96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB2607

 

Introduced 1/21/2010, by Sen. Kwame Raoul

 

SYNOPSIS AS INTRODUCED:
 
20 ILCS 2630/5.2
730 ILCS 5/5-6-3.3 new

    Amends the Criminal Identification Act. Includes in the definition of "qualified probation" Offender Initiative Probation. Amends the Unified Code of Corrections. Provides that whenever any person who has not previously been convicted of a felony offense under the laws of the State, the laws of any other State, or the laws of the United States, pleads guilty to, or is found guilty of, a probationable felony offense of theft, retail theft, forgery, prostitution, possession of a stolen motor vehicle, burglary, possession of burglary tools, possession of cannabis, possession of cannabis with intent to deliver, delivery of cannabis, possession of a controlled substance, possession of a controlled substance with intent to deliver, delivery of a controlled substance, possession of methamphetamine, possession of methamphetamine with intent to deliver, or delivery of methamphetamine, the court, with the consent of both the defendant and the State's Attorney, may, without entering a judgment, sentence the defendant to probation. Specifies the conditions of that probation. Excludes violent offenses. Effective immediately.


LRB096 17174 RLC 32506 b

 

 

A BILL FOR

 

SB2607 LRB096 17174 RLC 32506 b

1     AN ACT concerning criminal law.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Criminal Identification Act is amended by
5 changing Section 5.2 as follows:
 
6     (20 ILCS 2630/5.2)
7     Sec. 5.2. Expungement and sealing.
8     (a) General Provisions.
9         (1) Definitions. In this Act, words and phrases have
10     the meanings set forth in this subsection, except when a
11     particular context clearly requires a different meaning.
12             (A) The following terms shall have the meanings
13         ascribed to them in the Unified Code of Corrections,
14         730 ILCS 5/5-1-2 through 5/5-1-22:
15                 (i) Business Offense (730 ILCS 5/5-1-2),
16                 (ii) Charge (730 ILCS 5/5-1-3),
17                 (iii) Court (730 ILCS 5/5-1-6),
18                 (iv) Defendant (730 ILCS 5/5-1-7),
19                 (v) Felony (730 ILCS 5/5-1-9),
20                 (vi) Imprisonment (730 ILCS 5/5-1-10),
21                 (vii) Judgment (730 ILCS 5/5-1-12),
22                 (viii) Misdemeanor (730 ILCS 5/5-1-14),
23                 (ix) Offense (730 ILCS 5/5-1-15),

 

 

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1                 (x) Parole (730 ILCS 5/5-1-16),
2                 (xi) Petty Offense (730 ILCS 5/5-1-17),
3                 (xii) Probation (730 ILCS 5/5-1-18),
4                 (xiii) Sentence (730 ILCS 5/5-1-19),
5                 (xiv) Supervision (730 ILCS 5/5-1-21), and
6                 (xv) Victim (730 ILCS 5/5-1-22).
7             (B) As used in this Section, "charge not initiated
8         by arrest" means a charge (as defined by 730 ILCS
9         5/5-1-3) brought against a defendant where the
10         defendant is not arrested prior to or as a direct
11         result of the charge.
12             (C) "Conviction" means a judgment of conviction or
13         sentence entered upon a plea of guilty or upon a
14         verdict or finding of guilty of an offense, rendered by
15         a legally constituted jury or by a court of competent
16         jurisdiction authorized to try the case without a jury.
17         An order of supervision successfully completed by the
18         petitioner is not a conviction. An order of qualified
19         probation (as defined in subsection (a)(1)(J))
20         successfully completed by the petitioner is not a
21         conviction. An order of supervision or an order of
22         qualified probation that is terminated
23         unsatisfactorily is a conviction, unless the
24         unsatisfactory termination is reversed, vacated, or
25         modified and the judgment of conviction, if any, is
26         reversed or vacated.

