Judiciary II - Criminal Law Committee

Filed: 3/22/2007

 

 


 

 


 
09500HB1831ham001 LRB095 09795 RLC 34295 a

1
AMENDMENT TO HOUSE BILL 1831

2     AMENDMENT NO. ______. Amend House Bill 1831 by replacing
3 everything after the enacting clause with the following:
 
4     "Section 5. The Criminal Identification Act is amended by
5 changing Section 5 and by adding Section 6 as follows:
 
6     (20 ILCS 2630/5)  (from Ch. 38, par. 206-5)
7     Sec. 5. Arrest reports; expungement.
8     (a) All policing bodies of this State shall furnish to the
9 Department, daily, in the form and detail the Department
10 requires, fingerprints and descriptions of all persons who are
11 arrested on charges of violating any penal statute of this
12 State for offenses that are classified as felonies and Class A
13 or B misdemeanors and of all minors of the age of 10 and over
14 who have been arrested for an offense which would be a felony
15 if committed by an adult, and may forward such fingerprints and
16 descriptions for minors arrested for Class A or B misdemeanors.

 

 

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1 Moving or nonmoving traffic violations under the Illinois
2 Vehicle Code shall not be reported except for violations of
3 Chapter 4, Section 11-204.1, or Section 11-501 of that Code. In
4 addition, conservation offenses, as defined in the Supreme
5 Court Rule 501(c), that are classified as Class B misdemeanors
6 shall not be reported.
7     Whenever an adult or minor prosecuted as an adult, not
8 having previously been convicted of any criminal offense or
9 municipal ordinance violation, charged with a violation of a
10 municipal ordinance or a felony or misdemeanor, is acquitted or
11 released without being convicted, whether the acquittal or
12 release occurred before, on, or after the effective date of
13 this amendatory Act of 1991, the Chief Judge of the circuit
14 wherein the charge was brought, any judge of that circuit
15 designated by the Chief Judge, or in counties of less than
16 3,000,000 inhabitants, the presiding trial judge at the
17 defendant's trial may upon verified petition of the defendant
18 order the record of arrest expunged from the official records
19 of the arresting authority and the Department and order that
20 the records of the clerk of the circuit court be sealed until
21 further order of the court upon good cause shown and the name
22 of the defendant obliterated on the official index required to
23 be kept by the circuit court clerk under Section 16 of the
24 Clerks of Courts Act, but the order shall not affect any index
25 issued by the circuit court clerk before the entry of the
26 order. The Department may charge the petitioner a fee

 

 

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1 equivalent to the cost of processing any order to expunge or
2 seal the records, and the fee shall be deposited into the State
3 Police Services Fund. The records of those arrests, however,
4 that result in a disposition of supervision for any offense
5 shall not be expunged from the records of the arresting
6 authority or the Department nor impounded by the court until 2
7 years after discharge and dismissal of supervision. Those
8 records that result from a supervision for a violation of
9 Section 3-707, 3-708, 3-710, 5-401.3, or 11-503 of the Illinois
10 Vehicle Code or a similar provision of a local ordinance, or
11 for a violation of Section 12-3.2, 12-15 or 16A-3 of the
12 Criminal Code of 1961, or probation under Section 10 of the
13 Cannabis Control Act, Section 410 of the Illinois Controlled
14 Substances Act, Section 70 of the Methamphetamine Control and
15 Community Protection Act, Section 12-4.3(b)(1) and (2) of the
16 Criminal Code of 1961 (as those provisions existed before their
17 deletion by Public Act 89-313), Section 10-102 of the Illinois
18 Alcoholism and Other Drug Dependency Act when the judgment of
19 conviction has been vacated, Section 40-10 of the Alcoholism
20 and Other Drug Abuse and Dependency Act when the judgment of
21 conviction has been vacated, or Section 10 of the Steroid
22 Control Act shall not be expunged from the records of the
23 arresting authority nor impounded by the court until 5 years
24 after termination of probation or supervision. Those records
25 that result from a supervision for a violation of Section
26 11-501 of the Illinois Vehicle Code or a similar provision of a

 

 

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1 local ordinance, shall not be expunged. All records set out
2 above may be ordered by the court to be expunged from the
3 records of the arresting authority and impounded by the court
4 after 5 years, but shall not be expunged by the Department, but
5 shall, on court order be sealed by the Department and may be
6 disseminated by the Department only as required by law or to
7 the arresting authority, the State's Attorney, and the court
8 upon a later arrest for the same or a similar offense or for
9 the purpose of sentencing for any subsequent felony. Upon
10 conviction for any offense, the Department of Corrections shall
11 have access to all sealed records of the Department pertaining
12 to that individual.
13     (a-5) Those records maintained by the Department for
14 persons arrested prior to their 17th birthday shall be expunged
15 as provided in Section 5-915 of the Juvenile Court Act of 1987.
16     (b) Whenever a person has been convicted of a crime or of
17 the violation of a municipal ordinance, in the name of a person
18 whose identity he has stolen or otherwise come into possession
19 of, the aggrieved person from whom the identity was stolen or
20 otherwise obtained without authorization, upon learning of the
21 person having been arrested using his identity, may, upon
22 verified petition to the chief judge of the circuit wherein the
23 arrest was made, have a court order entered nunc pro tunc by
24 the chief judge to correct the arrest record, conviction
25 record, if any, and all official records of the arresting
26 authority, the Department, other criminal justice agencies,

 

 

