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Full Text of SB1640  101st General Assembly

SB1640 101ST GENERAL ASSEMBLY

  
  

 


 
101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB1640

 

Introduced 2/15/2019, by Sen. Laura Fine

 

SYNOPSIS AS INTRODUCED:
 
20 ILCS 2630/5.2

    Amends the Criminal Identification Act. Provides that a petitioner may petition the circuit court to expunge the records of his or her arrests and charges not initiated by arrest when each arrest or charge not initiated by arrest sought to be expunged resulted in the underlying conduct being later decriminalized.


LRB101 10247 SLF 55351 b

 

 

A BILL FOR

 

SB1640LRB101 10247 SLF 55351 b

1    AN ACT concerning State government.
 
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, sealing, and immediate 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 or 5-6-3.4
21        of the Unified Code of Corrections, Section
22        12-4.3(b)(1) and (2) of the Criminal Code of 1961 (as
23        those provisions existed before their deletion by
24        Public Act 89-313), Section 10-102 of the Illinois
25        Alcoholism and Other Drug Dependency Act, Section
26        40-10 of the Substance Use Disorder 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 Substance Use Disorder Act means
6        that the probation was terminated satisfactorily and
7        the judgment of conviction was vacated.
8            (K) "Seal" means to physically and electronically
9        maintain the records, unless the records would
10        otherwise be destroyed due to age, but to make the
11        records unavailable without a court order, subject to
12        the exceptions in Sections 12 and 13 of this Act. The
13        petitioner's name shall also be obliterated from the
14        official index required to be kept by the circuit court
15        clerk under Section 16 of the Clerks of Courts Act, but
16        any index issued by the circuit court clerk before the
17        entry of the order to seal shall not be affected.
18            (L) "Sexual offense committed against a minor"
19        includes but is not limited to the offenses of indecent
20        solicitation of a child or criminal sexual abuse when
21        the victim of such offense is under 18 years of age.
22            (M) "Terminate" as it relates to a sentence or
23        order of supervision or qualified probation includes
24        either satisfactory or unsatisfactory termination of
25        the sentence, unless otherwise specified in this
26        Section. A sentence is terminated notwithstanding any

 

 

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1        outstanding financial legal obligation.
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        (2.5) Commencing 180 days after July 29, 2016 (the
7    effective date of Public Act 99-697), the law enforcement
8    agency issuing the citation shall automatically expunge,
9    on or before January 1 and July 1 of each year, the law
10    enforcement records of a person found to have committed a
11    civil law violation of subsection (a) of Section 4 of the
12    Cannabis Control Act or subsection (c) of Section 3.5 of
13    the Drug Paraphernalia Control Act in the law enforcement
14    agency's possession or control and which contains the final
15    satisfactory disposition which pertain to the person
16    issued a citation for that offense. The law enforcement
17    agency shall provide by rule the process for access,
18    review, and to confirm the automatic expungement by the law
19    enforcement agency issuing the citation. Commencing 180
20    days after July 29, 2016 (the effective date of Public Act
21    99-697), the clerk of the circuit court shall expunge, upon
22    order of the court, or in the absence of a court order on
23    or before January 1 and July 1 of each year, the court
24    records of a person found in the circuit court to have
25    committed a civil law violation of subsection (a) of
26    Section 4 of the Cannabis Control Act or subsection (c) of

 

 

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1    Section 3.5 of the Drug Paraphernalia Control Act in the
2    clerk's possession or control and which contains the final
3    satisfactory disposition which pertain to the person
4    issued a citation for any of those offenses.
5        (3) Exclusions. Except as otherwise provided in
6    subsections (b)(5), (b)(6), (b)(8), (e), (e-5), and (e-6)
7    of this Section, the court shall not order:
8            (A) the sealing or expungement of the records of
9        arrests or charges not initiated by arrest that result
10        in an order of supervision for or conviction of: (i)
11        any sexual offense committed against a minor; (ii)
12        Section 11-501 of the Illinois Vehicle Code or a
13        similar provision of a local ordinance; or (iii)
14        Section 11-503 of the Illinois Vehicle Code or a
15        similar provision of a local ordinance, unless the
16        arrest or charge is for a misdemeanor violation of
17        subsection (a) of Section 11-503 or a similar provision
18        of a local ordinance, that occurred prior to the
19        offender reaching the age of 25 years and the offender
20        has no other conviction for violating Section 11-501 or
21        11-503 of the Illinois Vehicle Code or a similar
22        provision of a local ordinance.
23            (B) the sealing or expungement of records of minor
24        traffic offenses (as defined in subsection (a)(1)(G)),
25        unless the petitioner was arrested and released
26        without charging.

