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| Public Act 095-0955 |
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AN ACT concerning courts.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Criminal Identification Act is amended by | ||||
changing Section 5 as follows:
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(20 ILCS 2630/5) (from Ch. 38, par. 206-5)
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Sec. 5. Arrest reports; expungement.
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(a) All policing bodies of this State shall furnish to the | ||||
Department,
daily, in the form and detail the Department | ||||
requires, fingerprints and
descriptions of all persons who are | ||||
arrested on charges of violating any penal
statute of this | ||||
State for offenses that are classified as felonies and Class
A | ||||
or B misdemeanors and of all minors of the age of 10 and over | ||||
who have been
arrested for an offense which would be a felony | ||||
if committed by an adult, and
may forward such fingerprints and | ||||
descriptions for minors arrested for Class A
or B misdemeanors. | ||||
Moving or nonmoving traffic violations under the Illinois
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Vehicle Code shall not be reported except for violations of | ||||
Chapter 4, Section
11-204.1, or Section 11-501 of that Code. In | ||||
addition, conservation offenses,
as defined in the Supreme | ||||
Court Rule 501(c), that are classified as Class B
misdemeanors | ||||
shall not be reported.
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Whenever an adult or minor prosecuted as an adult,
not | ||||
having previously been convicted of any criminal offense or | ||
municipal
ordinance violation, charged with a violation of a | ||
municipal ordinance or a
felony or misdemeanor, is acquitted or | ||
released without being convicted,
whether the acquittal or | ||
release occurred before, on, or after the
effective date of | ||
this amendatory Act of 1991, the Chief Judge of the circuit
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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 may upon verified petition of the
defendant | ||
order the record of arrest expunged from the official records | ||
of the
arresting authority and the Department and order that | ||
the records of the clerk
of the circuit court be sealed until | ||
further order of the court upon good cause
shown and the name | ||
of the defendant obliterated on the official index required
to | ||
be kept by the circuit court clerk under Section 16 of the | ||
Clerks of Courts
Act, but the order shall not affect any index | ||
issued by the circuit court clerk
before the entry of the | ||
order. The Department may charge the petitioner a fee
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equivalent to the cost of processing any order to expunge or | ||
seal the records,
and the fee shall be deposited into the State | ||
Police Services Fund. The
records of those arrests, however, | ||
that result in a disposition of
supervision for any offense | ||
shall not be expunged from the records of the
arresting | ||
authority or the Department nor impounded by the court until 2 | ||
years
after discharge and dismissal of supervision. Those | ||
records
that result from a supervision for a violation of | ||
Section 3-707, 3-708, 3-710,
5-401.3, or 11-503 of the Illinois | ||
Vehicle Code or a similar provision
of a local ordinance, or | ||
for a violation of Section 12-3.2, 12-15 or 16A-3
of the | ||
Criminal Code of 1961, or probation under Section 10 of the | ||
Cannabis
Control Act, Section 410 of the Illinois Controlled | ||
Substances Act, Section 70 of the Methamphetamine Control and | ||
Community Protection Act, Section
12-4.3(b)(1) and (2) of the | ||
Criminal Code of 1961 (as those provisions
existed before their | ||
deletion by Public Act 89-313), Section 10-102 of the
Illinois | ||
Alcoholism and Other Drug Dependency Act when the judgment of
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conviction has been vacated, Section 40-10 of the Alcoholism | ||
and Other Drug
Abuse and Dependency Act when the judgment of | ||
conviction has been vacated,
or Section 10 of the Steroid | ||
Control Act shall not be expunged from the records
of the | ||
arresting authority nor impounded by the court until 5 years | ||
after
termination of probation or supervision. Those records | ||
that result from a
supervision for a violation of Section | ||
11-501 of the Illinois Vehicle Code or
a similar provision of a | ||
local ordinance, shall not be expunged. All records
set out | ||
above may be ordered by the court to be expunged from the | ||
records of
the arresting authority and impounded by the court | ||
after 5 years, but shall
not be expunged by the Department, but | ||
shall, on court order be sealed by the
Department and may be | ||
disseminated by the Department only as required by law or
to | ||
the arresting authority, the State's Attorney, and the court | ||
upon a later
arrest for the same or a similar offense or for | ||
the purpose of sentencing for
any subsequent felony. Upon | ||
conviction for any offense, the Department of
Corrections shall | ||
have access to all sealed records of the Department
pertaining | ||
to that individual.