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1 the prosecutor, and the trial court concerning such arrest, if
2 any, by removing his name from all such records in connection
3 with the arrest and conviction, if any, and by inserting in the
4 records the name of the offender, if known or ascertainable, in
5 lieu of the aggrieved's name. The records of the clerk of the
6 circuit court clerk shall be sealed until further order of the
7 court upon good cause shown and the name of the aggrieved
8 person obliterated on the official index required to be kept by
9 the circuit court clerk under Section 16 of the Clerks of
10 Courts Act, but the order shall not affect any index issued by
11 the circuit court clerk before the entry of the order. Nothing
12 in this Section shall limit the Department of State Police or
13 other criminal justice agencies or prosecutors from listing
14 under an offender's name the false names he or she has used.
15 For purposes of this Section, convictions for moving and
16 nonmoving traffic violations other than convictions for
17 violations of Chapter 4, Section 11-204.1 or Section 11-501 of
18 the Illinois Vehicle Code shall not be a bar to expunging the
19 record of arrest and court records for violation of a
20 misdemeanor or municipal ordinance.
21     (c) Whenever a person who has been convicted of an offense
22 is granted a pardon by the Governor which specifically
23 authorizes expungement, he may, upon verified petition to the
24 chief judge of the circuit where the person had been convicted,
25 any judge of the circuit designated by the Chief Judge, or in
26 counties of less than 3,000,000 inhabitants, the presiding

 

 

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1 trial judge at the defendant's trial, may have a court order
2 entered expunging the record of arrest from the official
3 records of the arresting authority and order that the records
4 of the clerk of the circuit court and the Department be sealed
5 until further order of the court upon good cause shown or as
6 otherwise provided herein, and the name of the defendant
7 obliterated from the official index requested to be kept by the
8 circuit court clerk under Section 16 of the Clerks of Courts
9 Act in connection with the arrest and conviction for the
10 offense for which he had been pardoned but the order shall not
11 affect any index issued by the circuit court clerk before the
12 entry of the order. All records sealed by the Department may be
13 disseminated by the Department only as required by law or to
14 the arresting authority, the State's Attorney, and the court
15 upon a later arrest for the same or similar offense or for the
16 purpose of sentencing for any subsequent felony. Upon
17 conviction for any subsequent offense, the Department of
18 Corrections shall have access to all sealed records of the
19 Department pertaining to that individual. Upon entry of the
20 order of expungement, the clerk of the circuit court shall
21 promptly mail a copy of the order to the person who was
22 pardoned.
23     (c-5) Whenever a person has been convicted of criminal
24 sexual assault, aggravated criminal sexual assault, predatory
25 criminal sexual assault of a child, criminal sexual abuse, or
26 aggravated criminal sexual abuse, the victim of that offense

 

 

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1 may request that the State's Attorney of the county in which
2 the conviction occurred file a verified petition with the
3 presiding trial judge at the defendant's trial to have a court
4 order entered to seal the records of the clerk of the circuit
5 court in connection with the proceedings of the trial court
6 concerning that offense. However, the records of the arresting
7 authority and the Department of State Police concerning the
8 offense shall not be sealed. The court, upon good cause shown,
9 shall make the records of the clerk of the circuit court in
10 connection with the proceedings of the trial court concerning
11 the offense available for public inspection.
12     (c-6) If a conviction has been set aside on direct review
13 or on collateral attack and the court determines by clear and
14 convincing evidence that the defendant was factually innocent
15 of the charge, the court shall enter an expungement order as
16 provided in subsection (b) of Section 5-5-4 of the Unified Code
17 of Corrections.
18     (d) Notice of the petition for subsections (a), (b), and
19 (c) shall be served upon the State's Attorney or prosecutor
20 charged with the duty of prosecuting the offense, the
21 Department of State Police, the arresting agency and the chief
22 legal officer of the unit of local government affecting the
23 arrest. Unless the State's Attorney or prosecutor, the
24 Department of State Police, the arresting agency or such chief
25 legal officer objects to the petition within 30 days from the
26 date of the notice, the court shall enter an order granting or

 

 

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1 denying the petition. The clerk of the court shall promptly
2 mail a copy of the order to the person, the arresting agency,
3 the prosecutor, the Department of State Police and such other
4 criminal justice agencies as may be ordered by the judge.
5     (e) Nothing herein shall prevent the Department of State
6 Police from maintaining all records of any person who is
7 admitted to probation upon terms and conditions and who
8 fulfills those terms and conditions pursuant to Section 10 of
9 the Cannabis Control Act, Section 410 of the Illinois
10 Controlled Substances Act, Section 70 of the Methamphetamine
11 Control and Community Protection Act, Section 12-4.3 of the
12 Criminal Code of 1961, Section 10-102 of the Illinois
13 Alcoholism and Other Drug Dependency Act, Section 40-10 of the
14 Alcoholism and Other Drug Abuse and Dependency Act, or Section
15 10 of the Steroid Control Act.
16     (f) No court order issued under the expungement provisions
17 of this Section shall become final for purposes of appeal until
18 30 days after notice is received by the Department. Any court
19 order contrary to the provisions of this Section is void.
20     (g) Except as otherwise provided in subsection (c-5) of
21 this Section, the court shall not order the sealing or
22 expungement of the arrest records and records of the circuit
23 court clerk of any person granted supervision for or convicted
24 of any sexual offense committed against a minor under 18 years
25 of age. For the purposes of this Section, "sexual offense
26 committed against a minor" includes but is not limited to the

 

 

