HB0821 EnrolledLRB098 03649 MRW 33665 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Identification Act is amended by
5changing 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), (b)(8), (e), and (e-5) of this
8    Section, the 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, unless the
17        arrest or charge is for a misdemeanor violation of
18        subsection (a) of Section 11-503 or a similar provision
19        of a local ordinance, that occurred prior to the
20        offender reaching the age of 25 years and the offender
21        has no other conviction for violating Section 11-501 or
22        11-503 of the Illinois Vehicle Code or a similar
23        provision of a local ordinance.
24            (B) the sealing or expungement of records of minor
25        traffic offenses (as defined in subsection (a)(1)(G)),
26        unless the petitioner was arrested and released

 

 

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1        without charging.
2            (C) the sealing of the records of arrests or
3        charges not initiated by arrest which result in an
4        order of supervision, an order of qualified probation
5        (as defined in subsection (a)(1)(J)), or a conviction
6        for the following offenses:
7                (i) offenses included in Article 11 of the
8            Criminal Code of 1961 or the Criminal Code of 2012
9            or a similar provision of a local ordinance, except
10            Section 11-14 of the Criminal Code of 1961 or the
11            Criminal Code of 2012, or a similar provision of a
12            local ordinance;
13                (ii) Section 11-1.50, 12-3.4, 12-15, 12-30,
14            26-5, or 48-1 of the Criminal Code of 1961 or the
15            Criminal Code of 2012, or a similar provision of a
16            local ordinance;
17                (iii) offenses defined as "crimes of violence"
18            in Section 2 of the Crime Victims Compensation Act
19            or a similar provision of a local ordinance;
20                (iv) offenses which are Class A misdemeanors
21            under the Humane Care for Animals Act; or
22                (v) any offense or attempted offense that
23            would subject a person to registration under the
24            Sex Offender Registration Act.
25            (D) the sealing of the records of an arrest which
26        results in the petitioner being charged with a felony

 

 

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1        offense or records of a charge not initiated by arrest
2        for a felony offense unless:
3                (i) the charge is amended to a misdemeanor and
4            is otherwise eligible to be sealed pursuant to
5            subsection (c);
6                (ii) the charge is brought along with another
7            charge as a part of one case and the charge results
8            in acquittal, dismissal, or conviction when the
9            conviction was reversed or vacated, and another
10            charge brought in the same case results in a
11            disposition for a misdemeanor offense that is
12            eligible to be sealed pursuant to subsection (c) or
13            a disposition listed in paragraph (i), (iii), or
14            (iv) of this subsection;
15                (iii) the charge results in first offender
16            probation as set forth in subsection (c)(2)(E);
17                (iv) the charge is for a Class 4 felony offense
18            listed in subsection (c)(2)(F) or the charge is
19            amended to a Class 4 felony offense listed in
20            subsection (c)(2)(F). Records of arrests which
21            result in the petitioner being charged with a Class
22            4 felony offense listed in subsection (c)(2)(F),
23            records of charges not initiated by arrest for
24            Class 4 felony offenses listed in subsection
25            (c)(2)(F), and records of charges amended to a
26            Class 4 felony offense listed in (c)(2)(F) may be

 

 

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

 

 

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1        (2) Time frame for filing a petition to expunge.
2            (A) When the arrest or charge not initiated by
3        arrest sought to be expunged resulted in an acquittal,
4        dismissal, the petitioner's release without charging,
5        or the reversal or vacation of a conviction, there is
6        no waiting period to petition for the expungement of
7        such records.
8            (B) When the arrest or charge not initiated by
9        arrest sought to be expunged resulted in an order of
10        supervision, successfully completed by the petitioner,
11        the following time frames will apply:
12                (i) Those arrests or charges that resulted in
13            orders of supervision under Section 3-707, 3-708,
14            3-710, or 5-401.3 of the Illinois Vehicle Code or a
15            similar provision of a local ordinance, or under
16            Section 11-1.50, 12-3.2, or 12-15 of the Criminal
17            Code of 1961 or the Criminal Code of 2012, or a
18            similar provision of a local ordinance, shall not
19            be eligible for expungement until 5 years have
20            passed following the satisfactory termination of
21            the supervision.
22                (i-5) Those arrests or charges that resulted
23            in orders of supervision for a misdemeanor
24            violation of subsection (a) of Section 11-503 of
25            the Illinois Vehicle Code or a similar provision of
26            a local ordinance, that occurred prior to the

