SB3007ham006 93RD GENERAL ASSEMBLY

Rep. Constance A. Howard

Filed: 5/26/2004

09300SB3007ham006 LRB093 21097 RLC 51746 a

AMENDMENT TO SENATE BILL 3007

AMENDMENT NO. ______. Amend Senate Bill 3007, AS AMENDED, by replacing all of subsections (h), (i), (j), and (k) of Sec. 5 of Section 5 with the following:

"(h) (1) Applicability. Notwithstanding any other provision of this Act to the contrary and cumulative with any rights to expungement of criminal records, this subsection authorizes the sealing of criminal records of adults and of minors prosecuted as adults.

(2) Sealable offenses. The following offenses may be sealed:

(A) All municipal ordinance violations and misdemeanors, with the exception of the following:

(i) violations of Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance;

(ii) violations of Article 11 of the Criminal Code of 1961 or a similar provision of a local ordinance, except Section 11-14 of the Criminal Code of 1961 as provided in clause B(i) of this subsection (h);

(iii) violations of Section 12-15, 12-30, or 26-5 of the Criminal Code of 1961 or a similar provision of a local ordinance;

(iv) violations that are a crime of violence as defined in Section 2 of the Crime Victims Compensation Act or a similar provision of a local ordinance;

(v) Class A misdemeanor violations of the Humane Care for Animals Act; and

(vi) any offense or attempted offense that would subject a person to registration under the Sex Offender Registration Act.

(B) Misdemeanor and Class 4 felony violations of:

(i) Section 11-14 of the Criminal Code of 1961;

(ii) Section 4 of the Cannabis Control Act;

(iii) Section 402 of the Illinois Controlled Substances Act; and

(iv) However, for purposes of this subsection (h), a sentence of first offender probation under Section 10 of the Cannabis Control Act and Section 410 of the Illinois Controlled Substances Act shall be treated as a Class 4 felony conviction.

(3) Requirements for sealing. Records identified as sealable under clause (h) (2) may be sealed when the individual was:

(A) Acquitted of the offense or offenses or released without being convicted.

(B) Convicted of the offense or offenses and the conviction or convictions were reversed.

(C) Placed on misdemeanor supervision for an offense or offenses; and

(i) at least 3 years have elapsed since the completion of the term of supervision, or terms of supervision, if more than one term has been ordered; and

(ii) the individual has not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor or felony during the period specified in clause (i).

(D) Convicted of an offense or offenses; and

(i) at least 4 years have elapsed since the last such conviction or term of any sentence, probation, parole, or supervision, if any, whichever is last in time; and

(ii) the individual has not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor or felony during the period specified in clause (i).

(4) Requirements for sealing of records when more than one charge and disposition have been filed. When multiple offenses are petitioned to be sealed under this subsection (h), the requirements of the relevant provisions of clauses (h)(3)(A) through (D) each apply. In instances in which more than one waiting period is applicable under clauses (h)(C)(i) and (ii) and (h)(D)(i) and (ii), the longer applicable period applies, and the requirements of clause (h) (3) shall be considered met when the petition is filed after the passage of the longer applicable waiting period. That period commences on the date of the completion of the last sentence or the end of supervision, probation, or parole, whichever is last in time.

(5) Subsequent convictions. A person may not have subsequent felony conviction records sealed as provided in this subsection (h) if he or she is convicted of any felony offense after the date of the sealing of prior felony records as provided in this subsection (h).

(6) Notice of eligibility for sealing. Upon acquittal, release without conviction, or being placed on supervision for a sealable offense, or upon conviction of a sealable offense, the person shall be informed by the court of the right to have the records sealed and the procedures for the sealing of the records.

(7) Procedure. Upon becoming eligible for the sealing of records under this subsection (h), the person who seeks the sealing of his or her records shall file a petition requesting the sealing of records with the clerk of the court where the charge or charges were brought. The records may be sealed by the Chief Judge of the circuit wherein the charge was brought, any judge of that circuit designated by the Chief Judge, or in counties of less than 3,000,000 inhabitants, the presiding trial judge at the defendant's trial, if any. If charges were brought in multiple jurisdictions, a petition must be filed in each such jurisdiction. The petitioner shall pay the applicable fee, if not waived.

(A) Contents of petition. The petition shall contain the petitioner's name, date of birth, current address, each charge, each case number, the date of each charge, the identity of the arresting authority, and such other information as the court may require. During the pendency of the proceeding, the petitioner shall promptly notify the clerk of the court of any change of address.