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1 offenses of indecent solicitation of a child or criminal sexual
2 abuse when the victim of such offense is under 18 years of age.
3     (h) (1) Applicability. Notwithstanding any other provision
4 of this Act to the contrary and cumulative with any rights to
5 expungement of criminal records, this subsection authorizes
6 the sealing of criminal records of adults and of minors
7 prosecuted as adults.
8     (2) Sealable offenses. The following offenses may be
9 sealed:
10         (A) All municipal ordinance violations and
11     misdemeanors, with the exception of the following:
12             (i) violations of Section 11-501 of the Illinois
13         Vehicle Code or a similar provision of a local
14         ordinance;
15             (ii) violations of Article 11 of the Criminal Code
16         of 1961 or a similar provision of a local ordinance,
17         except Section 11-14 of the Criminal Code of 1961 as
18         provided in clause B(i) of this subsection (h);
19             (iii) violations of Section 12-15, 12-30, or 26-5
20         of the Criminal Code of 1961 or a similar provision of
21         a local ordinance;
22             (iv) violations that are a crime of violence as
23         defined in Section 2 of the Crime Victims Compensation
24         Act or a similar provision of a local ordinance;
25             (v) Class A misdemeanor violations of the Humane
26         Care for Animals Act; and

 

 

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1             (vi) any offense or attempted offense that would
2         subject a person to registration under the Sex Offender
3         Registration Act.
4         (B) Misdemeanor and Class 4 felony violations of:
5             (i) Section 11-14 of the Criminal Code of 1961;
6             (ii) Section 4 of the Cannabis Control Act;
7             (iii) Section 402 of the Illinois Controlled
8         Substances Act; and
9             (iv) Section 60 of the Methamphetamine Control and
10         Community Protection Act.
11         However, for purposes of this subsection (h), a
12     sentence of first offender probation under Section 10 of
13     the Cannabis Control Act, Section 410 of the Illinois
14     Controlled Substances Act, or Section 70 of the
15     Methamphetamine Control and Community Protection Act shall
16     be treated as a Class 4 felony conviction.
17     (3) Requirements for sealing. Records identified as
18 sealable under clause (h) (2) may be sealed when the individual
19 was:
20         (A) Acquitted of the offense or offenses or released
21     without being convicted.
22         (B) Convicted of the offense or offenses and the
23     conviction or convictions were reversed.
24         (C) Placed on misdemeanor supervision for an offense or
25     offenses; and
26             (i) at least 3 years have elapsed since the

 

 

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1         completion of the term of supervision, or terms of
2         supervision, if more than one term has been ordered;
3         and
4             (ii) the individual has not been convicted of a
5         felony or misdemeanor or placed on supervision for a
6         misdemeanor or felony during the period specified in
7         clause (i).
8         (D) Convicted of an offense or offenses; and
9             (i) at least 4 years have elapsed since the last
10         such conviction or term of any sentence, probation,
11         parole, or supervision, if any, whichever is last in
12         time; and
13             (ii) the individual has not been convicted of a
14         felony or misdemeanor or placed on supervision for a
15         misdemeanor or felony during the period specified in
16         clause (i).
17     (4) Requirements for sealing of records when more than one
18 charge and disposition have been filed. When multiple offenses
19 are petitioned to be sealed under this subsection (h), the
20 requirements of the relevant provisions of clauses (h)(3)(A)
21 through (D) each apply. In instances in which more than one
22 waiting period is applicable under clauses (h)(C)(i) and (ii)
23 and (h)(D)(i) and (ii), the longer applicable period applies,
24 and the requirements of clause (h) (3) shall be considered met
25 when the petition is filed after the passage of the longer
26 applicable waiting period. That period commences on the date of

 

 

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1 the completion of the last sentence or the end of supervision,
2 probation, or parole, whichever is last in time.
3     (5) Subsequent convictions. A person may not have
4 subsequent felony conviction records sealed as provided in this
5 subsection (h) if he or she is convicted of any felony offense
6 after the date of the sealing of prior felony records as
7 provided in this subsection (h).
8     (6) Notice of eligibility for sealing. Upon acquittal,
9 release without conviction, or being placed on supervision for
10 a sealable offense, or upon conviction of a sealable offense,
11 the person shall be informed by the court of the right to have
12 the records sealed and the procedures for the sealing of the
13 records.
14     (7) Procedure. Upon becoming eligible for the sealing of
15 records under this subsection (h), the person who seeks the
16 sealing of his or her records shall file a petition requesting
17 the sealing of records with the clerk of the court where the
18 charge or charges were brought. The records may be sealed by
19 the Chief Judge of the circuit wherein the charge was brought,
20 any judge of that circuit designated by the Chief Judge, or in
21 counties of less than 3,000,000 inhabitants, the presiding
22 trial judge at the defendant's trial, if any. If charges were
23 brought in multiple jurisdictions, a petition must be filed in
24 each such jurisdiction. The petitioner shall pay the applicable
25 fee, if not waived.
26         (A) Contents of petition. The petition shall contain

 

 

