Illinois General Assembly - Full Text of HB4392
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Full Text of HB4392  102nd General Assembly

HB4392enr 102ND GENERAL ASSEMBLY

  
  
  

 


 
HB4392 EnrolledLRB102 21280 RLC 30391 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 following Sections of the
14        Unified Code of Corrections, 730 ILCS 5/5-1-2 through
15        5/5-1-22:
16                (i) Business Offense, Section 5-1-2. (730 ILCS
17            5/5-1-2),
18                (ii) Charge, Section 5-1-3. (730 ILCS
19            5/5-1-3),
20                (iii) Court, Section 5-1-6. (730 ILCS
21            5/5-1-6),
22                (iv) Defendant, Section 5-1-7. (730 ILCS
23            5/5-1-7),

 

 

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1                (v) Felony, Section 5-1-9. (730 ILCS 5/5-1-9),
2                (vi) Imprisonment, Section 5-1-10. (730 ILCS
3            5/5-1-10),
4                (vii) Judgment, Section 5-1-12. (730 ILCS
5            5/5-1-12),
6                (viii) Misdemeanor, Section 5-1-14. (730 ILCS
7            5/5-1-14),
8                (ix) Offense, Section 5-1-15. (730 ILCS
9            5/5-1-15),
10                (x) Parole, Section 5-1-16. (730 ILCS
11            5/5-1-16),
12                (xi) Petty Offense, Section 5-1-17. (730 ILCS
13            5/5-1-17),
14                (xii) Probation, Section 5-1-18. (730 ILCS
15            5/5-1-18),
16                (xiii) Sentence, Section 5-1-19. (730 ILCS
17            5/5-1-19),
18                (xiv) Supervision, Section 5-1-21. (730 ILCS
19            5/5-1-21), and
20                (xv) Victim, Section 5-1-22. (730 ILCS
21            5/5-1-22).
22            (B) As used in this Section, "charge not initiated
23        by arrest" means a charge (as defined by Section 5-1-3
24        of the Unified Code of Corrections 730 ILCS 5/5-1-3)
25        brought against a defendant where the defendant is not
26        arrested prior to or as a direct result of the charge.

 

 

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1            (C) "Conviction" means a judgment of conviction or
2        sentence entered upon a plea of guilty or upon a
3        verdict or finding of guilty of an offense, rendered
4        by a legally constituted jury or by a court of
5        competent jurisdiction authorized to try the case
6        without a jury. An order of supervision successfully
7        completed by the petitioner is not a conviction. An
8        order of qualified probation (as defined in subsection
9        (a)(1)(J)) successfully completed by the petitioner is
10        not a conviction. An order of supervision or an order
11        of qualified probation that is terminated
12        unsatisfactorily is a conviction, unless the
13        unsatisfactory termination is reversed, vacated, or
14        modified and the judgment of conviction, if any, is
15        reversed or vacated.
16            (D) "Criminal offense" means a petty offense,
17        business offense, misdemeanor, felony, or municipal
18        ordinance violation (as defined in subsection
19        (a)(1)(H)). As used in this Section, a minor traffic
20        offense (as defined in subsection (a)(1)(G)) shall not
21        be considered a criminal offense.
22            (E) "Expunge" means to physically destroy the
23        records or return them to the petitioner and to
24        obliterate the petitioner's name from any official
25        index or public record, or both. Nothing in this Act
26        shall require the physical destruction of the circuit

 

 

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1        court file, but such records relating to arrests or
2        charges, or both, ordered expunged shall be impounded
3        as required by subsections (d)(9)(A)(ii) and
4        (d)(9)(B)(ii).
5            (F) As used in this Section, "last sentence" means
6        the sentence, order of supervision, or order of
7        qualified probation (as defined by subsection
8        (a)(1)(J)), for a criminal offense (as defined by
9        subsection (a)(1)(D)) that terminates last in time in
10        any jurisdiction, regardless of whether the petitioner
11        has included the criminal offense for which the
12        sentence or order of supervision or qualified
13        probation was imposed in his or her petition. If
14        multiple sentences, orders of supervision, or orders
15        of qualified probation terminate on the same day and
16        are last in time, they shall be collectively
17        considered the "last sentence" regardless of whether
18        they were ordered to run concurrently.
19            (G) "Minor traffic offense" means a petty offense,
20        business offense, or Class C misdemeanor under the
21        Illinois Vehicle Code or a similar provision of a
22        municipal or local ordinance.
23            (G-5) "Minor Cannabis Offense" means a violation
24        of Section 4 or 5 of the Cannabis Control Act
25        concerning not more than 30 grams of any substance
26        containing cannabis, provided the violation did not

 

 

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1        include a penalty enhancement under Section 7 of the
2        Cannabis Control Act and is not associated with an
3        arrest, conviction or other disposition for a violent
4        crime as defined in subsection (c) of Section 3 of the
5        Rights of Crime Victims and Witnesses Act.
6            (H) "Municipal ordinance violation" means an
7        offense defined by a municipal or local ordinance that
8        is criminal in nature and with which the petitioner
9        was charged or for which the petitioner was arrested
10        and released without charging.
11            (I) "Petitioner" means an adult or a minor
12        prosecuted as an adult who has applied for relief
13        under this Section.
14            (J) "Qualified probation" means an order of
15        probation under Section 10 of the Cannabis Control
16        Act, Section 410 of the Illinois Controlled Substances
17        Act, Section 70 of the Methamphetamine Control and
18        Community Protection Act, Section 5-6-3.3 or 5-6-3.4
19        of the Unified Code of Corrections, Section
20        12-4.3(b)(1) and (2) of the Criminal Code of 1961 (as
21        those provisions existed before their deletion by
22        Public Act 89-313), Section 10-102 of the Illinois
23        Alcoholism and Other Drug Dependency Act, Section
24        40-10 of the Substance Use Disorder Act, or Section 10
25        of the Steroid Control Act. For the purpose of this
26        Section, "successful completion" of an order of