 

 

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1             (D) "Criminal offense" means a petty offense,
2         business offense, misdemeanor, felony, or municipal
3         ordinance violation (as defined in subsection
4         (a)(1)(H)). As used in this Section, a minor traffic
5         offense (as defined in subsection (a)(1)(G)) shall not
6         be considered a criminal offense.
7             (E) "Expunge" means to physically destroy the
8         records or return them to the petitioner and to
9         obliterate the petitioner's name from any official
10         index or public record, or both. Nothing in this Act
11         shall require the physical destruction of the circuit
12         court file, but such records relating to arrests or
13         charges, or both, ordered expunged shall be impounded
14         as required by subsections (d)(9)(A)(ii) and
15         (d)(9)(B)(ii).
16             (F) As used in this Section, "last sentence" means
17         the sentence, order of supervision, or order of
18         qualified probation (as defined by subsection
19         (a)(1)(J)), for a criminal offense (as defined by
20         subsection (a)(1)(D)) that terminates last in time in
21         any jurisdiction, regardless of whether the petitioner
22         has included the criminal offense for which the
23         sentence or order of supervision or qualified
24         probation was imposed in his or her petition. If
25         multiple sentences, orders of supervision, or orders
26         of qualified probation terminate on the same day and

 

 

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1         are last in time, they shall be collectively considered
2         the "last sentence" regardless of whether they were
3         ordered to run concurrently.
4             (G) "Minor traffic offense" means a petty offense,
5         business offense, or Class C misdemeanor under the
6         Illinois Vehicle Code or a similar provision of a
7         municipal or local ordinance.
8             (H) "Municipal ordinance violation" means an
9         offense defined by a municipal or local ordinance that
10         is criminal in nature and with which the petitioner was
11         charged or for which the petitioner was arrested and
12         released without charging.
13             (I) "Petitioner" means an adult or a minor
14         prosecuted as an adult who has applied for relief under
15         this Section.
16             (J) "Qualified probation" means an order of
17         probation under Section 10 of the Cannabis Control Act,
18         Section 410 of the Illinois Controlled Substances Act,
19         Section 70 of the Methamphetamine Control and
20         Community Protection Act, Section 5-6-3.3 of the
21         Unified Code of Corrections, Section 12-4.3(b)(1) and
22         (2) of the Criminal Code of 1961 (as those provisions
23         existed before their deletion by Public Act 89-313),
24         Section 10-102 of the Illinois Alcoholism and Other
25         Drug Dependency Act, Section 40-10 of the Alcoholism
26         and Other Drug Abuse and Dependency Act, or Section 10

 

 

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1         of the Steroid Control Act. For the purpose of this
2         Section, "successful completion" of an order of
3         qualified probation under Section 10-102 of the
4         Illinois Alcoholism and Other Drug Dependency Act and
5         Section 40-10 of the Alcoholism and Other Drug Abuse
6         and Dependency Act means that the probation was
7         terminated satisfactorily and the judgment of
8         conviction was vacated.
9             (K) "Seal" means to physically and electronically
10         maintain the records, unless the records would
11         otherwise be destroyed due to age, but to make the
12         records unavailable without a court order, subject to
13         the exceptions in Sections 12 and 13 of this Act. The
14         petitioner's name shall also be obliterated from the
15         official index required to be kept by the circuit court
16         clerk under Section 16 of the Clerks of Courts Act, but
17         any index issued by the circuit court clerk before the
18         entry of the order to seal shall not be affected.
19             (L) "Sexual offense committed against a minor"
20         includes but is not limited to the offenses of indecent
21         solicitation of a child or criminal sexual abuse when
22         the victim of such offense is under 18 years of age.
23             (M) "Terminate" as it relates to a sentence or
24         order of supervision or qualified probation includes
25         either satisfactory or unsatisfactory termination of
26         the sentence, unless otherwise specified in this

 

 

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1         Section.
2         (2) Minor Traffic Offenses. Orders of supervision or
3     convictions for minor traffic offenses shall not affect a
4     petitioner's eligibility to expunge or seal records
5     pursuant to this Section.
6         (3) Exclusions. Except as otherwise provided in
7     subsections (b)(5), (b)(6), and (e) of this Section, the
8     court shall not order:
9             (A) the sealing or expungement of the records of
10         arrests or charges not initiated by arrest that result
11         in an order of supervision for or conviction of: (i)
12         any sexual offense committed against a minor; (ii)
13         Section 11-501 of the Illinois Vehicle Code or a
14         similar provision of a local ordinance; or (iii)
15         Section 11-503 of the Illinois Vehicle Code or a
16         similar provision of a local ordinance.
17             (B) the sealing or expungement of records of minor
18         traffic offenses (as defined in subsection (a)(1)(G)),
19         unless the petitioner was arrested and released
20         without charging.
21             (C) the sealing of the records of arrests or
22         charges not initiated by arrest which result in an
23         order of supervision, an order of qualified probation
24         (as defined in subsection (a)(1)(J)), or a conviction
25         for the following offenses:
26                 (i) offenses included in Article 11 of the

