Sunday, August 17, 2008

Expunging-Sealing Criminal Record-Illinois

EXPUNGEMENT: When a record is expunged, it is physically destroyed by each law enforcement agency, as if it never existed.

SEALED: When an Illinois State Police record is sealed, it is no longer available to your employer or other members of the public, but can still be seen by law enforcement agencies. When a clerk’s office record is sealed it is no longer available to employers or other members of the public, but can be viewed by members of the public if a judge specifically orders that they can see it.

CASES THAT CAN BE EXPUNGED:

1. Cases in which you were acquitted, released without conviction (including cases in which you were not charged), there was a not guilty finding or no probable cause finding, or nolle prosequi –Petitions to expunge may be filed immediately. If, however, your case was stricken off the call with leave to reinstate (“SOL”) or a non-suit, Petitions to expunge can only be granted 120 days (if demand for trial) or 160 days (if no demand for trial) after the case was SOL, and only if the prosecutor did not reinstate your case during this time period.

2. Cases, other than those listed in section 3, below, in which an Order of supervision was entered and two (2) years have passed since discharge and dismissal of supervision.

3. Cases in which an Order of supervision was entered and five (5) years have passed since termination of supervision for the following charges:

Retail Theft – 720 ILCS 5/16 A-3 Reckless Driving – 625 ILCS 5/11-503 Display of False Insurance – 625 ILCS 5/3-710 Suspended Registration for Non-Insurance - 625 ILCS 5/3-708 Uninsured Motor Vehicle – 625 ILCS 5/3-707

4. Cases in which an Order was entered terminating probation and at least five (5) years have passed since the order of termination was entered, under the following statutes:

Controlled Substance Act (410 Probation) – 720 ILCS 570/410 Cannabis Control Act (First Offender Only) – 720 ILCS 550/10

CASES THAT CANNOT BE EXPUNGED

Convictions, including:

1. A guilty plea, guilty finding, or guilty verdict resulting in a sentence other than probation under the Cannabis or Controlled Substances Acts.

2. Probation (except if you received 410 probation under the Controlled Substance Act or under the Cannabis Act)

3. Cases where the defendant was granted supervision for or was convicted of a sexual offense committed against a minor under 18 years of age (20 ILCS 2630/5(g))

4. Conditional Discharge

5. Time Considered Served

6. DUI/DWI Supervision

Once your record has been expunged, it “may not be considered by any private or public entity in employment matters, certification, licensing, revocation or certification or licensure, or registration,” (20 ILCS 2630/12) Employers are not allowed to ask you if you have had records expunged, and you are not required to disclose this information on employment applications. (20 ILCS 2630/12)

CASES THAT CAN BE SEALED

1. You are an adult or minor prosecuted as an adult for a misdemeanor, or municipal ordinance violation in which you were acquitted; released without being convicted (including cases where you were not charged), your conviction was reversed; or you received a sentence of supervision for a misdemeanor AND you have not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for three (3) years after being acquitted, or released, or your conviction being reversed, or having completed the terms and conditions of your supervision.

2. You are an adult or minor prosecuted as and adult for a qualifying Class 4 Felony or misdemeanor which resulted in a conviction AND you have not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for four (4) years after completing your sentence.

Once your record has been sealed, it “may not be considered by any private or public entity in employment matters, certification, licensing, revocation or certification or licensure, or registration,” (20 ILCS 2630/12) Employers are not allowed to ask you if you have had records expunged, and you are not required to disclose this information on employment applications. (20 ILCS 2630/12).

______________________________________________________________

Expunging and Sealing Criminal Records in Illinois

Cases that CAN be expunged:

a. Cases in which you are acquitted or released without being convicted (including cases in which you have not been charged). Petitions to Expunge may be filed immediately upon acquittal or release without conviction.

b. Cases, other than those listed in section c. below, in which an Order of supervision was entered and two (2) years have passed since discharge and dismissal of supervision.

c. Cases in which an Order of supervision was entered and five (5) years have passed since termination of supervision for the following charges:

• 625 ILCS 5/3-707 - Uninsured Motor Vehicle
• 625 ILCS 5/3-708 - Suspended Registration for Non-Insurance
• 625 ILCS 5/3-710 - Display of False Insurance
• 625 ILCS 5/5-401.3 - Scrap Processor to Keep Records
• 625 ILCS 5/11-503 - Reckless Driving
• 720 ILCS 5/12-3.2 - Domestic Battery
• 720 ILCS 5/12-15 - Criminal Sexual Abuse
• 720 ILCS 5/12-4.3 - Aggravated battery of a Child
• 720 ILCS 5/16 A-3 - Offense Retail Theft

d. Cases in which an Order was entered terminating probation and at least five (5) years have passed since the order of termination was entered, under the following statutes

