Illinois General Assembly - Full Text of HB0821
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Full Text of HB0821  98th General Assembly

HB0821sam001 98TH GENERAL ASSEMBLY

Sen. Kwame Raoul

Filed: 5/20/2013

 

 


 

 


 
09800HB0821sam001LRB098 03649 RLC 45861 a

1
AMENDMENT TO HOUSE BILL 821

2    AMENDMENT NO. ______. Amend House Bill 821 by replacing
3everything after the enacting clause with the following:
 
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),

 

 

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

 

 

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1        successfully completed by the petitioner is not a
2        conviction. An order of supervision or an order of
3        qualified probation that is terminated
4        unsatisfactorily is a conviction, unless the
5        unsatisfactory termination is reversed, vacated, or
6        modified and the judgment of conviction, if any, is
7        reversed or vacated.
8            (D) "Criminal offense" means a petty offense,
9        business offense, misdemeanor, felony, or municipal
10        ordinance violation (as defined in subsection
11        (a)(1)(H)). As used in this Section, a minor traffic
12        offense (as defined in subsection (a)(1)(G)) shall not
13        be considered a criminal offense.
14            (E) "Expunge" means to physically destroy the
15        records or return them to the petitioner and to
16        obliterate the petitioner's name from any official
17        index or public record, or both. Nothing in this Act
18        shall require the physical destruction of the circuit
19        court file, but such records relating to arrests or
20        charges, or both, ordered expunged shall be impounded
21        as required by subsections (d)(9)(A)(ii) and
22        (d)(9)(B)(ii).
23            (F) As used in this Section, "last sentence" means
24        the sentence, order of supervision, or order of
25        qualified probation (as defined by subsection
26        (a)(1)(J)), for a criminal offense (as defined by

 

 

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1        subsection (a)(1)(D)) that terminates last in time in
2        any jurisdiction, regardless of whether the petitioner
3        has included the criminal offense for which the
4        sentence or order of supervision or qualified
5        probation was imposed in his or her petition. If
6        multiple sentences, orders of supervision, or orders
7        of qualified probation terminate on the same day and
8        are last in time, they shall be collectively considered
9        the "last sentence" regardless of whether they were
10        ordered to run concurrently.
11            (G) "Minor traffic offense" means a petty offense,
12        business offense, or Class C misdemeanor under the
13        Illinois Vehicle Code or a similar provision of a
14        municipal or local ordinance.
15            (H) "Municipal ordinance violation" means an
16        offense defined by a municipal or local ordinance that
17        is criminal in nature and with which the petitioner was
18        charged or for which the petitioner was arrested and
19        released without charging.
20            (I) "Petitioner" means an adult or a minor
21        prosecuted as an adult who has applied for relief under
22        this Section.
23            (J) "Qualified probation" means an order of
24        probation under Section 10 of the Cannabis Control Act,
25        Section 410 of the Illinois Controlled Substances Act,
26        Section 70 of the Methamphetamine Control and

 

 

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1        Community Protection Act, Section 5-6-3.3 of the
2        Unified Code of Corrections, Section 12-4.3(b)(1) and
3        (2) of the Criminal Code of 1961 (as those provisions
4        existed before their deletion by Public Act 89-313),
5        Section 10-102 of the Illinois Alcoholism and Other
6        Drug Dependency Act, Section 40-10 of the Alcoholism
7        and Other Drug Abuse and Dependency Act, or Section 10
8        of the Steroid Control Act. For the purpose of this
9        Section, "successful completion" of an order of
10        qualified probation under Section 10-102 of the
11        Illinois Alcoholism and Other Drug Dependency Act and
12        Section 40-10 of the Alcoholism and Other Drug Abuse
13        and Dependency Act means that the probation was
14        terminated satisfactorily and the judgment of
15        conviction was vacated.
16            (K) "Seal" means to physically and electronically
17        maintain the records, unless the records would
18        otherwise be destroyed due to age, but to make the
19        records unavailable without a court order, subject to
20        the exceptions in Sections 12 and 13 of this Act. The
21        petitioner's name shall also be obliterated from the
22        official index required to be kept by the circuit court
23        clerk under Section 16 of the Clerks of Courts Act, but
24        any index issued by the circuit court clerk before the
25        entry of the order to seal shall not be affected.
26            (L) "Sexual offense committed against a minor"

