Georgia Sex Offender Registry Removal
Having handled dozens of petitions for removal from the registry as one of Georgia's most successful Sex Offender Registry Removal Lawyers, Ben frequently has to analyze his cases by considering O.C.G.A. 17-10-6.2, and specifically sub-section (c) of that statute. This law was actually written to detail the occasions when sentencing judges may depart from the mandatory sentencing minimums for particular sex crimes. Six criteria must be met for the judge to be able to exercise his or her discretion in that way:
(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;
(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;
(C) The court has not found evidence of a relevant similar transaction;
(D) The victim did not suffer any intentional physical harm during the commission of the offense;
(E) The offense did not involve the transportation of the victim; and
(F) The victim was not physically restrained during the commission of the offense.
The legislature later chose, when enacting O.C.G.A. 42-1-19, the registry removal statute, to use these same criteria in determining whether a registered sex offender may be eligible for release from the registration requirements. An analysis of your particular case always involves Ben as a Georgia Sex Offender Registry Removal Lawyer making a determination as to whether the six criteria can be met.
No Prior Convictions
If you have any prior (or subsequent) convictions of a sexual nature, outside of the one that requires your registration, you will not be qualified to file a petition for release from the sex offender registry. In all likelihood, even if this did not preclude one's eligibility, most if not all judges would not relieve someone of the registration requirement with multiple convictions on their record.
Ben has spoken to, and represented, numerous registered offenders who unfortunately have convictions for failing to register. This type of conviction does not constitute a conviction of a sexual nature under this statute and therefore does not necessarily preclude release from the registry. That being said, it can hurt the petitioner's chances.
If you are unsure whether you meet this particular criterion, a Georgia Sex Offender Registry Release Lawyer is only a phone call away at 404-985-9772.
No Use of a Weapon
This criterion is fairly self-explanatory. If the offense that requires a person to register involved the use of a deadly, or otherwise dangerous, weapon, that person will be unable to establish the necessary criteria for registry removal. However, the offense itself must have involved the use of such weapon. It is not enough that the individual merely possessed a weapon tangentially to commission of the offense itself.
The criteria discussed in this section only applies to a particular sub-set of registered sex offenders who may be eligible for removal from the registry. Most people who are, or may be, eligible do fall under this sub-set. However, there are other categories of offenders who may be eligible for removal from the registry regardless of whether they can meet the criteria discussed in this section. To find out if you are eligible to petition for release from the sex offender registry, contact a Georgia Sex Offender Registry Removal Attorney today.
No Relevant Similar Transactions
This is more broad than the first criterion described above. A similar transaction does not have to be an actual conviction; it can be an event that did not even result in arrest or prosecution. Even if there is such an event in your history, the judge considering your petition for registry removal would still need to find that the transaction is relevant.
Some people might assume that simply because there was a similar transaction introduced at the original trial, the individual is therefore not eligible for registry removal. Ben has argued successfully, however, that just because something is relevant for purposes of trial does not mean it is relevant years later when the individual is petitioning for release from the registry.
Petitions for removal from the registry are very fact-specific, and anyone who thinks they might be eligible to petition for removal would be wise to consult with a Georgia Sex Offender Registry Release Attorney before making any assumptions.
No Physical Harm
Like many of the elements discussed in this section, there is little guidance from the courts and the legislature as to how these elements are defined. Physical harm is one of these elements, and the lack of guidance has led to some litigation regarding its definition. In a recent case, the government argued that mere touching itself constituted physical harm, and the appellate courts rejected that argument. Instead, the State must establish some actual physical pain or injury that the alleged victim incurred.
One thing that must always be remembered is that, in order to be disqualified from eligibility to be removed from the registry, the State must establish that the elements discussed in this section were present during the commission of the actual offense that requires the individual to register. For example, if the alleged victim was physically hurt during a portion of the incident, but the harm was not caused during the commission of the actual offense that the individual was convicted of, that individual is not necessarily precluded from eligibility.
A Georgia Sex Offender Registry Removal Lawyer has to thoroughly investigate the original case before determining whether one meets the criteria necessary to successfully be removed from the registry. Ben's thoroughness as a Georgia Sex Offender Registry Release Lawyer has enabled him to win almost every one of these cases that he has handled. He can be reached at 404-985-9772.
Like the criterion discussed above, any transportation of the alleged victim must have occurred during the commission of the actual offense that requires registration. The transportation can not have merely been incidental to the offense. This too is a fact-specific inquiry, and the appellate courts have weighed in on exactly when transportation during the commission of the offense has occurred.
In that regard, if the evidence established that the individual drove, or otherwise transported the alleged victim to a location for the purposes of engaging in the illegal conduct, that will preclude eligibility for release from the registry, at least under this section. However, if the individual drove the alleged victim to a location and then the offense later occurred, that may not preclude eligibility.
To discuss your particular case and the elements detailed herein, contact a Georgia Sex Offender Registry Removal Lawyer today.
No Physical Restraint
This is another phrase not clearly defined by the legislature or the courts. Other states, and the federal government, have ruled that physical restraint must involve some form of "being tied, bound or locked up." Thus, in a recent case, Ben argued that evidence that the defendant merely laid on top of the alleged victim is insufficient to establish physical restraint.
Like the other criteria previously discussed, any alleged physical restraint must have occurred during the commission of the actual offense that requires registration. Thus, in another case, Ben argued that the State could not rely upon evidence of restraint that allegedly occurred during an offense that the individual was acquitted of at trial.
As a Georgia Sex Offender Registry Release Attorney, Ben knows that these cases are complicated but that, if done the right way, registry removal can be accomplished. Contact a Georgia Sex Offender Registry Removal Lawyer today.