 

 

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1            offender reaching the age of 25 years and the
2            offender has no other conviction for violating
3            Section 11-501 or 11-503 of the Illinois Vehicle
4            Code or a similar provision of a local ordinance
5            shall not be eligible for expungement until the
6            petitioner has reached the age of 25 years.
7                (ii) Those arrests or charges that resulted in
8            orders of supervision for any other offenses shall
9            not be eligible for expungement until 2 years have
10            passed following the satisfactory termination of
11            the supervision.
12            (C) When the arrest or charge not initiated by
13        arrest sought to be expunged resulted in an order of
14        qualified probation, successfully completed by the
15        petitioner, such records shall not be eligible for
16        expungement until 5 years have passed following the
17        satisfactory termination of the probation.
18        (3) Those records maintained by the Department for
19    persons arrested prior to their 17th birthday shall be
20    expunged as provided in Section 5-915 of the Juvenile Court
21    Act of 1987.
22        (4) Whenever a person has been arrested for or
23    convicted of any offense, in the name of a person whose
24    identity he or she has stolen or otherwise come into
25    possession of, the aggrieved person from whom the identity
26    was stolen or otherwise obtained without authorization,

 

 

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1    upon learning of the person having been arrested using his
2    or her identity, may, upon verified petition to the chief
3    judge of the circuit wherein the arrest was made, have a
4    court order entered nunc pro tunc by the Chief Judge to
5    correct the arrest record, conviction record, if any, and
6    all official records of the arresting authority, the
7    Department, other criminal justice agencies, the
8    prosecutor, and the trial court concerning such arrest, if
9    any, by removing his or her name from all such records in
10    connection with the arrest and conviction, if any, and by
11    inserting in the records the name of the offender, if known
12    or ascertainable, in lieu of the aggrieved's name. The
13    records of the circuit court clerk shall be sealed until
14    further order of the court upon good cause shown and the
15    name of the aggrieved person obliterated on the official
16    index required to be kept by the circuit court clerk under
17    Section 16 of the Clerks of Courts Act, but the order shall
18    not affect any index issued by the circuit court clerk
19    before the entry of the order. Nothing in this Section
20    shall limit the Department of State Police or other
21    criminal justice agencies or prosecutors from listing
22    under an offender's name the false names he or she has
23    used.
24        (5) Whenever a person has been convicted of criminal
25    sexual assault, aggravated criminal sexual assault,
26    predatory criminal sexual assault of a child, criminal

 

 

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

 

 

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1    410 of the Illinois Controlled Substances Act, Section 70
2    of the Methamphetamine Control and Community Protection
3    Act, Section 5-6-3.3 of the Unified Code of Corrections,
4    Section 12-4.3 or subdivision (b)(1) of Section 12-3.05 of
5    the Criminal Code of 1961 or the Criminal Code of 2012,
6    Section 10-102 of the Illinois Alcoholism and Other Drug
7    Dependency Act, Section 40-10 of the Alcoholism and Other
8    Drug Abuse and Dependency Act, or Section 10 of the Steroid
9    Control Act.
10        (8) If the petitioner has been granted a certificate of
11    innocence under Section 2-702 of the Code of Civil
12    Procedure, the court that grants the certificate of
13    innocence shall also enter an order expunging the
14    conviction for which the petitioner has been determined to
15    be innocent as provided in subsection (h) of Section 2-702
16    of the Code of Civil Procedure.
17    (c) Sealing.
18        (1) Applicability. Notwithstanding any other provision
19    of this Act to the contrary, and cumulative with any rights
20    to expungement of criminal records, this subsection
21    authorizes the sealing of criminal records of adults and of
22    minors prosecuted as adults.
23        (2) Eligible Records. The following records may be
24    sealed:
25            (A) All arrests resulting in release without
26        charging;

