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92_HB4098eng HB4098 Engrossed LRB9215519LDtm 1 AN ACT in relation to the expungement and sealing of 2 arrest and court records. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Criminal Identification Act is amended 6 by changing Section 5 as follows: 7 (20 ILCS 2630/5) (from Ch. 38, par. 206-5) 8 Sec. 5. Arrest reports; expungement. 9 (a) All policing bodies of this State shall furnish to 10 the Department, daily, in the form and detail the Department 11 requires, fingerprints and descriptions of all persons who 12 are arrested on charges of violating any penal statute of 13 this State for offenses that are classified as felonies and 14 Class A or B misdemeanors and of all minors of the age of 10 15 and over who have been arrested for an offense which would be 16 a felony if committed by an adult, and may forward such 17 fingerprints and descriptions for minors arrested for Class A 18 or B misdemeanors. Moving or nonmoving traffic violations 19 under the Illinois Vehicle Code shall not be reported except 20 for violations of Chapter 4, Section 11-204.1, or Section 21 11-501 of that Code. In addition, conservation offenses, as 22 defined in the Supreme Court Rule 501(c), that are classified 23 as Class B misdemeanors shall not be reported. 24 Whenever an adult or minor prosecuted as an adult, not 25 having previously been convicted of any criminal offense or 26 municipal ordinance violation, charged with a violation of a 27 municipal ordinance or a felony or misdemeanor, is acquitted 28 or released without being convicted, whether the acquittal or 29 release occurred before, on, or after the effective date of 30 this amendatory Act of 1991, the Chief Judge of the circuit 31 wherein the charge was brought, any judge of that circuit HB4098 Engrossed -2- LRB9215519LDtm 1 designated by the Chief Judge, or in counties of less than 2 3,000,000 inhabitants, the presiding trial judge at the 3 defendant's trial may upon verified petition of the defendant 4 order the record of arrest expunged from the official records 5 of the arresting authority and the Department and order that 6 the records of the clerk of the circuit court be sealed until 7 further order of the court upon good cause shown and the name 8 of the defendant obliterated on the official index required 9 to be kept by the circuit court clerk under Section 16 of the 10 Clerks of Courts Act, but the order shall not affect any 11 index issued by the circuit court clerk before the entry of 12 the order. The Department may charge the petitioner a fee 13 equivalent to the cost of processing any order to expunge or 14 seal the records, and the fee shall be deposited into the 15 State Police Services Fund. The records of those arrests, 16 however, that result in a disposition of supervision for any 17 offense shall not be expunged from the records of the 18 arresting authority or the Department nor impounded by the 19 court until 2 years after discharge and dismissal of 20 supervision. Those records that result from a supervision 21 for a violation of Section 3-707, 3-708, 3-710, 5-401.3, or 22 11-503 of the Illinois Vehicle Code or a similar provision of 23 a local ordinance, or for a violation of Section 12-3.2, 24 12-15 or 16A-3 of the Criminal Code of 1961, or probation 25 under Section 10 of the Cannabis Control Act, Section 410 of 26 the Illinois Controlled Substances Act, Section 12-4.3(b)(1) 27 and (2) of the Criminal Code of 1961 (as those provisions 28 existed before their deletion by Public Act 89-313), Section 29 10-102 of the Illinois Alcoholism and Other Drug Dependency 30 Act when the judgment of conviction has been vacated, Section 31 40-10 of the Alcoholism and Other Drug Abuse and Dependency 32 Act when the judgment of conviction has been vacated, or 33 Section 10 of the Steroid Control Act shall not be expunged 34 from the records of the arresting authority nor impounded by HB4098 Engrossed -3- LRB9215519LDtm 1 the court until 5 years after termination of probation or 2 supervision. Those records that result from a supervision 3 for a violation of Section 11-501 of the Illinois Vehicle 4 Code or a similar provision of a local ordinance, shall not 5 be expunged. All records set out above may be ordered by the 6 court to be expunged from the records of the arresting 7 authority and impounded by the court after 5 years, but shall 8 not be expunged by the Department, but shall, on court order 9 be sealed by the Department and may be disseminated by the 10 Department only as required by law or to the arresting 11 authority, the State's Attorney, and the court upon a later 12 arrest for the same or a similar offense or for the purpose 13 of sentencing for any subsequent felony. Upon conviction for 14 any offense, the Department of Corrections shall have access 15 to all sealed records of the Department pertaining to that 16 individual. 