 

 

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1        includes but is not limited to the offenses of indecent
2        solicitation of a child or criminal sexual abuse when
3        the victim of such offense is under 18 years of age.
4            (M) "Terminate" as it relates to a sentence or
5        order of supervision or qualified probation includes
6        either satisfactory or unsatisfactory termination of
7        the sentence, unless otherwise specified in this
8        Section.
9        (2) Minor Traffic Offenses. Orders of supervision or
10    convictions for minor traffic offenses shall not affect a
11    petitioner's eligibility to expunge or seal records
12    pursuant to this Section.
13        (3) Exclusions. Except as otherwise provided in
14    subsections (b)(5), (b)(6), (b)(8), (e), and (e-5) of this
15    Section, the court shall not order:
16            (A) the sealing or expungement of the records of
17        arrests or charges not initiated by arrest that result
18        in an order of supervision for or conviction of: (i)
19        any sexual offense committed against a minor; (ii)
20        Section 11-501 of the Illinois Vehicle Code or a
21        similar provision of a local ordinance; or (iii)
22        Section 11-503 of the Illinois Vehicle Code or a
23        similar provision of a local ordinance, unless the
24        arrest or charge is for a misdemeanor violation of
25        subsection (a) of Section 11-503 or a similar provision
26        of a local ordinance, that occurred prior to the

 

 

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1        offender reaching the age of 25 years and the offender
2        has no other conviction for violating Section 11-501 or
3        11-503 of the Illinois Vehicle Code or a similar
4        provision of a local ordinance.
5            (B) the sealing or expungement of records of minor
6        traffic offenses (as defined in subsection (a)(1)(G)),
7        unless the petitioner was arrested and released
8        without charging.
9            (C) the sealing of the records of arrests or
10        charges not initiated by arrest which result in an
11        order of supervision, an order of qualified probation
12        (as defined in subsection (a)(1)(J)), or a conviction
13        for the following offenses:
14                (i) offenses included in Article 11 of the
15            Criminal Code of 1961 or the Criminal Code of 2012
16            or a similar provision of a local ordinance, except
17            Section 11-14 of the Criminal Code of 1961 or the
18            Criminal Code of 2012, or a similar provision of a
19            local ordinance;
20                (ii) Section 11-1.50, 12-3.4, 12-15, 12-30,
21            26-5, or 48-1 of the Criminal Code of 1961 or the
22            Criminal Code of 2012, or a similar provision of a
23            local ordinance;
24                (iii) offenses defined as "crimes of violence"
25            in Section 2 of the Crime Victims Compensation Act
26            or a similar provision of a local ordinance;

 

 

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1                (iv) offenses which are Class A misdemeanors
2            under the Humane Care for Animals Act; or
3                (v) any offense or attempted offense that
4            would subject a person to registration under the
5            Sex Offender Registration Act.
6            (D) the sealing of the records of an arrest which
7        results in the petitioner being charged with a felony
8        offense or records of a charge not initiated by arrest
9        for a felony offense unless:
10                (i) the charge is amended to a misdemeanor and
11            is otherwise eligible to be sealed pursuant to
12            subsection (c);
13                (ii) the charge is brought along with another
14            charge as a part of one case and the charge results
15            in acquittal, dismissal, or conviction when the
16            conviction was reversed or vacated, and another
17            charge brought in the same case results in a
18            disposition for a misdemeanor offense that is
19            eligible to be sealed pursuant to subsection (c) or
20            a disposition listed in paragraph (i), (iii), or
21            (iv) of this subsection;
22                (iii) the charge results in first offender
23            probation as set forth in subsection (c)(2)(E);
24                (iv) the charge is for a Class 4 felony offense
25            listed in subsection (c)(2)(F) or the charge is
26            amended to a Class 4 felony offense listed in

 

 

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

 

 

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

 

 

