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Public Act 095-0955
Public Act 0955 95TH GENERAL ASSEMBLY
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Public Act 095-0955
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| SB2053 Enrolled |
LRB095 17433 RLC 43505 b |
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| AN ACT concerning courts.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 5. The Criminal Identification Act is amended by | changing Section 5 as follows:
| (20 ILCS 2630/5) (from Ch. 38, par. 206-5)
| Sec. 5. Arrest reports; expungement.
| (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
| 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.
| 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
| 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
| 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
| 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.
| (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.
| (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
| 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.
| (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
| 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.
| (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
| 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.
| (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.
| (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
| 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.
| (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
| 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.
| (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.
| (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
| 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.
| (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.
| 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.
| (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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Effective Date: 1/1/2009
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