 

 

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1        qualified probation under Section 10-102 of the
2        Illinois Alcoholism and Other Drug Dependency Act and
3        Section 40-10 of the Substance Use Disorder Act means
4        that the probation was terminated satisfactorily and
5        the judgment of conviction was vacated.
6            (K) "Seal" means to physically and electronically
7        maintain the records, unless the records would
8        otherwise be destroyed due to age, but to make the
9        records unavailable without a court order, subject to
10        the exceptions in Sections 12 and 13 of this Act. The
11        petitioner's name shall also be obliterated from the
12        official index required to be kept by the circuit
13        court clerk under Section 16 of the Clerks of Courts
14        Act, but any index issued by the circuit court clerk
15        before the entry of the order to seal shall not be
16        affected.
17            (L) "Sexual offense committed against a minor"
18        includes, but is not limited to, the offenses of
19        indecent solicitation of a child or criminal sexual
20        abuse when the victim of such offense is under 18 years
21        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
15    final 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
19    law enforcement agency issuing the citation. Commencing
20    180 days after July 29, 2016 (the effective date of Public
21    Act 99-697), the clerk of the circuit court shall expunge,
22    upon order of the court, or in the absence of a court order
23    on 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
18        provision of a local ordinance, that occurred prior to
19        the offender reaching the age of 25 years and the
20        offender has no other conviction for violating Section
21        11-501 or 11-503 of the Illinois Vehicle Code or a
22        similar 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,
8            except Section 11-14 and a misdemeanor violation
9            of Section 11-30 of the Criminal Code of 1961 or
10            the Criminal Code of 2012, or a similar provision
11            of a 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
18            2012, or Section 125 of the Stalking No Contact
19            Order Act, or Section 219 of the Civil No Contact
20            Order Act, or a similar provision of a local
21            ordinance;
22                (iv) Class A misdemeanors or felony offenses
23            under the Humane Care for Animals Act; or
24                (v) any offense or attempted offense that
25            would subject a person to registration under the
26            Sex Offender Registration Act.

 

 

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1            (D) (blank).
2    (b) Expungement.
3        (1) A petitioner may petition the circuit court to
4    expunge the records of his or her arrests and charges not
5    initiated by arrest when each arrest or charge not
6    initiated by arrest sought to be expunged resulted in: (i)
7    acquittal, dismissal, or the petitioner's release without
8    charging, unless excluded by subsection (a)(3)(B); (ii) a
9    conviction which was vacated or reversed, unless excluded
10    by subsection (a)(3)(B); (iii) an order of supervision and
11    such supervision was successfully completed by the
12    petitioner, unless excluded by subsection (a)(3)(A) or
13    (a)(3)(B); or (iv) an order of qualified probation (as
14    defined in subsection (a)(1)(J)) and such probation was
15    successfully completed by the petitioner.
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
10            a 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
21            of 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 Illinois State
14    Police Department for persons arrested prior to their 17th
15    birthday shall be expunged as provided in Section 5-915 of
16    the Juvenile Court 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    Illinois State Police Department, other criminal justice
3    agencies, the prosecutor, and the trial court concerning
4    such arrest, if any, by removing his or her name from all
5    such records in connection with the arrest and conviction,
6    if any, and by inserting in the records the name of the
7    offender, if known or ascertainable, in lieu of the
8    aggrieved's name. The records of the circuit court clerk
9    shall be sealed until further order of the court upon good
10    cause shown and the name of the aggrieved person
11    obliterated on the official index required to be kept by
12    the circuit court clerk under Section 16 of the Clerks of
13    Courts Act, but the order shall not affect any index
14    issued by the circuit court clerk before the entry of the
15    order. Nothing in this Section shall limit the Illinois
16    Department of State Police or other criminal justice
17    agencies or prosecutors from listing under an offender's
18    name the false names he or she has 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 Illinois Department of State Police concerning the
5    offense shall not be sealed. The court, upon good cause
6    shown, shall make the records of the circuit court clerk
7    in 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
10    review or on collateral attack and the court determines by
11    clear and convincing evidence that the petitioner was
12    factually innocent of the charge, the court that finds the
13    petitioner factually innocent of the charge shall enter an
14    expungement order for the conviction for which the
15    petitioner has been determined to be innocent as provided
16    in subsection (b) of Section 5-5-4 of the Unified Code of
17    Corrections.
18        (7) Nothing in this Section shall prevent the Illinois
19    Department of State Police from maintaining all records of
20    any person who is admitted to probation upon terms and
21    conditions and who fulfills those terms and conditions
22    pursuant to Section 10 of the Cannabis Control Act,
23    Section 410 of the Illinois Controlled Substances Act,
24    Section 70 of the Methamphetamine Control and Community
25    Protection Act, Section 5-6-3.3 or 5-6-3.4 of the Unified
26    Code of Corrections, Section 12-4.3 or subdivision (b)(1)