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1            passed following the satisfactory termination of
2            the supervision.
3                (i-5) Those arrests or charges that resulted
4            in orders of supervision for a misdemeanor
5            violation of subsection (a) of Section 11-503 of
6            the Illinois Vehicle Code or a similar provision of
7            a local ordinance, that occurred prior to the
8            offender reaching the age of 25 years and the
9            offender has no other conviction for violating
10            Section 11-501 or 11-503 of the Illinois Vehicle
11            Code or a similar provision of a local ordinance
12            shall not be eligible for expungement until the
13            petitioner has reached the age of 25 years.
14                (ii) Those arrests or charges that resulted in
15            orders of supervision for any other offenses shall
16            not be eligible for expungement until 2 years have
17            passed following the satisfactory termination of
18            the supervision.
19            (C) When the arrest or charge not initiated by
20        arrest sought to be expunged resulted in an order of
21        qualified probation, successfully completed by the
22        petitioner, such records shall not be eligible for
23        expungement until 5 years have passed following the
24        satisfactory termination of the probation.
25        (3) Those records maintained by the Department for
26    persons arrested prior to their 17th birthday shall be

 

 

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1    expunged as provided in Section 5-915 of the Juvenile Court
2    Act of 1987.
3        (4) Whenever a person has been arrested for or
4    convicted of any offense, in the name of a person whose
5    identity he or she has stolen or otherwise come into
6    possession of, the aggrieved person from whom the identity
7    was stolen or otherwise obtained without authorization,
8    upon learning of the person having been arrested using his
9    or her identity, may, upon verified petition to the chief
10    judge of the circuit wherein the arrest was made, have a
11    court order entered nunc pro tunc by the Chief Judge to
12    correct the arrest record, conviction record, if any, and
13    all official records of the arresting authority, the
14    Department, other criminal justice agencies, the
15    prosecutor, and the trial court concerning such arrest, if
16    any, by removing his or her name from all such records in
17    connection with the arrest and conviction, if any, and by
18    inserting in the records the name of the offender, if known
19    or ascertainable, in lieu of the aggrieved's name. The
20    records of the circuit court clerk shall be sealed until
21    further order of the court upon good cause shown and the
22    name of the aggrieved person obliterated on the official
23    index required to be kept by the circuit court clerk under
24    Section 16 of the Clerks of Courts Act, but the order shall
25    not affect any index issued by the circuit court clerk
26    before the entry of the order. Nothing in this Section

 

 

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1    shall limit the Department of State Police or other
2    criminal justice agencies or prosecutors from listing
3    under an offender's name the false names he or she has
4    used.
5        (5) Whenever a person has been convicted of criminal
6    sexual assault, aggravated criminal sexual assault,
7    predatory criminal sexual assault of a child, criminal
8    sexual abuse, or aggravated criminal sexual abuse, the
9    victim of that offense may request that the State's
10    Attorney of the county in which the conviction occurred
11    file a verified petition with the presiding trial judge at
12    the petitioner's trial to have a court order entered to
13    seal the records of the circuit court clerk in connection
14    with the proceedings of the trial court concerning that
15    offense. However, the records of the arresting authority
16    and the Department of State Police concerning the offense
17    shall not be sealed. The court, upon good cause shown,
18    shall make the records of the circuit court clerk in
19    connection with the proceedings of the trial court
20    concerning the offense available for public inspection.
21        (6) If a conviction has been set aside on direct review
22    or on collateral attack and the court determines by clear
23    and convincing evidence that the petitioner was factually
24    innocent of the charge, the court that finds the petitioner
25    factually innocent of the charge shall enter an expungement
26    order for the conviction for which the petitioner has been

 

 

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1    determined to be innocent as provided in subsection (b) of
2    Section 5-5-4 of the Unified Code of Corrections.
3        (7) Nothing in this Section shall prevent the
4    Department of State Police from maintaining all records of
5    any person who is admitted to probation upon terms and
6    conditions and who fulfills those terms and conditions
7    pursuant to Section 10 of the Cannabis Control Act, Section
8    410 of the Illinois Controlled Substances Act, Section 70
9    of the Methamphetamine Control and Community Protection
10    Act, Section 5-6-3.3 of the Unified Code of Corrections,
11    Section 12-4.3 or subdivision (b)(1) of Section 12-3.05 of
12    the Criminal Code of 1961 or the Criminal Code of 2012,
13    Section 10-102 of the Illinois Alcoholism and Other Drug
14    Dependency Act, Section 40-10 of the Alcoholism and Other
15    Drug Abuse and Dependency Act, or Section 10 of the Steroid
16    Control Act.
17        (8) If the petitioner has been granted a certificate of
18    innocence under Section 2-702 of the Code of Civil
19    Procedure, the court that grants the certificate of
20    innocence shall also enter an order expunging the
21    conviction for which the petitioner has been determined to
22    be innocent as provided in subsection (h) of Section 2-702
23    of the Code of Civil Procedure.
24    (c) Sealing.
25        (1) Applicability. Notwithstanding any other provision
26    of this Act to the contrary, and cumulative with any rights

