093_HB2391sam004

 










                                     LRB093 07037 RLC 16190 a

 1                    AMENDMENT TO HOUSE BILL 2391

 2        AMENDMENT NO.     .  Amend House Bill 2391  by  replacing
 3    everything after the enacting clause with the following:

 4        "Section  5.   The Criminal Identification Act is amended
 5    by 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
 
                            -2-      LRB093 07037 RLC 16190 a
 1    as Class B misdemeanors shall not be reported.
 2        Whenever an adult or minor prosecuted as  an  adult,  not
 3    having  previously  been convicted of any criminal offense or
 4    municipal ordinance violation, charged with a violation of  a
 5    municipal  ordinance or a felony or misdemeanor, is acquitted
 6    or released without being convicted, whether the acquittal or
 7    release occurred before, on, or after the effective  date  of
 8    this  amendatory  Act of 1991, the Chief Judge of the circuit
 9    wherein the charge was brought, any  judge  of  that  circuit
10    designated  by  the  Chief Judge, or in counties of less than
11    3,000,000 inhabitants,  the  presiding  trial  judge  at  the
12    defendant's trial may upon verified petition of the defendant
13    order the record of arrest expunged from the official records
14    of  the arresting authority and the Department and order that
15    the records of the clerk of the circuit court be sealed until
16    further order of the court upon good cause shown and the name
17    of the defendant obliterated on the official  index  required
18    to be kept by the circuit court clerk under Section 16 of the
19    Clerks  of  Courts  Act,  but  the order shall not affect any
20    index issued by the circuit court clerk before the  entry  of
21    the  order.   The  Department may charge the petitioner a fee
22    equivalent to the cost of processing any order to expunge  or
23    seal  the  records,  and  the fee shall be deposited into the
24    State Police Services Fund.  The records  of  those  arrests,
25    however,  that result in a disposition of supervision for any
26    offense shall  not  be  expunged  from  the  records  of  the
27    arresting  authority  or  the Department nor impounded by the
28    court  until  2  years  after  discharge  and  dismissal   of
29    supervision.   Those  records  that result from a supervision
30    for a violation of Section 3-707, 3-708, 3-710,  5-401.3,  or
31    11-503 of the Illinois Vehicle Code or a similar provision of
32    a  local  ordinance,  or  for  a violation of Section 12-3.2,
33    12-15 or 16A-3 of the Criminal Code  of  1961,  or  probation
34    under  Section 10 of the Cannabis Control Act, Section 410 of
 
                            -3-      LRB093 07037 RLC 16190 a
 1    the Illinois Controlled Substances Act, Section  12-4.3(b)(1)
 2    and  (2)  of  the  Criminal Code of 1961 (as those provisions
 3    existed before their deletion by Public Act 89-313),  Section
 4    10-102  of  the Illinois Alcoholism and Other Drug Dependency
 5    Act when the judgment of conviction has been vacated, Section
 6    40-10 of the Alcoholism and Other Drug Abuse  and  Dependency
 7    Act  when  the  judgment  of  conviction has been vacated, or
 8    Section 10 of the Steroid Control Act shall not  be  expunged
 9    from  the records of the arresting authority nor impounded by
10    the court until 5 years after  termination  of  probation  or
11    supervision.   Those  records  that result from a supervision
12    for a violation of Section 11-501  of  the  Illinois  Vehicle
13    Code  or  a similar provision of a local ordinance, shall not
14    be expunged.  All records set out above may be ordered by the
15    court to be  expunged  from  the  records  of  the  arresting
16    authority and impounded by the court after 5 years, but shall
17    not  be expunged by the Department, but shall, on court order
18    be sealed by the Department and may be  disseminated  by  the
19    Department  only  as  required  by  law  or  to the arresting
20    authority, the State's Attorney, and the court upon  a  later
21    arrest  for  the same or a similar offense or for the purpose
22    of sentencing for any subsequent felony.  Upon conviction for
23    any offense, the Department of Corrections shall have  access
24    to  all  sealed  records of the Department pertaining to that
25    individual.
26        (a-5)  Those records maintained  by  the  Department  for
27    persons  arrested  prior  to  their  17th  birthday  shall be
28    expunged as provided in Section 5-915 of the  Juvenile  Court
29    Act of 1987.
30        (b)  Whenever  a  person has been convicted of a crime or
31    of the violation of a municipal ordinance, in the name  of  a
32    person  whose  identity  he has stolen or otherwise come into
33    possession of, the aggrieved person from  whom  the  identity
34    was  stolen or otherwise obtained without authorization, upon
 