 

 

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1    of Section 12-3.05 of the Criminal Code of 1961 or the
2    Criminal Code of 2012, Section 10-102 of the Illinois
3    Alcoholism and Other Drug Dependency Act, Section 40-10 of
4    the Substance Use Disorder Act, or Section 10 of the
5    Steroid Control Act.
6        (8) If the petitioner has been granted a certificate
7    of innocence under Section 2-702 of the Code of Civil
8    Procedure, the court that grants the certificate of
9    innocence shall also enter an order expunging the
10    conviction for which the petitioner has been determined to
11    be innocent as provided in subsection (h) of Section 2-702
12    of the Code of Civil Procedure.
13    (c) Sealing.
14        (1) Applicability. Notwithstanding any other provision
15    of this Act to the contrary, and cumulative with any
16    rights to expungement of criminal records, this subsection
17    authorizes the sealing of criminal records of adults and
18    of minors prosecuted as adults. Subsection (g) of this
19    Section provides for immediate sealing of certain records.
20        (2) Eligible Records. The following records may be
21    sealed:
22            (A) All arrests resulting in release without
23        charging;
24            (B) Arrests or charges not initiated by arrest
25        resulting in acquittal, dismissal, or conviction when
26        the conviction was reversed or vacated, except as

 

 

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

 

 

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

 

 

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1        bachelor's degree, or passed the high school level
2        Test of General Educational Development, during the
3        period of his or her sentence or mandatory supervised
4        release. This subparagraph shall apply only to a
5        petitioner who has not completed the same educational
6        goal prior to the period of his or her sentence or
7        mandatory supervised release. If a petition for
8        sealing eligible records filed under this subparagraph
9        is denied by the court, the time periods under
10        subparagraph (B) or (C) shall apply to any subsequent
11        petition for sealing filed by 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
18    felony offense, order the unsealing of prior felony
19    conviction 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
24    the 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. From August 9,
15    2019 (the effective date of Public Act 101-306) through
16    December 31, 2020, in a county of 3,000,000 or more
17    inhabitants, no fee shall be required to be paid by a
18    petitioner if the records sought to be expunged or sealed
19    were arrests resulting in release without charging or
20    arrests or charges not initiated by arrest resulting in
21    acquittal, dismissal, or conviction when the conviction
22    was reversed or vacated, unless excluded by subsection
23    (a)(3)(B). The provisions of this paragraph (1.5), other
24    than this sentence, are inoperative on and after January
25    1, 2022.
26        (2) Contents of petition. The petition shall be

 

 

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

 

 

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

 

 

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1        designated by the Chief Judge, or in counties of less
2        than 3,000,000 inhabitants, the presiding trial judge
3        at the petitioner's trial, if any, shall rule on the
4        petition to expunge or seal as set forth in this
5        subsection (d)(6).
6            (B) Unless the State's Attorney or prosecutor, the
7        Illinois Department of State Police, the arresting
8        agency, or the chief legal officer files an objection
9        to the petition to expunge or seal within 60 days from
10        the date of service of the petition, the court shall
11        enter an order granting or denying the petition.
12            (C) Notwithstanding any other provision of law,
13        the court shall not deny a petition for sealing under
14        this Section because the petitioner has not satisfied
15        an outstanding legal financial obligation established,
16        imposed, or originated by a court, law enforcement
17        agency, or a municipal, State, county, or other unit
18        of local government, including, but not limited to,
19        any cost, assessment, fine, or fee. An outstanding
20        legal financial obligation does not include any court
21        ordered restitution to a victim under Section 5-5-6 of
22        the Unified Code of Corrections, unless the
23        restitution has been converted to a civil judgment.
24        Nothing in this subparagraph (C) waives, rescinds, or
25        abrogates a legal financial obligation or otherwise
26        eliminates or affects the right of the holder of any

 

 

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1        financial obligation to pursue collection under
2        applicable federal, State, or local law.
3            (D) Notwithstanding any other provision of law,
4        the court shall not deny a petition to expunge or seal
5        under this Section because the petitioner has
6        submitted a drug test taken within 30 days before the
7        filing of the petition to expunge or seal that
8        indicates a positive test for the presence of cannabis
9        within the petitioner's body. In this subparagraph
10        (D), "cannabis" has the meaning ascribed to it in
11        Section 3 of the Cannabis Control Act.
12        (7) Hearings. If an objection is filed, the court
13    shall set a date for a hearing and notify the petitioner
14    and all parties entitled to notice of the petition of the
15    hearing date at least 30 days prior to the hearing. Prior
16    to the hearing, the State's Attorney shall consult with
17    the Illinois State Police Department as to the
18    appropriateness of the relief sought in the petition to
19    expunge or seal. At the hearing, the court shall hear
20    evidence on whether the petition should or should not be
21    granted, and shall grant or deny the petition to expunge
22    or seal the records based on the evidence presented at the
23    hearing. The court may consider the following:
24            (A) the strength of the evidence supporting the
25        defendant's conviction;
26            (B) the reasons for retention of the conviction

 

 