 

 

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1    to expungement of criminal records, this subsection
2    authorizes the sealing of criminal records of adults and of
3    minors prosecuted as adults.
4        (2) Eligible Records. The following records may be
5    sealed:
6            (A) All arrests resulting in release without
7        charging;
8            (B) Arrests or charges not initiated by arrest
9        resulting in acquittal, dismissal, or conviction when
10        the conviction was reversed or vacated, except as
11        excluded by subsection (a)(3)(B);
12            (C) Arrests or charges not initiated by arrest
13        resulting in orders of supervision successfully
14        completed by the petitioner, unless excluded by
15        subsection (a)(3);
16            (D) Arrests or charges not initiated by arrest
17        resulting in convictions unless excluded by subsection
18        (a)(3);
19            (E) Arrests or charges not initiated by arrest
20        resulting in orders of first offender probation under
21        Section 10 of the Cannabis Control Act, Section 410 of
22        the Illinois Controlled Substances Act, Section 70 of
23        the Methamphetamine Control and Community Protection
24        Act, or Section 5-6-3.3 of the Unified Code of
25        Corrections; and
26            (F) Arrests or charges not initiated by arrest

 

 

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1        resulting in Class 4 felony convictions for the
2        following offenses:
3                (i) Section 11-14 of the Criminal Code of 1961
4            or the Criminal Code of 2012;
5                (ii) Section 4 of the Cannabis Control Act;
6                (iii) Section 402 of the Illinois Controlled
7            Substances Act;
8                (iv) the Methamphetamine Precursor Control
9            Act; and
10                (v) the Steroid Control Act.
11        (3) When Records Are Eligible to Be Sealed. Records
12    identified as eligible under subsection (c)(2) may be
13    sealed as follows:
14            (A) Records identified as eligible under
15        subsection (c)(2)(A) and (c)(2)(B) may be sealed at any
16        time.
17            (B) Records identified as eligible under
18        subsection (c)(2)(C) may be sealed (i) 3 years after
19        the termination of petitioner's last sentence (as
20        defined in subsection (a)(1)(F)) if the petitioner has
21        never been convicted of a criminal offense (as defined
22        in subsection (a)(1)(D)); or (ii) 4 years after the
23        termination of the petitioner's last sentence (as
24        defined in subsection (a)(1)(F)) if the petitioner has
25        ever been convicted of a criminal offense (as defined
26        in subsection (a)(1)(D)).

 

 

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1            (C) Records identified as eligible under
2        subsections (c)(2)(D), (c)(2)(E), and (c)(2)(F) may be
3        sealed 4 years after the termination of the
4        petitioner's last sentence (as defined in subsection
5        (a)(1)(F)).
6            (D) Records identified in subsection
7        (a)(3)(A)(iii) may be sealed after the petitioner has
8        reached the age of 25 years.
9        (4) Subsequent felony convictions. A person may not
10    have subsequent felony conviction records sealed as
11    provided in this subsection (c) if he or she is convicted
12    of any felony offense after the date of the sealing of
13    prior felony convictions as provided in this subsection
14    (c). The court may, upon conviction for a subsequent felony
15    offense, order the unsealing of prior felony conviction
16    records previously ordered sealed by the court.
17        (5) Notice of eligibility for sealing. Upon entry of a
18    disposition for an eligible record under this subsection
19    (c), the petitioner shall be informed by the court of the
20    right to have the records sealed and the procedures for the
21    sealing of the records.
22    (d) Procedure. The following procedures apply to
23expungement under subsections (b) and (e), and sealing under
24subsections (c) and (e-5):
25        (1) Filing the petition. Upon becoming eligible to
26    petition for the expungement or sealing of records under

 

 

