093_HB2391

 
                                     LRB093 07037 RLC 09567 b

 1        AN ACT in relation to expungement of criminal records.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section 5.  The Criminal Identification Act is amended by
 5    changing Section 5 and adding Sections  11,  12,  and  13  as
 6    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, or if  a  conviction  is
29    reversed,  whether  the  acquittal or release or a finding of
30    not guilty occurred before, on, or after the  effective  date
31    of  this  amendatory  Act  of  1991,  the  Chief Judge of the
 
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 1    circuit wherein the charge was brought,  any  judge  of  that
 2    circuit designated by the Chief Judge, or in counties of less
 3    than  3,000,000 inhabitants, the presiding trial judge at the
 4    defendant's  trial  shall  automatically  may  upon  verified
 5    petition of the defendant order the record of arrest expunged
 6    from the official records of the arresting authority and  the
 7    Department  and  order  that  the records of the clerk of the
 8    circuit court be sealed until further order of the court upon
 9    good cause shown and the name of the defendant obliterated on
10    the official index required to be kept by the  circuit  court
11    clerk  under  Section 16 of the Clerks of Courts Act, but the
12    order shall not affect any index issued by the circuit  court
13    clerk  before  the  entry  of  the order.  The Department may
14    charge the  petitioner  a  fee  equivalent  to  the  cost  of
15    processing  any order to expunge or seal the records, and the
16    fee shall be deposited into the State Police  Services  Fund,
17    except  there shall be no fee to apply to expunge a case that
18    was dismissed, no billed, found not  guilty,  or  a  reversal
19    because of actual innocence, or in the arrest of an aggrieved
20    person  from  whom identity was stolen.  The records of those
21    arrests, however, that result in a disposition of supervision
22    for any offense shall not be automatically expunged from  the
23    records  of the arresting authority or the Department nor and
24    impounded by the court until  2  years  after  discharge  and
25    dismissal  of  supervision.  Those records that result from a
26    supervision for a violation of Section 3-707,  3-708,  3-710,
27    5-401.3,  or 11-503 of the Illinois Vehicle Code or a similar
28    provision of a local ordinance, or for a violation of Section
29    12-3.2, 12-15 or 16A-3 of  the  Criminal  Code  of  1961,  or
30    probation  under  Section  10  of  the  Cannabis Control Act,
31    Section  410  of  the  Illinois  Controlled  Substances  Act,
32    Section 12-4.3(b)(1) and (2) of the Criminal Code of 1961 (as
33    those provisions existed before their deletion by Public  Act
34    89-313),  Section 10-102 of the Illinois Alcoholism and Other
 
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 1    Drug Dependency Act when the judgment of conviction has  been
 2    vacated, Section 40-10 of the Alcoholism and Other Drug Abuse
 3    and  Dependency  Act when the judgment of conviction has been
 4    vacated, or Section 10 of the Steroid Control Act  shall  not
 5    be  automatically  expunged from the records of the arresting
 6    authority nor and impounded by the court until 5 years  after
 7    termination  of probation or supervision.  Those records that
 8    result from a supervision for a violation of  Section  11-501
 9    of  the  Illinois  Vehicle  Code  or a similar provision of a
10    local ordinance, shall not be expunged.  All records set  out
11    above  may  be  ordered  by  the  court  to  be automatically
12    expunged from the records  of  the  arresting  authority  and
13    impounded  by  the  court  after  5  years,  but shall not be
14    expunged by the Department, but  shall,  on  court  order  be
15    sealed  by  the  Department  and  may  be disseminated by the
16    Department only as  required  by  law  or  to  the  arresting
17    authority,  the  State's Attorney, and the court upon a later
18    arrest for the same or a similar offense or for  the  purpose
19    of sentencing for any subsequent felony.  Upon conviction for
20    any  offense, the Department of Corrections shall have access
21    to all sealed records of the Department  pertaining  to  that
22    individual.
23        The arrest, conviction, and court records of a person who
24    has  been  convicted  of  a misdemeanor shall be expunged and
25    sealed automatically after completion of his or her sentence,
26    provided that the person has not been convicted of  a  felony
27    or misdemeanor within the previous 2 years, excluding non-DUI
28    traffic  violations and any time served in jail by the person
29    and included as a part of the original sentence.
30        The arrest, conviction, and court  records  of  a  person
31    convicted  of  a  Class  4  felony, other than a sex crime or
32    crime of violence,  shall  be  automatically  expunged  after
33    completion  of  the  person's  sentence if the person has not
34    been convicted of a felony or misdemeanor within the previous
 