17 (a-5) Those records maintained by the Department for 18 persons arrested prior to their 17th birthday shall be 19 expunged as provided in Section 5-915 of the Juvenile Court 20 Act of 1987. 21 (b) Whenever a person has been convicted of a crime or 22 of the violation of a municipal ordinance, in the name of a 23 person whose identity he has stolen or otherwise come into 24 possession of, the aggrieved person from whom the identity 25 was stolen or otherwise obtained without authorization, upon 26 learning of the person having been arrested using his 27 identity, may, upon verified petition to the chief judge of 28 the circuit wherein the arrest was made, have a court order 29 entered nunc pro tunc by the chief judge to correct the 30 arrest record, conviction record, if any, and all official 31 records of the arresting authority, the Department, other 32 criminal justice agencies, the prosecutor, and the trial 33 court concerning such arrest, if any, by removing his name 34 from all such records in connection with the arrest and HB4098 Engrossed -4- LRB9215519LDtm 1 conviction, if any, and by inserting in the records the name 2 of the offender, if known or ascertainable, in lieu of the 3 aggrieved'shasname. The records of the clerk of the 4 circuit court clerk shall be sealed until further order of 5 the court upon good cause shown and the name of the aggrieved 6 person obliterated on the official index required to be kept 7 by the circuit court clerk under Section 16 of the Clerks of 8 Courts Act, but the order shall not affect any index issued 9 by the circuit court clerk before the entry of the order. 10 Nothing in this Section shall limit the Department of State 11 Police or other criminal justice agencies or prosecutors from 12 listing under an offender's name the false names he or she 13 has used. For purposes of this Section, convictions for 14 moving and nonmoving traffic violations other than 15 convictions for violations of Chapter 4, Section 11-204.1 or 16 Section 11-501 of the Illinois Vehicle Code shall not be a 17 bar to expunging the record of arrest and court records for 18 violation of a misdemeanor or municipal ordinance. 19 (c) Whenever a person who has been convicted of an 20 offense is granted a pardon by the Governor which 21 specifically authorizes expungement, he may, upon verified 22 petition to the chief judge of the circuit where the person 23 had been convicted, any judge of the circuit designated by 24 the Chief Judge, or in counties of less than 3,000,000 25 inhabitants, the presiding trial judge at the defendant's 26 trial, may have a court order entered expunging the record of 27 arrest from the official records of the arresting authority 28 and order that the records of the clerk of the circuit court 29 and the Department be sealed until further order of the court 30 upon good cause shown or as otherwise provided herein, and 31 the name of the defendant obliterated from the official index 32 requested to be kept by the circuit court clerk under Section 33 16 of the Clerks of Courts Act in connection with the arrest 34 and conviction for the offense for which he had been pardoned HB4098 Engrossed -5- LRB9215519LDtm 1 but the order shall not affect any index issued by the 2 circuit court clerk before the entry of the order. All 3 records sealed by the Department may be disseminated by the 4 Department only as required by law or to the arresting 5 authority, the State's Attorney, and the court upon a later 6 arrest for the same or similar offense or for the purpose of 7 sentencing for any subsequent felony. Upon conviction for 8 any subsequent offense, the Department of Corrections shall 9 have access to all sealed records of the Department 10 pertaining to that individual. Upon entry of the order of 11 expungement, the clerk of the circuit court shall promptly 12 mail a copy of the order to the person who was pardoned. 