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1    this Section, the petitioner shall file a petition
2    requesting the expungement or sealing of records with the
3    clerk of the court where the arrests occurred or the
4    charges were brought, or both. If arrests occurred or
5    charges were brought in multiple jurisdictions, a petition
6    must be filed in each such jurisdiction. The petitioner
7    shall pay the applicable fee, if not waived.
8        (2) Contents of petition. The petition shall be
9    verified and shall contain the petitioner's name, date of
10    birth, current address and, for each arrest or charge not
11    initiated by arrest sought to be sealed or expunged, the
12    case number, the date of arrest (if any), the identity of
13    the arresting authority, and such other information as the
14    court may require. During the pendency of the proceeding,
15    the petitioner shall promptly notify the circuit court
16    clerk of any change of his or her address. If the
17    petitioner has received a certificate of eligibility for
18    sealing from the Prisoner Review Board under paragraph (10)
19    of subsection (a) of Section 3-3-2 of the Unified Code of
20    Corrections, the certificate shall be attached to the
21    petition.
22        (3) Drug test. The petitioner must attach to the
23    petition proof that the petitioner has passed a test taken
24    within 30 days before the filing of the petition showing
25    the absence within his or her body of all illegal
26    substances as defined by the Illinois Controlled

 

 

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1    Substances Act, the Methamphetamine Control and Community
2    Protection Act, and the Cannabis Control Act if he or she
3    is petitioning to seal felony records pursuant to clause
4    (c)(2)(E), (c)(2)(F)(ii)-(v), or (e-5) or if he or she is
5    petitioning to expunge felony records of a qualified
6    probation pursuant to clause (b)(1)(B)(iv).
7        (4) Service of petition. The circuit court clerk shall
8    promptly serve a copy of the petition on the State's
9    Attorney or prosecutor charged with the duty of prosecuting
10    the offense, the Department of State Police, the arresting
11    agency and the chief legal officer of the unit of local
12    government effecting the arrest.
13        (5) Objections.
14            (A) Any party entitled to notice of the petition
15        may file an objection to the petition. All objections
16        shall be in writing, shall be filed with the circuit
17        court clerk, and shall state with specificity the basis
18        of the objection.
19            (B) Objections to a petition to expunge or seal
20        must be filed within 60 days of the date of service of
21        the petition.
22        (6) Entry of order.
23            (A) The Chief Judge of the circuit wherein the
24        charge was brought, any judge of that circuit
25        designated by the Chief Judge, or in counties of less
26        than 3,000,000 inhabitants, the presiding trial judge

 

 

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

 

 

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

 

 

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

 

 

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1            sentencing for any subsequent felony, and to the
2            Department of Corrections upon conviction for any
3            offense; and
4                (v) in response to an inquiry for such records
5            from anyone not authorized by law to access such
6            records the court, the Department, or the agency
7            receiving such inquiry shall reply as it does in
8            response to inquiries when no records ever
9            existed.
10            (C) Upon entry of an order to seal records under
11        subsection (c), the arresting agency, any other agency
12        as ordered by the court, the Department, and the court
13        shall seal the records (as defined in subsection
14        (a)(1)(K)). In response to an inquiry for such records
15        from anyone not authorized by law to access such
16        records the court, the Department, or the agency
17        receiving such inquiry shall reply as it does in
18        response to inquiries when no records ever existed.
19        (10) Fees. The Department may charge the petitioner a
20    fee equivalent to the cost of processing any order to
21    expunge or seal records. Notwithstanding any provision of
22    the Clerks of Courts Act to the contrary, the circuit court
23    clerk may charge a fee equivalent to the cost associated
24    with the sealing or expungement of records by the circuit
25    court clerk. From the total filing fee collected for the
26    petition to seal or expunge, the circuit court clerk shall

 

 

