093_HB2391eng

 
HB2391 Engrossed                     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, 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
 
HB2391 Engrossed            -4-      LRB093 07037 RLC 09567 b
 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
 
HB2391 Engrossed            -5-      LRB093 07037 RLC 09567 b
 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        (d)  Notice of the petition for subsections (a), (b), and
29    (c) shall be served upon the State's Attorney  or  prosecutor
30    charged  with  the  duty  of  prosecuting  the  offense,  the
31    Department  of  State  Police,  the  arresting agency and the
32    chief legal officer of the unit of local government affecting
33    the arrest.  Unless the State's Attorney or  prosecutor,  the
34    Department  of  State  Police,  the  arresting agency or such
 
HB2391 Engrossed            -6-      LRB093 07037 RLC 09567 b
 1    chief legal officer objects to the petition  within  30  days
 2    from  the  date of the notice, the court shall enter an order
 3    granting or denying the petition.  The  clerk  of  the  court
 4    shall  promptly  mail  a copy of the order to the person, the
 5    arresting agency, the prosecutor,  the  Department  of  State
 6    Police  and  such  other  criminal justice agencies as may be
 7    ordered by the judge.
 8        (e)  Nothing herein shall prevent the Department of State
 9    Police from maintaining all records  of  any  person  who  is
10    admitted  to  probation  upon  terms  and  conditions and who
11    fulfills those terms and conditions pursuant to Section 10 of
12    the  Cannabis  Control  Act,  Section  410  of  the  Illinois
13    Controlled Substances Act, Section  12-4.3  of  the  Criminal
14    Code  of  1961, Section 10-102 of the Illinois Alcoholism and
15    Other Drug Dependency Act, Section 40-10  of  the  Alcoholism
16    and Other Drug Abuse and Dependency Act, or Section 10 of the
17    Steroid Control Act.
18        (f)  No  court  order  issued pursuant to the expungement
19    provisions of this Section shall become final for purposes of
20    appeal  until  30  days  after  notice  is  received  by  the
21    Department.  Any court order contrary to  the  provisions  of
22    this Section is void.
23        (g)  Except  as otherwise provided in subsection (c-5) of
24    this Section, the  court  shall  not  order  the  sealing  or
25    expungement  of the arrest records and records of the circuit
26    court  clerk  of  any  person  granted  supervision  for   or
27    convicted  of  any  sexual  offense committed against a minor
28    under 18 years of age.  For the  purposes  of  this  Section,
29    "sexual  offense  committed  against a minor" includes but is
30    not limited to the offenses of  indecent  solicitation  of  a
31    child  or  criminal  sexual  abuse  when  the  victim of such
32    offense is under 18 years of age.
33        (h) (1) Notwithstanding any other provision of  this  Act
34    to  the contrary, whenever an adult or minor prosecuted as an
 
HB2391 Engrossed            -7-      LRB093 07037 RLC 09567 b
 1    adult charged with a violation of a municipal ordinance or  a
 2    misdemeanor is acquitted or released without being convicted,
 3    or if the person is convicted but the conviction is reversed,
 4    or  if  the  person  has  been  convicted  of  or  placed  on
 5    supervision for a misdemeanor and has not been convicted of a
 6    felony   or  misdemeanor  or  placed  on  supervision  for  a
 7    misdemeanor within 3 years after the acquittal or release  or
 8    reversal  of  conviction,  the  completion of the sentence or
 9    completion of the terms and conditions of the supervision, if
10    the acquittal, release, finding of not guilty, or  conviction
11    occurred  on  or  after the effective date of this amendatory
12    Act of the 93rd General Assembly,  the  Chief  Judge  of  the
13    circuit  in  which  the charge was brought, any judge of that
14    circuit designated by the Chief Judge,  or,  in  counties  of
15    less than 3,000,000 inhabitants, the presiding trial judge at
16    the defendant's trial shall order the official records of the
17    arresting  authority,  the  Department,  and the clerk of the
18    circuit court sealed 3  years  after  the  dismissal  of  the
19    charge,   the   finding   of  not  guilty,  the  reversal  of
20    conviction, or the completion of the sentence  or  terms  and
21    conditions  of  the  supervision,  except  those  records are
22    subject to inspection and use by the court for  the  purposes
23    of   subsequent   sentencing   for   misdemeanor  and  felony
24    violations and inspection and use by law enforcement agencies
25    and State's Attorneys or other prosecutors  in  carrying  out
26    the  duties  of  their offices.  This subsection (h) does not
27    apply to persons convicted of or placed on  supervision  for:
28    (1)  a  violation  of  Section 11-501 of the Illinois Vehicle
29    Code or a similar provision  of  a  local  ordinance;  (2)  a
30    misdemeanor  violation  of Article 11 of the Criminal Code of
31    1961 or a similar provision  of  a  local  ordinance;  (3)  a
32    misdemeanor  violation  of  Section  12-15  or  12-30  of the
33    Criminal Code of 1961 or  a  similar  provision  of  a  local
34    ordinance;  or (4) a misdemeanor violation that is a crime of
 