13 (c-5) Whenever a person has been convicted of criminal 14 sexual assault, aggravated criminal sexual assault, predatory 15 criminal sexual assault of a child, criminal sexual abuse, or 16 aggravated criminal sexual abuse, the victim of that offense 17 may request that the State's Attorney of the county in which 18 the conviction occurred file a verified petition with the 19 presiding trial judge at the defendant's trial to have a 20 court order entered to seal the records of the clerk of the 21 circuit court in connection with the proceedings of the trial 22 court concerning that offense. However, the records of the 23 arresting authority and the Department of State Police 24 concerning the offense shall not be sealed. The court, upon 25 good cause shown, shall make the records of the clerk of the 26 circuit court in connection with the proceedings of the trial 27 court concerning the offense available for public inspection. 28 (c-6) If a conviction or sentence has been set aside on 29 direct review or on collateral attack and the court 30 determines by clear and convincing evidence that the 31 defendant was factually innocent of the charge, the court 32 shall enter an expungement order as provided in subsection 33 (b) of Section 5-5-4 of the Unified Code of Corrections. 34 (d) Notice of the petition for subsections (a), (b), and HB4098 Engrossed -6- LRB9215519LDtm 1 (c) shall be served upon the State's Attorney or prosecutor 2 charged with the duty of prosecuting the offense, the 3 Department of State Police, the arresting agency and the 4 chief legal officer of the unit of local government affecting 5 the arrest. Unless the State's Attorney or prosecutor, the 6 Department of State Police, the arresting agency or such 7 chief legal officer objects to the petition within 30 days 8 from the date of the notice, the court shall enter an order 9 granting or denying the petition. The clerk of the court 10 shall promptly mail a copy of the order to the person, the 11 arresting agency, the prosecutor, the Department of State 12 Police and such other criminal justice agencies as may be 13 ordered by the judge. 14 (e) Nothing herein shall prevent the Department of State 15 Police from maintaining all records of any person who is 16 admitted to probation upon terms and conditions and who 17 fulfills those terms and conditions pursuant to Section 10 of 18 the Cannabis Control Act, Section 410 of the Illinois 19 Controlled Substances Act, Section 12-4.3 of the Criminal 20 Code of 1961, Section 10-102 of the Illinois Alcoholism and 21 Other Drug Dependency Act, Section 40-10 of the Alcoholism 22 and Other Drug Abuse and Dependency Act, or Section 10 of the 23 Steroid Control Act. 24 (f) No court order issued pursuant to the expungement 25 provisions of this Section shall become final for purposes of 26 appeal until 30 days after notice is received by the 27 Department. Any court order contrary to the provisions of 28 this Section is void. 29 (g) Except as otherwise provided in subsection (c-5) of 30 this Section, the court shall not order the sealing or 31 expungement of the arrest records and records of the circuit 32 court clerk of any person granted supervision for or 33 convicted of any sexual offense committed against a minor 34 under 18 years of age. For the purposes of this Section, HB4098 Engrossed -7- LRB9215519LDtm 1 "sexual offense committed against a minor" includes but is 2 not limited to the offenses of indecent solicitation of a 3 child or criminal sexual abuse when the victim of such 4 offense is under 18 years of age. 5 (Source: P.A. 90-590, eff. 1-1-00; 91-295, eff. 1-1-00; 6 91-357, eff. 7-29-99; revised 12-3-01.) 7 Section 6. The State Appellate Defender Act is amended 8 by adding Section 10.6 as follows: 9 (725 ILCS 105/10.6 new) 10 Sec. 10.6. Expungement program. 11 (a) The State Appellate Defender shall establish, 12 maintain, and carry out an Expungement Program to provide 13 information and assistance to persons eligible to have their 14 arrest or criminal history record information ordered 15 expunged, sealed, or impounded. 16 (b) The State Appellate Defender shall develop 17 brochures, pamphlets, and other materials in printed form 18 and through the agency's World Wide Web site. The pamphlets 19 and other materials shall include at a minimum the following 20 information: 21 (1) An explanation of the State's expungement 22 process; 23 (2) The circumstances under which expungement may 24 occur; 25 (3) The criminal offenses that may be expunged; 26 (4) The steps necessary to initiate and complete 27 the expungement process; and 28 (5) Directions on how to contact the State 29 Appellate Defender. 