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1     the petitioner's name, date of birth, current address, each
2     charge, each case number, the date of each charge, the
3     identity of the arresting authority, and such other
4     information as the court may require. During the pendency
5     of the proceeding, the petitioner shall promptly notify the
6     clerk of the court of any change of address.
7         (B) Drug test. A person filing a petition to have his
8     or her records sealed for a Class 4 felony violation of
9     Section 4 of the Cannabis Control Act or for a Class 4
10     felony violation of Section 402 of the Illinois Controlled
11     Substances Act must attach to the petition proof that the
12     petitioner has passed a test taken within the previous 30
13     days before the filing of the petition showing the absence
14     within his or her body of all illegal substances in
15     violation of either the Illinois Controlled Substances Act
16     or the Cannabis Control Act.
17         (C) Service of petition. The clerk shall promptly serve
18     a copy of the petition on the State's Attorney or
19     prosecutor charged with the duty of prosecuting the
20     offense, the Department of State Police, the arresting
21     agency and the chief legal officer of the unit of local
22     government effecting the arrest.
23         (D) Entry of order. Unless the State's Attorney or
24     prosecutor, the Department of State Police, the arresting
25     agency or such chief legal officer objects to sealing of
26     the records within 90 days of notice the court shall enter

 

 

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1     an order sealing the defendant's records.
2         (E) Hearing upon objection. If an objection is filed,
3     the court shall set a date for a hearing and notify the
4     petitioner and the parties on whom the petition had been
5     served, and shall hear evidence on whether the sealing of
6     the records should or should not be granted, and shall make
7     a determination on whether to issue an order to seal the
8     records based on the evidence presented at the hearing.
9         (F) Service of order. After entering the order to seal
10     records, the court must provide copies of the order to the
11     Department, in a form and manner prescribed by the
12     Department, to the petitioner, to the State's Attorney or
13     prosecutor charged with the duty of prosecuting the
14     offense, to the arresting agency, to the chief legal
15     officer of the unit of local government effecting the
16     arrest, and to such other criminal justice agencies as may
17     be ordered by the court.
18     (8) Fees. Notwithstanding any provision of the Clerk of the
19 Courts Act to the contrary, and subject to the approval of the
20 county board, the clerk may charge a fee equivalent to the cost
21 associated with the sealing of records by the clerk and the
22 Department of State Police. The clerk shall forward the
23 Department of State Police portion of the fee to the Department
24 and it shall be deposited into the State Police Services Fund.
25     (i) Subject to available funding, the Illinois Department
26 of Corrections shall conduct a study of the impact of sealing,

 

 

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1 especially on employment and recidivism rates, utilizing a
2 random sample of those who apply for the sealing of their
3 criminal records under Public Act 93-211, in accordance to
4 rules adopted by the Department. At the request of the Illinois
5 Department of Corrections, records of the Illinois Department
6 of Employment Security shall be utilized as appropriate to
7 assist in the study. The study shall not disclose any data in a
8 manner that would allow the identification of any particular
9 individual or employing unit. The study shall be made available
10 to the General Assembly no later than September 1, 2006.
11 (Source: P.A. 93-210, eff. 7-18-03; 93-211, eff. 1-1-04;
12 93-1084, eff. 6-1-05; 94-556, eff. 9-11-05.)
 
13     (20 ILCS 2630/6 new)
14     Sec. 6. Expungement and sealing.
15     (a) General provisions.
16         (1) Definitions. In this Act, words and phrases have
17     the meanings set forth in this Section, except when a
18     particular context clearly requires a different meaning.
19             "Conviction" means a finding of guilt resulting in
20         the entry of a judgment of conviction. A sentence of
21         supervision successfully completed by the petitioner
22         is not a conviction. A sentence of qualified probation
23         successfully completed by the petitioner is not a
24         conviction. A sentence of supervision or a sentence of
25         qualified probation that is terminated

 

 

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1         unsatisfactorily is a conviction.
2             "Expunge" means to physically destroy the records
3         or return them to the petitioner and to obliterate the
4         petitioner's name from any official index or public
5         record, or both.
6             "Last sentence" means the sentence, including a
7         sentence of supervision or qualified probation, for a
8         municipal ordinance violation, misdemeanor (except
9         Class C misdemeanors as set forth in clause (a)(2)), or
10         felony that terminates last in time in any
11         jurisdiction, regardless of whether the petitioner has
12         included the municipal ordinance violation,
13         misdemeanor, or felony for which the sentence was
14         imposed in his or her petition or petitions. If
15         multiple sentences for municipal ordinance violations,
16         misdemeanors, or felonies terminate on the same day and
17         are last in time, they shall be collectively considered
18         the "last sentence" regardless of whether the
19         sentences were ordered to run concurrently.
20             "Petitioner" means an adult or a minor prosecuted
21         as an adult.
22             "Qualified probation" means a sentence of
23         probation under Section 10 of the Cannabis Control Act,
24         Section 410 of the Illinois Controlled Substances Act,
25         Section 70 of the Methamphetamine Control and
26         Community Protection Act, Section 12-4.3(b)(1) and (2)

 

 

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1         of the Criminal Code of 1961 (as those provisions
2         existed before their deletion by Public Act 89-313),
3         Section 10-102 of the Illinois Alcoholism and Other
4         Drug Dependency Act, Section 40-10 of the Alcoholism
5         and Other Drug Abuse and Dependency Act, or Section 10
6         of the Steroid Control Act. For the purpose of this
7         Act, "successful completion" of a sentence of
8         qualified probation under Section 10-102 of the
9         Illinois Alcoholism and Other Drug Dependency Act and
10         Section 40-10 of the Alcoholism and Other Drug Abuse
11         and Dependency Act means that the probation was
12         terminated satisfactorily and the judgment of
13         conviction was vacated.
14             "Records" means all documentation in the
15         possession or control of the Department, the court, or
16         any agency regarding any report or arrest. Such
17         documentation includes but shall not be limited to
18         incident reports, police reports, fingerprints,
19         booking photos, names, addresses, the records of the
20         circuit clerk and official indexes. Such documentation
21         does not include orders of protection.
22             "Seal" means to physically and electronically
23         maintain the records, unless the records would
24         otherwise be destroyed due to age, but to make the
25         records unavailable without a court order, subject to
26         the exceptions in Sections 12 and 13 of this Act. The

