Georgia’s First Offender Act covers a broad range of felonies and misdemeanors, but the statute lists specific offenses that can never be resolved this way: DUI, the seven serious violent felonies, defined sexual offenses, crimes against children and vulnerable adults, and certain violent acts against law enforcement officers. Everything not on that exclusion list is potentially eligible, provided you have never been convicted of a felony and have never used First Offender treatment before. The sections below walk through both sides of the line so you can tell where your charge sits.
How the Eligibility Rule Works
The statute, codified at O.C.G.A. § 42-8-60, draws its boundaries by listing what is barred rather than what is allowed.1Justia Law. Georgia Code 42-8-60 – Probation Prior to Adjudication of Guilt That makes the eligible category wide. If your charge does not appear on the exclusion list and you meet the personal history requirements, the judge has discretion to grant First Offender status.
Two personal gates apply before the charge itself matters. You cannot have a prior felony conviction from Georgia or any other state. A prior misdemeanor is fine; a single prior felony anywhere disqualifies you. And you can only use the Act once in your lifetime. If a court has already sentenced you as a first offender, you are permanently ineligible, even if that earlier case ended in a successful discharge.1Justia Law. Georgia Code 42-8-60 – Probation Prior to Adjudication of Guilt
Meeting the eligibility rules does not entitle you to First Offender treatment. Judges retain discretion to deny it based on the facts of the case.
Common Eligible Offenses
Most Georgia felonies and misdemeanors remain eligible because they are simply not called out in the exclusion section. The charges that most often move through the Act include:
- Drug possession, including possession of a Schedule I controlled substance or a Schedule II narcotic weighing less than 28 grams. These are felonies carrying one to 15 years depending on the amount, but they are not excluded.2Justia Law. Georgia Code 16-13-30 – Purchase, Possession, Manufacture, Distribution, or Sale of Controlled Substances or Marijuana
- Theft by taking. Georgia’s felony theft threshold is $1,500.01, and theft above that amount can still be resolved through the Act.3Justia Law. Georgia Code 16-8-12 – Penalties for Theft
- Forgery, fraud, and other financial offenses.
- Burglary.
- Aggravated assault and aggravated battery against a civilian victim. These are only excluded when the victim is a law enforcement officer, as described further below.
The eligible pool is much larger than this short list. Any felony or misdemeanor charge, if it is not on one of the exclusion categories below, can at least be considered.
The Seven Serious Violent Felonies
The statute bars First Offender treatment for any “serious violent felony” as defined in O.C.G.A. § 17-10-6.1.4Justia Law. Georgia Code 17-10-6.1 – Punishment for Serious Violent Felonies Practitioners sometimes call these the “seven deadly sins” of Georgia criminal law:
- Murder or felony murder
- Armed robbery
- Kidnapping
- Rape
- Aggravated child molestation
- Aggravated sodomy
- Aggravated sexual battery
There is no judicial discretion with these charges. A judge cannot grant First Offender status for any of them regardless of the defendant’s background or the circumstances of the case.
Sexual Offenses and Crimes Against Vulnerable Persons
Beyond the seven serious violent felonies, the exclusion list reaches further into sexual misconduct and offenses targeting vulnerable people. Any “sexual offense” as defined in O.C.G.A. § 17-10-6.2 is excluded, which covers a range of sex crimes including child molestation and statutory rape that fall outside the seven deadly sins.1Justia Law. Georgia Code 42-8-60 – Probation Prior to Adjudication of Guilt
Several offenses involving the exploitation of minors are called out individually:
- Sexual exploitation of a minor under O.C.G.A. § 16-12-100
- Electronically furnishing obscene material to a minor under O.C.G.A. § 16-12-100.1
- Computer pornography and child exploitation under O.C.G.A. § 16-12-100.2
The statute also bars First Offender treatment for human trafficking for labor or sexual servitude, neglecting disabled adults or elderly residents, and exploitation or intimidation of disabled adults or elderly residents.1Justia Law. Georgia Code 42-8-60 – Probation Prior to Adjudication of Guilt
Violent Crimes Against Law Enforcement Officers
This category catches some defendants off guard. Three offenses that are ordinarily eligible become ineligible when the victim is a law enforcement officer acting in an official capacity: aggravated assault, aggravated battery, and felony obstruction of an officer when the obstruction results in serious physical harm.1Justia Law. Georgia Code 42-8-60 – Probation Prior to Adjudication of Guilt
The definition of “law enforcement officer” for this provision is broad, covering peace officers, federal law enforcement, campus police, school security officers, game wardens, and county or municipal jail officers. The distinction matters: aggravated assault or aggravated battery against a civilian stays eligible. The bar only kicks in when the victim falls within the statutory definition of a law enforcement officer.
DUI Is Always Ineligible
Driving under the influence under O.C.G.A. § 40-6-391 is the final category on the exclusion list and the one that affects the most people.1Justia Law. Georgia Code 42-8-60 – Probation Prior to Adjudication of Guilt Georgia lawmakers carved out DUI specifically so that every conviction stays visible for tracking repeat offenses and applying enhanced penalties. No matter how clean your record, a DUI charge cannot be resolved through the First Offender Act.
Firearm Restrictions During the Sentence
If your eligible charge is a felony, First Offender treatment carries a firearm restriction for the duration of the sentence. Georgia law makes it a separate felony for anyone on First Offender felony probation to receive, possess, or transport a firearm, punishable by one to 10 years in prison.5Justia Law. Georgia Code 16-11-131 – Possession of Firearms by Convicted Felons and First Offender Probationers If the underlying offense was a forcible felony, the mandatory minimum jumps to five years.
Successful discharge ends the disability. Once you are exonerated and discharged under the Act, you are relieved from the firearm restrictions imposed by that Code section, and your right to possess firearms is restored under Georgia law.5Justia Law. Georgia Code 16-11-131 – Possession of Firearms by Convicted Felons and First Offender Probationers Federal firearms law may impose separate restrictions, so talk to an attorney before purchasing a firearm even after discharge.
A Warning for Noncitizens
Statutory eligibility does not mean a First Offender plea is safe for everyone. Federal immigration law defines “conviction” differently than Georgia does, and a plea under the First Offender Act almost certainly counts as a conviction for immigration purposes. Under 8 U.S.C. § 1101(a)(48)(A), a conviction exists whenever a person enters a guilty plea or admits facts warranting a finding of guilt and the court imposes any form of punishment or restraint on liberty.6U.S. Citizenship and Immigration Services (USCIS). Policy Manual – Volume 12 – Part F – Chapter 2 – Adjudicative Factors First Offender probation satisfies both elements.
The Eleventh Circuit, which covers Georgia, has specifically held that a plea under the Georgia First Offender Act constitutes a conviction for immigration purposes.7U.S. Citizenship and Immigration Services (USCIS). USCIS Administrative Decision – Georgia First Offender Act and Immigration Conviction A later expungement or successful discharge does not erase the conviction for immigration purposes. If you are not a U.S. citizen, get advice from an immigration attorney before entering any First Offender plea. A drug possession charge Georgia would eventually erase from your record could still trigger deportation proceedings or bar you from obtaining citizenship.