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1        records by the State;
2            (C) the petitioner's age, criminal record history,
3        and employment history;
4            (D) the period of time between the petitioner's
5        arrest on the charge resulting in the conviction and
6        the filing of the petition under this Section; and
7            (E) the specific adverse consequences the
8        petitioner may be subject to if the petition is
9        denied.
10        (8) Service of order. After entering an order to
11    expunge or seal records, the court must provide copies of
12    the order to the Illinois State Police Department, in a
13    form and manner prescribed by the Illinois State Police
14    Department, to the petitioner, to the State's Attorney or
15    prosecutor charged with the duty of prosecuting the
16    offense, to the arresting agency, to the chief legal
17    officer of the unit of local government effecting the
18    arrest, and to such other criminal justice agencies as may
19    be ordered by the court.
20        (9) Implementation of order.
21            (A) Upon entry of an order to expunge records
22        pursuant to subsection (b)(2)(A) or (b)(2)(B)(ii), or
23        both:
24                (i) the records shall be expunged (as defined
25            in subsection (a)(1)(E)) by the arresting agency,
26            the Illinois State Police Department, and any

 

 

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

 

 

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

 

 

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1                (v) in response to an inquiry for such records
2            from anyone not authorized by law to access such
3            records, the court, the Illinois State Police
4            Department, or the agency receiving such inquiry
5            shall reply as it does in response to inquiries
6            when no records ever existed.
7            (B-5) Upon entry of an order to expunge records
8        under subsection (e-6):
9                (i) the records shall be expunged (as defined
10            in subsection (a)(1)(E)) by the arresting agency
11            and any other agency as ordered by the court,
12            within 60 days of the date of service of the order,
13            unless a motion to vacate, modify, or reconsider
14            the order is filed under paragraph (12) of
15            subsection (d) of this Section;
16                (ii) the records of the circuit court clerk
17            shall be impounded until further order of the
18            court 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                (iii) the records shall be impounded by the
25            Illinois State Police Department within 60 days of
26            the date of service of the order as ordered by the

 

 

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1            court, unless a motion to vacate, modify, or
2            reconsider the order is filed under paragraph (12)
3            of subsection (d) of this Section;
4                (iv) records impounded by the Illinois State
5            Police Department may be disseminated by the
6            Illinois State Police Department only as required
7            by law or to the arresting authority, the State's
8            Attorney, and the court upon a later arrest for
9            the same or a similar offense or for the purpose of
10            sentencing for any subsequent felony, and to the
11            Department of Corrections upon conviction for any
12            offense; and
13                (v) in response to an inquiry for these
14            records from anyone not authorized by law to
15            access the records, the court, the Illinois State
16            Police Department, or the agency receiving the
17            inquiry shall reply as it does in response to
18            inquiries when no records ever existed.
19            (C) Upon entry of an order to seal records under
20        subsection (c), the arresting agency, any other agency
21        as ordered by the court, the Illinois State Police
22        Department, and the court shall seal the records (as
23        defined in subsection (a)(1)(K)). In response to an
24        inquiry for such records, from anyone not authorized
25        by law to access such records, the court, the Illinois
26        State Police Department, or the agency receiving such

 

 

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1        inquiry shall reply as it does in response to
2        inquiries when no records ever existed.
3            (D) The Illinois State Police Department shall
4        send written notice to the petitioner of its
5        compliance with each order to expunge or seal records
6        within 60 days of the date of service of that order or,
7        if a motion to vacate, modify, or reconsider is filed,
8        within 60 days of service of the order resolving the
9        motion, if that order requires the Illinois State
10        Police Department to expunge or seal records. In the
11        event of an appeal from the circuit court order, the
12        Illinois State Police Department shall send written
13        notice to the petitioner of its compliance with an
14        Appellate Court or Supreme Court judgment to expunge
15        or seal records within 60 days of the issuance of the
16        court's mandate. The notice is not required while any
17        motion to vacate, modify, or reconsider, or any appeal
18        or petition for discretionary appellate review, is
19        pending.
20            (E) Upon motion, the court may order that a sealed
21        judgment or other court record necessary to
22        demonstrate the amount of any legal financial
23        obligation due and owing be made available for the
24        limited purpose of collecting any legal financial
25        obligations owed by the petitioner that were
26        established, imposed, or originated in the criminal

 

 

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

 

 

HB4392 Enrolled- 31 -LRB102 21280 RLC 30391 b

1    The circuit court clerk shall collect and remit the
2    Illinois Department of State Police portion of the fee to
3    the State Treasurer and it shall be deposited in the State
4    Police Services Fund. If the record brought under an
5    expungement petition was previously sealed under this
6    Section, the fee for the expungement petition for that
7    same record shall be waived.
8        (11) Final Order. No court order issued under the
9    expungement or sealing provisions of this Section shall
10    become final for purposes of appeal until 30 days after
11    service of the order on the petitioner and all parties
12    entitled to notice of the petition.
13        (12) Motion to Vacate, Modify, or Reconsider. Under
14    Section 2-1203 of the Code of Civil Procedure, 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. If filed more than 60 days after
19    service of the order, a petition to vacate, modify, or
20    reconsider shall comply with subsection (c) of Section
21    2-1401 of the Code of Civil Procedure. Upon filing of a
22    motion to vacate, modify, or reconsider, notice of the
23    motion shall be served upon the petitioner and all parties
24    entitled to notice of the petition.
25        (13) Effect of Order. An order granting a petition
26    under the expungement or sealing provisions of this

 

 