 

 

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1             Criminal Code of 1961 or a similar provision of a
2             local ordinance, except Section 11-14 of the
3             Criminal Code of 1961 or a similar provision of a
4             local ordinance;
5                 (ii) Section 12-15, 12-30, or 26-5 of the
6             Criminal Code of 1961 or a similar provision of a
7             local ordinance;
8                 (iii) offenses defined as "crimes of violence"
9             in Section 2 of the Crime Victims Compensation Act
10             or a similar provision of a local ordinance;
11                 (iv) offenses which are Class A misdemeanors
12             under the Humane Care for Animals Act; or
13                 (v) any offense or attempted offense that
14             would subject a person to registration under the
15             Sex Offender Registration Act.
16             (D) the sealing of the records of an arrest which
17         results in the petitioner being charged with a felony
18         offense or records of a charge not initiated by arrest
19         for a felony offense, regardless of the disposition,
20         unless:
21                 (i) the charge is amended to a misdemeanor and
22             is otherwise eligible to be sealed pursuant to
23             subsection (c);
24                 (ii) the charge results in first offender
25             probation as set forth in subsection (c)(2)(E); or
26                 (iii) the charge is for a Class 4 felony

 

 

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1             offense listed in subsection (c)(2)(F) or the
2             charge is amended to a Class 4 felony offense
3             listed in subsection (c)(2)(F). Records of arrests
4             which result in the petitioner being charged with a
5             Class 4 felony offense listed in subsection
6             (c)(2)(F), records of charges not initiated by
7             arrest for Class 4 felony offenses listed in
8             subsection (c)(2)(F), and records of charges
9             amended to a Class 4 felony offense listed in
10             (c)(2)(F) may be sealed, regardless of the
11             disposition, subject to any waiting periods set
12             forth in subsection (c)(3).
13     (b) Expungement.
14         (1) A petitioner may petition the circuit court to
15     expunge the records of his or her arrests and charges not
16     initiated by arrest when:
17             (A) He or she has never been convicted of a
18         criminal offense; and
19             (B) Each arrest or charge not initiated by arrest
20         sought to be expunged resulted in: (i) acquittal,
21         dismissal, or the petitioner's release without
22         charging, unless excluded by subsection (a)(3)(B);
23         (ii) a conviction which was vacated or reversed, unless
24         excluded by subsection (a)(3)(B); (iii) an order of
25         supervision and such supervision was successfully
26         completed by the petitioner, unless excluded by

 

 

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1         subsection (a)(3)(A) or (a)(3)(B); or (iv) an order of
2         qualified probation (as defined in subsection
3         (a)(1)(J)) and such probation was successfully
4         completed by the petitioner.
5         (2) Time frame for filing a petition to expunge.
6             (A) When the arrest or charge not initiated by
7         arrest sought to be expunged resulted in an acquittal,
8         dismissal, the petitioner's release without charging,
9         or the reversal or vacation of a conviction, there is
10         no waiting period to petition for the expungement of
11         such records.
12             (B) When the arrest or charge not initiated by
13         arrest sought to be expunged resulted in an order of
14         supervision, successfully completed by the petitioner,
15         the following time frames will apply:
16                 (i) Those arrests or charges that resulted in
17             orders of supervision under Section 3-707, 3-708,
18             3-710, or 5-401.3 of the Illinois Vehicle Code or a
19             similar provision of a local ordinance, or under
20             Section 12-3.2, 12-15 or 16A-3 of the Criminal Code
21             of 1961, shall not be eligible for expungement
22             until 5 years have passed following the
23             satisfactory termination of the supervision.
24                 (ii) Those arrests or charges that resulted in
25             orders of supervision for any other offenses shall
26             not be eligible for expungement until 2 years have

 

 