 

 

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1            (C) the sealing of the records of arrests or
2        charges not initiated by arrest which result in an
3        order of supervision or a conviction for the following
4        offenses:
5                (i) offenses included in Article 11 of the
6            Criminal Code of 1961 or the Criminal Code of 2012
7            or a similar provision of a local ordinance, except
8            Section 11-14 and a misdemeanor violation of
9            Section 11-30 of the Criminal Code of 1961 or the
10            Criminal Code of 2012, or a similar provision of a
11            local ordinance;
12                (ii) Section 11-1.50, 12-3.4, 12-15, 12-30,
13            26-5, or 48-1 of the Criminal Code of 1961 or the
14            Criminal Code of 2012, or a similar provision of a
15            local ordinance;
16                (iii) Sections 12-3.1 or 12-3.2 of the
17            Criminal Code of 1961 or the Criminal Code of 2012,
18            or Section 125 of the Stalking No Contact Order
19            Act, or Section 219 of the Civil No Contact Order
20            Act, or a similar provision of a local ordinance;
21                (iv) Class A misdemeanors or felony offenses
22            under the Humane Care for Animals Act; or
23                (v) any offense or attempted offense that
24            would subject a person to registration under the
25            Sex Offender Registration Act.
26            (D) (blank).

 

 

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1    (b) Expungement.
2        (1) A petitioner may petition the circuit court to
3    expunge the records of his or her arrests and charges not
4    initiated by arrest when each arrest or charge not
5    initiated by arrest sought to be expunged resulted in: (i)
6    acquittal, dismissal, or the petitioner's release without
7    charging, unless excluded by subsection (a)(3)(B); (ii) a
8    conviction which was vacated or reversed, unless excluded
9    by subsection (a)(3)(B); (iii) an order of supervision and
10    such supervision was successfully completed by the
11    petitioner, unless excluded by subsection (a)(3)(A) or
12    (a)(3)(B); or (iv) an order of qualified probation (as
13    defined in subsection (a)(1)(J)) and such probation was
14    successfully completed by the petitioner; the underlying
15    conduct being later decriminalized.
16        (1.5) When a petitioner seeks to have a record of
17    arrest expunged under this Section, and the offender has
18    been convicted of a criminal offense, the State's Attorney
19    may object to the expungement on the grounds that the
20    records contain specific relevant information aside from
21    the mere fact of the arrest.
22        (2) Time frame for filing a petition to expunge.
23            (A) When the arrest or charge not initiated by
24        arrest sought to be expunged resulted in an acquittal,
25        dismissal, the petitioner's release without charging,
26        or the reversal or vacation of a conviction, there is

 

 

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1        no waiting period to petition for the expungement of
2        such records.
3            (B) When the arrest or charge not initiated by
4        arrest sought to be expunged resulted in an order of
5        supervision, successfully completed by the petitioner,
6        the following time frames will apply:
7                (i) Those arrests or charges that resulted in
8            orders of supervision under Section 3-707, 3-708,
9            3-710, or 5-401.3 of the Illinois Vehicle Code or a
10            similar provision of a local ordinance, or under
11            Section 11-1.50, 12-3.2, or 12-15 of the Criminal
12            Code of 1961 or the Criminal Code of 2012, or a
13            similar provision of a local ordinance, shall not
14            be eligible for expungement until 5 years have
15            passed following the satisfactory termination of
16            the supervision.
17                (i-5) Those arrests or charges that resulted
18            in orders of supervision for a misdemeanor
19            violation of subsection (a) of Section 11-503 of
20            the Illinois Vehicle Code or a similar provision of
21            a local ordinance, that occurred prior to the
22            offender reaching the age of 25 years and the
23            offender has no other conviction for violating
24            Section 11-501 or 11-503 of the Illinois Vehicle
25            Code or a similar provision of a local ordinance
26            shall not be eligible for expungement until the

 

 

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

 

 

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

 

 

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1    seal the records of the circuit court clerk in connection
2    with the proceedings of the trial court concerning that
3    offense. However, the records of the arresting authority
4    and the Department of State Police concerning the offense
5    shall not be sealed. The court, upon good cause shown,
6    shall make the records of the circuit court clerk in
7    connection with the proceedings of the trial court
8    concerning the offense available for public inspection.
9        (6) If a conviction has been set aside on direct review
10    or on collateral attack and the court determines by clear
11    and convincing evidence that the petitioner was factually
12    innocent of the charge, the court that finds the petitioner
13    factually innocent of the charge shall enter an expungement
14    order for the conviction for which the petitioner has been
15    determined to be innocent as provided in subsection (b) of
16    Section 5-5-4 of the Unified Code of Corrections.
17        (7) Nothing in this Section shall prevent the
18    Department of State Police from maintaining all records of
19    any person who is admitted to probation upon terms and
20    conditions and who fulfills those terms and conditions
21    pursuant to Section 10 of the Cannabis Control Act, Section
22    410 of the Illinois Controlled Substances Act, Section 70
23    of the Methamphetamine Control and Community Protection
24    Act, Section 5-6-3.3 or 5-6-3.4 of the Unified Code of
25    Corrections, Section 12-4.3 or subdivision (b)(1) of
26    Section 12-3.05 of the Criminal Code of 1961 or the

 

 

