093_SB0423eng

 
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 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
 
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 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
 
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 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
 
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 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's name.  The records of the clerk  of  the  circuit
 4    court  clerk shall be sealed until further order of the court
 5    upon good cause shown and the name of  the  aggrieved  person
 6    obliterated  on the official index required to be kept by the
 7    circuit court clerk under Section 16 of the Clerks of  Courts
 8    Act,  but  the order shall not affect any index issued by the
 9    circuit court clerk before the entry of the  order.   Nothing
10    in this Section shall limit the Department of State Police or
11    other  criminal  justice agencies or prosecutors from listing
12    under an offender's name the false names he or she has  used.
13    For  purposes  of  this  Section,  convictions for moving and
14    nonmoving  traffic  violations  other  than  convictions  for
15    violations of Chapter 4, Section 11-204.1 or  Section  11-501
16    of  the Illinois Vehicle Code shall not be a bar to expunging
17    the record of arrest and court records  for  violation  of  a
18    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
 
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 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 has been set aside on direct review
29    or on collateral attack and the court determines by clear and
30    convincing evidence that the defendant was factually innocent
31    of the charge, the court shall enter an expungement order  as
32    provided  in  subsection  (b) of Section 5-5-4 of the Unified
33    Code of Corrections.
34        (d)  Notice of the petition for subsections (a), (b), and
 
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 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,
 
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 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. 91-295,  eff.  1-1-00;  91-357,  eff.  7-29-99;
 6    92-651, eff. 7-11-02.)

 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 to persons  eligible  to  have  their  arrest  or
14    criminal history record information ordered expunged, sealed,
15    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
 
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 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
 
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 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.)
 
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 1        Section 99.  Effective date.  This Act takes effect  upon
 2    becoming law.
 
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 1                                INDEX
 2               Statutes amended in order of appearance
 3    20 ILCS 2630/5            from Ch. 38, par. 206-5
 4    725 ILCS 105/10.6 new
 5    730 ILCS 5/5-5-4          from Ch. 38, par. 1005-5-4