 

 

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1            (B) Arrests or charges not initiated by arrest
2        resulting in acquittal, dismissal, or conviction when
3        the conviction was reversed or vacated, except as
4        excluded by subsection (a)(3)(B);
5            (C) Arrests or charges not initiated by arrest
6        resulting in orders of supervision successfully
7        completed by the petitioner, unless excluded by
8        subsection (a)(3);
9            (D) Arrests or charges not initiated by arrest
10        resulting in convictions unless excluded by subsection
11        (a)(3);
12            (E) Arrests or charges not initiated by arrest
13        resulting in orders of first offender probation under
14        Section 10 of the Cannabis Control Act, Section 410 of
15        the Illinois Controlled Substances Act, Section 70 of
16        the Methamphetamine Control and Community Protection
17        Act, or Section 5-6-3.3 of the Unified Code of
18        Corrections; and
19            (F) Arrests or charges not initiated by arrest
20        resulting in Class 4 felony convictions for the
21        following offenses:
22                (i) Section 11-14 of the Criminal Code of 1961
23            or the Criminal Code of 2012;
24                (ii) Section 4 of the Cannabis Control Act;
25                (iii) Section 402 of the Illinois Controlled
26            Substances Act;

 

 

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

 

 

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

 

 

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1        (2) Contents of petition. The petition shall be
2    verified and shall contain the petitioner's name, date of
3    birth, current address and, for each arrest or charge not
4    initiated by arrest sought to be sealed or expunged, the
5    case number, the date of arrest (if any), the identity of
6    the arresting authority, and such other information as the
7    court may require. During the pendency of the proceeding,
8    the petitioner shall promptly notify the circuit court
9    clerk of any change of his or her address. If the
10    petitioner has received a certificate of eligibility for
11    sealing from the Prisoner Review Board under paragraph (10)
12    of subsection (a) of Section 3-3-2 of the Unified Code of
13    Corrections, the certificate shall be attached to the
14    petition.
15        (3) Drug test. The petitioner must attach to the
16    petition proof that the petitioner has passed a test taken
17    within 30 days before the filing of the petition showing
18    the absence within his or her body of all illegal
19    substances as defined by the Illinois Controlled
20    Substances Act, the Methamphetamine Control and Community
21    Protection Act, and the Cannabis Control Act if he or she
22    is petitioning to seal felony records pursuant to clause
23    (c)(2)(E), (c)(2)(F)(ii)-(v), or (e-5) or if he or she is
24    petitioning to expunge felony records of a qualified
25    probation pursuant to clause (b)(1)(B)(iv).
26        (4) Service of petition. The circuit court clerk shall

 

 

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

 

 

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1        date of service of the petition, the court shall enter
2        an order granting or denying the petition.
3        (7) Hearings. If an objection is filed, the court shall
4    set a date for a hearing and notify the petitioner and all
5    parties entitled to notice of the petition of the hearing
6    date at least 30 days prior to the hearing, and shall hear
7    evidence on whether the petition should or should not be
8    granted, and shall grant or deny the petition to expunge or
9    seal the records based on the evidence presented at the
10    hearing.
11        (8) Service of order. After entering an order to
12    expunge or seal records, the court must provide copies of
13    the order to the Department, in a form and manner
14    prescribed by the Department, to the petitioner, to the
15    State's Attorney or prosecutor charged with the duty of
16    prosecuting the offense, to the arresting agency, to the
17    chief legal officer of the unit of local government
18    effecting the arrest, and to such other criminal justice
19    agencies as may be ordered by the court.
20        (9) Effect of order.
21            (A) Upon entry of an order to expunge records
22        pursuant to (b)(2)(A) or (b)(2)(B)(ii), or both:
23                (i) the records shall be expunged (as defined
24            in subsection (a)(1)(E)) by the arresting agency,
25            the Department, and any other agency as ordered by
26            the court, within 60 days of the date of service of