 

 

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1         petitioner's name shall also be obliterated from the
2         official index required to be kept by the circuit court
3         clerk under Section 16 of the Clerks of Courts Act, but
4         any index issued by the circuit court clerk before the
5         entry of the order to seal shall not be affected.
6             "Sexual offense committed against a minor"
7         includes but is not limited to the offenses of indecent
8         solicitation of a child or criminal sexual abuse when
9         the victim of such offense is under 18 years of age.
10             "Terminate" as it relates to a sentence includes
11         either satisfactory or unsatisfactory termination of
12         the sentence, unless otherwise specified in this
13         Section.
14         (2) Effect of traffic offenses. For purposes of this
15     Section, sentences of supervision or convictions for petty
16     offenses, business offenses, or Class C misdemeanors under
17     the Illinois Vehicle Code shall not affect a petitioner's
18     eligibility to expunge or seal municipal ordinance,
19     misdemeanor or felony records.
20         (3) Exclusions. Except as otherwise provided in clause
21     (b)(5) and subsection (e) of this Section, the court shall
22     not order the sealing or expungement of the arrest records
23     and records of the circuit court clerk of any person
24     granted supervision for or convicted of:
25             (i) any sexual offense committed against a minor;
26         or

 

 

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1             (ii) Section 11-501 of the Illinois Vehicle Code.
2     (b) Expungement.
3         (1) A petitioner may petition the circuit court to
4     expunge the records of his or her arrests when:
5             (A) he or she has never been convicted of any
6         municipal ordinance violation, misdemeanor or felony,
7         except as set forth in clause (a)(2); and
8             (B) each arrest sought to be expunged resulted in:
9                 (i) acquittal, dismissal, or the petitioner's
10             release without charging; or
11                 (ii) a sentence of supervision and such
12             supervision was successfully completed by the
13             petitioner; or
14                 (iii) a sentence of qualified probation and
15             such probation was successfully completed by the
16             petitioner.
17         (2) Time frame for filing a petition to expunge.
18             (A) When the arrest sought to be expunged resulted
19         in an acquittal, dismissal, or the petitioner's
20         release without charging, there is no waiting period to
21         petition for the expungement of such records.
22             (B) When the arrest sought to be expunged resulted
23         in a sentence of supervision, successfully completed
24         by the petitioner, the following time frames will
25         apply:
26                 (i) Those records that resulted in sentence of

 

 

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1             supervision under Section 3-707, 3-708, 3-710,
2             5-401.3, or 11-503 of the Illinois Vehicle Code or
3             a similar provision of a local ordinance, or under
4             Section 12-3.2,12-15 or 16A-3 of the Criminal Code
5             of 1961, shall not be eligible for expungement
6             until 5 years have passed following the
7             satisfactory termination of the supervision.
8                 (ii) Those records that resulted in a sentence
9             of supervision for any other offense shall not be
10             eligible for expungement until 2 years have passed
11             following the satisfactory termination of the
12             supervision.
13             (C) When the arrest sought to be expunged resulted
14         in a sentence of qualified probation, successfully
15         completed by the petitioner, such records shall not be
16         eligible for expungement until 5 years have passed
17         following the satisfactory termination of the
18         probation.
19         (3) Those records maintained by the Department for
20     persons arrested prior to their 17th birthday shall be
21     expunged as provided in Section 5-915 of the Juvenile Court
22     Act of 1987.
23         (4) Whenever a person has been convicted of a crime or
24     of the violation of a municipal ordinance, in the name of a
25     person whose identity he has stolen or otherwise come into
26     possession of, the aggrieved person from whom the identity

 

 

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1     was stolen or otherwise obtained without authorization,
2     upon learning of the person having been arrested using his
3     identity, may, upon verified petition to the chief judge of
4     the circuit wherein the arrest was made, have a court order
5     entered nunc pro tunc by the chief judge to correct the
6     arrest record, conviction record, if any, and all official
7     records of the arresting authority, the Department, other
8     criminal justice agencies, the prosecutor, and the trial
9     court concerning such arrest, if any, by removing his name
10     from all such records in connection with the arrest and
11     conviction, if any, and by inserting in the records the
12     name of the offender, if known or ascertainable, in lieu of
13     the aggrieved's name. The records of the clerk of the
14     circuit court clerk shall be sealed until further order of
15     the court upon good cause shown and the name of the
16     aggrieved person obliterated on the official index
17     required to be kept by the circuit court clerk under
18     Section 16 of the Clerks of Courts Act, but the order shall
19     not affect any index issued by the circuit court clerk
20     before the entry of the order. Nothing in this Section
21     shall limit the Department of State Police or other
22     criminal justice agencies or prosecutors from listing
23     under an offender's name the false names he or she has
24     used.
25         (5) Whenever a person has been convicted of criminal
26     sexual assault, aggravated criminal sexual assault,

 

 