HB2391 Engrossed            -8-      LRB093 07037 RLC 09567 b
 1    violence as  defined  in  Section  2  of  the  Crime  Victims
 2    Compensation Act or a similar provision of a local ordinance.
 3        (2)  The  person  whose  records  are  to be sealed shall
 4    provide the clerk of the court with  a  current  address  and
 5    shall promptly notify the clerk of the court of any change of
 6    address.  Notice  that  the person's records are to be sealed
 7    shall be served  upon  the  State's  Attorney  or  prosecutor
 8    charged  with  the  duty  of  prosecuting  the  offense,  the
 9    Department  of  State  Police,  the  arresting agency and the
10    chief legal officer of the unit of local government effecting
11    the arrest within 2 years and 6 months after the dismissal of
12    the charge, the  finding  of  not  guilty,  the  reversal  of
13    conviction,  or  the  completion of the sentence or the terms
14    and  conditions  of  the  supervision.  Unless  the   State's
15    Attorney  or  prosecutor, the Department of State Police, the
16    arresting agency or  such  chief  legal  officer  objects  to
17    sealing  of  the  records  within 90 days of notice the court
18    shall enter an order sealing the defendant's records 3  years
19    after the dismissal of the charge, the finding of not guilty,
20    the reversal of conviction, or the completion of the sentence
21    or  the terms and conditions of the supervision. The clerk of
22    the court shall promptly mail a copy  of  the  order  to  the
23    person,  the arresting agency, the prosecutor, the Department
24    of State Police and such other criminal justice  agencies  as
25    may  be  ordered  by the judge. If an objection is filed, the
26    court shall set a date for hearing. At the hearing the  court
27    shall  hear  evidence  on  whether the sealing of the records
28    should or should not be granted.
29        (3)  The  person  whose  records  are  sealed  under  the
30    provisions of this Act shall pay a fee equivalent to the cost
31    associated with the sealing or expungement  of  records.  The
32    fee shall be paid to the clerk of the court who shall forward
33    it  to  the Department at the time the court order to seal or
34    expunge the defendant's record is forwarded to the Department
 
HB2391 Engrossed            -9-      LRB093 07037 RLC 09567 b
 1    for processing. The fee shall be  deposited  into  the  State
 2    Police Services Fund.
 3        (4)  Whenever  sealing  of records is required under this
 4    subsection (h), the notification of the sealing must be given
 5    by the  circuit  court  where  the  arrest  occurred  to  the
 6    Department in a form and manner prescribed by the Department.
 7        (5)  An  adult  or a minor prosecuted as an adult who was
 8    charged with a  violation  of  a  municipal  ordinance  or  a
 9    misdemeanor   who   was  acquitted,  released  without  being
10    convicted,  convicted  and  the  conviction   was   reversed,
11    convicted  of  a  misdemeanor  or placed on supervision for a
12    misdemeanor before the date of this  amendatory  Act  of  the
13    93rd  General  Assembly  and was not convicted of a felony or
14    misdemeanor or placed on supervision for a misdemeanor for  3
15    years   after   the  acquittal  or  release  or  reversal  of
16    conviction, the completion of the sentence or  completion  of
17    the  terms and conditions of the supervision may petition the
18    Chief Judge of the circuit in which the charge  was  brought,
19    any  judge  of  that circuit in which the charge was brought,
20    any judge of the circuit designated by the Chief  Judge,  or,
21    in counties of less than 3,000,000 inhabitants, the presiding
22    trial  judge  at that defendant's trial, to seal the official
23    records of the arresting authority, the Department,  and  the
24    clerk  of  the  court,  except  those  records are subject to
25    inspection  and  use  by  the  court  for  the  purposes   of
26    subsequent  sentencing  for misdemeanor and felony violations
27    and inspection and  use  by  law  enforcement  agencies,  the
28    Department  of  Corrections,  and State's Attorneys and other
29    prosecutors in carrying out the duties of their offices. This
30    subsection (h) does not apply  to  persons  convicted  of  or
31    placed  on supervision for: (1) a violation of Section 11-501
32    of the Illinois Vehicle Code or  a  similar  provision  of  a
33    local ordinance; (2) a misdemeanor violation of Article 11 of
34    the  Criminal  Code of 1961 or a similar provision of a local
 