HB4392 Enrolled- 32 -LRB102 21280 RLC 30391 b

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

 

 

HB4392 Enrolled- 33 -LRB102 21280 RLC 30391 b

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

 

 

HB4392 Enrolled- 34 -LRB102 21280 RLC 30391 b

1purpose of sentencing for any subsequent felony. Upon
2conviction for any subsequent offense, the Department of
3Corrections shall have access to all sealed records of the
4Illinois State Police Department pertaining to that
5individual. 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 Illinois State Police Department
19be sealed until further order of the court upon good cause
20shown or as otherwise provided herein, and the name of the
21petitioner obliterated from the official index requested to be
22kept by the circuit court clerk under Section 16 of the Clerks
23of Courts Act in connection with the arrest and conviction for
24the offense for which he or she had been granted the
25certificate but the order shall not affect any index issued by
26the circuit court clerk before the entry of the order. All

 

 

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

 

 

HB4392 Enrolled- 36 -LRB102 21280 RLC 30391 b

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

 

 

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1disclose any data in a manner that would allow the
2identification of any particular individual or employing unit.
3The study shall be made available to the General Assembly no
4later than September 1, 2010.
5    (g) Immediate Sealing.
6        (1) Applicability. Notwithstanding any other provision
7    of this Act to the contrary, and cumulative with any
8    rights to expungement or sealing of criminal records, this
9    subsection authorizes the immediate sealing of criminal
10    records of adults and of minors prosecuted as adults.
11        (2) Eligible Records. Arrests or charges not initiated
12    by arrest resulting in acquittal or dismissal with
13    prejudice, except as excluded by subsection (a)(3)(B),
14    that occur on or after January 1, 2018 (the effective date
15    of Public Act 100-282), may be sealed immediately if the
16    petition is filed with the circuit court clerk on the same
17    day and during the same hearing in which the case is
18    disposed.
19        (3) When Records are Eligible to be Immediately
20    Sealed. Eligible records under paragraph (2) of this
21    subsection (g) may be sealed immediately after entry of
22    the final disposition of a case, notwithstanding the
23    disposition of other charges in the same case.
24        (4) Notice of Eligibility for Immediate Sealing. Upon
25    entry of a disposition for an eligible record under this
26    subsection (g), the defendant shall be informed by the

 

 

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

 

 

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1        required to attach proof that he or she has passed a
2        drug test.
3            (D) Service of Petition. A copy of the petition
4        shall be served on the State's Attorney in open court.
5        The petitioner shall not be required to serve a copy of
6        the petition on any other agency.
7            (E) Entry of Order. The presiding trial judge
8        shall enter an order granting or denying the petition
9        for immediate sealing during the hearing in which it
10        is filed. Petitions for immediate sealing shall be
11        ruled on in the same hearing in which the final
12        disposition of the case is entered.
13            (F) Hearings. The court shall hear the petition
14        for immediate sealing on the same day and during the
15        same hearing in which the disposition is rendered.
16            (G) Service of Order. An order to immediately seal
17        eligible records shall be served in conformance with
18        subsection (d)(8).
19            (H) Implementation of Order. An order to
20        immediately seal records shall be implemented in
21        conformance with subsections (d)(9)(C) and (d)(9)(D).
22            (I) Fees. The fee imposed by the circuit court
23        clerk and the Illinois Department of State Police
24        shall comply with paragraph (1) of subsection (d) of
25        this Section.
26            (J) Final Order. No court order issued under this

 

 

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1        subsection (g) shall become final for purposes of
2        appeal until 30 days after service of the order on the
3        petitioner and all parties entitled to service of the
4        order in conformance with subsection (d)(8).
5            (K) Motion to Vacate, Modify, or Reconsider. Under
6        Section 2-1203 of the Code of Civil Procedure, the
7        petitioner, State's Attorney, or the Illinois
8        Department of State Police may file a motion to
9        vacate, modify, or reconsider the order denying the
10        petition to immediately seal within 60 days of service
11        of the order. If filed more than 60 days after service
12        of the order, a petition to vacate, modify, or
13        reconsider shall comply with subsection (c) of Section
14        2-1401 of the Code of Civil Procedure.
15            (L) Effect of Order. An order granting an
16        immediate sealing petition shall not be considered
17        void because it fails to comply with the provisions of
18        this Section or because of an error asserted in a
19        motion to vacate, modify, or reconsider. The circuit
20        court retains jurisdiction to determine whether the
21        order is voidable, and to vacate, modify, or
22        reconsider its terms based on a motion filed under
23        subparagraph (L) of this subsection (g).
24            (M) Compliance with Order Granting Petition to
25        Seal Records. Unless a court has entered a stay of an
26        order granting a petition to immediately seal, all

 

 

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1        parties entitled to service of the order must fully
2        comply with the terms of the order within 60 days of
3        service of the order.
4    (h) Sealing; trafficking victims.
5        (1) A trafficking victim as defined by paragraph (10)
6    of subsection (a) of Section 10-9 of the Criminal Code of
7    2012 shall be eligible to petition for immediate sealing
8    of his or her criminal record upon the completion of his or
9    her last sentence if his or her participation in the
10    underlying offense was a direct result of human
11    trafficking under Section 10-9 of the Criminal Code of
12    2012 or a severe form of trafficking under the federal
13    Trafficking Victims Protection Act.
14        (2) A petitioner under this subsection (h), in
15    addition to the requirements provided under paragraph (4)
16    of subsection (d) of this Section, shall include in his or
17    her petition a clear and concise statement that: (A) he or
18    she was a victim of human trafficking at the time of the
19    offense; and (B) that his or her participation in the
20    offense was a direct result of human trafficking under
21    Section 10-9 of the Criminal Code of 2012 or a severe form
22    of trafficking under the federal Trafficking Victims
23    Protection Act.
24        (3) If an objection is filed alleging that the
25    petitioner is not entitled to immediate sealing under this
26    subsection (h), the court shall conduct a hearing under