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1             passed following the satisfactory termination of
2             the supervision.
3             (C) When the arrest or charge not initiated by
4         arrest sought to be expunged resulted in an order of
5         qualified probation, successfully completed by the
6         petitioner, such records shall not be eligible for
7         expungement until 5 years have passed following the
8         satisfactory termination of the probation.
9         (3) Those records maintained by the Department for
10     persons arrested prior to their 17th birthday shall be
11     expunged as provided in Section 5-915 of the Juvenile Court
12     Act of 1987.
13         (4) Whenever a person has been arrested for or
14     convicted of any offense, in the name of a person whose
15     identity he or she has stolen or otherwise come into
16     possession of, the aggrieved person from whom the identity
17     was stolen or otherwise obtained without authorization,
18     upon learning of the person having been arrested using his
19     or her identity, may, upon verified petition to the chief
20     judge of the circuit wherein the arrest was made, have a
21     court order entered nunc pro tunc by the Chief Judge to
22     correct the arrest record, conviction record, if any, and
23     all official records of the arresting authority, the
24     Department, other criminal justice agencies, the
25     prosecutor, and the trial court concerning such arrest, if
26     any, by removing his or her name from all such records in

 

 

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1     connection with the arrest and conviction, if any, and by
2     inserting in the records the name of the offender, if known
3     or ascertainable, in lieu of the aggrieved's name. The
4     records of the circuit court clerk shall be sealed until
5     further order of the court upon good cause shown and the
6     name of the aggrieved person obliterated on the official
7     index required to be kept by the circuit court clerk under
8     Section 16 of the Clerks of Courts Act, but the order shall
9     not affect any index issued by the circuit court clerk
10     before the entry of the order. Nothing in this Section
11     shall limit the Department of State Police or other
12     criminal justice agencies or prosecutors from listing
13     under an offender's name the false names he or she has
14     used.
15         (5) Whenever a person has been convicted of criminal
16     sexual assault, aggravated criminal sexual assault,
17     predatory criminal sexual assault of a child, criminal
18     sexual abuse, or aggravated criminal sexual abuse, the
19     victim of that offense may request that the State's
20     Attorney of the county in which the conviction occurred
21     file a verified petition with the presiding trial judge at
22     the petitioner's trial to have a court order entered to
23     seal the records of the circuit court clerk in connection
24     with the proceedings of the trial court concerning that
25     offense. However, the records of the arresting authority
26     and the Department of State Police concerning the offense

 

 

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1     shall not be sealed. The court, upon good cause shown,
2     shall make the records of the circuit court clerk in
3     connection with the proceedings of the trial court
4     concerning the offense available for public inspection.
5         (6) If a conviction has been set aside on direct review
6     or on collateral attack and the court determines by clear
7     and convincing evidence that the petitioner was factually
8     innocent of the charge, the court shall enter an
9     expungement order as provided in subsection (b) of Section
10     5-5-4 of the Unified Code of Corrections.
11         (7) Nothing in this Section shall prevent the
12     Department of State Police from maintaining all records of
13     any person who is admitted to probation upon terms and
14     conditions and who fulfills those terms and conditions
15     pursuant to Section 10 of the Cannabis Control Act, Section
16     410 of the Illinois Controlled Substances Act, Section 70
17     of the Methamphetamine Control and Community Protection
18     Act, Section 5-6-3.3 of the Unified Code of Corrections,
19     Section 12-4.3 of the Criminal Code of 1961, Section 10-102
20     of the Illinois Alcoholism and Other Drug Dependency Act,
21     Section 40-10 of the Alcoholism and Other Drug Abuse and
22     Dependency Act, or Section 10 of the Steroid Control Act.
23     (c) Sealing.
24         (1) Applicability. Notwithstanding any other provision
25     of this Act to the contrary, and cumulative with any rights
26     to expungement of criminal records, this subsection

 

 

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1     authorizes the sealing of criminal records of adults and of
2     minors prosecuted as adults.
3         (2) Eligible Records. The following records may be
4     sealed:
5             (A) All arrests resulting in release without
6         charging;
7             (B) Arrests or charges not initiated by arrest
8         resulting in acquittal, dismissal, or conviction when
9         the conviction was reversed or vacated, except as
10         excluded by subsection (a)(3)(B) or (a)(3)(D);
11             (C) Arrests or charges not initiated by arrest
12         resulting in orders of supervision successfully
13         completed by the petitioner, unless excluded by
14         subsection (a)(3);
15             (D) Arrests or charges not initiated by arrest
16         resulting in convictions unless excluded by subsection
17         (a)(3);
18             (E) Arrests or charges not initiated by arrest
19         resulting in orders of first offender probation under
20         Section 10 of the Cannabis Control Act, Section 410 of
21         the Illinois Controlled Substances Act, or Section 70
22         of the Methamphetamine Control and Community
23         Protection Act; and
24             (F) Arrests or charges not initiated by arrest
25         resulting in Class 4 felony convictions for the
26         following offenses:

