16-13-2. Conditional discharge for possession of controlled substances as first offense and certain nonviolent property crimes; dismissal of charges; restitution to victims.

Whenever any person who has not previously been convicted of any offense under Article 2 or Article 3 of this chapter or of any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a narcotic drug, marijuana, or stimulant, depressant, or hallucinogenic drug, the court may without entering a judgment of guilt and with the consent of such person defer further proceedings and place him on probation upon such reasonable terms and conditions as the court may require, preferably terms which require the person to undergo a comprehensive rehabilitation program, including, if necessary, medical treatment, not to exceed three years, designed to acquaint him with the ill effects of drug abuse and to provide him with knowledge of the gains and benefits which can be achieved by being a good member of society. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed accordingly. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this Code section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this Code section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this Code section may occur only once with respect to any person.#

Notwithstanding any law to the contrary, any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor and punished by imprisonment for a period not to exceed 12 months or a fine not to exceed $1,000.00, or both, or public works not to exceed 12 months.#

Persons charged with an offense enumerated in subsection (a) of this Code section and persons charged for the first time with nonviolent property crimes which, in the judgment of the court exercising jurisdiction over such offenses, were related to the accused’s addiction to a controlled substance or alcohol who are eligible for any court approved drug treatment program may, in the discretion of the court and with the consent of the accused, be sentenced in accordance with subsection (a) of this Code section. The probated sentence imposed may be for a period of up to five years. No discharge and dismissal without court adjudication of guilt shall be entered under this subsection until the accused has made full restitution to all victims of the charged offenses. Discharge and dismissal under this Code section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this Code section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this Code section may not be used to disqualify a person in any application for employment or appointment to office in either the public or private sector.#

1. (1)

   As used in this subsection, the term:#

   1. (A)

      “Criminal history record information” shall have the same meaning as set forth in Code Section 35-3-30.#

   2. (B)

      “Restrict” or “restriction” shall have the same meaning as set forth in Code Section 35-3-37.#

2. (2)

   1. (A)

      At the time of sentencing, the defendant may seek to limit public access to his or her sentencing information, and the court may, in its discretion, order that:#

      1. (i)

         The defendant’s records shall be restricted in accordance with Code Section 35-3-37;#

      2. (ii)

         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#

      3. (iii)

         The defendant’s criminal history record information of arrest, including any fingerprints or photographs taken in conjunction with such arrest, be restricted by law enforcement agencies, jails, or detention centers.#

   2. (B)

      When considering the defendant’s request under this paragraph, 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 thereupon.#

   3. (C)

      The court shall specify the date that such prohibited dissemination, sealing, and restrictions will take effect.#