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1     predatory criminal sexual assault of a child, criminal
2     sexual abuse, or aggravated criminal sexual abuse, the
3     victim of that offense may request that the State's
4     Attorney of the county in which the conviction occurred
5     file a verified petition with the presiding trial judge at
6     the petitioner's trial to have a court order entered to
7     seal the records of the clerk of the circuit court in
8     connection with the proceedings of the trial court
9     concerning that offense. However, the records of the
10     arresting authority and the Department of State Police
11     concerning the offense shall not be sealed. The court, upon
12     good cause shown, shall make the records of the clerk of
13     the circuit court in connection with the proceedings of the
14     trial court concerning the offense available for public
15     inspection.
16         (6) If a conviction has been set aside on direct review
17     or on collateral attack and the court determines by clear
18     and convincing evidence that the petitioner was factually
19     innocent of the charge, the court shall enter an
20     expungement order as provided in subsection (b) of Section
21     5-5-4 of the Unified Code of Corrections.
22         (7) Nothing herein shall prevent the Department of
23     State Police from maintaining all records of any person who
24     is admitted to probation upon terms and conditions and who
25     fulfills those terms and conditions pursuant to Section 10
26     of the Cannabis Control Act, Section 410 of the Illinois

 

 

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1     Controlled Substances Act, Section 70 of the
2     Methamphetamine Control and Community Protection Act,
3     Section 12-4.3 of the Criminal Code of 1961, Section 10-102
4     of the Illinois Alcoholism and Other Drug Dependency Act,
5     Section 40-10 of the Alcoholism and Other Drug Abuse and
6     Dependency Act, or Section 10 of the Steroid Control Act.
7     (c) Sealing.
8         (1) Applicability. Notwithstanding any other provision
9     of this Act to the contrary, and cumulative with any rights
10     to expungement of criminal records, this subsection
11     authorizes the sealing of criminal records of adults and of
12     minors prosecuted as adults.
13         (2) Eligible records. The following records may be
14     sealed:
15             (A) All arrests resulting in acquittal, dismissal,
16         the petitioner's release without charging, or
17         conviction when the conviction was reversed.
18             (B) Municipal ordinance violations, misdemeanors
19         or felonies resulting in sentences of supervision
20         successfully completed by the petitioner, with the
21         exception of the following:
22                 (i) Section 11-501 of the Illinois Vehicle
23             Code or a similar provision of a local ordinance;
24                 (ii) Article 11 of the Criminal Code of 1961 or
25             a similar provision of a local ordinance, except
26             Section 11-14 of the Criminal Code of 1961 or a

 

 

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1             similar provision of a local ordinance;
2                 (iii) Section 12-15, 12-30, or 26-5 of the
3             Criminal Code of 1961 or a similar provision of a
4             local ordinance;
5                 (iv) "Crimes of violence" as defined in
6             Section 2 of the Crime Victims Compensation Act or
7             a similar provision of a local ordinance;
8                 (v) Class A misdemeanors under the Humane Care
9             for Animals Act; or
10                 (vi) any offense or attempted offense that
11             would subject a person to registration under the
12             Sex Offender Registration Act.
13             (C) Municipal ordinance convictions, misdemeanor
14         convictions, and misdemeanors or felonies of any class
15         resulting in a sentence of qualified probation
16         successfully completed by the petitioner, with the
17         exception of the following:
18                 (i) Section 11-501 of the Illinois Vehicle
19             Code or a similar provision of a local ordinance;
20                 (ii) Article 11 of the Criminal Code of 1961 or
21             a similar provision of a local ordinance, except
22             Section 11-14 of the Criminal Code of 1961 or a
23             similar provision of a local ordinance;
24                 (iii) Section 12-15, 12-30, or 26-5 of the
25             Criminal Code of 1961 or a similar provision of a
26             local ordinance;

 

 

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1                 (iv) "Crimes of violence" as defined in
2             Section 2 of the Crime Victims Compensation Act;
3                 (v) Class A misdemeanors under the Humane Care
4             for Animals Act; or
5                 (vi) any offense or attempted offense that
6             would subject a person to registration under the
7             Sex Offender Registration Act.
8             (D) Class 4 felony convictions under Section 11-14
9         of the Criminal Code of 1961, Section 4 of the Cannabis
10         Control Act, Section 402 of the Illinois Controlled
11         Substances Act, Section 60 of the Methamphetamine
12         Control and Community Protection Act, the
13         Methamphetamine Precursor Control Act, and the Steroid
14         Control Act, regardless of the sentence imposed.
15         (3) When records are eligible to be sealed. Records
16     identified as eligible under clause (c)(2) may be sealed as
17     follows:
18             (A) Records identified as eligible under clause
19         (c)(2)(A) may be sealed at any time, regardless of
20         whether the petitioner has criminal records in any
21         jurisdiction that are eligible for sealing under this
22         subsection (c) but which have not been sealed, or
23         criminal records in any jurisdiction that are subject
24         to a waiting period as set forth in clauses (c)(3)(B)
25         and (c)(3)(C), or criminal records in any jurisdiction
26         that are ineligible for sealing.