(B) Drug test. A person filing a petition to have his or her records sealed for a Class 4 felony violation of Section 4 of the Cannabis Control Act or for a Class 4 felony violation of Section 402 of the Illinois Controlled Substances Act must attach to the petition proof that the petitioner has passed a test taken within the previous 30 days before the filing of the petition showing the absence within his or her body of all illegal substances in violation of either the Illinois Controlled Substances Act or the Cannabis Control Act.

(C) Service of petition. The clerk shall promptly serve a copy of the petition on the State's Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government effecting the arrest.

(D) Entry of order. Unless the State's Attorney or prosecutor, the Department of State Police, the arresting agency or such chief legal officer objects to sealing of the records within 90 days of notice the court shall enter an order sealing the defendant's records.

(E) Hearing upon objection. If an objection is filed, the court shall set a date for a hearing and notify the petitioner and the parties on whom the petition had been served, and shall hear evidence on whether the sealing of the records should or should not be granted, and shall make a determination on whether to issue an order to seal the records based on the evidence presented at the hearing.

(F) Service of order. After entering the order to seal records, the court must provide copies of the order to the Department, in a form and manner prescribed by the Department, to the petitioner, to the State's Attorney or prosecutor charged with the duty of prosecuting the offense, to the arresting agency, to the chief legal officer of the unit of local government effecting the arrest, and to such other criminal justice agencies as may be ordered by the court.

(8) Fees. Notwithstanding any provision of the Clerk of the Courts Act to the contrary, and subject to the approval of the county board, the clerk may charge a fee equivalent to the cost associated with the sealing of records by the clerk and the Department of State Police. The clerk shall forward the Department of State Police portion of the fee to the Department and it shall be deposited into the State Police Services Fund.

(h) (1) Notwithstanding any other provision of this Act to the contrary and cumulative with any rights to expungement of criminal records, whenever an adult or minor prosecuted as an adult charged with a violation of a municipal ordinance or a misdemeanor is acquitted or released without being convicted, or if the person is convicted but the conviction is reversed, or if the person has been placed on supervision for a misdemeanor and has not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor within 3 years after the acquittal or release or reversal of conviction, or the completion of the terms and conditions of the supervision, if the acquittal, release, finding of not guilty, or reversal of conviction occurred on or after the effective date of this amendatory Act of the 93rd General Assembly, the Chief Judge of the circuit in which the charge was brought may have the official records of the arresting authority, the Department, and the clerk of the circuit court sealed 3 years after the dismissal of the charge, the finding of not guilty, the reversal of conviction, or the completion of the terms and conditions of the supervision, except those records are subject to inspection and use by the court for the purposes of subsequent sentencing for misdemeanor and felony violations and inspection and use by law enforcement agencies and State's Attorneys or other prosecutors in carrying out the duties of their offices. This subsection (h) does not apply to persons placed on supervision for: (1) a violation of Section 11 501 of the Illinois Vehicle Code or a similar provision of a local ordinance; (2) a misdemeanor violation of Article 11 of the Criminal Code of 1961 or a similar provision of a local ordinance; (3) a misdemeanor violation of Section 12 15, 12 30, or 26 5 of the Criminal Code of 1961 or a similar provision of a local ordinance; (4) a misdemeanor violation that is a crime of violence as defined in Section 2 of the Crime Victims Compensation Act or a similar provision of a local ordinance; (5) a Class A misdemeanor violation of the Humane Care for Animals Act; or (6) any offense or attempted offense that would subject a person to registration under the Sex Offender Registration Act.

(2) Upon acquittal, release without conviction, or being placed on supervision, the person charged with the offense shall be informed by the court of the right to have the records sealed and the procedures for the sealing of the records. Three years after the dismissal of the charge, the finding of not guilty, the reversal of conviction, or the completion of the terms and conditions of the supervision, the defendant shall provide the clerk of the court with a notice of request for sealing of records and payment of the applicable fee and a current address and shall promptly notify the clerk of the court of any change of address. The clerk shall promptly serve notice that the person's records are to be sealed on the State's Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government effecting the arrest. Unless the State's Attorney or prosecutor, the Department of State Police, the arresting agency or such chief legal officer objects to sealing of the records within 90 days of notice the court shall enter an order sealing the defendant's records 3 years after the dismissal of the charge, the finding of not guilty, the reversal of conviction, or the completion of the terms and conditions of the supervision. The clerk of the court shall promptly serve by mail or in person a copy of the order to the person, the arresting agency, the prosecutor, the Department of State Police and such other criminal justice agencies as may be ordered by the judge. If an objection is filed, the court shall set a date for hearing. At the hearing the court shall hear evidence on whether the sealing of the records should or should not be granted.