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 1    4 years.
 2        (a-5)  Those records maintained  by  the  Department  for
 3    persons  arrested  prior  to  their  17th  birthday  shall be
 4    automatically expunged as provided in Section  5-915  of  the
 5    Juvenile Court Act of 1987.
 6        (b)  Whenever  a  person has been convicted of a crime or
 7    of the violation of a municipal ordinance, in the name  of  a
 8    person  whose  identity  he has stolen or otherwise come into
 9    possession of, the aggrieved person from  whom  the  identity
10    was  stolen or otherwise obtained without authorization, upon
11    learning  of  the  person  having  been  arrested  using  his
12    identity, shall be ordered  automatically  expunged  by  may,
13    upon  verified  petition  to  the  chief judge of the circuit
14    wherein the arrest was made, have a court order entered  nunc
15    pro  tunc  by  the  chief judge to correct the arrest record,
16    conviction record, if any, and all official  records  of  the
17    arresting  authority,  the Department, other criminal justice
18    agencies, the prosecutor, and the trial court concerning such
19    arrest, if any, by removing his name from all such records in
20    connection with the arrest and conviction,  if  any,  and  by
21    inserting  in  the records the name of the offender, if known
22    or ascertainable, in  lieu  of  the  aggrieved's  name.   The
23    records  of  the  clerk  of  the circuit court clerk shall be
24    sealed until further order of the court upon good cause shown
25    and the name of  the  aggrieved  person  obliterated  on  the
26    official index required to be kept by the circuit court clerk
27    under  Section  16 of the Clerks of Courts Act, but the order
28    shall not affect any index issued by the circuit court  clerk
29    before the entry of the order.  Nothing in this Section shall
30    limit  the  Department  of  State  Police  or  other criminal
31    justice  agencies  or  prosecutors  from  listing  under   an
32    offender's  name  the  false  names  he or she has used.  For
33    purposes  of  this  Section,  convictions  for   moving   and
34    nonmoving  traffic  violations  other  than  convictions  for
 
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 1    violations  of  Chapter 4, Section 11-204.1 or Section 11-501
 2    of the Illinois Vehicle Code shall not be a bar to  automatic
 3    expungement  of  expunging  the  record  of  arrest and court
 4    records  for  violation  of  a   misdemeanor   or   municipal
 5    ordinance.
 6        (c)  Whenever  A  person  who  has  been  convicted of an
 7    offense  is  granted  a  pardon   by   the   Governor   which
 8    specifically authorizes expungement, in he may, upon verified
 9    petition  to  the chief judge of the circuit where the person
10    had been convicted, any judge of the  circuit  designated  by
11    the  Chief  Judge,  or  in  counties  of  less than 3,000,000
12    inhabitants, the presiding trial  judge  at  the  defendant's
13    trial,  shall  may  have  a court order entered automatically
14    expunging the record of arrest from the official  records  of
15    the  arresting  authority  and  order that the records of the
16    clerk of the circuit court and the Department be sealed until
17    further order of the  court  upon  good  cause  shown  or  as
18    otherwise  provided  herein,  and  the  name of the defendant
19    obliterated from the official index requested to be  kept  by
20    the  circuit  court  clerk  under Section 16 of the Clerks of
21    Courts Act in connection with the arrest and  conviction  for
22    the  offense  for  which  he  had been pardoned but the order
23    shall not affect any index issued by the circuit court  clerk
24    before  the  entry  of  the order.  All records sealed by the
25    Department may be disseminated  by  the  Department  only  as
26    required  by  law  or to the arresting authority, the State's
27    Attorney, and the court upon a later arrest for the  same  or
28    similar  offense  or  for  the  purpose of sentencing for any
29    subsequent  felony.   Upon  conviction  for  any   subsequent
30    offense,  the  Department of Corrections shall have access to
31    all sealed records  of  the  Department  pertaining  to  that
32    individual.    Upon   entry   of   the   order  of  automatic
33    expungement, the clerk of the circuit  court  shall  promptly
34    mail a copy of the order to the person who was pardoned.
 