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1    Criminal Code of 2012, Section 10-102 of the Illinois
2    Alcoholism and Other Drug Dependency Act, Section 40-10 of
3    the Substance Use Disorder Act, or Section 10 of the
4    Steroid Control Act.
5        (8) If the petitioner has been granted a certificate of
6    innocence under Section 2-702 of the Code of Civil
7    Procedure, the court that grants the certificate of
8    innocence shall also enter an order expunging the
9    conviction for which the petitioner has been determined to
10    be innocent as provided in subsection (h) of Section 2-702
11    of the Code of Civil Procedure.
12    (c) Sealing.
13        (1) Applicability. Notwithstanding any other provision
14    of this Act to the contrary, and cumulative with any rights
15    to expungement of criminal records, this subsection
16    authorizes the sealing of criminal records of adults and of
17    minors prosecuted as adults. Subsection (g) of this Section
18    provides for immediate sealing of certain records.
19        (2) Eligible Records. The following records may be
20    sealed:
21            (A) All arrests resulting in release without
22        charging;
23            (B) Arrests or charges not initiated by arrest
24        resulting in acquittal, dismissal, or conviction when
25        the conviction was reversed or vacated, except as
26        excluded by subsection (a)(3)(B);

 

 

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1            (C) Arrests or charges not initiated by arrest
2        resulting in orders of supervision, including orders
3        of supervision for municipal ordinance violations,
4        successfully completed by the petitioner, unless
5        excluded by subsection (a)(3);
6            (D) Arrests or charges not initiated by arrest
7        resulting in convictions, including convictions on
8        municipal ordinance violations, unless excluded by
9        subsection (a)(3);
10            (E) Arrests or charges not initiated by arrest
11        resulting in orders of first offender probation under
12        Section 10 of the Cannabis Control Act, Section 410 of
13        the Illinois Controlled Substances Act, Section 70 of
14        the Methamphetamine Control and Community Protection
15        Act, or Section 5-6-3.3 of the Unified Code of
16        Corrections; and
17            (F) Arrests or charges not initiated by arrest
18        resulting in felony convictions unless otherwise
19        excluded by subsection (a) paragraph (3) of this
20        Section.
21        (3) When Records Are Eligible to Be Sealed. Records
22    identified as eligible under subsection (c)(2) may be
23    sealed as follows:
24            (A) Records identified as eligible under
25        subsection (c)(2)(A) and (c)(2)(B) may be sealed at any
26        time.

 

 

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1            (B) Except as otherwise provided in subparagraph
2        (E) of this paragraph (3), records identified as
3        eligible under subsection (c)(2)(C) may be sealed 2
4        years after the termination of petitioner's last
5        sentence (as defined in subsection (a)(1)(F)).
6            (C) Except as otherwise provided in subparagraph
7        (E) of this paragraph (3), records identified as
8        eligible under subsections (c)(2)(D), (c)(2)(E), and
9        (c)(2)(F) may be sealed 3 years after the termination
10        of the petitioner's last sentence (as defined in
11        subsection (a)(1)(F)). Convictions requiring public
12        registration under the Arsonist Registration Act, the
13        Sex Offender Registration Act, or the Murderer and
14        Violent Offender Against Youth Registration Act may
15        not be sealed until the petitioner is no longer
16        required to register under that relevant Act.
17            (D) Records identified in subsection
18        (a)(3)(A)(iii) may be sealed after the petitioner has
19        reached the age of 25 years.
20            (E) Records identified as eligible under
21        subsections (c)(2)(C), (c)(2)(D), (c)(2)(E), or
22        (c)(2)(F) may be sealed upon termination of the
23        petitioner's last sentence if the petitioner earned a
24        high school diploma, associate's degree, career
25        certificate, vocational technical certification, or
26        bachelor's degree, or passed the high school level Test

 

 

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1        of General Educational Development, during the period
2        of his or her sentence, aftercare release, or mandatory
3        supervised release. This subparagraph shall apply only
4        to a petitioner who has not completed the same
5        educational goal prior to the period of his or her
6        sentence, aftercare release, or mandatory supervised
7        release. If a petition for sealing eligible records
8        filed under this subparagraph is denied by the court,
9        the time periods under subparagraph (B) or (C) shall
10        apply to any subsequent petition for sealing filed by
11        the petitioner.
12        (4) Subsequent felony convictions. A person may not
13    have subsequent felony conviction records sealed as
14    provided in this subsection (c) if he or she is convicted
15    of any felony offense after the date of the sealing of
16    prior felony convictions as provided in this subsection
17    (c). The court may, upon conviction for a subsequent felony
18    offense, order the unsealing of prior felony conviction
19    records previously ordered sealed by the court.
20        (5) Notice of eligibility for sealing. Upon entry of a
21    disposition for an eligible record under this subsection
22    (c), the petitioner shall be informed by the court of the
23    right to have the records sealed and the procedures for the
24    sealing of the records.
25    (d) Procedure. The following procedures apply to
26expungement under subsections (b), (e), and (e-6) and sealing

 

 