 

 

09500HB1831ham001 - 26 - LRB095 09795 RLC 34295 a

1             (B) Records identified as eligible under clause
2         (c)(2)(B) may be sealed 3 years after the termination
3         of petitioner's last sentence, as defined in
4         subsection (a), regardless of whether the petitioner
5         has criminal records in any jurisdiction that are
6         eligible for sealing under this subsection (c) but
7         which have not been sealed, or criminal records in any
8         jurisdiction that are subject to the waiting period as
9         set forth in clause (c)(3)(C), or criminal records in
10         any jurisdiction that are ineligible for sealing.
11             (C) Records identified as eligible under clauses
12         (c)(2)(C) and (c)(2)(D) may be sealed 4 years after the
13         termination of the petitioner's last sentence, as
14         defined in subsection (a), regardless of whether the
15         petitioner has criminal records in any jurisdiction
16         that are eligible for sealing under this subsection (c)
17         but which have not been sealed, or criminal records in
18         any jurisdiction that are ineligible for sealing.
19         (4) Subsequent felony convictions. A person may not
20     have subsequent felony conviction records sealed as
21     provided in this subsection (c) if he or she is convicted
22     of any felony offense after the date of the sealing of
23     prior felony convictions as provided in this subsection
24     (c).
25         (5) Notice of eligibility for sealing. Upon entry of a
26     disposition for an eligible record under this subsection

 

 

09500HB1831ham001 - 27 - LRB095 09795 RLC 34295 a

1     (c), the petitioner shall be informed by the court of the
2     right to have the records sealed and the procedures for the
3     sealing of the records.
4     (d) Procedure. The following procedures apply to
5 expungement under subsection (b) and sealing under subsection
6 (c).
7         (1) Filing the petition. Upon becoming eligible to
8     petition for the expungement or sealing of records under
9     this Section, petitioner shall file a petition requesting
10     the expungement or sealing of records with the clerk of the
11     court where the charge or charges were brought. If charges
12     were brought in multiple jurisdictions, a petition must be
13     filed in each such jurisdiction. The petitioner shall pay
14     the applicable fee, if not waived.
15         (2) Contents of petition. The petition shall be
16     verified and shall contain the petitioner's name, date of
17     birth, current address and, for each arrest sought to be
18     sealed or expunged, the case number, the date of arrest,
19     the identity of the arresting authority, and such other
20     information as the court may require. During the pendency
21     of the proceeding, the petitioner shall promptly notify the
22     clerk of the court of any change of his or her address.
23         (3) Drug test. A person filing a petition to have his
24     or her records sealed for Class 4 felony violations of
25     Section 10 of the Cannabis Control Act, the Section 402 of
26     the Illinois Controlled Substances Act, Section 60 of the

 

 

09500HB1831ham001 - 28 - LRB095 09795 RLC 34295 a

1     Methamphetamine Control and Community Protection Act, the
2     Methamphetamine Precursor Control Act, or the Steroid
3     Control Act must attach to the petition proof that the
4     petitioner has passed a test taken within the previous 30
5     days before the filing of the petition showing the absence
6     within his or her body of all illegal substances as defined
7     by the Illinois Controlled Substances Act and the Cannabis
8     Control Act.
9         (4) Service of petition. The clerk of the court shall
10     promptly serve a copy of the petition on the State's
11     Attorney or prosecutor charged with the duty of prosecuting
12     the offense, the Department of State Police, the arresting
13     agency and the chief legal officer of the unit of local
14     government effecting the arrest.
15         (5) Objections.
16             (A) Any party entitled to notice of the petition
17         may file an objection to the petition. All objections
18         shall be in writing and shall state with specificity
19         the basis of the objection.
20             (B) The party objecting shall serve a copy of the
21         objection on the petitioner, or when the petitioner is
22         represented, the petitioner's attorney, and all
23         parties entitled to notice of the petition by first
24         class mail or hand delivery within 4 days of filing the
25         objection.
26             (C) Objections to petitions to expunge must be

 

 

09500HB1831ham001 - 29 - LRB095 09795 RLC 34295 a

1         filed within 30 days of the date of service of the
2         petition. Objections to petitions to seal must be filed
3         within 90 days of the date of service of the petition.
4         Any objection not filed within the time allowed shall
5         be waived.
6         (6) Entry of order.
7             (A) The Chief Judge of the circuit wherein the
8         charge was brought, any judge of that circuit
9         designated by the Chief Judge, or in counties of less
10         than 3,000,000 inhabitants, the presiding trial judge
11         at the petitioner's trial, if any, shall rule on the
12         petition or petitions to expunge or seal as set forth
13         in this clause (d)(6).
14             (B) Unless the State's Attorney or prosecutor, the
15         Department of State Police, the arresting agency, or
16         the chief legal officer files an objection to the
17         petition to expunge within 30 days from the date of
18         service of the petition, the court shall enter an order
19         granting or denying the petition.
20             (C) Unless the State's Attorney or prosecutor, the
21         Department of State Police, the arresting agency, or
22         the chief legal officer objects to a petition to seal
23         within 90 days from the date of service of the
24         petition, the court shall enter an order sealing the
25         petitioner's records.
26         (7) Hearings. If an objection is filed, the court shall

 

 

09500HB1831ham001 - 30 - LRB095 09795 RLC 34295 a

1     set a date for a hearing and notify the petitioner and all
2     parties entitled to notice of the petition, and shall hear
3     evidence on whether the petition or petitions should or
4     should not be granted, and shall make a determination on
5     whether to expunge or seal the records based on the
6     evidence presented at the hearing.
7         (8) Service of order. After entering an order to
8     expunge or seal records, the court must provide copies of
9     the order to the Department, in a form and manner
10     prescribed by the Department, to the petitioner, to the
11     State's Attorney or prosecutor charged with the duty of
12     prosecuting the offense, to the arresting agency, to the
13     chief legal officer of the unit of local government
14     effecting the arrest, and to such other criminal justice
15     agencies as may be ordered by the court.
16         (9) Effect of order.
17             (A) Upon entry of an order to expunge records
18         pursuant to clause (b)(2)(A) or (b)(2)(B)(ii), or
19         both:
20                 (i) the records shall be expunged by the
21             arresting agency, the Department, and any other
22             agency as ordered by the court; and
23                 (ii) the records of the clerk of the circuit
24             court shall be impounded until further order of the
25             court upon good cause shown and the name of the
26             petitioner obliterated on the official index

