Unexpected Consequences of a plea under Georgia’s First Offender Act
Georgia’s First Offender Act and O.C.G.A. Section 16-13-2 allow some individuals facing their first misdemeanor or felony charge to have their case resolved without a conviction and records of the proceedings may be sealed from their criminal record after completing the terms of their probation or confinement. That means the matter will not show up on most employment background checks, and the individual does not have to report the discharge to potential employers. The laws help keep people out of the system and give them a second chance at life, but there are other laws and conditions imposed that have serious consequences even for First Offenders.
Erosion of Privacy Protections
Although a defendant is not technically convicted if the plea was under the First Offender Act, the defendant will still be required to submit a DNA sample to law enforcement. This DNA information will be kept in a database during the sentence and can be accessed by other agencies to perform comparison analyses. What is concerning about this practice is that an individual’s most personal details, including their origin and current medical disorders, will be stored in a system accessible by others. As such, the collection and storage methods allowed by the laws essentially tear away at the privacy protections afforded by the Fourth Amendment.
Many jurisdictions also have a 4th Amendment Waiver in place for individuals sentenced to probation. This means that the probationer must allow law enforcement to search their home, car, and other private property at any time. The officer conducting the search does not even need to a warrant to do so.
Many people do not even know that they will have their DNA collected or that they will possibly have a 4th Amendment waiver because they assume those only go with convictions. And frankly, many attorneys do not know that DNA will be collected and fail to advise their clients of that consequence. While the benefit of the First Offender Act is that one can be sentenced, but not be convicted, a defendant can still be subjected to provisions of the law similar to those who have been convicted. In addition to 4th Amendment waivers and prohibitions on possessing firearms while on probation, House Bill 470 now adds collecting First Offenders’ DNA.
Taking the Extra Step to Have DNA Information Destroyed
One of the more concerning issues with the First Offender Act is that the individual’s DNA information is not automatically destroyed after they complete their sentence – or even if their conviction was later overturned. To have the database cleared, the person must submit a request to the court. Few people know that they must take this extra step, and sometimes filing the required forms does not guarantee that the DNA information will be destroyed, as paperwork might be misplaced or the request might not be processed.
Until the proper measures are taken to have the records destroyed, the individual’s genetic identity and information are sitting in a database law enforcement can access and run checks against.
Use of Unlawfully Collected DNA Information Allowed
One of the clauses in the legislation even states that “a DNA sample obtained in good faith shall be deemed to have been obtained in accordance with the requirements of this article and its use in accordance with this article shall be authorized until it is expunged…” This implies that if law enforcement mistakenly took a sample of a person’s DNA, thinking it was allowed to do so, the agency can continue using that information until the individual gets their information expunged. What’s interesting about this article is that Georgia does not have a “good faith” exception to other types of searches and seizures.
Even after a person submits the proper paperwork to expunge their DNA record, it could take up to 30 days to process. Until the system is cleared, law enforcement can continue using the information.
Contact Tevis Law Firm, LLC for a Free Consultation
Attorney Brian Tevis is committed to protecting the rights of individuals facing criminal allegations. If you were charged with your first offense, he will help you understand your legal options and the possible outcomes of your case.
To discuss your legal matter, call the firm at (404) 907-2527 or fill out an online contact form.