• 720 ILCS 550/10 - Cannabis Control Act (First Time Offender Only)
• 720 ILCS 570/410 - Control Substance Act (First Time Offender Only)
• 720 ILCS 570/312(j) - Steroid Control Act
• 20 ILCS 305/10-102 or 301/40-10 - Alcohol and Drug Dependency Act

e. Cases in which the Governor has issued a pardon that specifically states that your records should be expunged.

Cases that CANNOT be expunged: Convictions, including:

a. A guilty plea, guilty finding, or guilty verdict which results in a sentence other than probation under the Cannabis, Controlled Substances, Steroid Control, and Alcohol and Drug Dependency Acts (720 ILCS 550/10, 720 ILCS 570/410, 720 ILCS 570/312(j), and 20 ILCS 305/10-102 or 301/40- 10),

b. Probation (except under the Cannabis, Controlled Substances, Steroid Control, and Alcohol and Drug Dependency Acts);

c. Cases where the defendant was granted supervision for or was convicted of a sexual offense committed against a minor under 18 years of age (20 ILCS 2630/5(g));

d. Conditional Discharge; and

e. D.U.I. Supervision (20 ILCS 2630/5).

Cases that CAN be Sealed:

Adult or minor prosecuted as an adult for misdemeanors or municipal ordinance violations which result in an acquittal, release without conviction, conviction reversed, or a sentence of supervision for misdemeanor AND Defendant/Petitioner was not convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for 3 years after the acquittal; or release or reversal of conviction, or completion of the terms and conditions of the supervision.

Adult or minor prosecuted as an adult which results in a conviction for a misdemeanor AND Defendant/Petitioner was not convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for 4 years after the completion of the sentence.

Cases that CANNOT be Sealed:

Pursuant to 20 ILCS 2630/5, the following case types and dispositions are not eligible for sealing of records:

* DUI, 625 ILCS 5/11-501
* Article 11, Criminal Code
* Criminal Sexual Abuse, 720 ILCS 5/12-15
* Violation of Order of Protection, 720 US 5/12-30
* Dog Fighting, 720 US 5/26-5
* Misdemeanor Crime of Violence under Section 2, Criminal Victims Compensation Act
* Class A Misdemeanor, Humane Care of Animals Act
* Sex Offender Registration Act Offenses

_______________________________________________________________________

20 ILCS 2630/5

(g) Except as otherwise provided in subsection (c-5) of this Section, the court shall not order the sealing or expungement of the arrest records and records of the circuit court clerk of any person granted supervision for or convicted of any sexual offense committed against a minor under 18 years of age. For the purposes of this Section, "sexual offense committed against a minor " includes but is not limited to the offenses of indecent solicitation of a child or criminal sexual abuse when the victim of such offense is under 18 years of age.

(h)(1) Applicability. Notwithstanding any other provision of this Act to the contrary and cumulative with any rights to expungement of criminal records, this subsection authorizes the sealing of criminal records of adults and of minors prosecuted as adults.

(2) Sealable offenses. The following offenses may be sealed:

(A) All municipal ordinance violations and misdemeanors, with the exception of the following:

(i) violations of Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance;

(ii) violations of Article 11 of the Criminal Code of 1961 or a similar provision of a local ordinance, except Section 11-14 of the Criminal Code of 1961 as provided in clause B(i) of this subsection (h);

(iii) violations of Section 12-15, 12-30, or 26-5 of the Criminal Code of 1961 or a similar provision of a local ordinance;

(iv) violations that are a crime of violence as defined in Section 2 of the Crime Victims Compensation Act or a similar provision of a local ordinance;

(v) Class A misdemeanor violations of the Humane Care for Animals Act; and

(vi) any offense or attempted offense that would subject a person to registration under the Sex Offender Registration Act.

(B) Misdemeanor and Class 4 felony violations of:

(i) Section 11-14 of the Criminal Code of 1961;

(ii) Section 4 of the Cannabis Control Act;

(iii) Section 402 of the Illinois Controlled Substances Act; and

(iv) Section 60 of the Methamphetamine Control and Community Protection Act [720 ILCS 646/60]

However, for purposes of this subsection (h), a sentence of first offender probation under Section 10 of the Cannabis Control Act, Section 410 of the Illinois Controlled Substances Act, or Section 70 of the Methamphetamine Control and Community Protection Act [720 ILCS 646/70] shall be treated as a Class 4 felony conviction.