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1    deposit $10 into the Circuit Court Clerk Operation and
2    Administrative Fund, to be used to offset the costs
3    incurred by the circuit court clerk in performing the
4    additional duties required to serve the petition to seal or
5    expunge on all parties. The circuit court clerk shall
6    collect and forward the Department of State Police portion
7    of the fee to the Department and it shall be deposited in
8    the State Police Services Fund.
9        (11) Final Order. No court order issued under the
10    expungement or sealing provisions of this Section shall
11    become final for purposes of appeal until 30 days after
12    service of the order on the petitioner and all parties
13    entitled to notice of the petition.
14        (12) Motion to Vacate, Modify, or Reconsider. The
15    petitioner or any party entitled to notice may file a
16    motion to vacate, modify, or reconsider the order granting
17    or denying the petition to expunge or seal within 60 days
18    of service of the order.
19    (e) Whenever a person who has been convicted of an offense
20is granted a pardon by the Governor which specifically
21authorizes expungement, he or she may, upon verified petition
22to the Chief Judge of the circuit where the person had been
23convicted, any judge of the circuit designated by the Chief
24Judge, or in counties of less than 3,000,000 inhabitants, the
25presiding trial judge at the defendant's trial, have a court
26order entered expunging the record of arrest from the official

 

 

09800HB0821sam001- 25 -LRB098 03649 RLC 45861 a

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

 

 

09800HB0821sam001- 26 -LRB098 03649 RLC 45861 a

1trial judge at the petitioner's trial, have a court order
2entered sealing the record of arrest from the official records
3of the arresting authority and order that the records of the
4circuit court clerk and the Department be sealed until further
5order of the court upon good cause shown or as otherwise
6provided herein, and the name of the petitioner obliterated
7from the official index requested to be kept by the circuit
8court clerk under Section 16 of the Clerks of Courts Act in
9connection with the arrest and conviction for the offense for
10which he or she had been granted the certificate but the order
11shall not affect any index issued by the circuit court clerk
12before the entry of the order. All records sealed by the
13Department may be disseminated by the Department only as
14required by this Act or to the arresting authority, a law
15enforcement agency, the State's Attorney, and the court upon a
16later arrest for the same or similar offense or for the purpose
17of sentencing for any subsequent felony. Upon conviction for
18any subsequent offense, the Department of Corrections shall
19have access to all sealed records of the Department pertaining
20to that individual. Upon entry of the order of sealing, the
21circuit court clerk shall promptly mail a copy of the order to
22the person who was granted the certificate of eligibility for
23sealing.
24    (f) Subject to available funding, the Illinois Department
25of Corrections shall conduct a study of the impact of sealing,
26especially on employment and recidivism rates, utilizing a

 

 

09800HB0821sam001- 27 -LRB098 03649 RLC 45861 a

1random sample of those who apply for the sealing of their
2criminal records under Public Act 93-211. At the request of the
3Illinois Department of Corrections, records of the Illinois
4Department of Employment Security shall be utilized as
5appropriate to assist in the study. The study shall not
6disclose any data in a manner that would allow the
7identification of any particular individual or employing unit.
8The study shall be made available to the General Assembly no
9later than September 1, 2010.
10(Source: P.A. 96-409, eff. 1-1-10; 96-1401, eff. 7-29-10;
1196-1532, eff. 1-1-12; 96-1551, Article 1, Section 905, eff.
127-1-11; 96-1551, Article 2, Section 925, eff. 7-1-11; 97-443,
13eff. 8-19-11; 97-698, eff. 1-1-13; 97-1026, eff. 1-1-13;
1497-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1118, eff.
151-1-13; 97-1120, eff. 1-1-13; 97-1150, eff. 1-25-13.)
 
16    Section 10. The Unified Code of Corrections is amended by
17changing Section 5-5-4 as follows:
 
18    (730 ILCS 5/5-5-4)  (from Ch. 38, par. 1005-5-4)
19    Sec. 5-5-4. Resentences.
20    (a) Where a conviction or sentence has been set aside on
21direct review or on collateral attack, the court shall not
22impose a new sentence for the same offense or for a different
23offense based on the same conduct which is more severe than the
24prior sentence less the portion of the prior sentence

 

 

09800HB0821sam001- 28 -LRB098 03649 RLC 45861 a

1previously satisfied unless the more severe sentence is based
2upon conduct on the part of the defendant occurring after the
3original sentencing. If a sentence is vacated on appeal or on
4collateral attack due to the failure of the trier of fact at
5trial to determine beyond a reasonable doubt the existence of a
6fact (other than a prior conviction) necessary to increase the
7punishment for the offense beyond the statutory maximum
8otherwise applicable, either the defendant may be re-sentenced
9to a term within the range otherwise provided or, if the State
10files notice of its intention to again seek the extended
11sentence, the defendant shall be afforded a new trial.
12    (b) If a conviction or sentence has been set aside on
13direct review or on collateral attack and the court determines
14by clear and convincing evidence that the defendant was
15factually innocent of the charge, the court shall enter an
16order expunging the record of arrest from the official records
17of the arresting authority and order that the records of the
18clerk of the circuit court and Department of State Police be
19sealed until further order of the court upon good cause shown
20or as otherwise 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