 

 

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

 

 

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1                (ii) the records of the circuit court clerk
2            shall be impounded until further order of the court
3            upon good cause shown and the name of the
4            petitioner obliterated on the official index
5            required to be kept by the circuit court clerk
6            under Section 16 of the Clerks of Courts Act, but
7            the order shall not affect any index issued by the
8            circuit court clerk before the entry of the order;
9                (iii) the records shall be impounded by the
10            Department within 60 days of the date of service of
11            the order as ordered by the court, unless a motion
12            to vacate, modify, or reconsider the order is filed
13            pursuant to paragraph (12) of subsection (d) of
14            this Section;
15                (iv) records impounded by the Department may
16            be disseminated by the Department only as required
17            by law or to the arresting authority, the State's
18            Attorney, and the court upon a later arrest for the
19            same or a similar offense or for the purpose of
20            sentencing for any subsequent felony, and to the
21            Department of Corrections upon conviction for any
22            offense; and
23                (v) in response to an inquiry for such records
24            from anyone not authorized by law to access such
25            records the court, the Department, or the agency
26            receiving such inquiry shall reply as it does in

 

 

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

 

 

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1    the State Police Services Fund.
2        (11) Final Order. No court order issued under the
3    expungement or sealing provisions of this Section shall
4    become final for purposes of appeal until 30 days after
5    service of the order on the petitioner and all parties
6    entitled to notice of the petition.
7        (12) Motion to Vacate, Modify, or Reconsider. The
8    petitioner or any party entitled to notice may file a
9    motion to vacate, modify, or reconsider the order granting
10    or denying the petition to expunge or seal within 60 days
11    of service of the order.
12    (e) Whenever a person who has been convicted of an offense
13is granted a pardon by the Governor which specifically
14authorizes expungement, he or she may, upon verified petition
15to the Chief Judge of the circuit where the person had been
16convicted, any judge of the circuit designated by the Chief
17Judge, or in counties of less than 3,000,000 inhabitants, the
18presiding trial judge at the defendant's trial, have a court
19order entered expunging the record of arrest from the official
20records of the arresting authority and order that the records
21of the circuit court clerk and the Department be sealed until
22further order of the court upon good cause shown or as
23otherwise provided herein, and the name of the defendant
24obliterated from the official index requested to be kept by the
25circuit court clerk under Section 16 of the Clerks of Courts
26Act in connection with the arrest and conviction for the

 

 

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1offense for which he or she had been pardoned but the order
2shall not affect any index issued by the circuit court clerk
3before the entry of the order. All records sealed by the
4Department may be disseminated by the Department only to the
5arresting authority, the State's Attorney, and the court upon a
6later arrest for the same or similar offense or for the purpose
7of sentencing for any subsequent felony. Upon conviction for
8any subsequent offense, the Department of Corrections shall
9have access to all sealed records of the Department pertaining
10to that individual. Upon entry of the order of expungement, the
11circuit court clerk shall promptly mail a copy of the order to
12the person who was pardoned.
13    (e-5) Whenever a person who has been convicted of an
14offense is granted a certificate of eligibility for sealing by
15the Prisoner Review Board which specifically authorizes
16sealing, he or she may, upon verified petition to the Chief
17Judge of the circuit where the person had been convicted, any
18judge of the circuit designated by the Chief Judge, or in
19counties of less than 3,000,000 inhabitants, the presiding
20trial judge at the petitioner's trial, have a court order
21entered sealing the record of arrest from the official records
22of the arresting authority and order that the records of the
23circuit court clerk and the Department be sealed until further
24order of the court upon good cause shown or as otherwise
25provided herein, and the name of the petitioner obliterated
26from the official index requested to be kept by the circuit