 

 

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1    paragraph (7) of subsection (d) of this Section and the
2    court shall determine whether the petitioner is entitled
3    to immediate sealing under this subsection (h). A
4    petitioner is eligible for immediate relief under this
5    subsection (h) if he or she shows, by a preponderance of
6    the evidence, that: (A) he or she was a victim of human
7    trafficking at the time of the offense; and (B) that his or
8    her participation in the offense was a direct result of
9    human trafficking under Section 10-9 of the Criminal Code
10    of 2012 or a severe form of trafficking under the federal
11    Trafficking Victims Protection Act.
12    (i) Minor Cannabis Offenses under the Cannabis Control
13Act.
14        (1) Expungement of Arrest Records of Minor Cannabis
15    Offenses.
16            (A) The Illinois Department of State Police and
17        all law enforcement agencies within the State shall
18        automatically expunge all criminal history records of
19        an arrest, charge not initiated by arrest, order of
20        supervision, or order of qualified probation for a
21        Minor Cannabis Offense committed prior to June 25,
22        2019 (the effective date of Public Act 101-27) if:
23                (i) One year or more has elapsed since the
24            date of the arrest or law enforcement interaction
25            documented in the records; and
26                (ii) No criminal charges were filed relating

 

 

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1            to the arrest or law enforcement interaction or
2            criminal charges were filed and subsequently
3            dismissed or vacated or the arrestee was
4            acquitted.
5            (B) If the law enforcement agency is unable to
6        verify satisfaction of condition (ii) in paragraph
7        (A), records that satisfy condition (i) in paragraph
8        (A) shall be automatically expunged.
9            (C) Records shall be expunged by the law
10        enforcement agency under the following timelines:
11                (i) Records created prior to June 25, 2019
12            (the effective date of Public Act 101-27), but on
13            or after January 1, 2013, shall be automatically
14            expunged prior to January 1, 2021;
15                (ii) Records created prior to January 1, 2013,
16            but on or after January 1, 2000, shall be
17            automatically expunged prior to January 1, 2023;
18                (iii) Records created prior to January 1, 2000
19            shall be automatically expunged prior to January
20            1, 2025.
21            In response to an inquiry for expunged records,
22        the law enforcement agency receiving such inquiry
23        shall reply as it does in response to inquiries when no
24        records ever existed; however, it shall provide a
25        certificate of disposition or confirmation that the
26        record was expunged to the individual whose record was

 

 

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1        expunged if such a record exists.
2            (D) Nothing in this Section shall be construed to
3        restrict or modify an individual's right to have that
4        individual's records expunged except as otherwise may
5        be provided in this Act, or diminish or abrogate any
6        rights or remedies otherwise available to the
7        individual.
8        (2) Pardons Authorizing Expungement of Minor Cannabis
9    Offenses.
10            (A) Upon June 25, 2019 (the effective date of
11        Public Act 101-27), the Department of State Police
12        shall review all criminal history record information
13        and identify all records that meet all of the
14        following criteria:
15                (i) one or more convictions for a Minor
16            Cannabis Offense;
17                (ii) the conviction identified in paragraph
18            (2)(A)(i) did not include a penalty enhancement
19            under Section 7 of the Cannabis Control Act; and
20                (iii) the conviction identified in paragraph
21            (2)(A)(i) is not associated with a conviction for
22            a violent crime as defined in subsection (c) of
23            Section 3 of the Rights of Crime Victims and
24            Witnesses Act.
25            (B) Within 180 days after June 25, 2019 (the
26        effective date of Public Act 101-27), the Department

 

 

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1        of State Police shall notify the Prisoner Review Board
2        of all such records that meet the criteria established
3        in paragraph (2)(A).
4                (i) The Prisoner Review Board shall notify the
5            State's Attorney of the county of conviction of
6            each record identified by State Police in
7            paragraph (2)(A) that is classified as a Class 4
8            felony. The State's Attorney may provide a written
9            objection to the Prisoner Review Board on the sole
10            basis that the record identified does not meet the
11            criteria established in paragraph (2)(A). Such an
12            objection must be filed within 60 days or by such
13            later date set by the Prisoner Review Board in the
14            notice after the State's Attorney received notice
15            from the Prisoner Review Board.
16                (ii) In response to a written objection from a
17            State's Attorney, the Prisoner Review Board is
18            authorized to conduct a non-public hearing to
19            evaluate the information provided in the
20            objection.
21                (iii) The Prisoner Review Board shall make a
22            confidential and privileged recommendation to the
23            Governor as to whether to grant a pardon
24            authorizing expungement for each of the records
25            identified by the Department of State Police as
26            described in paragraph (2)(A).

