Background Check143 System, as follows:144 "(B)(i) The center shall not provide records of arrests, charges, or sentences when an145 individual has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 and has146 been exonerated and discharged without court adjudication of guilt as a matter of law147 or pursuant to a court order or Code Section 15-1-20 , including records relating to148 H. B. 1469 - 6 - 26 LC 48 1776 such defendant's bench warrants, failure to appear, and probati on for such offense,149 except as specifically authorized by Code Section 42-8-63.1 and C o d e S e c t i o n150 16-13-2. The center shall not provide records of arrests, charges, or sentences when151 an individual has been sentenced as provided in Code Section 15 -1-20, including152 records relating to such defendant's bench warrants, failure to appear, and probation153 for such offense, except as specifically authorized by Code Section 42-8-63.1.154 (ii) During the period of time after a defendant, who has been sentenced pursuant to155 Article 3 of Chapter 8 of Title 42 but has not been exonerated and discharged without156 court adjudication of guilt as a matter of law or pursuant to a court order, h a s157 completed active probation supervision through the remainder of such sentence, the158 center shall not provide records of arrests, charges, or sentences except as specifically159 authorized by Code Section 42-8-63.1 or Code Section 16-13-2.160 (iii) The center may provide records of arrests, charges, or s entences when an161 individual has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 but has162 not been exonerated and discharged without court adjudication of guilt as a matter of163 law or pursuant to a court order, as specifically authorized by Code Section 42-8-63.1,164 while a defendant is under active probation supervision for suc h offense, or as165 provided in a court order only for the following purposes:166 (I) As specifically authorized by Code Section 16-13-2;167 (II) To criminal justice agencies, as such term is defined in Code Section 35-3-30,168 for purposes of employment in accordance with procedures establ ished by the169 center;170 (III) Pursuant to any disclosure or consideration of criminal history record171 information required by federal or state law, including, but no t limited to, those172 disclosures required for federally insured financial institutions; or173 (IV) For the purpose of any determination regarding the transfer of a firearm or the174 issuance of a license pursuant to Code Section 16-11-129;"175 H. B. 1469 - 7 - 26 LC 48 1776 SECTION 3.176 Said chapter is further amended by revising subparagraph (a)(1)(B) of Code Section 35-3-35,177 relating to disclosure and dissemination of records to public a gencies and political178 subdivisions and responsibility and liability of issuing center, as follows:179 "(B)(i) The center shall not provide records of arrests, charges, or sentences when an180 individual has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 and has181 been exonerated and discharged without court adjudication of guilt as a matter of law182 or pursuant to a court order , including records relating to such defendant's bench183 warrants, failure to appear, and probation for such offense, ex cept as specifically184 authorized by Code Section 42-8-63.1 and Code Section 16-13-2 . The center shall185 not provide records of arrests, charges, or sentences when an i ndividual has been186 sentenced as provided in Code Section 15-1-20, including record s relating to such187 defendant's bench warrants, failure to appear, and probation for such offense, except188 as specifically authorized by Code Section 42-8-63.1 and Code Section 16-13-2.189 (ii) During the period of time after a defendant, who has been sentenced pursuant to190 Article 3 of Chapter 8 of Title 42 but has not been exonerated and discharged without191 court adjudication of guilt as a matter of law or pursuant to a court order, has192 completed active probation supervision through the remainder of such sentence, the193 center shall not provide records of arrests, charges, or sentences except as specifically194 authorized by Code Section 42-8-63.1 or Code Section 16-13-2.195 (iii) The center may provide records of arrests, charges, or s entences when an196 individual has been sentenced pursuant to Article 3 of Chapter 8 of Title 42 but has197 not been exonerated and discharged without court adjudication of guilt as a matter of198 law or pursuant to a court order, as specifically authorized by Code Section 42-8-63.1,199 while a defendant is under active probation supervision for suc h offense, or as200 provided in a court order only for the following purposes:201 (I) As specifically authorized by Code Section 16-13-2;202 H. B. 1469 - 8 - 26 LC 48 1776 (II) To criminal justice agencies, as such term is defined in Code Section 35-3-30,203 for purposes of employment in accordance with procedures establ ished by the204 center;205 (III) Pursuant to any disclosure or consideration of criminal history record206 information required by federal or state law, including, but no t limited to, those207 disclosures required for federally insured financial institutions; or208 (IV) For the purpose of any determination regarding the transfer of a firearm or the209 issuance of a license pursuant to Code Section 16-11-129;"210 SECTION 4.211 All laws and parts of laws in conflict with this Act are repealed.212 H. B. 1469 - 9 -