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1under subsections (c) and (e-5):
2        (1) Filing the petition. Upon becoming eligible to
3    petition for the expungement or sealing of records under
4    this Section, the petitioner shall file a petition
5    requesting the expungement or sealing of records with the
6    clerk of the court where the arrests occurred or the
7    charges were brought, or both. If arrests occurred or
8    charges were brought in multiple jurisdictions, a petition
9    must be filed in each such jurisdiction. The petitioner
10    shall pay the applicable fee, except no fee shall be
11    required if the petitioner has obtained a court order
12    waiving fees under Supreme Court Rule 298 or it is
13    otherwise waived.
14        (1.5) County fee waiver pilot program. In a county of
15    3,000,000 or more inhabitants, no fee shall be required to
16    be paid by a petitioner if the records sought to be
17    expunged or sealed were arrests resulting in release
18    without charging or arrests or charges not initiated by
19    arrest resulting in acquittal, dismissal, or conviction
20    when the conviction was reversed or vacated, unless
21    excluded by subsection (a)(3)(B). The provisions of this
22    paragraph (1.5), other than this sentence, are inoperative
23    on and after January 1, 2019.
24        (2) Contents of petition. The petition shall be
25    verified and shall contain the petitioner's name, date of
26    birth, current address and, for each arrest or charge not

 

 

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1    initiated by arrest sought to be sealed or expunged, the
2    case number, the date of arrest (if any), the identity of
3    the arresting authority, and such other information as the
4    court may require. During the pendency of the proceeding,
5    the petitioner shall promptly notify the circuit court
6    clerk of any change of his or her address. If the
7    petitioner has received a certificate of eligibility for
8    sealing from the Prisoner Review Board under paragraph (10)
9    of subsection (a) of Section 3-3-2 of the Unified Code of
10    Corrections, the certificate shall be attached to the
11    petition.
12        (3) Drug test. The petitioner must attach to the
13    petition proof that the petitioner has passed a test taken
14    within 30 days before the filing of the petition showing
15    the absence within his or her body of all illegal
16    substances as defined by the Illinois Controlled
17    Substances Act, the Methamphetamine Control and Community
18    Protection Act, and the Cannabis Control Act if he or she
19    is petitioning to:
20            (A) seal felony records under clause (c)(2)(E);
21            (B) seal felony records for a violation of the
22        Illinois Controlled Substances Act, the
23        Methamphetamine Control and Community Protection Act,
24        or the Cannabis Control Act under clause (c)(2)(F);
25            (C) seal felony records under subsection (e-5); or
26            (D) expunge felony records of a qualified

 

 

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1        probation under clause (b)(1)(iv).
2        (4) Service of petition. The circuit court clerk shall
3    promptly serve a copy of the petition and documentation to
4    support the petition under subsection (e-5) or (e-6) on the
5    State's Attorney or prosecutor charged with the duty of
6    prosecuting the offense, the Department of State Police,
7    the arresting agency and the chief legal officer of the
8    unit of local government effecting the arrest.
9        (5) Objections.
10            (A) Any party entitled to notice of the petition
11        may file an objection to the petition. All objections
12        shall be in writing, shall be filed with the circuit
13        court clerk, and shall state with specificity the basis
14        of the objection. Whenever a person who has been
15        convicted of an offense is granted a pardon by the
16        Governor which specifically authorizes expungement, an
17        objection to the petition may not be filed.
18            (B) Objections to a petition to expunge or seal
19        must be filed within 60 days of the date of service of
20        the petition.
21        (6) Entry of order.
22            (A) The Chief Judge of the circuit wherein the
23        charge was brought, any judge of that circuit
24        designated by the Chief Judge, or in counties of less
25        than 3,000,000 inhabitants, the presiding trial judge
26        at the petitioner's trial, if any, shall rule on the

 

 

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1        petition to expunge or seal as set forth in this
2        subsection (d)(6).
3            (B) Unless the State's Attorney or prosecutor, the
4        Department of State Police, the arresting agency, or
5        the chief legal officer files an objection to the
6        petition to expunge or seal within 60 days from the
7        date of service of the petition, the court shall enter
8        an order granting or denying the petition.
9            (C) Notwithstanding any other provision of law,
10        the court shall not deny a petition for sealing under
11        this Section because the petitioner has not satisfied
12        an outstanding legal financial obligation established,
13        imposed, or originated by a court, law enforcement
14        agency, or a municipal, State, county, or other unit of
15        local government, including, but not limited to, any
16        cost, assessment, fine, or fee. An outstanding legal
17        financial obligation does not include any court
18        ordered restitution to a victim under Section 5-5-6 of
19        the Unified Code of Corrections, unless the
20        restitution has been converted to a civil judgment.
21        Nothing in this subparagraph (C) waives, rescinds, or
22        abrogates a legal financial obligation or otherwise
23        eliminates or affects the right of the holder of any
24        financial obligation to pursue collection under
25        applicable federal, State, or local law.
26        (7) Hearings. If an objection is filed, the court shall

 

 