HB2391 Engrossed            -10-     LRB093 07037 RLC 09567 b
 1    ordinance; (3) a misdemeanor violation  of  Section  12-5  or
 2    12-30  of the Criminal Code of 1961 or a similar provision of
 3    a local ordinance; or (4) a misdemeanor violation that  is  a
 4    crime  of  violence  as  defined  in  Section  2 of the Crime
 5    Victims Compensation Act or a similar provision  of  a  local
 6    ordinance.  The  State's  Attorney or prosecutor charged with
 7    the duty of prosecuting the offense, the Department of  State
 8    Police,  the  arresting agency and the chief legal officer of
 9    the unit of local government effecting the  arrest  shall  be
10    served with a copy of the verified petition and shall have 90
11    days to object. If an objection is filed, the court shall set
12    a  date  for  hearing.  At  the  hearing the court shall hear
13    evidence on whether the sealing  of  the  records  should  or
14    should  not  be  granted. The person whose records are sealed
15    under the provisions of this Act shall pay a  fee  equivalent
16    to  the  cost associated with the sealing of records. The fee
17    shall be paid to the clerk of the court who shall forward  it
18    to  the  Department  at  the  time the court order to seal or
19    expunge the defendant's record is forwarded to the Department
20    for processing. The fee shall be  deposited  into  the  State
21    Police Services Fund.
22    (Source: P.A.  91-295,  eff.  1-1-00;  91-357,  eff. 7-29-99;
23    92-651, eff. 7-11-02.)

24        (20 ILCS 2630/11 new)
25        Sec.  11.  Legal  assistance  and  education.  The  State
26    Appellate Defender shall establish, maintain, and carry out a
27    sealing and expungement program  to  provide  information  to
28    persons  eligible  to  have  their arrest or criminal history
29    records expunged or sealed.

30        (20 ILCS 2630/12 new)
31        Sec  12.  Entry  of  order;  effect  of  expungement   or
32    sealing.
 
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 1        (a)  An  expunged  or sealed record may not be considered
 2    by any  private  or  public  entity  in  employment  matters,
 3    certification,  licensing,  revocation  of  certification  or
 4    licensure,  or registration. Applications for employment must
 5    contain specific language which states that the applicant  is
 6    not  obligated  to  disclose  sealed  or  expunged records of
 7    conviction or arrest. Employers may not ask if  an  applicant
 8    has had records expunged or sealed.
 9        (b)  A  person whose records have been sealed or expunged
10    is not entitled to remission of any fines,  costs,  or  other
11    money  paid  as  a consequence of the sealing or expungement.
12    This amendatory Act of the 93rd  General  Assembly  does  not
13    affect  the  right  of  the victim of a crime to prosecute or
14    defend a civil action for damages. Persons engaged  in  civil
15    litigation  involving  criminal records that have been sealed
16    or expunged may petition the court to open  the  records  for
17    the   limited   purpose  of  using  them  in  the  course  of
18    litigation.

19        (20 ILCS 2630/13 new)
20        Sec. 13.  Prohibited conduct; misdemeanor; penalty.
21        (a)  The Department of State Police shall retain  records
22    sealed  under subsection (h) of Section 5. The sealed records
23    shall be used and disseminated  by  the  Department  only  as
24    allowed   by  law.  Upon  conviction  for  any  offense,  the
25    Department of Corrections shall have  access  to  all  sealed
26    records of the Department pertaining to that individual.
27        (b)  The  sealed  records maintained under subsection (a)
28    are exempt from disclosure under the Freedom  of  Information
29    Act.
30        (c)  Except  as  provided in subsection (a), a person who
31    is a keeper of arrest, conviction, or court records who knows
32    that a record was expunged or  sealed  under  Section  5  and
33    knowingly divulges, uses, or publishes information concerning
 
HB2391 Engrossed            -12-     LRB093 07037 RLC 09567 b
 1    an  expunged or sealed record under this Section is guilty of
 2    a Class B misdemeanor punishable by imprisonment for not more
 3    than 90 days or a fine of not more than $500, or both.