(3) The clerk may charge a fee equivalent to the cost associated with the sealing of records by the clerk and the Department of State Police. The clerk shall forward the Department of State Police portion of the fee to the Department and it shall be deposited into the State Police Services Fund.

(4) Whenever sealing of records is required under this subsection (h), the notification of the sealing must be given by the circuit court where the arrest occurred to the Department in a form and manner prescribed by the Department.

(5) An adult or a minor prosecuted as an adult who was charged with a violation of a municipal ordinance or a misdemeanor who was acquitted, released without being convicted, convicted and the conviction was reversed, or placed on supervision for a misdemeanor before the date of this amendatory Act of the 93rd General Assembly and was not convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for 3 years after the acquittal or release or reversal of conviction, or completion of the terms and conditions of the supervision may petition the Chief Judge of the circuit in which the charge was brought, any judge of that circuit in which the charge was brought, any judge of the circuit designated by the Chief Judge, or, in counties of less than 3,000,000 inhabitants, the presiding trial judge at that defendant's trial, to seal the official records of the arresting authority, the Department, and the clerk of the court, except those records are subject to inspection and use by the court for the purposes of subsequent sentencing for misdemeanor and felony violations and inspection and use by law enforcement agencies, the Department of Corrections, and State's Attorneys and other prosecutors in carrying out the duties of their offices. This subsection (h) does not apply to persons placed on supervision for: (1) a violation of Section 11 501 of the Illinois Vehicle Code or a similar provision of a local ordinance; (2) a misdemeanor violation of Article 11 of the Criminal Code of 1961 or a similar provision of a local ordinance; (3) a misdemeanor violation of Section 12 15, 12 30, or 26 5 of the Criminal Code of 1961 or a similar provision of a local ordinance; (4) a misdemeanor violation that is a crime of violence as defined in Section 2 of the Crime Victims Compensation Act or a similar provision of a local ordinance; (5) a Class A misdemeanor violation of the Humane Care for Animals Act; or (6) any offense or attempted offense that would subject a person to registration under the Sex Offender Registration Act. The State's Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government effecting the arrest shall be served with a copy of the verified petition and shall have 90 days to object. If an objection is filed, the court shall set a date for hearing. At the hearing the court shall hear evidence on whether the sealing of the records should or should not be granted. The person whose records are sealed under the provisions of this Act shall pay to the clerk of the court and the Department of State Police a fee equivalent to the cost associated with the sealing of records. The fees shall be paid to the clerk of the court who shall forward the appropriate portion to the Department at the time the court order to seal the defendant's record is forwarded to the Department for processing. The Department of State Police portion of the fee shall be deposited into the State Police Services Fund.

(i) (1) Notwithstanding any other provision of this Act to the contrary and cumulative with any rights to expungement of criminal records, whenever an adult or minor prosecuted as an adult charged with a violation of a municipal ordinance or a misdemeanor is convicted of a misdemeanor and has not been convicted of a felony or misdemeanor or placed on supervision for a misdemeanor within 4 years after the completion of the sentence, if the conviction occurred on or after the effective date of this amendatory Act of the 93rd General Assembly, the Chief Judge of the circuit in which the charge was brought may have the official records of the arresting authority, the Department, and the clerk of the circuit court sealed 4 years after the completion of the sentence, except those records are subject to inspection and use by the court for the purposes of subsequent sentencing for misdemeanor and felony violations and inspection and use by law enforcement agencies and State's Attorneys or other prosecutors in carrying out the duties of their offices. This subsection (i) does not apply to persons convicted of: (1) a violation of Section 11 501 of the Illinois Vehicle Code or a similar provision of a local ordinance; (2) a misdemeanor violation of Article 11 of the Criminal Code of 1961 or a similar provision of a local ordinance; (3) a misdemeanor violation of Section 12 15, 12 30, or 26 5 of the Criminal Code of 1961 or a similar provision of a local ordinance; (4) a misdemeanor violation that is a crime of violence as defined in Section 2 of the Crime Victims Compensation Act or a similar provision of a local ordinance; (5) a Class A misdemeanor violation of the Humane Care for Animals Act; or (6) any offense or attempted offense that would subject a person to registration under the Sex Offender Registration Act.