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(a-5) Those records maintained by the Department for | ||
persons arrested
prior to their 17th birthday shall be expunged | ||
as provided in Section 5-915 of
the Juvenile Court Act of 1987.
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(b) Whenever a person has been convicted of a crime or of | ||
the violation of
a municipal ordinance, in the name of a person | ||
whose identity he has stolen
or otherwise come into possession | ||
of, the aggrieved person from whom the
identity was stolen or | ||
otherwise obtained without authorization, upon learning
of the | ||
person having been arrested using his identity, may, upon | ||
verified
petition to the chief judge of the circuit wherein the | ||
arrest was made,
have a court order entered nunc pro tunc by | ||
the chief judge to correct
the arrest record, conviction | ||
record, if any, and all official records of the
arresting | ||
authority, the Department, other criminal justice agencies, | ||
the
prosecutor, and the trial court concerning such arrest, if | ||
any, by removing his
name from all such records in connection | ||
with the arrest and conviction, if
any, and by inserting in the | ||
records the name of the offender, if known or
ascertainable, in | ||
lieu of the aggrieved's name. The records of the
clerk of
the | ||
circuit court clerk shall be sealed until further order of the | ||
court upon
good cause shown and the name of the aggrieved | ||
person obliterated on the
official index required to be kept by | ||
the circuit court clerk under Section 16
of the Clerks of | ||
Courts Act, but the order shall not affect any index issued by
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the circuit court clerk before the entry of the order. Nothing | ||
in this Section
shall limit the Department of State Police or | ||
other criminal justice agencies
or prosecutors from listing | ||
under an offender's name the false names he or she
has used. | ||
For purposes of this Section, convictions for moving and | ||
nonmoving
traffic violations other than convictions for | ||
violations of Chapter 4, Section
11-204.1 or Section 11-501 of | ||
the Illinois Vehicle Code shall not be a bar to
expunging the | ||
record of arrest and court records for
violation of a | ||
misdemeanor or municipal ordinance.
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(c) Whenever a person who has been convicted of an offense | ||
is granted
a pardon by the Governor which specifically | ||
authorizes expungement, he may,
upon verified petition to the | ||
chief judge of the circuit where the person had
been convicted, | ||
any judge of the circuit designated by the Chief Judge, or in
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counties of less than 3,000,000 inhabitants, the presiding | ||
trial judge at the
defendant's trial, may have a court order | ||
entered expunging the record of
arrest from the official | ||
records of the arresting authority and order that the
records | ||
of the clerk of the circuit court and the Department be sealed | ||
until
further order of the court upon good cause shown or as | ||
otherwise provided
herein, and the name of the defendant | ||
obliterated from the official index
requested to be kept by the | ||
circuit court clerk under Section 16 of the Clerks
of Courts | ||
Act in connection with the arrest and conviction for the | ||
offense for
which he had been pardoned but the order shall not | ||
affect any index issued by
the circuit court clerk before the | ||
entry of the order. All records sealed by
the Department may be | ||
disseminated by the Department only as required by law or
to | ||
the arresting authority, the State's Attorney, and the court | ||
upon a later
arrest for the same or similar offense or for the | ||
purpose of sentencing for any
subsequent felony. Upon | ||
conviction for any subsequent offense, the Department
of | ||
Corrections shall have access to all sealed records of the | ||
Department
pertaining to that individual. Upon entry of the | ||
order of expungement, the
clerk of the circuit court shall | ||
promptly mail a copy of the order to the
person who was | ||
pardoned.
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(c-5) Whenever a person has been convicted of criminal | ||
sexual assault,
aggravated criminal sexual assault, predatory | ||
criminal sexual assault of a
child, criminal sexual abuse, or | ||
aggravated criminal sexual abuse, the victim
of that offense | ||
may request that the State's Attorney of the county in which
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the conviction occurred file a verified petition with the | ||
presiding trial judge
at the defendant's trial to have a court | ||
order entered to seal the records of
the clerk of the circuit | ||
court in connection with the proceedings of the trial
court | ||
concerning that offense. However, the records of the arresting | ||
authority
and the Department of State Police concerning the | ||
offense shall not be
sealed. The court, upon good cause shown, | ||
shall make the records of the clerk
of the circuit court in | ||
connection with the proceedings of the trial court
concerning | ||
the offense available for public inspection.