 

 

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1court clerk under Section 16 of the Clerks of Courts Act in
2connection with the arrest and conviction for the offense for
3which he or she had been granted the certificate but the order
4shall not affect any index issued by the circuit court clerk
5before the entry of the order. All records sealed by the
6Department may be disseminated by the Department only as
7required by this Act or to the arresting authority, a law
8enforcement agency, the State's Attorney, and the court upon a
9later arrest for the same or similar offense or for the purpose
10of sentencing for any subsequent felony. Upon conviction for
11any subsequent offense, the Department of Corrections shall
12have access to all sealed records of the Department pertaining
13to that individual. Upon entry of the order of sealing, the
14circuit court clerk shall promptly mail a copy of the order to
15the person who was granted the certificate of eligibility for
16sealing.
17    (f) Subject to available funding, the Illinois Department
18of Corrections shall conduct a study of the impact of sealing,
19especially on employment and recidivism rates, utilizing a
20random sample of those who apply for the sealing of their
21criminal records under Public Act 93-211. At the request of the
22Illinois Department of Corrections, records of the Illinois
23Department of Employment Security shall be utilized as
24appropriate to assist in the study. The study shall not
25disclose any data in a manner that would allow the
26identification of any particular individual or employing unit.

 

 

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1The study shall be made available to the General Assembly no
2later than September 1, 2010.
3(Source: P.A. 96-409, eff. 1-1-10; 96-1401, eff. 7-29-10;
496-1532, eff. 1-1-12; 96-1551, Article 1, Section 905, eff.
57-1-11; 96-1551, Article 2, Section 925, eff. 7-1-11; 97-443,
6eff. 8-19-11; 97-698, eff. 1-1-13; 97-1026, eff. 1-1-13;
797-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1118, eff.
81-1-13; 97-1120, eff. 1-1-13; 97-1150, eff. 1-25-13.)
 
9    Section 10. The Unified Code of Corrections is amended by
10changing Section 5-5-4 as follows:
 
11    (730 ILCS 5/5-5-4)  (from Ch. 38, par. 1005-5-4)
12    Sec. 5-5-4. Resentences.
13    (a) Where a conviction or sentence has been set aside on
14direct review or on collateral attack, the court shall not
15impose a new sentence for the same offense or for a different
16offense based on the same conduct which is more severe than the
17prior sentence less the portion of the prior sentence
18previously satisfied unless the more severe sentence is based
19upon conduct on the part of the defendant occurring after the
20original sentencing. If a sentence is vacated on appeal or on
21collateral attack due to the failure of the trier of fact at
22trial to determine beyond a reasonable doubt the existence of a
23fact (other than a prior conviction) necessary to increase the
24punishment for the offense beyond the statutory maximum

 

 

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1otherwise applicable, either the defendant may be re-sentenced
2to a term within the range otherwise provided or, if the State
3files notice of its intention to again seek the extended
4sentence, the defendant shall be afforded a new trial.
5    (b) If a conviction or sentence has been set aside on
6direct review or on collateral attack and the court determines
7by clear and convincing evidence that the defendant was
8factually innocent of the charge, the court shall enter an
9order expunging the record of arrest from the official records
10of the arresting authority and order that the records of the
11clerk of the circuit court and Department of State Police be
12sealed until further order of the court upon good cause shown
13or as otherwise provided herein, and the name of the defendant
14obliterated from the official index requested to be kept by the
15circuit court clerk under Section 16 of the Clerks of Courts
16Act in connection with the arrest and conviction for the
17offense but the order shall not affect any index issued by the
18circuit court clerk before the entry of the order. The court
19shall enter the expungement order regardless of whether the
20defendant has prior criminal convictions.
21    All records sealed by the Department of State Police may be
22disseminated by the Department only as required by law or to
23the arresting authority, the State's Attorney, the court upon a
24later arrest for the same or similar offense, or for the
25purpose of sentencing for any subsequent felony. Upon
26conviction for any subsequent offense, the Department of