 

 

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1            (C) If an individual has been granted a pardon
2        authorizing expungement as described in this Section,
3        the Prisoner Review Board, through the Attorney
4        General, shall file a petition for expungement with
5        the Chief Judge of the circuit or any judge of the
6        circuit designated by the Chief Judge where the
7        individual had been convicted. Such petition may
8        include more than one individual. Whenever an
9        individual who has been convicted of an offense is
10        granted a pardon by the Governor that specifically
11        authorizes expungement, an objection to the petition
12        may not be filed. Petitions to expunge under this
13        subsection (i) may include more than one individual.
14        Within 90 days of the filing of such a petition, the
15        court shall enter an order expunging the records of
16        arrest from the official records of the arresting
17        authority and order that the records of the circuit
18        court clerk and the Illinois Department of State
19        Police be expunged and the name of the defendant
20        obliterated from the official index requested to be
21        kept by the circuit court clerk under Section 16 of the
22        Clerks of Courts Act in connection with the arrest and
23        conviction for the offense for which the individual
24        had received a pardon but the order shall not affect
25        any index issued by the circuit court clerk before the
26        entry of the order. Upon entry of the order of

 

 

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1        expungement, the circuit court clerk shall promptly
2        provide a copy of the order and a certificate of
3        disposition to the individual who was pardoned to the
4        individual's last known address or by electronic means
5        (if available) or otherwise make it available to the
6        individual upon request.
7            (D) Nothing in this Section is intended to
8        diminish or abrogate any rights or remedies otherwise
9        available to the individual.
10        (3) Any individual may file a motion to vacate and
11    expunge a conviction for a misdemeanor or Class 4 felony
12    violation of Section 4 or Section 5 of the Cannabis
13    Control Act. Motions to vacate and expunge under this
14    subsection (i) may be filed with the circuit court, Chief
15    Judge of a judicial circuit or any judge of the circuit
16    designated by the Chief Judge. The circuit court clerk
17    shall promptly serve a copy of the motion to vacate and
18    expunge, and any supporting documentation, on the State's
19    Attorney or prosecutor charged with the duty of
20    prosecuting the offense. When considering such a motion to
21    vacate and expunge, a court shall consider the following:
22    the reasons to retain the records provided by law
23    enforcement, the petitioner's age, the petitioner's age at
24    the time of offense, the time since the conviction, and
25    the specific adverse consequences if denied. An individual
26    may file such a petition after the completion of any

 

 

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1    non-financial sentence or non-financial condition imposed
2    by the conviction. Within 60 days of the filing of such
3    motion, a State's Attorney may file an objection to such a
4    petition along with supporting evidence. If a motion to
5    vacate and expunge is granted, the records shall be
6    expunged in accordance with subparagraphs (d)(8) and
7    (d)(9)(A) of this Section. An agency providing civil legal
8    aid, as defined by Section 15 of the Public Interest
9    Attorney Assistance Act, assisting individuals seeking to
10    file a motion to vacate and expunge under this subsection
11    may file motions to vacate and expunge with the Chief
12    Judge of a judicial circuit or any judge of the circuit
13    designated by the Chief Judge, and the motion may include
14    more than one individual. Motions filed by an agency
15    providing civil legal aid concerning more than one
16    individual may be prepared, presented, and signed
17    electronically.
18        (4) Any State's Attorney may file a motion to vacate
19    and expunge a conviction for a misdemeanor or Class 4
20    felony violation of Section 4 or Section 5 of the Cannabis
21    Control Act. Motions to vacate and expunge under this
22    subsection (i) may be filed with the circuit court, Chief
23    Judge of a judicial circuit or any judge of the circuit
24    designated by the Chief Judge, and may include more than
25    one individual. Motions filed by a State's Attorney
26    concerning more than one individual may be prepared,

 

 

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1    presented, and signed electronically. When considering
2    such a motion to vacate and expunge, a court shall
3    consider the following: the reasons to retain the records
4    provided by law enforcement, the individual's age, the
5    individual's age at the time of offense, the time since
6    the conviction, and the specific adverse consequences if
7    denied. Upon entry of an order granting a motion to vacate
8    and expunge records pursuant to this Section, the State's
9    Attorney shall notify the Prisoner Review Board within 30
10    days. Upon entry of the order of expungement, the circuit
11    court clerk shall promptly provide a copy of the order and
12    a certificate of disposition to the individual whose
13    records will be expunged to the individual's last known
14    address or by electronic means (if available) or otherwise
15    make available to the individual upon request. If a motion
16    to vacate and expunge is granted, the records shall be
17    expunged in accordance with subparagraphs (d)(8) and
18    (d)(9)(A) of this Section.
19        (5) In the public interest, the State's Attorney of a
20    county has standing to file motions to vacate and expunge
21    pursuant to this Section in the circuit court with
22    jurisdiction over the underlying conviction.
23        (6) If a person is arrested for a Minor Cannabis
24    Offense as defined in this Section before June 25, 2019
25    (the effective date of Public Act 101-27) and the person's
26    case is still pending but a sentence has not been imposed,

 

 