 

 

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1                 (i) Section 11-14 of the Criminal Code of 1961;
2                 (ii) Section 4 of the Cannabis Control Act;
3                 (iii) Section 402 of the Illinois Controlled
4             Substances Act;
5                 (iv) the Methamphetamine Precursor Control
6             Act; and
7                 (v) the Steroid Control Act.
8         (3) When Records Are Eligible to Be Sealed. Records
9     identified as eligible under subsection (c)(2) may be
10     sealed as follows:
11             (A) Records identified as eligible under
12         subsection (c)(2)(A) and (c)(2)(B) may be sealed at any
13         time.
14             (B) Records identified as eligible under
15         subsection (c)(2)(C) may be sealed (i) 3 years after
16         the termination of petitioner's last sentence (as
17         defined in subsection (a)(1)(F)) if the petitioner has
18         never been convicted of a criminal offense (as defined
19         in subsection (a)(1)(D)); or (ii) 4 years after the
20         termination of the petitioner's last sentence (as
21         defined in subsection (a)(1)(F)) if the petitioner has
22         ever been convicted of a criminal offense (as defined
23         in subsection (a)(1)(D)).
24             (C) Records identified as eligible under
25         subsections (c)(2)(D), (c)(2)(E), and (c)(2)(F) may be
26         sealed 4 years after the termination of the

 

 

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1         petitioner's last sentence (as defined in subsection
2         (a)(1)(F)).
3         (4) Subsequent felony convictions. A person may not
4     have subsequent felony conviction records sealed as
5     provided in this subsection (c) if he or she is convicted
6     of any felony offense after the date of the sealing of
7     prior felony convictions as provided in this subsection
8     (c). The court may, upon conviction for a subsequent felony
9     offense, order the unsealing of prior felony conviction
10     records previously ordered sealed by the court.
11         (5) Notice of eligibility for sealing. Upon entry of a
12     disposition for an eligible record under this subsection
13     (c), the petitioner shall be informed by the court of the
14     right to have the records sealed and the procedures for the
15     sealing of the records.
16     (d) Procedure. The following procedures apply to
17 expungement under subsections (b) and (e), and sealing under
18 subsection (c):
19         (1) Filing the petition. Upon becoming eligible to
20     petition for the expungement or sealing of records under
21     this Section, the petitioner shall file a petition
22     requesting the expungement or sealing of records with the
23     clerk of the court where the arrests occurred or the
24     charges were brought, or both. If arrests occurred or
25     charges were brought in multiple jurisdictions, a petition
26     must be filed in each such jurisdiction. The petitioner

 

 

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1     shall pay the applicable fee, if not waived.
2         (2) Contents of petition. The petition shall be
3     verified and shall contain the petitioner's name, date of
4     birth, current address and, for each arrest or charge not
5     initiated by arrest sought to be sealed or expunged, the
6     case number, the date of arrest (if any), the identity of
7     the arresting authority, and such other information as the
8     court may require. During the pendency of the proceeding,
9     the petitioner shall promptly notify the circuit court
10     clerk of any change of his or her address.
11         (3) Drug test. The petitioner must attach to the
12     petition proof that the petitioner has passed a test taken
13     within 30 days before the filing of the petition showing
14     the absence within his or her body of all illegal
15     substances as defined by the Illinois Controlled
16     Substances Act, the Methamphetamine Control and Community
17     Protection Act, and the Cannabis Control Act if he or she
18     is petitioning to seal felony records pursuant to clause
19     (c)(2)(E) or (c)(2)(F)(ii)-(v) or if he or she is
20     petitioning to expunge felony records of a qualified
21     probation pursuant to clause (b)(1)(B)(iv).
22         (4) Service of petition. The circuit court clerk shall
23     promptly serve a copy of the petition on the State's
24     Attorney or prosecutor charged with the duty of prosecuting
25     the offense, the Department of State Police, the arresting
26     agency and the chief legal officer of the unit of local

 

 