 

 

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1Corrections shall have access to all sealed records of the
2Department pertaining to that individual.
3    Upon entry of the order of expungement, the clerk of the
4circuit court shall promptly mail a copy of the order to the
5person whose records were expunged and sealed.
6    (c) If a conviction has been vacated as a result of a claim
7of actual innocence based on newly discovered evidence made
8under Section 122-1 of the Code of Criminal Procedure of 1963
9or Section 2-1401 of the Code of Civil Procedure, and the
10provisions of paragraphs (1) and (2) of subsection (g) of
11Section 2-702 of the Code of Civil Procedure are otherwise
12satisfied, the court shall enter an order for a certificate of
13innocence and an order expunging the conviction for which the
14petitioner has been determined to be innocent as provided in
15subsection (h) of Section 2-702 of the Code of Civil Procedure.
16(Source: P.A. 93-210, eff. 7-18-03.)
 
17    Section 15. The Code of Civil Procedure is amended by
18changing Section 2-702 as follows:
 
19    (735 ILCS 5/2-702)
20    Sec. 2-702. Petition for a certificate of innocence that
21the petitioner was innocent of all offenses for which he or she
22was incarcerated.
23    (a) The General Assembly finds and declares that innocent
24persons who have been wrongly convicted of crimes in Illinois

 

 

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1and subsequently imprisoned have been frustrated in seeking
2legal redress due to a variety of substantive and technical
3obstacles in the law and that such persons should have an
4available avenue to obtain a finding of innocence so that they
5may obtain relief through a petition in the Court of Claims.
6The General Assembly further finds misleading the current legal
7nomenclature which compels an innocent person to seek a pardon
8for being wrongfully incarcerated. It is the intent of the
9General Assembly that the court, in exercising its discretion
10as permitted by law regarding the weight and admissibility of
11evidence submitted pursuant to this Section, shall, in the
12interest of justice, give due consideration to difficulties of
13proof caused by the passage of time, the death or
14unavailability of witnesses, the destruction of evidence or
15other factors not caused by such persons or those acting on
16their behalf.
17    (b) Any person convicted and subsequently imprisoned for
18one or more felonies by the State of Illinois which he or she
19did not commit may, under the conditions hereinafter provided,
20file a petition for certificate of innocence in the circuit
21court of the county in which the person was convicted. The
22petition shall request a certificate of innocence finding that
23the petitioner was innocent of all offenses for which he or she
24was incarcerated.
25    (c) In order to present the claim for certificate of
26innocence of an unjust conviction and imprisonment, the

 

 

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1petitioner must attach to his or her petition documentation
2demonstrating that:
3        (1) he or she has been convicted of one or more
4    felonies by the State of Illinois and subsequently
5    sentenced to a term of imprisonment, and has served all or
6    any part of the sentence; and
7        (2) his or her judgment of conviction was reversed or
8    vacated, and the indictment or information dismissed or, if
9    a new trial was ordered, either he or she was found not
10    guilty at the new trial or he or she was not retried and
11    the indictment or information dismissed; or the statute, or
12    application thereof, on which the indictment or
13    information was based violated the Constitution of the
14    United States or the State of Illinois; and
15        (3) his or her claim is not time barred by the
16    provisions of subsection (i) of this Section.
17    (d) The petition shall state facts in sufficient detail to
18permit the court to find that the petitioner is likely to
19succeed at trial in proving that the petitioner is innocent of
20the offenses charged in the indictment or information or his or
21her acts or omissions charged in the indictment or information
22did not constitute a felony or misdemeanor against the State of
23Illinois, and the petitioner did not by his or her own conduct
24voluntarily cause or bring about his or her conviction. The
25petition shall be verified by the petitioner.
26    (e) A copy of the petition shall be served on the Attorney

 

 