30 (c) The State Appellate Defender shall establish and 31 maintain a statewide toll-free telephone number that a person 32 may use to receive information or assistance concerning the HB4098 Engrossed -8- LRB9215519LDtm 1 expungement or sealing of arrest or criminal history record 2 information. The State Appellate Defender shall advertise the 3 toll-free telephone number statewide. The State Appellate 4 Defender shall develop an expungement information packet that 5 may be sent to eligible persons seeking expungement of their 6 arrest records, which may include, but is not limited to, a 7 pre-printed expungement petition with instructions on how to 8 complete the petition and a pamphlet containing information 9 that would assist individuals through the expungement 10 process. 11 (d) The State Appellate Defender shall compile a 12 statewide list of volunteer attorneys willing to assist 13 eligible individuals through the expungement process. 14 (e) This Section shall be implemented from funds 15 appropriated by the General Assembly to the State Appellate 16 Defender for this purpose. The State Appellate Defender shall 17 employ the necessary staff and adopt the necessary rules for 18 implementation of this Section. 19 Section 10. The Unified Code of Corrections is amended by 20 changing Section 5-5-4 as follows: 21 (730 ILCS 5/5-5-4) (from Ch. 38, par. 1005-5-4) 22 Sec. 5-5-4. Resentences. 23 (a) Where a conviction or sentence has been set aside on 24 direct review or on collateral attack, the court shall not 25 impose a new sentence for the same offense or for a different 26 offense based on the same conduct which is more severe than 27 the prior sentence less the portion of the prior sentence 28 previously satisfied unless the more severe sentence is based 29 upon conduct on the part of the defendant occurring after the 30 original sentencing. If a sentence is vacated on appeal or on 31 collateral attack due to the failure of the trier of fact at 32 trial to determine beyond a reasonable doubt the existence of HB4098 Engrossed -9- LRB9215519LDtm 1 a fact (other than a prior conviction) necessary to increase 2 the punishment for the offense beyond the statutory maximum 3 otherwise applicable, either the defendant may be 4 re-sentenced to a term within the range otherwise provided 5 or, if the State files notice of its intention to again seek 6 the extended sentence, the defendant shall be afforded a new 7 trial. 8 (b) If a conviction or sentence has been set aside on 9 direct review or on collateral attack and the court 10 determines by clear and convincing evidence that the 11 defendant was factually innocent of the charge, the court 12 shall enter an order expunging the record of arrest from the 13 official records of the arresting authority and order that 14 the records of the clerk of the circuit court and Department 15 of State Police be sealed until further order of the court 16 upon good cause shown or as otherwise provided herein, and 17 the name of the defendant obliterated from the official index 18 requested to be kept by the circuit court clerk under Section 19 16 of the Clerks of Courts Act in connection with the arrest 20 and conviction for the offense but the order shall not affect 21 any index issued by the circuit court clerk before the entry 22 of the order. 23 All records sealed by the Department of State Police may 24 be disseminated by the Department only as required by law or 25 to the arresting authority, the State's Attorney, the court 26 upon a later arrest for the same or similar offense, or for 27 the purpose of sentencing for any subsequent felony. Upon 28 conviction for any subsequent offense, the Department of 29 Corrections shall have access to all sealed records of the 30 Department pertaining to that individual. 31 Upon entry of the order of expungement, the clerk of the 32 circuit court shall promptly mail a copy of the order to the 33 person whose records were expunged and sealed. 34 (Source: P.A. 91-953, eff. 2-23-01.) HB4098 Engrossed -10- LRB9215519LDtm 1 Section 99. Effective date. This Act takes effect upon 2 becoming law.