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1    set a date for a hearing and notify the petitioner and all
2    parties entitled to notice of the petition of the hearing
3    date at least 30 days prior to the hearing. Prior to the
4    hearing, the State's Attorney shall consult with the
5    Department as to the appropriateness of the relief sought
6    in the petition to expunge or seal. At the hearing, the
7    court shall hear evidence on whether the petition should or
8    should not be granted, and shall grant or deny the petition
9    to expunge or seal the records based on the evidence
10    presented at the hearing. The court may consider the
11    following:
12            (A) the strength of the evidence supporting the
13        defendant's conviction;
14            (B) the reasons for retention of the conviction
15        records by the State;
16            (C) the petitioner's age, criminal record history,
17        and employment history;
18            (D) the period of time between the petitioner's
19        arrest on the charge resulting in the conviction and
20        the filing of the petition under this Section; and
21            (E) the specific adverse consequences the
22        petitioner may be subject to if the petition is denied.
23        (8) Service of order. After entering an order to
24    expunge or seal records, the court must provide copies of
25    the order to the Department, in a form and manner
26    prescribed by the Department, to the petitioner, to the

 

 

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1    State's Attorney or prosecutor charged with the duty of
2    prosecuting the offense, to the arresting agency, to the
3    chief legal officer of the unit of local government
4    effecting the arrest, and to such other criminal justice
5    agencies as may be ordered by the court.
6        (9) Implementation of order.
7            (A) Upon entry of an order to expunge records
8        pursuant to (b)(2)(A) or (b)(2)(B)(ii), or both:
9                (i) the records shall be expunged (as defined
10            in subsection (a)(1)(E)) by the arresting agency,
11            the Department, and any other agency as ordered by
12            the court, within 60 days of the date of service of
13            the order, unless a motion to vacate, modify, or
14            reconsider the order is filed pursuant to
15            paragraph (12) of subsection (d) of this Section;
16                (ii) the records of the circuit court clerk
17            shall be impounded until further order of the court
18            upon good cause shown and the name of the
19            petitioner obliterated on the official index
20            required to be kept by the circuit court clerk
21            under Section 16 of the Clerks of Courts Act, but
22            the order shall not affect any index issued by the
23            circuit court clerk before the entry of the order;
24            and
25                (iii) in response to an inquiry for expunged
26            records, the court, the Department, or the agency

 

 

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

 

 

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1                (iv) records impounded by the Department may
2            be disseminated by the Department only as required
3            by law or to the arresting authority, the State's
4            Attorney, and the court upon a later arrest for the
5            same or a similar offense or for the purpose of
6            sentencing for any subsequent felony, and to the
7            Department of Corrections upon conviction for any
8            offense; and
9                (v) in response to an inquiry for such records
10            from anyone not authorized by law to access such
11            records, the court, the Department, or the agency
12            receiving such inquiry shall reply as it does in
13            response to inquiries when no records ever
14            existed.
15            (B-5) Upon entry of an order to expunge records
16        under subsection (e-6):
17                (i) the records shall be expunged (as defined
18            in subsection (a)(1)(E)) by the arresting agency
19            and any other agency as ordered by the court,
20            within 60 days of the date of service of the order,
21            unless a motion to vacate, modify, or reconsider
22            the order is filed under paragraph (12) of
23            subsection (d) of this Section;
24                (ii) the records of the circuit court clerk
25            shall be impounded until further order of the court
26            upon good cause shown and the name of the

 

 

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

 

 

SB1640- 27 -LRB101 10247 SLF 55351 b

1        subsection (c), the arresting agency, any other agency
2        as ordered by the court, the Department, and the court
3        shall seal the records (as defined in subsection
4        (a)(1)(K)). 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 existed.
9            (D) The Department shall send written notice to the
10        petitioner of its compliance with each order to expunge
11        or seal records within 60 days of the date of service
12        of that order or, if a motion to vacate, modify, or
13        reconsider is filed, within 60 days of service of the
14        order resolving the motion, if that order requires the
15        Department to expunge or seal records. In the event of
16        an appeal from the circuit court order, the Department
17        shall send written notice to the petitioner of its
18        compliance with an Appellate Court or Supreme Court
19        judgment to expunge or seal records within 60 days of
20        the issuance of the court's mandate. The notice is not
21        required while any motion to vacate, modify, or
22        reconsider, or any appeal or petition for
23        discretionary appellate review, is pending.
24            (E) Upon motion, the court may order that a sealed
25        judgment or other court record necessary to
26        demonstrate the amount of any legal financial

 

 