                            -6-      LRB093 07037 RLC 09567 b
 1        (c-5)  Whenever  a  person has been convicted of criminal
 2    sexual assault, aggravated criminal sexual assault, predatory
 3    criminal sexual assault of a child, criminal sexual abuse, or
 4    aggravated criminal sexual abuse, the victim of that  offense
 5    may  request that the State's Attorney of the county in which
 6    the conviction occurred file a  verified  petition  with  the
 7    presiding  trial  judge  at  the  defendant's trial to have a
 8    court order entered to seal the records of the clerk  of  the
 9    circuit court in connection with the proceedings of the trial
10    court  concerning  that offense.  However, the records of the
11    arresting  authority  and  the  Department  of  State  Police
12    concerning the offense shall not be sealed.  The court,  upon
13    good  cause shown, shall make the records of the clerk of the
14    circuit court in connection with the proceedings of the trial
15    court concerning the offense available for public inspection.
16        (d)  Notice of the  automatic  expungement  petition  for
17    subsections  (a),  (b),  and  (c)  shall  be  served upon the
18    State's Attorney or  prosecutor  charged  with  the  duty  of
19    prosecuting  the offense, the Department of State Police, the
20    arresting agency and the chief legal officer of the  unit  of
21    local  government  affecting  the arrest.  Unless the State's
22    Attorney or prosecutor, the Department of State  Police,  the
23    arresting  agency  or such chief legal officer objects to the
24    petition within 30 days from the  date  of  the  notice,  the
25    court  shall enter an order granting or denying the automatic
26    expungement petition. The clerk of the court  shall  promptly
27    mail a copy of the order to the person, the arresting agency,
28    the prosecutor, the Department of State Police and such other
29    criminal justice agencies as may be ordered by the judge.
30        (e)  Nothing herein shall prevent the Department of State
31    Police  from  maintaining  all  records  of any person who is
32    admitted to probation  upon  terms  and  conditions  and  who
33    fulfills those terms and conditions pursuant to Section 10 of
34    the  Cannabis  Control  Act,  Section  410  of  the  Illinois
 
                            -7-      LRB093 07037 RLC 09567 b
 1    Controlled  Substances  Act,  Section  12-4.3 of the Criminal
 2    Code of 1961, Section 10-102 of the Illinois  Alcoholism  and
 3    Other  Drug  Dependency  Act, Section 40-10 of the Alcoholism
 4    and Other Drug Abuse and Dependency Act, or Section 10 of the
 5    Steroid Control Act.
 6        (f)  No court order issued pursuant  to  the  expungement
 7    provisions of this Section shall become final for purposes of
 8    appeal  until  30  days  after  notice  is  received  by  the
 9    Department.   Any  court  order contrary to the provisions of
10    this Section is void.
11        (g)  Except as otherwise provided in subsection (c-5)  of
12    this  Section,  the  court  shall  not  order  the sealing or
13    expungement of the arrest records and records of the  circuit
14    court   clerk  of  any  person  granted  supervision  for  or
15    convicted of any sexual offense  committed  against  a  minor
16    under  18  years  of  age.  For the purposes of this Section,
17    "sexual offense committed against a minor"  includes  but  is
18    not  limited  to  the  offenses of indecent solicitation of a
19    child or criminal  sexual  abuse  when  the  victim  of  such
20    offense is under 18 years of age.
21    (Source: P.A.  91-295,  eff.  1-1-00;  91-357,  eff. 7-29-99;
22    92-651, eff. 7-11-02.)