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1     government effecting the arrest.
2         (5) Objections.
3             (A) Any party entitled to notice of the petition
4         may file an objection to the petition. All objections
5         shall be in writing, shall be filed with the circuit
6         court clerk, and shall state with specificity the basis
7         of the objection.
8             (B) Objections to a petition to expunge or seal
9         must be filed within 60 days of the date of service of
10         the petition.
11         (6) Entry of order.
12             (A) The Chief Judge of the circuit wherein the
13         charge was brought, any judge of that circuit
14         designated by the Chief Judge, or in counties of less
15         than 3,000,000 inhabitants, the presiding trial judge
16         at the petitioner's trial, if any, shall rule on the
17         petition to expunge or seal as set forth in this
18         subsection (d)(6).
19             (B) Unless the State's Attorney or prosecutor, the
20         Department of State Police, the arresting agency, or
21         the chief legal officer files an objection to the
22         petition to expunge or seal within 60 days from the
23         date of service of the petition, the court shall enter
24         an order granting or denying the petition.
25         (7) Hearings. If an objection is filed, the court shall
26     set a date for a hearing and notify the petitioner and all

 

 

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1     parties entitled to notice of the petition of the hearing
2     date at least 30 days prior to the hearing, and shall hear
3     evidence on whether the petition should or should not be
4     granted, and shall grant or deny the petition to expunge or
5     seal the records based on the evidence presented at the
6     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 (b)(2)(A) or (b)(2)(B)(ii), or both:
19                 (i) the records shall be expunged (as defined
20             in subsection (a)(1)(E)) by the arresting agency,
21             the Department, and any other agency as ordered by
22             the court, within 60 days of the date of service of
23             the order, unless a motion to vacate, modify, or
24             reconsider the order is filed pursuant to
25             paragraph (12) of subsection (d) of this Section;
26                 (ii) the records of the circuit court clerk

 

 

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1             shall be impounded until further order of the court
2             upon good cause shown and the name of the
3             petitioner obliterated on the official index
4             required to be kept by the circuit court clerk
5             under Section 16 of the Clerks of Courts Act, but
6             the order shall not affect any index issued by the
7             circuit court clerk before the entry of the order;
8             and
9                 (iii) in response to an inquiry for expunged
10             records, the court, the Department, or the agency
11             receiving such inquiry, shall reply as it does in
12             response to inquiries when no records ever
13             existed.
14             (B) Upon entry of an order to expunge records
15         pursuant to (b)(2)(B)(i) or (b)(2)(C), or both:
16                 (i) the records shall be expunged (as defined
17             in subsection (a)(1)(E)) by the arresting agency
18             and any other agency as ordered by the court,
19             within 60 days of the date of service of the order,
20             unless a motion to vacate, modify, or reconsider
21             the order is filed pursuant to paragraph (12) of
22             subsection (d) of this Section;
23                 (ii) the records of the circuit court clerk
24             shall be impounded until further order of the court
25             upon good cause shown and the name of the
26             petitioner obliterated on the official index

 

 

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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                 (iii) the records shall be impounded by the
6             Department within 60 days of the date of service of
7             the order as ordered by the court, unless a motion
8             to vacate, modify, or reconsider the order is filed
9             pursuant to paragraph (12) of subsection (d) of
10             this Section;
11                 (iv) records impounded by the Department may
12             be disseminated by the Department only to the
13             arresting authority, the State's Attorney, and the
14             court upon a later arrest for the same or a similar
15             offense or for the purpose of sentencing for any
16             subsequent felony, and to the Department of
17             Corrections upon conviction for any offense; and
18                 (v) in response to an inquiry for such records
19             from anyone not authorized by law to access such
20             records the court, the Department, or the agency
21             receiving such inquiry shall reply as it does in
22             response to inquiries when no records ever
23             existed.
24             (C) Upon entry of an order to seal records under
25         subsection (c), the arresting agency, any other agency
26         as ordered by the court, the Department, and the court

 

 