SB1640- 28 -LRB101 10247 SLF 55351 b

1        obligation due and owing be made available for the
2        limited purpose of collecting any legal financial
3        obligations owed by the petitioner that were
4        established, imposed, or originated in the criminal
5        proceeding for which those records have been sealed.
6        The records made available under this subparagraph (E)
7        shall not be entered into the official index required
8        to be kept by the circuit court clerk under Section 16
9        of the Clerks of Courts Act and shall be immediately
10        re-impounded upon the collection of the outstanding
11        financial obligations.
12            (F) Notwithstanding any other provision of this
13        Section, a circuit court clerk may access a sealed
14        record for the limited purpose of collecting payment
15        for any legal financial obligations that were
16        established, imposed, or originated in the criminal
17        proceedings for which those records have been sealed.
18        (10) Fees. The Department may charge the petitioner a
19    fee equivalent to the cost of processing any order to
20    expunge or seal records. Notwithstanding any provision of
21    the Clerks of Courts Act to the contrary, the circuit court
22    clerk may charge a fee equivalent to the cost associated
23    with the sealing or expungement of records by the circuit
24    court clerk. From the total filing fee collected for the
25    petition to seal or expunge, the circuit court clerk shall
26    deposit $10 into the Circuit Court Clerk Operation and

 

 

SB1640- 29 -LRB101 10247 SLF 55351 b

1    Administrative Fund, to be used to offset the costs
2    incurred by the circuit court clerk in performing the
3    additional duties required to serve the petition to seal or
4    expunge on all parties. The circuit court clerk shall
5    collect and forward the Department of State Police portion
6    of the fee to the Department and it shall be deposited in
7    the State Police Services Fund. If the record brought under
8    an expungement petition was previously sealed under this
9    Section, the fee for the expungement petition for that same
10    record shall be waived.
11        (11) Final Order. No court order issued under the
12    expungement or sealing provisions of this Section shall
13    become final for purposes of appeal until 30 days after
14    service of the order on the petitioner and all parties
15    entitled to notice of the petition.
16        (12) Motion to Vacate, Modify, or Reconsider. Under
17    Section 2-1203 of the Code of Civil Procedure, the
18    petitioner or any party entitled to notice may file a
19    motion to vacate, modify, or reconsider the order granting
20    or denying the petition to expunge or seal within 60 days
21    of service of the order. If filed more than 60 days after
22    service of the order, a petition to vacate, modify, or
23    reconsider shall comply with subsection (c) of Section
24    2-1401 of the Code of Civil Procedure. Upon filing of a
25    motion to vacate, modify, or reconsider, notice of the
26    motion shall be served upon the petitioner and all parties

 

 

SB1640- 30 -LRB101 10247 SLF 55351 b

1    entitled to notice of the petition.
2        (13) Effect of Order. An order granting a petition
3    under the expungement or sealing provisions of this Section
4    shall not be considered void because it fails to comply
5    with the provisions of this Section or because of any error
6    asserted in a motion to vacate, modify, or reconsider. The
7    circuit court retains jurisdiction to determine whether
8    the order is voidable and to vacate, modify, or reconsider
9    its terms based on a motion filed under paragraph (12) of
10    this subsection (d).
11        (14) Compliance with Order Granting Petition to Seal
12    Records. Unless a court has entered a stay of an order
13    granting a petition to seal, all parties entitled to notice
14    of the petition must fully comply with the terms of the
15    order within 60 days of service of the order even if a
16    party is seeking relief from the order through a motion
17    filed under paragraph (12) of this subsection (d) or is
18    appealing the order.
19        (15) Compliance with Order Granting Petition to
20    Expunge Records. While a party is seeking relief from the
21    order granting the petition to expunge through a motion
22    filed under paragraph (12) of this subsection (d) or is
23    appealing the order, and unless a court has entered a stay
24    of that order, the parties entitled to notice of the
25    petition must seal, but need not expunge, the records until
26    there is a final order on the motion for relief or, in the

 

 

SB1640- 31 -LRB101 10247 SLF 55351 b

1    case of an appeal, the issuance of that court's mandate.
2        (16) The changes to this subsection (d) made by Public
3    Act 98-163 apply to all petitions pending on August 5, 2013
4    (the effective date of Public Act 98-163) and to all orders
5    ruling on a petition to expunge or seal on or after August
6    5, 2013 (the effective date of Public Act 98-163).
7    (e) Whenever a person who has been convicted of an offense
8is granted a pardon by the Governor which specifically
9authorizes expungement, he or she may, upon verified petition
10to the Chief Judge of the circuit where the person had been
11convicted, any judge of the circuit designated by the Chief
12Judge, or in counties of less than 3,000,000 inhabitants, the
13presiding trial judge at the defendant's trial, have a court
14order entered expunging the record of arrest from the official
15records of the arresting authority and order that the records
16of the circuit court clerk and the Department be sealed until
17further order of the court upon good cause shown or as
18otherwise provided herein, and the name of the defendant
19obliterated from the official index requested to be kept by the
20circuit court clerk under Section 16 of the Clerks of Courts
21Act in connection with the arrest and conviction for the
22offense for which he or she had been pardoned but the order
23shall not affect any index issued by the circuit court clerk
24before the entry of the order. All records sealed by the
25Department may be disseminated by the Department only to the
26arresting authority, the State's Attorney, and the court upon a

 

 

SB1640- 32 -LRB101 10247 SLF 55351 b

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

 

 