 

 

09500HB1831ham001 - 31 - LRB095 09795 RLC 34295 a

1             required to be kept by the circuit court clerk
2             under Section 16 of the Clerks of Courts Act, but
3             the order shall not affect any index issued by the
4             circuit court clerk before the entry of the order.
5             In response to an inquiry for expunged records, the
6         court, the Department, or the agency receiving such
7         inquiry shall reply "No records found".
8             (B) Upon entry of an order to expunge records
9         pursuant to clause (b)(2)(B)(i) or (b)(2)(C), or both:
10                 (i) the records shall be expunged by the
11             arresting agency and any other agency as ordered by
12             the court; and
13                 (ii) the records of the clerk of the circuit
14             court shall be impounded until further order of the
15             court upon good cause shown and the name of the
16             petitioner obliterated on the official index
17             required to be kept by the circuit court clerk
18             under Section 16 of the Clerks of Courts Act, but
19             the order shall not affect any index issued by the
20             circuit court clerk before the entry of the order;
21             and
22                 (iii) the records shall be impounded by the
23             Department.
24             Records impounded by the Department may be
25         disseminated by the Department only to the arresting
26         authority, the State's Attorney, and the court upon a

 

 

09500HB1831ham001 - 32 - LRB095 09795 RLC 34295 a

1         later arrest for the same or a similar offense or for
2         the purpose of sentencing for any subsequent felony,
3         and to the Department of Corrections upon conviction
4         for any offense.
5             In response to an inquiry for such records from
6         anyone not authorized by law to access such records the
7         court, the Department, or the agency receiving such
8         inquiry shall reply "No records found".
9             (C) Upon entry of an order to seal records under
10         subsection (c), the arresting agency, any other agency
11         as ordered by the court, the Department, and the court
12         shall seal the records, as defined in subsection (a).
13         In response to an inquiry for such records from anyone
14         not authorized by law to access such records the court,
15         the Department, or the agency receiving such inquiry
16         shall reply "No records found".
17         (10) Fees. Notwithstanding any provision of the Clerks
18     of Courts Act to the contrary, and subject to the approval
19     of the county board, the clerk may charge a fee equivalent
20     to the cost associated with the sealing of records by the
21     clerk and the Department of State Police. The clerk shall
22     forward the Department of State Police portion of the fee
23     to the Department and it shall be deposited into the State
24     Police Services Fund.
25         (11) Appeal. No court order issued under the
26     expungement or sealing provisions of this Section shall

 

 

09500HB1831ham001 - 33 - LRB095 09795 RLC 34295 a

1     become final for purposes of appeal until 30 days after
2     service of the order on the petitioner and all parties
3     entitled to notice of the petition.
4         (12) Motion to Vacate, Modify, or Reconsider. The
5     petitioner or any party entitled to notice may file a
6     motion to vacate, modify, or reconsider the order granting
7     or denying the petition or petitions to expunge or seal
8     within 30 days of service of the order.
9     (e) Expungement after pardon. Whenever a person who has
10 been convicted of an offense is granted a pardon by the
11 Governor which specifically authorizes expungement, he or she
12 may, upon verified petition to the chief judge of the circuit
13 where the he or she had been convicted, any judge of the
14 circuit designated by the Chief Judge, or in counties of less
15 than 3,000,000 inhabitants, the presiding trial judge at his or
16 her trial, have an order entered expunging the record of the
17 arrest or arrests from the official records of the arresting
18 authority and ordering that the records of the clerk of the
19 circuit court and the Department be impounded until further
20 order of the court upon good cause shown or as otherwise
21 provided in this subsection (e), and the name of the petitioner
22 obliterated from the official index requested to be kept by the
23 circuit court clerk under Section 16 of the Clerks of Courts
24 Act in connection with the arrest and sentence for the offense
25 or offenses for which he or she had been pardoned but the order
26 shall not affect any index issued by the circuit court clerk

 

 

09500HB1831ham001 - 34 - LRB095 09795 RLC 34295 a

1 before the entry of the order. All records impounded by the
2 Department pursuant to this subsection (e) may be disseminated
3 by the Department only to the arresting authority, the State's
4 Attorney, and the court upon a later arrest for the same or
5 similar offense or for the purpose of sentencing for any
6 subsequent felony. Upon conviction for any subsequent offense,
7 the Department of Corrections shall have access to all
8 impounded records of the Department pertaining to that
9 individual. Upon entry of the order of expungement, the clerk
10 of the circuit court shall promptly mail a copy of the order to
11 the person who was pardoned.
12     (f) Subject to available funding, the Illinois Department
13 of Corrections shall conduct a study of the impact of sealing,
14 especially on employment and recidivism rates, utilizing a
15 random sample of those who apply for the sealing of their
16 criminal records under Public Act 93-211, in accordance to
17 rules adopted by the Department. At the request of the Illinois
18 Department of Corrections, records of the Illinois Department
19 of Employment Security shall be utilized as appropriate to
20 assist in the study. The study shall not disclose any data in a
21 manner that would allow the identification of any particular
22 individual or employing unit. The study shall be made available
23 to the General Assembly no later than September 1, 2008.".