 

 

09800HB0821sam001- 29 -LRB098 03649 RLC 45861 a

1defendant 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    (c) If a conviction has been vacated as a result of a claim
14of actual innocence based on newly discovered evidence made
15under Section 122-1 of the Code of Criminal Procedure of 1963
16or Section 2-1401 of the Code of Civil Procedure, and the
17provisions of paragraphs (1) and (2) of subsection (g) of
18Section 2-702 of the Code of Civil Procedure are otherwise
19satisfied, the court shall enter an order for a certificate of
20innocence and an order expunging the conviction for which the
21petitioner has been determined to be innocent as provided in
22subsection (h) of Section 2-702 of the Code of Civil Procedure.
23(Source: P.A. 93-210, eff. 7-18-03.)
 
24    Section 15. The Code of Civil Procedure is amended by
25changing Section 2-702 as follows:
 

 

 

09800HB0821sam001- 30 -LRB098 03649 RLC 45861 a

1    (735 ILCS 5/2-702)
2    Sec. 2-702. Petition for a certificate of innocence that
3the petitioner was innocent of all offenses for which he or she
4was incarcerated.
5    (a) The General Assembly finds and declares that innocent
6persons who have been wrongly convicted of crimes in Illinois
7and subsequently imprisoned have been frustrated in seeking
8legal redress due to a variety of substantive and technical
9obstacles in the law and that such persons should have an
10available avenue to obtain a finding of innocence so that they
11may obtain relief through a petition in the Court of Claims.
12The General Assembly further finds misleading the current legal
13nomenclature which compels an innocent person to seek a pardon
14for being wrongfully incarcerated. It is the intent of the
15General Assembly that the court, in exercising its discretion
16as permitted by law regarding the weight and admissibility of
17evidence submitted pursuant to this Section, shall, in the
18interest of justice, give due consideration to difficulties of
19proof caused by the passage of time, the death or
20unavailability of witnesses, the destruction of evidence or
21other factors not caused by such persons or those acting on
22their behalf.
23    (b) Any person convicted and subsequently imprisoned for
24one or more felonies by the State of Illinois which he or she
25did not commit may, under the conditions hereinafter provided,

 

 

09800HB0821sam001- 31 -LRB098 03649 RLC 45861 a

1file a petition for certificate of innocence in the circuit
2court of the county in which the person was convicted. The
3petition shall request a certificate of innocence finding that
4the petitioner was innocent of all offenses for which he or she
5was incarcerated.
6    (c) In order to present the claim for certificate of
7innocence of an unjust conviction and imprisonment, the
8petitioner must attach to his or her petition documentation
9demonstrating that:
10        (1) he or she has been convicted of one or more
11    felonies by the State of Illinois and subsequently
12    sentenced to a term of imprisonment, and has served all or
13    any part of the sentence; and
14        (2) his or her judgment of conviction was reversed or
15    vacated, and the indictment or information dismissed or, if
16    a new trial was ordered, either he or she was found not
17    guilty at the new trial or he or she was not retried and
18    the indictment or information dismissed; or the statute, or
19    application thereof, on which the indictment or
20    information was based violated the Constitution of the
21    United States or the State of Illinois; and
22        (3) his or her claim is not time barred by the
23    provisions of subsection (i) of this Section.
24    (d) The petition shall state facts in sufficient detail to
25permit the court to find that the petitioner is likely to
26succeed at trial in proving that the petitioner is innocent of

 

 