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(c-6) If a conviction has been set aside on direct review | ||
or on
collateral attack
and the court determines by clear and | ||
convincing evidence that the defendant
was factually innocent | ||
of
the charge, the court shall enter an expungement order as | ||
provided in
subsection (b) of Section 5-5-4
of the Unified Code | ||
of Corrections.
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(d) Notice of the petition for subsections (a), (b), and | ||
(c) shall be
served by the clerk upon 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
affecting | ||
the arrest. Unless the State's Attorney or prosecutor, the
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Department of State Police, the arresting agency or such chief | ||
legal officer
objects to the petition within 30 days from the | ||
date of the notice, the
court shall enter an order granting or | ||
denying the petition. The clerk
of the court shall promptly | ||
mail 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.
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(e) Nothing herein shall prevent the Department of State | ||
Police from
maintaining all records of any person who is | ||
admitted to probation upon
terms and conditions and who | ||
fulfills those terms and conditions pursuant
to Section 10 of | ||
the Cannabis Control Act, Section 410 of the Illinois
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Controlled Substances Act, Section 70 of the Methamphetamine | ||
Control and Community Protection Act, Section 12-4.3 of the | ||
Criminal Code
of 1961, Section 10-102 of the Illinois | ||
Alcoholism and Other Drug
Dependency Act, Section 40-10 of the | ||
Alcoholism and Other Drug Abuse and
Dependency Act, or Section | ||
10 of the Steroid Control Act.
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(f) No court order issued under the expungement provisions | ||
of this
Section shall become final for purposes of appeal until | ||
30 days after
notice is received by the Department. Any court | ||
order contrary to the
provisions of this Section is void.
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(g) Except as otherwise provided in subsection (c-5) of | ||
this Section,
the court shall not order the sealing or | ||
expungement of the arrest
records and records of the circuit | ||
court clerk of any person granted
supervision for or convicted | ||
of any sexual offense committed against a minor
under 18 years | ||
of age. For the purposes of this Section, "sexual offense
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committed against a minor" includes but is not limited to the | ||
offenses of
indecent solicitation of a child or criminal sexual | ||
abuse when the victim of
such offense is under 18 years of age.
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(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) Section 60 of the Methamphetamine Control and | ||
Community Protection Act.
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However, for purposes of this subsection (h), a | ||
sentence of first offender probation under Section 10 of | ||
the Cannabis Control Act, Section 410 of the Illinois | ||
Controlled Substances Act, or Section 70 of the | ||
Methamphetamine Control and Community Protection 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. | ||
(i) Subject to available funding, the Illinois Department | ||
of Corrections shall conduct a study of the impact of sealing, | ||
especially on employment and recidivism rates, utilizing a | ||
random sample of those who apply for the sealing of their | ||
criminal records under Public Act 93-211, in accordance to | ||
rules adopted by the Department. At the request of the Illinois | ||
Department of Corrections, records of the Illinois Department | ||
of Employment Security shall be utilized as appropriate to | ||
assist in the study. The study shall not disclose any data in a | ||
manner that would allow the identification of any particular | ||
individual or employing unit. The study shall be made available | ||
to the General Assembly no later than September 1, 2006.
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(j) Notwithstanding any provision of the Clerks of Courts | ||
Act to the contrary, the clerk may charge a fee equivalent to | ||
the cost associated with the sealing or expungement of records | ||
by the clerk. From the total filing fee collected for the | ||
Petition to seal or expunge, the clerk shall deposit $10 into | ||
the Circuit Court Clerk Operation and Administrative Fund, to | ||
be used to offset the costs incurred by the Circuit Court Clerk | ||
in performing the additional duties required to serve the | ||
Petition to Seal or Expunge on all parties. The clerk shall | ||
also charge a filing fee equivalent to the cost of sealing or | ||
expunging the record by the Department of State Police. The | ||
clerk shall collect and forward the Department of State Police | ||
portion of the fee to the Department and it shall be deposited | ||
in the State Police Services Fund. | ||
(Source: P.A. 93-210, eff. 7-18-03; 93-211, eff. 1-1-04; | ||
93-1084, eff. 6-1-05; 94-556, eff. 9-11-05.)
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