23        (20 ILCS 2630/11 new)
24        Sec.  11.  Legal  assistance  and  education.  The  State
25    Appellate Defender shall establish, maintain, and carryout an
26    expungement program to provide information and assistance  to
27    persons  eligible  to  have  their arrest or criminal history
28    record information ordered expunged, sealed, or impounded.

29        (20 ILCS 2630/12 new)
30        Sec.  12.  Entry  of   order;   effect   of   pardon   or
31    expungement.
32        (a)  Upon  the  entry  of  an  order under Section 5, the
 
                            -8-      LRB093 07037 RLC 09567 b
 1    person, for purposes of the law, shall be considered  not  to
 2    have  been  previously  convicted. The fact of the conviction
 3    has been erased by either  the  pardon  or  the  expungement,
 4    except upon a later arrest for the same or similar offense or
 5    for  the purpose of sentencing for any subsequent felony. The
 6    past conviction of  a  person  who  has  been  pardoned  with
 7    respect  to  the  conviction  and the records relative to the
 8    arrest and underlying conduct cannot  be  considered  by  any
 9    private    or    public   entity   in   employment   matters,
10    certification,  licensing,   revocation,   registration,   in
11    determining  good  character,  or  any  other matter, whether
12    obtained through  the  official  records  of  the  arrest  or
13    obtained  from  other  sources.  A  person who has received a
14    pardon and an order expunging records of his  or  her  arrest
15    and  conviction  should  not  answer  in the affirmative when
16    asked on an application whether  he  or  she  has  ever  been
17    convicted  of  such an offense. All applications must contain
18    specific language which states  that  the  applicant  is  not
19    obligated to answer such a question in the affirmative.
20        (b)  The  person  who has been granted expungement is not
21    entitled to the remission of any fine, costs, or other  money
22    paid as a consequence of the expungement. This amendatory Act
23    of the 93rd General Assembly does not affect the right of the
24    person  who  has  been  granted  expungement to rely upon the
25    conviction  to  bar  subsequent  proceedings  for  the   same
26    offense.  This  amendatory  Act  of the 93rd General Assembly
27    does not affect the  right  of  the  victim  of  a  crime  to
28    prosecute   or  defend  a  civil  action  for  damages.  This
29    amendatory Act of the 93rd General Assembly does not create a
30    right to commence an action  for  damages  for  incarceration
31    under   the  sentence  that  the  person  served  before  the
32    expungement under this amendatory Act  of  the  93rd  General
33    Assembly.
 
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 1        (20 ILCS 2630/13 new)
 2        Sec. 13.  Prohibited conduct; misdemeanor; penalty.
 3        (a)  The  Department  of  the State Police shall retain a
 4    nonpublic sealed record under subsections (a), (b) and (c) of
 5    Section 5. Except as provided by subsections (a), (b), (c) of
 6    Section 5, this nonpublic sealed record shall be disseminated
 7    by the Department only as required by law or to the arresting
 8    authority, the State's Attorney, and the court upon  a  later
 9    arrest  for  the same or a similar offense or for the purpose
10    of sentencing for any subsequent felony. Upon conviction  for
11    any  offense, the Department of Corrections shall have access
12    to all sealed records of the Department  pertaining  to  that
13    individual.
14        (b)  The nonpublic record maintained under subsection (a)
15    is  exempt  from  disclosure under the Freedom of Information
16    Act.
17        (c)  Except as provided in subsection (a), a person other
18    than the person whose record has been expunged, who knows  or
19    should  have  known  that  a  record  was expunged under this
20    Section and  who  divulges  uses,  or  publishes  information
21    concerning an expunged record under this Section is guilty of
22    a Class B misdemeanor punishable by imprisonment for not more
23    than 90 days or a fine of not more than $500, or both.