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1    the person may petition the court in which the charges are
2    pending for an order to summarily dismiss those charges
3    against him or her, and expunge all official records of
4    his or her arrest, plea, trial, conviction, incarceration,
5    supervision, or expungement. If the court determines, upon
6    review, that: (A) the person was arrested before June 25,
7    2019 (the effective date of Public Act 101-27) for an
8    offense that has been made eligible for expungement; (B)
9    the case is pending at the time; and (C) the person has not
10    been sentenced of the minor cannabis violation eligible
11    for expungement under this subsection, the court shall
12    consider the following: the reasons to retain the records
13    provided by law enforcement, the petitioner's age, the
14    petitioner's age at the time of offense, the time since
15    the conviction, and the specific adverse consequences if
16    denied. If a motion to dismiss and expunge is granted, the
17    records shall be expunged in accordance with subparagraph
18    (d)(9)(A) of this Section.
19        (7) A person imprisoned solely as a result of one or
20    more convictions for Minor Cannabis Offenses under this
21    subsection (i) shall be released from incarceration upon
22    the issuance of an order under this subsection.
23        (8) The Illinois Department of State Police shall
24    allow a person to use the access and review process,
25    established in the Illinois Department of State Police,
26    for verifying that his or her records relating to Minor

 

 

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1    Cannabis Offenses of the Cannabis Control Act eligible
2    under this Section have been expunged.
3        (9) No conviction vacated pursuant to this Section
4    shall serve as the basis for damages for time unjustly
5    served as provided in the Court of Claims Act.
6        (10) Effect of Expungement. A person's right to
7    expunge an expungeable offense shall not be limited under
8    this Section. The effect of an order of expungement shall
9    be to restore the person to the status he or she occupied
10    before the arrest, charge, or conviction.
11        (11) Information. The Illinois Department of State
12    Police shall post general information on its website about
13    the expungement process described in this subsection (i).
14    (j) Felony Prostitution Convictions.
15        (1) Any individual may file a motion to vacate and
16    expunge a conviction for a prior Class 4 felony violation
17    of prostitution. Motions to vacate and expunge under this
18    subsection (j) may be filed with the circuit court, Chief
19    Judge of a judicial circuit, or any judge of the circuit
20    designated by the Chief Judge. When considering the motion
21    to vacate and expunge, a court shall consider the
22    following:
23            (A) the reasons to retain the records provided by
24        law enforcement;
25            (B) the petitioner's age;
26            (C) the petitioner's age at the time of offense;

 

 

HB4392 Enrolled- 52 -LRB102 21280 RLC 30391 b

1        and
2            (D) the time since the conviction, and the
3        specific adverse consequences if denied. An individual
4        may file the petition after the completion of any
5        sentence or condition imposed by the conviction.
6        Within 60 days of the filing of the motion, a State's
7        Attorney may file an objection to the petition along
8        with supporting evidence. If a motion to vacate and
9        expunge is granted, the records shall be expunged in
10        accordance with subparagraph (d)(9)(A) of this
11        Section. An agency providing civil legal aid, as
12        defined in Section 15 of the Public Interest Attorney
13        Assistance Act, assisting individuals seeking to file
14        a motion to vacate and expunge under this subsection
15        may file motions to vacate and expunge with the Chief
16        Judge of a judicial circuit or any judge of the circuit
17        designated by the Chief Judge, and the motion may
18        include more than one individual.
19        (2) Any State's Attorney may file a motion to vacate
20    and expunge a conviction for a Class 4 felony violation of
21    prostitution. Motions to vacate and expunge under this
22    subsection (j) may be filed with the circuit court, Chief
23    Judge of a judicial circuit, or any judge of the circuit
24    court designated by the Chief Judge, and may include more
25    than one individual. When considering the motion to vacate
26    and expunge, a court shall consider the following reasons:

 

 

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1            (A) the reasons to retain the records provided by
2        law enforcement;
3            (B) the petitioner's age;
4            (C) the petitioner's age at the time of offense;
5            (D) the time since the conviction; and
6            (E) the specific adverse consequences if denied.
7        If the State's Attorney files a motion to vacate and
8    expunge records for felony prostitution convictions
9    pursuant to this Section, the State's Attorney shall
10    notify the Prisoner Review Board within 30 days of the
11    filing. If a motion to vacate and expunge is granted, the
12    records shall be expunged in accordance with subparagraph
13    (d)(9)(A) of this Section.
14        (3) In the public interest, the State's Attorney of a
15    county has standing to file motions to vacate and expunge
16    pursuant to this Section in the circuit court with
17    jurisdiction over the underlying conviction.
18        (4) The Illinois State Police shall allow a person to
19    a use the access and review process, established in the
20    Illinois State Police, for verifying that his or her
21    records relating to felony prostitution eligible under
22    this Section have been expunged.
23        (5) No conviction vacated pursuant to this Section
24    shall serve as the basis for damages for time unjustly
25    served as provided in the Court of Claims Act.
26        (6) Effect of Expungement. A person's right to expunge

 

 

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1    an expungeable offense shall not be limited under this
2    Section. The effect of an order of expungement shall be to
3    restore the person to the status he or she occupied before
4    the arrest, charge, or conviction.
5        (7) Information. The Illinois State Police shall post
6    general information on its website about the expungement
7    process described in this subsection (j).
8(Source: P.A. 101-27, eff. 6-25-19; 101-81, eff. 7-12-19;
9101-159, eff. 1-1-20; 101-306, eff. 8-9-19; 101-593, eff.
1012-4-19; 101-645, eff. 6-26-20; 102-145, eff. 7-23-21;
11102-558, 8-20-21; 102-639, eff. 8-27-21; revised 10-5-21.)