Total Health Law Blog
Our healthcare and business law firm works with many providers and other professionals who have been arrested and charged with misdemeanors. Our clients will, of course, hire criminal defense counsel to handle the criminal proceedings but professionals generally hire our firm navigate the professional consequences of an arrest. Many of our clients are first time offenders who are presented with the option of participating in a pretrial diversion program. Whether to participate in such a program should be discussed with criminal defense counsel. This is the first blog post of two on this subject, and it focuses on providing an overview of the Pretrial Diversion Programs in Georgia and the potential impact on a successful participant’s criminal record. The second post will focus on how successful completion may impact a participant’s professional responsibilities thereafter responding to questions relating to the offense on employment, licensing, and credentialing applications. If you have questions regarding this blog post or need counsel relating to your professional responsibilities after an arrest or conviction, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@hamillittle.com. You may also learn more about our law firm by visiting www.hamillittle.com.
Eligible Offenders
Pretrial diversion programs are authorized under O.C.G.A. § 15-18-80. Thereunder, “the prosecuting attorneys for each judicial circuit . . . shall be authorized to create and administer a Pretrial Intervention and Diversion Program.” Each county may have different guidelines on who is eligible for a Pretrial Diversion Program and different requirements for successful completion. In general, the guidelines created for acceptance and administration in the program, shall include “the nature of the crime, the prior arrest record of the offender, and the notification and response of the victim.” O.C.G.A. § 15-18-80. Entry into the program is always at the discretion of the prosecuting attorney. Id.
The Written Contract
If the prosecuting attorney chooses to offer an individual the opportunity to participate in the county’s Pretrial Diversion Program, the individual will be presented with a written contract that outlines the requirements of that specific individual’s participation in the program. Each individual’s contract may differ. In Forsyth County, the general requirements that each participant must complete include: Paying a program fee, Completing a substance abuse evaluation and any recommended treatment, Not possessing alcohol or drugs, with random screens, completing Community Service work, Restitution (if any), and getting fingerprinted. https://www.forsythco.com/Departments-Offices/Solicitor-General/Pretrial.
Record Restriction
The main benefit of completing a Pretrial Diversion Program is what happens to the participant’s criminal history record. There may be situations where the written order specifies what happens upon successful completion of the program. In many counties, including Forsyth County, Georgia, after successful completion, the case is nolle prosed and a court order directed that the record be restricted pursuant to O.C.G.A. § 35-3-37.
When restricted, usually under O.C.G.A. § 35-3-37(h)(2)(A), the information “shall be available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the [Georgia Crime Information Center] . . . . .” O.C.G.A.§ 35-3-37. Section 35-3-35(a)(1)(D) clarifies that “The Center shall not provide records of arrests, charges, or dispositions when access has been restricted pursuant to . . . 35-3-37.”
As such, once the individual’s criminal record is “restricted,” no information about the individual’s record, including the arrest, will be provided for employment and licensure reasons. This is important for professionals who must submit periodic information to maintain licensure and privileges. The only time information will be released is during a criminal investigation or legal proceeding. Importantly, there are specific exceptions to this rule where criminal records of job applicants are made available for certain occupations, such as government positions, teachers, etc. See O.C.G.A. § 35-3-35(a)(1.2). This seems to be more relevant to government positions, teachers, etc.
The second post will address questions relating to what physicians responding to employment, license, and credentialing questionnaires while in and after completion of a pretrial diversion program. If you have questions regarding this blog post or need counsel relating to your professional responsibilities after an arrest or conviction, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@hamillittle.com. You may also learn more about our law firm by visiting www.hamillittle.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.