09800HB0821sam001- 32 -LRB098 03649 RLC 45861 a

1the offenses charged in the indictment or information or his or
2her acts or omissions charged in the indictment or information
3did not constitute a felony or misdemeanor against the State of
4Illinois, and the petitioner did not by his or her own conduct
5voluntarily cause or bring about his or her conviction. The
6petition shall be verified by the petitioner.
7    (e) A copy of the petition shall be served on the Attorney
8General and the State's Attorney of the county where the
9conviction was had. The Attorney General and the State's
10Attorney of the county where the conviction was had shall have
11the right to intervene as parties.
12    (f) In any hearing seeking a certificate of innocence, the
13court may take judicial notice of prior sworn testimony or
14evidence admitted in the criminal proceedings related to the
15convictions which resulted in the alleged wrongful
16incarceration, if the petitioner was either represented by
17counsel at such prior proceedings or the right to counsel was
18knowingly waived.
19    (g) In order to obtain a certificate of innocence the
20petitioner must prove by a preponderance of evidence that:
21        (1) the petitioner was convicted of one or more
22    felonies by the State of Illinois and subsequently
23    sentenced to a term of imprisonment, and has served all or
24    any part of the sentence;
25        (2)(A) the judgment of conviction was reversed or
26    vacated, and the indictment or information dismissed or, if

 

 

09800HB0821sam001- 33 -LRB098 03649 RLC 45861 a

1    a new trial was ordered, either the petitioner was found
2    not guilty at the new trial or the petitioner was not
3    retried and the indictment or information dismissed; or (B)
4    the statute, or application thereof, on which the
5    indictment or information was based violated the
6    Constitution of the United States or the State of Illinois;
7        (3) the petitioner is innocent of the offenses charged
8    in the indictment or information or his or her acts or
9    omissions charged in the indictment or information did not
10    constitute a felony or misdemeanor against the State; and
11        (4) the petitioner did not by his or her own conduct
12    voluntarily cause or bring about his or her conviction.
13    (h) If the court finds that the petitioner is entitled to a
14judgment, it shall enter a certificate of innocence finding
15that the petitioner was innocent of all offenses for which he
16or she was incarcerated. Upon entry of the certificate of
17innocence or pardon from the Governor stating that such pardon
18was issued on the ground of innocence of the crime for which he
19or she was imprisoned, (1) the clerk of the court shall
20transmit a copy of the certificate of innocence to the clerk of
21the Court of Claims, together with the claimant's current
22address; and (2) the court shall enter an order expunging or
23sealing the record of arrest from the official records of the
24arresting authority and order that the records of the clerk of
25the circuit court and Department of State Police be sealed
26until further order of the court upon good cause shown or as

 

 

09800HB0821sam001- 34 -LRB098 03649 RLC 45861 a

1otherwise provided herein, and the name of the defendant
2obliterated from the official index requested to be kept by the
3circuit court clerk under Section 16 of the Clerks of Courts
4Act in connection with the arrest and conviction for the
5offense but the order shall not affect any index issued by the
6circuit court clerk before the entry of the order. The court
7shall enter the expungement order regardless of whether the
8petitioner has prior criminal convictions.
9    All records sealed by the Department of State Police may be
10disseminated by the Department only as required by law or to
11the arresting authority, the State's Attorney, the court upon a
12later arrest for the same or similar offense, or for the
13purpose of sentencing for any subsequent felony. Upon
14conviction for any subsequent offense, the Department of
15Corrections shall have access to all sealed records of the
16Department pertaining to that individual.
17    Upon entry of the order of expungement, the clerk of the
18circuit court shall promptly mail a copy of the order to the
19person whose records were expunged and sealed.
20    (i) Any person seeking a certificate of innocence under
21this Section based on the dismissal of an indictment or
22information or acquittal that occurred before the effective
23date of this amendatory Act of the 95th General Assembly shall
24file his or her petition within 2 years after the effective
25date of this amendatory Act of the 95th General Assembly. Any
26person seeking a certificate of innocence under this Section

 

 

09800HB0821sam001- 35 -LRB098 03649 RLC 45861 a

1based on the dismissal of an indictment or information or
2acquittal that occurred on or after the effective date of this
3amendatory Act of the 95th General Assembly shall file his or
4her petition within 2 years after the dismissal.
5    (j) The decision to grant or deny a certificate of
6innocence shall be binding only with respect to claims filed in
7the Court of Claims and shall not have a res judicata effect on
8any other proceedings.
9(Source: P.A. 95-970, eff. 9-22-08; 96-1550, eff. 7-1-11.)".