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1         shall seal the records (as defined in subsection
2         (a)(1)(K)). In response to an inquiry for such records
3         from anyone not authorized by law to access such
4         records the court, the Department, or the agency
5         receiving such inquiry shall reply as it does in
6         response to inquiries when no records ever existed.
7         (10) Fees. The Department may charge the petitioner a
8     fee equivalent to the cost of processing any order to
9     expunge or seal records. Notwithstanding any provision of
10     the Clerks of Courts Act to the contrary, the circuit court
11     clerk may charge a fee equivalent to the cost associated
12     with the sealing or expungement of records by the circuit
13     court clerk. From the total filing fee collected for the
14     petition to seal or expunge, the circuit court clerk shall
15     deposit $10 into the Circuit Court Clerk Operation and
16     Administrative Fund, to be used to offset the costs
17     incurred by the circuit court clerk in performing the
18     additional duties required to serve the petition to seal or
19     expunge on all parties. The circuit court clerk shall
20     collect and forward the Department of State Police portion
21     of the fee to the Department and it shall be deposited in
22     the State Police Services Fund.
23         (11) Final Order. No court order issued under the
24     expungement or sealing provisions of this Section shall
25     become final for purposes of appeal until 30 days after
26     service of the order on the petitioner and all parties

 

 

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1     entitled to notice of the petition.
2         (12) Motion to Vacate, Modify, or Reconsider. The
3     petitioner or any party entitled to notice may file a
4     motion to vacate, modify, or reconsider the order granting
5     or denying the petition to expunge or seal within 60 days
6     of service of the order.
7     (e) Whenever a person who has been convicted of an offense
8 is granted a pardon by the Governor which specifically
9 authorizes expungement, he or she may, upon verified petition
10 to the Chief Judge of the circuit where the person had been
11 convicted, any judge of the circuit designated by the Chief
12 Judge, or in counties of less than 3,000,000 inhabitants, the
13 presiding trial judge at the defendant's trial, have a court
14 order entered expunging the record of arrest from the official
15 records of the arresting authority and order that the records
16 of the circuit court clerk and the Department be sealed until
17 further order of the court upon good cause shown or as
18 otherwise provided herein, and the name of the defendant
19 obliterated from the official index requested to be kept by the
20 circuit court clerk under Section 16 of the Clerks of Courts
21 Act in connection with the arrest and conviction for the
22 offense for which he or she had been pardoned but the order
23 shall not affect any index issued by the circuit court clerk
24 before the entry of the order. All records sealed by the
25 Department may be disseminated by the Department only as
26 required by law or to the arresting authority, the State's

 

 

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1 Attorney, and the court upon a later arrest for the same or
2 similar offense or for the purpose of sentencing for any
3 subsequent felony. Upon conviction for any subsequent offense,
4 the Department of Corrections shall have access to all sealed
5 records of the Department pertaining to that individual. Upon
6 entry of the order of expungement, the circuit court clerk
7 shall promptly mail a copy of the order to the person who was
8 pardoned.
9     (f) Subject to available funding, the Illinois Department
10 of Corrections shall conduct a study of the impact of sealing,
11 especially on employment and recidivism rates, utilizing a
12 random sample of those who apply for the sealing of their
13 criminal records under Public Act 93-211. At the request of the
14 Illinois Department of Corrections, records of the Illinois
15 Department of Employment Security shall be utilized as
16 appropriate to assist in the study. The study shall not
17 disclose any data in a manner that would allow the
18 identification of any particular individual or employing unit.
19 The study shall be made available to the General Assembly no
20 later than September 1, 2010.
21 (Source: P.A. 96-409, eff. 1-1-10.)
 
22     Section 10. The Unified Code of Corrections is amended by
23 adding Section 5-6-3.3 as follows:
 
24     (730 ILCS 5/5-6-3.3 new)

 

 

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1     Sec. 5-6-3.3. Offender Initiative Probation.
2     (a) Whenever any person who has not previously been
3 convicted of a felony offense under the laws of this State, the
4 laws of any other State, or the laws of the United States,
5 pleads guilty to, or is found guilty of, a probationable felony
6 offense of theft, retail theft, forgery, prostitution,
7 possession of a stolen motor vehicle, burglary, possession of
8 burglary tools, possession of cannabis, possession of cannabis
9 with intent to deliver, delivery of cannabis, possession of a
10 controlled substance, possession of a controlled substance
11 with intent to deliver, delivery of a controlled substance,
12 possession of methamphetamine, possession of methamphetamine
13 with intent to deliver, or delivery of methamphetamine, the
14 court, with the consent of both the defendant and the State's
15 Attorney, may, without entering a judgment, sentence the
16 defendant to probation.
17     (b) A defendant is not eligible for probation under this
18 Section if he or she has pled guilty to, or has been found
19 guilty of, a violent offense. For purposes of this Section,
20 "violent offense" is any offense where bodily harm was
21 inflicted or where force was used against any person or
22 threatened against any person, any offense involving sexual
23 conduct, sexual penetration, or sexual exploitation, any
24 offense of domestic violence, domestic battery, violation of an
25 order of protection, stalking, hate crime, driving under the
26 influence of drugs or alcohol, and any offense involving the