(2) Upon the conviction of such offense, the person charged with the offense shall be informed by the court of the right to have the records sealed and the procedures for the sealing of the records. Four years after the completion of the sentence, the defendant shall provide the clerk of the court with a notice of request for sealing of records and payment of the applicable fee and a current address and shall promptly notify the clerk of the court of any change of address. The clerk shall promptly serve notice that the person's records are to be sealed on the State's Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government effecting the arrest. Unless the State's Attorney or prosecutor, the Department of State Police, the arresting agency or such chief legal officer objects to sealing of the records within 90 days of notice the court shall enter an order sealing the defendant's records 4 years after the completion of the sentence. The clerk of the court shall promptly serve by mail or in person a copy of the order to the person, the arresting agency, the prosecutor, the Department of State Police and such other criminal justice agencies as may be ordered by the judge. If an objection is filed, the court shall set a date for hearing. At the hearing the court shall hear evidence on whether the sealing of the records should or should not be granted.

(3) The clerk may charge a fee equivalent to the cost associated with the sealing of records by the clerk and the Department of State Police. The clerk shall forward the Department of State Police portion of the fee to the Department and it shall be deposited into the State Police Services Fund.

(4) Whenever sealing of records is required under this subsection (i), the notification of the sealing must be given by the circuit court where the arrest occurred to the Department in a form and manner prescribed by the Department.

(5) An adult or a minor prosecuted as an adult who was charged with a violation of a municipal ordinance or a misdemeanor who was convicted of a misdemeanor before the date of this amendatory Act of the 93rd General Assembly and was not convicted of a felony or misdemeanor or placed on supervision for a misdemeanor for 4 years after the completion of the sentence may petition the Chief Judge of the circuit in which the charge was brought, any judge of that circuit in which the charge was brought, any judge of the circuit designated by the Chief Judge, or, in counties of less than 3,000,000 inhabitants, the presiding trial judge at that defendant's trial, to seal the official records of the arresting authority, the Department, and the clerk of the court, except those records are subject to inspection and use by the court for the purposes of subsequent sentencing for misdemeanor and felony violations and inspection and use by law enforcement agencies, the Department of Corrections, and State's Attorneys and other prosecutors in carrying out the duties of their offices. This subsection (i) does not apply to persons convicted of: (1) a violation of Section 11 501 of the Illinois Vehicle Code or a similar provision of a local ordinance; (2) a misdemeanor violation of Article 11 of the Criminal Code of 1961 or a similar provision of a local ordinance; (3) a misdemeanor violation of Section 12 15, 12 30, or 26 5 of the Criminal Code of 1961 or a similar provision of a local ordinance; (4) a misdemeanor violation that is a crime of violence as defined in Section 2 of the Crime Victims Compensation Act or a similar provision of a local ordinance; (5) a Class A misdemeanor violation of the Humane Care for Animals Act; or (6) any offense or attempted offense that would subject a person to registration under the Sex Offender Registration Act. The State's Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government effecting the arrest shall be served with a copy of the verified petition and shall have 90 days to object. If an objection is filed, the court shall set a date for hearing. At the hearing the court shall hear evidence on whether the sealing of the records should or should not be granted. The person whose records are sealed under the provisions of this Act shall pay to the clerk of the court and the Department of State Police a fee equivalent to the cost associated with the sealing of records. The fees shall be paid to the clerk of the court who shall forward the appropriate portion to the Department at the time the court order to seal the defendant's record is forwarded to the Department for processing. The Department of State Police portion of the fee shall be deposited into the State Police Services Fund."; and

in Sec. 5 of Section 5 by relettering subsection "(l)" as subsection "(i)"; and

in subsection (a) of Sec. 13 of Section 5 by changing "subsections (h), and (i), and (j)" to "subsection subsections (h) and (i)"; and

in subsection (a) of Sec. 13 of Section 5 by replacing "subsection (j)" with "subsection (h)"; and

by inserting after the last line of subsection (a) of Sec. 13 of Section 5 the following:

"(b) Notwithstanding the foregoing, all sealed records are subject to inspection and use by the court and inspection and use by law enforcement agencies and State's Attorneys or other prosecutors in carrying out the duties of their offices."; and

in Sec. 13 of Section 5, by changing "(b)" to "(c) (b)"; and

in Sec. 13 of Section 5, by changing "(c)" to (d)"; and

in the relettered subsection (d), by changing "subsection (j)" to "subsection (h)".