Public Act 93-0210
SB423 Enrolled LRB093 10646 BDD 10956 b
AN ACT in relation to the expungement and sealing of
arrest and court records.
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 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 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 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 pursuant to 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.
(Source: P.A. 91-295, eff. 1-1-00; 91-357, eff. 7-29-99;
92-651, eff. 7-11-02.)
Section 6. The State Appellate Defender Act is amended
by adding Section 10.6 as follows:
(725 ILCS 105/10.6 new)
Sec. 10.6. Expungement program.
(a) The State Appellate Defender shall establish,
maintain, and carry out an Expungement Program to provide
information to persons eligible to have their arrest or
criminal history record information ordered expunged, sealed,
or impounded.
(b) The State Appellate Defender shall develop
brochures, pamphlets, and other materials in printed form
and through the agency's World Wide Web site. The pamphlets
and other materials shall include at a minimum the following
information:
(1) An explanation of the State's expungement
process;
(2) The circumstances under which expungement may
occur;
(3) The criminal offenses that may be expunged;
(4) The steps necessary to initiate and complete
the expungement process; and
(5) Directions on how to contact the State
Appellate Defender.
(c) The State Appellate Defender shall establish and
maintain a statewide toll-free telephone number that a person
may use to receive information or assistance concerning the
expungement or sealing of arrest or criminal history record
information. The State Appellate Defender shall advertise the
toll-free telephone number statewide. The State Appellate
Defender shall develop an expungement information packet that
may be sent to eligible persons seeking expungement of their
arrest records, which may include, but is not limited to, a
pre-printed expungement petition with instructions on how to
complete the petition and a pamphlet containing information
that would assist individuals through the expungement
process.
(d) The State Appellate Defender shall compile a
statewide list of volunteer attorneys willing to assist
eligible individuals through the expungement process.
(e) This Section shall be implemented from funds
appropriated by the General Assembly to the State Appellate
Defender for this purpose. The State Appellate Defender shall
employ the necessary staff and adopt the necessary rules for
implementation of this Section.
Section 10. The Unified Code of Corrections is amended by
changing Section 5-5-4 as follows:
(730 ILCS 5/5-5-4) (from Ch. 38, par. 1005-5-4)
Sec. 5-5-4. Resentences.
(a) Where a conviction or sentence has been set aside on
direct review or on collateral attack, the court shall not
impose a new sentence for the same offense or for a different
offense based on the same conduct which is more severe than
the prior sentence less the portion of the prior sentence
previously satisfied unless the more severe sentence is based
upon conduct on the part of the defendant occurring after the
original sentencing. If a sentence is vacated on appeal or on
collateral attack due to the failure of the trier of fact at
trial to determine beyond a reasonable doubt the existence of
a fact (other than a prior conviction) necessary to increase
the punishment for the offense beyond the statutory maximum
otherwise applicable, either the defendant may be
re-sentenced to a term within the range otherwise provided
or, if the State files notice of its intention to again seek
the extended sentence, the defendant shall be afforded a new
trial.
(b) If a conviction or sentence 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 order 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 Department
of State Police 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 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 of State Police may
be disseminated by the Department only as required by law or
to the arresting authority, the State's Attorney, 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 whose records were expunged and sealed.
(Source: P.A. 91-953, eff. 2-23-01.)
Section 99. Effective date. This Act takes effect upon
becoming law.
INDEX
Statutes amended in order of appearance
20 ILCS 2630/5 from Ch. 38, par. 206-5
725 ILCS 105/10.6 new
730 ILCS 5/5-5-4 from Ch. 38, par. 1005-5-4