SB1640- 33 -LRB101 10247 SLF 55351 b

1Department may be disseminated by the Department only as
2required by this Act or to the arresting authority, a law
3enforcement agency, the State's Attorney, and the court upon a
4later arrest for the same or similar offense or for the purpose
5of sentencing for any subsequent felony. Upon conviction for
6any subsequent offense, the Department of Corrections shall
7have access to all sealed records of the Department pertaining
8to that individual. Upon entry of the order of sealing, the
9circuit court clerk shall promptly mail a copy of the order to
10the person who was granted the certificate of eligibility for
11sealing.
12    (e-6) Whenever a person who has been convicted of an
13offense is granted a certificate of eligibility for expungement
14by the Prisoner Review Board which specifically authorizes
15expungement, he or she may, upon verified petition to the Chief
16Judge of the circuit where the person had been convicted, any
17judge of the circuit designated by the Chief Judge, or in
18counties of less than 3,000,000 inhabitants, the presiding
19trial judge at the petitioner's trial, have a court order
20entered expunging the record of arrest from the official
21records of the arresting authority and order that the records
22of the circuit court clerk and the Department be sealed until
23further order of the court upon good cause shown or as
24otherwise provided herein, and the name of the petitioner
25obliterated from the official index requested to be kept by the
26circuit court clerk under Section 16 of the Clerks of Courts

 

 

SB1640- 34 -LRB101 10247 SLF 55351 b

1Act in connection with the arrest and conviction for the
2offense for which he or she had been granted the certificate
3but the order shall not affect any index issued by the circuit
4court clerk before the entry of the order. All records sealed
5by the Department may be disseminated by the Department only as
6required by this Act or to the arresting authority, a law
7enforcement agency, the State's Attorney, and the court upon a
8later arrest for the same or similar offense or for the purpose
9of sentencing for any subsequent felony. Upon conviction for
10any subsequent offense, the Department of Corrections shall
11have access to all expunged records of the Department
12pertaining to that individual. Upon entry of the order of
13expungement, the circuit court clerk shall promptly mail a copy
14of the order to the person who was granted the certificate of
15eligibility for expungement.
16    (f) Subject to available funding, the Illinois Department
17of Corrections shall conduct a study of the impact of sealing,
18especially on employment and recidivism rates, utilizing a
19random sample of those who apply for the sealing of their
20criminal records under Public Act 93-211. At the request of the
21Illinois Department of Corrections, records of the Illinois
22Department of Employment Security shall be utilized as
23appropriate to assist in the study. The study shall not
24disclose any data in a manner that would allow the
25identification of any particular individual or employing unit.
26The study shall be made available to the General Assembly no

 

 

SB1640- 35 -LRB101 10247 SLF 55351 b

1later than September 1, 2010.
2    (g) Immediate Sealing.
3        (1) Applicability. Notwithstanding any other provision
4    of this Act to the contrary, and cumulative with any rights
5    to expungement or sealing of criminal records, this
6    subsection authorizes the immediate sealing of criminal
7    records of adults and of minors prosecuted as adults.
8        (2) Eligible Records. Arrests or charges not initiated
9    by arrest resulting in acquittal or dismissal with
10    prejudice, except as excluded by subsection (a)(3)(B),
11    that occur on or after January 1, 2018 (the effective date
12    of Public Act 100-282), may be sealed immediately if the
13    petition is filed with the circuit court clerk on the same
14    day and during the same hearing in which the case is
15    disposed.
16        (3) When Records are Eligible to be Immediately Sealed.
17    Eligible records under paragraph (2) of this subsection (g)
18    may be sealed immediately after entry of the final
19    disposition of a case, notwithstanding the disposition of
20    other charges in the same case.
21        (4) Notice of Eligibility for Immediate Sealing. Upon
22    entry of a disposition for an eligible record under this
23    subsection (g), the defendant shall be informed by the
24    court of his or her right to have eligible records
25    immediately sealed and the procedure for the immediate
26    sealing of these records.

 

 

SB1640- 36 -LRB101 10247 SLF 55351 b

1        (5) Procedure. The following procedures apply to
2    immediate sealing under this subsection (g).
3            (A) Filing the Petition. Upon entry of the final
4        disposition of the case, the defendant's attorney may
5        immediately petition the court, on behalf of the
6        defendant, for immediate sealing of eligible records
7        under paragraph (2) of this subsection (g) that are
8        entered on or after January 1, 2018 (the effective date
9        of Public Act 100-282). The immediate sealing petition
10        may be filed with the circuit court clerk during the
11        hearing in which the final disposition of the case is
12        entered. If the defendant's attorney does not file the
13        petition for immediate sealing during the hearing, the
14        defendant may file a petition for sealing at any time
15        as authorized under subsection (c)(3)(A).
16            (B) Contents of Petition. The immediate sealing
17        petition shall be verified and shall contain the
18        petitioner's name, date of birth, current address, and
19        for each eligible record, the case number, the date of
20        arrest if applicable, the identity of the arresting
21        authority if applicable, and other information as the
22        court may require.
23            (C) Drug Test. The petitioner shall not be required
24        to attach proof that he or she has passed a drug test.
25            (D) Service of Petition. A copy of the petition
26        shall be served on the State's Attorney in open court.