(3) Requirements for sealing. Records identified as sealable under clause (h) (2) may be sealed when the individual was:

(A) Acquitted of the offense or offenses or released without being convicted.

(B) Convicted of the offense or offenses and the conviction or convictions were reversed.

(C) Placed on misdemeanor supervision for an offense or offenses; and

(i) at least 3 years have elapsed since the completion of the term of supervision, or terms of supervision, if more than one term has been ordered; and

(ii) the individual has not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor or felony during the period specified in clause (i).

(D) Convicted of an offense or offenses; and

(i) at least 4 years have elapsed since the last such conviction or term of any sentence, probation, parole, or supervision, if any, whichever is last in time; and

(ii) the individual has not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor or felony during the period specified in clause (i).

(4) Requirements for sealing of records when more than one charge and disposition have been filed. When multiple offenses are petitioned to be sealed under this subsection (h), the requirements of the relevant provisions of clauses (h)(3)(A) through (D) each apply. In instances in which more than one waiting period is applicable under clauses (h)(C)(i) and (ii) and (h)(D)(i) and (ii), the longer applicable period applies, and the requirements of clause (h) (3) shall be considered met when the petition is filed after the passage of the longer applicable waiting period. That period commences on the date of the completion of the last sentence or the end of supervision, probation, or parole, whichever is last in time.

(5) Subsequent convictions. A person may not have subsequent felony conviction records sealed as provided in this subsection (h) if he or she is convicted of any felony offense after the date of the sealing of prior felony records as provided in this subsection (h).

(6) Notice of eligibility for sealing. Upon acquittal, release without conviction, or being placed on supervision for a sealable offense, or upon conviction of a sealable offense, the person shall be informed by the court of the right to have the records sealed and the procedures for the sealing of the records.

(7) Procedure. Upon becoming eligible for the sealing of records under this subsection (h), the person who seeks the sealing of his or her records shall file a petition requesting the sealing of records with the clerk of the court where the charge or charges were brought. The records may be sealed by the Chief Judge of the circuit wherein the charge was brought, any judge of that circuit designated by the Chief Judge, or in counties of less than 3,000,000 inhabitants, the presiding trial judge at the defendant's trial, if any. If charges were brought in multiple jurisdictions, a petition must be filed in each such jurisdiction. The petitioner shall pay the applicable fee, if not waived.

(A) Contents of petition. The petition shall contain the petitioner's name, date of birth, current address, each charge, each case number, the date of each charge, the identity of the arresting authority, and such other information as the court may require. During the pendency of the proceeding, the petitioner shall promptly notify the clerk of the court of any change of address.

(B) Drug test. A person filing a petition to have his or her records sealed for a Class 4 felony violation of Section 4 of the Cannabis Control Act or for a Class 4 felony violation of Section 402 of the Illinois Controlled Substances Act must attach to the petition proof that the petitioner has passed a test taken within the previous 30 days before the filing of the petition showing the absence within his or her body of all illegal substances in violation of either the Illinois Controlled Substances Act or the Cannabis Control Act.

(C) Service of petition. The clerk shall promptly serve a copy of the petition on the State's Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government effecting the arrest.

(D) Entry of order. Unless the State's Attorney or prosecutor, the Department of State Police, the arresting agency or such chief legal officer objects to sealing of the records within 90 days of notice the court shall enter an order sealing the defendant's records.

(E) Hearing upon objection. If an objection is filed, the court shall set a date for a hearing and notify the petitioner and the parties on whom the petition had been served, and shall hear evidence on whether the sealing of the records should or should not be granted, and shall make a determination on whether to issue an order to seal the records based on the evidence presented at the hearing.

(F) Service of order. After entering the order to seal records, the court must provide copies of the order to the Department, in a form and manner prescribed by the Department, to the petitioner, to the State's Attorney or prosecutor charged with the duty of prosecuting the offense, to the arresting agency, to the chief legal officer of the unit of local government effecting the arrest, and to such other criminal justice agencies as may be ordered by the court.

Labels: ,

0 Comments:

Post a Comment

Subscribe to Post Comments [Atom]

Links to this post:

Create a Link

<< Home