 

 

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1 possession of a firearm or dangerous weapon.
2     (c) When a defendant is placed on probation, the court
3 shall enter an order specifying a period of probation of not
4 less than 24 months and shall defer further proceedings in the
5 case until the conclusion of the period or until the filing of
6 a petition alleging violation of a term or condition of
7 probation. The terms and conditions of probation shall be that
8 the defendant:
9         (1) not violate any criminal statute of this State or
10     any other jurisdiction;
11         (2) refrain from possessing a firearm or other
12     dangerous weapon;
13         (3) make full restitution to the property owner
14     pursuant to Section 5-5-6;
15         (4) obtain employment or perform not less than 30 hours
16     of community service, provided community service is
17     available in the county and is funded and approved by the
18     county board;
19         (5) pay a fine and costs;
20         (6) attend educational courses designed to prepare the
21     defendant for obtaining a high school diploma or to work
22     toward passing the high school level test of General
23     Educational Development (G.E.D.) or to work toward
24     completing a vocational training program; and
25         (7) submit to periodic drug testing at a time and in a
26     manner as ordered by the court, but no less than 3 times

 

 

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1     during the period of probation, with the cost of the
2     testing to be paid by the defendant.
3     (d) The court may, in addition to other conditions, require
4 that the defendant:
5         (1) make a report to and appear in person before or
6     participate with the court or such courts, person, or
7     social service agency as directed by the court in the order
8     of probation; reside with his or her parents or in a foster
9     home; attend school; attend a non-residential program for
10     youth; or contribute to his or her own support at home or
11     in a foster home.
12         (2) undergo medical or psychiatric treatment, or
13     treatment of rehabilitation approved by the Illinois
14     Department of Human Services;
15         (3) attend or reside in a facility established for the
16     instruction or residence of defendants on probation;
17         (4) support his or her dependents;
18         (5) refrain from having in his or her body the presence
19     of any illicit drug prohibited by the Methamphetamine
20     Control and Community Protection Act, the Cannabis Control
21     Act, or the Illinois Controlled Substances Act, unless
22     prescribed by a physician and submit samples of his or her
23     blood or urine or both for tests to determine the presence
24     of any illicit drug; or
25         (6) if a minor comply with the requirements of clauses
26     (1), (2), (3), or (4) of this subsection (d).

 

 

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1     (e) Upon violation of a term or condition of probation, the
2 court may enter a judgment on its original finding of guilt and
3 proceed as otherwise provided.
4     (f) Upon fulfillment of the terms and conditions of
5 probation, the court shall discharge the person and dismiss the
6 proceedings against the person.
7     (g) A disposition of probation is considered to be a
8 conviction for the purposes of imposing the conditions of
9 probation and for appeal; however, discharge and dismissal
10 under this Section is not a conviction for purposes of this
11 Code or for purposes of disqualifications or disabilities
12 imposed by law upon conviction of a crime.
13     (h) There may be only one discharge and dismissal under
14 this Section, Section 410 of the Illinois Controlled Substances
15 Act, Section 70 of the Methamphetamine Control and Community
16 Protection Act, or Section 10 of the Cannabis Control Act with
17 respect to any person.
18     (i) If a person is convicted of any offense within 5 years
19 subsequent to a discharge and dismissal under this Section, the
20 discharge and dismissal under this Section shall be admissible
21 in the sentencing proceeding for that conviction as evidence in
22 aggravation.
23     (j) Section 410 of the Illinois Controlled Substances Act,
24 Section 70 of the Methamphetamine Control and Community
25 Protection Act, and Section 10 of the Cannabis Control Act
26 provide the conditions of probation regarding the offenses

 

 

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1 specified therein.
2     (k) The probation authorized by this Section may be
3 referred to as Offender Initiative Probation.
 
4     Section 99. Effective date. This Act takes effect upon
5 becoming law.