 

 

SB1640- 37 -LRB101 10247 SLF 55351 b

1        The petitioner shall not be required to serve a copy of
2        the petition on any other agency.
3            (E) Entry of Order. The presiding trial judge shall
4        enter an order granting or denying the petition for
5        immediate sealing during the hearing in which it is
6        filed. Petitions for immediate sealing shall be ruled
7        on in the same hearing in which the final disposition
8        of the case is entered.
9            (F) Hearings. The court shall hear the petition for
10        immediate sealing on the same day and during the same
11        hearing in which the disposition is rendered.
12            (G) Service of Order. An order to immediately seal
13        eligible records shall be served in conformance with
14        subsection (d)(8).
15            (H) Implementation of Order. An order to
16        immediately seal records shall be implemented in
17        conformance with subsections (d)(9)(C) and (d)(9)(D).
18            (I) Fees. The fee imposed by the circuit court
19        clerk and the Department of State Police shall comply
20        with paragraph (1) of subsection (d) of this Section.
21            (J) Final Order. No court order issued under this
22        subsection (g) shall become final for purposes of
23        appeal until 30 days after service of the order on the
24        petitioner and all parties entitled to service of the
25        order in conformance with subsection (d)(8).
26            (K) Motion to Vacate, Modify, or Reconsider. Under

 

 

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1        Section 2-1203 of the Code of Civil Procedure, the
2        petitioner, State's Attorney, or the Department of
3        State Police may file a motion to vacate, modify, or
4        reconsider the order denying the petition to
5        immediately seal within 60 days of service of the
6        order. If filed more than 60 days after service of the
7        order, a petition to vacate, modify, or reconsider
8        shall comply with subsection (c) of Section 2-1401 of
9        the Code of Civil Procedure.
10            (L) Effect of Order. An order granting an immediate
11        sealing petition shall not be considered void because
12        it fails to comply with the provisions of this Section
13        or because of an error asserted in a motion to vacate,
14        modify, or reconsider. The circuit court retains
15        jurisdiction to determine whether the order is
16        voidable, and to vacate, modify, or reconsider its
17        terms based on a motion filed under subparagraph (L) of
18        this subsection (g).
19            (M) Compliance with Order Granting Petition to
20        Seal Records. Unless a court has entered a stay of an
21        order granting a petition to immediately seal, all
22        parties entitled to service of the order must fully
23        comply with the terms of the order within 60 days of
24        service of the order.
25    (h) Sealing; trafficking victims.
26        (1) A trafficking victim as defined by paragraph (10)

 

 

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1    of subsection (a) of Section 10-9 of the Criminal Code of
2    2012 shall be eligible to petition for immediate sealing of
3    his or her criminal record upon the completion of his or
4    her last sentence if his or her participation in the
5    underlying offense was a direct result of human trafficking
6    under Section 10-9 of the Criminal Code of 2012 or a severe
7    form of trafficking under the federal Trafficking Victims
8    Protection Act.
9        (2) A petitioner under this subsection (h), in addition
10    to the requirements provided under paragraph (4) of
11    subsection (d) of this Section, shall include in his or her
12    petition a clear and concise statement that: (A) he or she
13    was a victim of human trafficking at the time of the
14    offense; and (B) that his or her participation in the
15    offense was a direct result of human trafficking under
16    Section 10-9 of the Criminal Code of 2012 or a severe form
17    of trafficking under the federal Trafficking Victims
18    Protection Act.
19        (3) If an objection is filed alleging that the
20    petitioner is not entitled to immediate sealing under this
21    subsection (h), the court shall conduct a hearing under
22    paragraph (7) of subsection (d) of this Section and the
23    court shall determine whether the petitioner is entitled to
24    immediate sealing under this subsection (h). A petitioner
25    is eligible for immediate relief under this subsection (h)
26    if he or she shows, by a preponderance of the evidence,

 

 

SB1640- 40 -LRB101 10247 SLF 55351 b

1    that: (A) he or she was a victim of human trafficking at
2    the time of the offense; and (B) that his or her
3    participation in the offense was a direct result of human
4    trafficking under Section 10-9 of the Criminal Code of 2012
5    or a severe form of trafficking under the federal
6    Trafficking Victims Protection Act.
7(Source: P.A. 99-78, eff. 7-20-15; 99-378, eff. 1-1-16; 99-385,
8eff. 1-1-16; 99-642, eff. 7-28-16; 99-697, eff. 7-29-16;
999-881, eff. 1-1-17; 100-201, eff. 8-18-17; 100-282, eff.
101-1-18; 100-284, eff. 8-24-17; 100-287, eff. 8-24-17; 100-692,
11eff. 8-3-18; 100-759, eff. 1-1-19; 100-776, eff. 8-10-18;
12100-863, eff. 8-14-18; revised 8-30-18.)