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1General and the State's Attorney of the county where the
2conviction was had. The Attorney General and the State's
3Attorney of the county where the conviction was had shall have
4the right to intervene as parties.
5    (f) In any hearing seeking a certificate of innocence, the
6court may take judicial notice of prior sworn testimony or
7evidence admitted in the criminal proceedings related to the
8convictions which resulted in the alleged wrongful
9incarceration, if the petitioner was either represented by
10counsel at such prior proceedings or the right to counsel was
11knowingly waived.
12    (g) In order to obtain a certificate of innocence the
13petitioner must prove by a preponderance of evidence that:
14        (1) the petitioner was convicted of one or more
15    felonies by the State of Illinois and subsequently
16    sentenced to a term of imprisonment, and has served all or
17    any part of the sentence;
18        (2)(A) the judgment of conviction was reversed or
19    vacated, and the indictment or information dismissed or, if
20    a new trial was ordered, either the petitioner was found
21    not guilty at the new trial or the petitioner was not
22    retried and the indictment or information dismissed; or (B)
23    the statute, or application thereof, on which the
24    indictment or information was based violated the
25    Constitution of the United States or the State of Illinois;
26        (3) the petitioner is innocent of the offenses charged

 

 

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1    in the indictment or information or his or her acts or
2    omissions charged in the indictment or information did not
3    constitute a felony or misdemeanor against the State; and
4        (4) the petitioner did not by his or her own conduct
5    voluntarily cause or bring about his or her conviction.
6    (h) If the court finds that the petitioner is entitled to a
7judgment, it shall enter a certificate of innocence finding
8that the petitioner was innocent of all offenses for which he
9or she was incarcerated. Upon entry of the certificate of
10innocence or pardon from the Governor stating that such pardon
11was issued on the ground of innocence of the crime for which he
12or she was imprisoned, (1) the clerk of the court shall
13transmit a copy of the certificate of innocence to the clerk of
14the Court of Claims, together with the claimant's current
15address; and (2) the court shall enter an order expunging or
16sealing the record of arrest from the official records of the
17arresting authority and order that the records of the clerk of
18the circuit court and Department of State Police be sealed
19until further order of the court upon good cause shown or as
20otherwise provided herein, and the name of the defendant
21obliterated from the official index requested to be kept by the
22circuit court clerk under Section 16 of the Clerks of Courts
23Act in connection with the arrest and conviction for the
24offense but the order shall not affect any index issued by the
25circuit court clerk before the entry of the order. The court
26shall enter the expungement order regardless of whether the

 

 

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1petitioner has prior criminal convictions.
2    All records sealed by the Department of State Police may be
3disseminated by the Department only as required by law or to
4the arresting authority, the State's Attorney, the court upon a
5later arrest for the same or similar offense, or for the
6purpose of sentencing for any subsequent felony. Upon
7conviction for any subsequent offense, the Department of
8Corrections shall have access to all sealed records of the
9Department pertaining to that individual.
10    Upon entry of the order of expungement, the clerk of the
11circuit court shall promptly mail a copy of the order to the
12person whose records were expunged and sealed.
13    (i) Any person seeking a certificate of innocence under
14this Section based on the dismissal of an indictment or
15information or acquittal that occurred before the effective
16date of this amendatory Act of the 95th General Assembly shall
17file his or her petition within 2 years after the effective
18date of this amendatory Act of the 95th General Assembly. Any
19person seeking a certificate of innocence under this Section
20based on the dismissal of an indictment or information or
21acquittal that occurred on or after the effective date of this
22amendatory Act of the 95th General Assembly shall file his or
23her petition within 2 years after the dismissal.
24    (j) The decision to grant or deny a certificate of
25innocence shall be binding only with respect to claims filed in
26the Court of Claims and shall not have a res judicata effect on

 

 

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1any other proceedings.
2(Source: P.A. 95-970, eff. 9-22-08; 96-1550, eff. 7-1-11.)