                            -4-      LRB093 07037 RLC 16190 a
 1    learning  of  the  person  having  been  arrested  using  his
 2    identity, may, upon verified petition to the chief  judge  of
 3    the  circuit  wherein the arrest was made, have a court order
 4    entered nunc pro tunc by  the  chief  judge  to  correct  the
 5    arrest  record,  conviction  record, if any, and all official
 6    records of the arresting  authority,  the  Department,  other
 7    criminal  justice  agencies,  the  prosecutor,  and the trial
 8    court concerning such arrest, if any, by  removing  his  name
 9    from  all  such  records  in  connection  with the arrest and
10    conviction, if any, and by inserting in the records the  name
11    of  the  offender,  if known or ascertainable, in lieu of the
12    aggrieved's name.  The records of the clerk  of  the  circuit
13    court  clerk shall be sealed until further order of the court
14    upon good cause shown and the name of  the  aggrieved  person
15    obliterated  on the official index required to be kept by the
16    circuit court clerk under Section 16 of the Clerks of  Courts
17    Act,  but  the order shall not affect any index issued by the
18    circuit court clerk before the entry of the  order.   Nothing
19    in this Section shall limit the Department of State Police or
20    other  criminal  justice agencies or prosecutors from listing
21    under an offender's name the false names he or she has  used.
22    For  purposes  of  this  Section,  convictions for moving and
23    nonmoving  traffic  violations  other  than  convictions  for
24    violations of Chapter 4, Section 11-204.1 or  Section  11-501
25    of  the Illinois Vehicle Code shall not be a bar to expunging
26    the record of arrest and court records  for  violation  of  a
27    misdemeanor or municipal ordinance.
28        (c)  Whenever  a  person  who  has  been  convicted of an
29    offense  is  granted  a  pardon   by   the   Governor   which
30    specifically  authorizes  expungement,  he may, upon verified
31    petition to the chief judge of the circuit where  the  person
32    had  been  convicted,  any judge of the circuit designated by
33    the Chief Judge,  or  in  counties  of  less  than  3,000,000
34    inhabitants,  the  presiding  trial  judge at the defendant's
 
                            -5-      LRB093 07037 RLC 16190 a
 1    trial, may have a court order entered expunging the record of
 2    arrest from the official records of the  arresting  authority
 3    and  order that the records of the clerk of the circuit court
 4    and the Department be sealed until further order of the court
 5    upon good cause shown or as otherwise  provided  herein,  and
 6    the name of the defendant obliterated from the official index
 7    requested to be kept by the circuit court clerk under Section
 8    16  of the Clerks of Courts Act in connection with the arrest
 9    and conviction for the offense for which he had been pardoned
10    but the order shall  not  affect  any  index  issued  by  the
11    circuit  court  clerk  before  the  entry  of the order.  All
12    records sealed by the Department may be disseminated  by  the
13    Department  only  as  required  by  law  or  to the arresting
14    authority, the State's Attorney, and the court upon  a  later
15    arrest  for the same or similar offense or for the purpose of
16    sentencing for any subsequent felony.   Upon  conviction  for
17    any  subsequent  offense, the Department of Corrections shall
18    have  access  to  all  sealed  records  of   the   Department
19    pertaining  to  that  individual.  Upon entry of the order of
20    expungement, the clerk of the circuit  court  shall  promptly
21    mail a copy of the order to the person who was pardoned.
22        (c-5)  Whenever  a  person has been convicted of criminal
23    sexual assault, aggravated criminal sexual assault, predatory
24    criminal sexual assault of a child, criminal sexual abuse, or
25    aggravated criminal sexual abuse, the victim of that  offense
26    may  request that the State's Attorney of the county in which
27    the conviction occurred file a  verified  petition  with  the
28    presiding  trial  judge  at  the  defendant's trial to have a
29    court order entered to seal the records of the clerk  of  the
30    circuit court in connection with the proceedings of the trial
31    court  concerning  that offense.  However, the records of the
32    arresting  authority  and  the  Department  of  State  Police
33    concerning the offense shall not be sealed.  The court,  upon
34    good  cause shown, shall make the records of the clerk of the
 
                            -6-      LRB093 07037 RLC 16190 a
 1    circuit court in connection with the proceedings of the trial
 2    court concerning the offense available for public inspection.
 3        (d)  Notice of the petition for subsections (a), (b), and
 4    (c) shall be served upon the State's Attorney  or  prosecutor
 5    charged  with  the  duty  of  prosecuting  the  offense,  the
 6    Department  of  State  Police,  the  arresting agency and the
 7    chief legal officer of the unit of local government affecting
 8    the arrest.  Unless the State's Attorney or  prosecutor,  the
 9    Department  of  State  Police,  the  arresting agency or such
10    chief legal officer objects to the petition  within  30  days
11    from  the  date of the notice, the court shall enter an order
12    granting or denying the petition.  The  clerk  of  the  court
13    shall  promptly  mail  a copy of the order to the person, the
14    arresting agency, the prosecutor,  the  Department  of  State
15    Police  and  such  other  criminal justice agencies as may be
16    ordered by the judge.
17        (e)  Nothing herein shall prevent the Department of State
18    Police from maintaining all records  of  any  person  who  is
19    admitted  to  probation  upon  terms  and  conditions and who
20    fulfills those terms and conditions pursuant to Section 10 of
21    the  Cannabis  Control  Act,  Section  410  of  the  Illinois
22    Controlled Substances Act, Section  12-4.3  of  the  Criminal
23    Code  of  1961, Section 10-102 of the Illinois Alcoholism and
24    Other Drug Dependency Act, Section 40-10  of  the  Alcoholism
25    and Other Drug Abuse and Dependency Act, or Section 10 of the
26    Steroid Control Act.
27        (f)  No  court  order  issued pursuant to the expungement
28    provisions of this Section shall become final for purposes of
29    appeal  until  30  days  after  notice  is  received  by  the
30    Department.  Any court order contrary to  the  provisions  of
31    this Section is void.
32        (g)  Except  as otherwise provided in subsection (c-5) of
33    this Section, the  court  shall  not  order  the  sealing  or
34    expungement  of the arrest records and records of the circuit
 
                            -7-      LRB093 07037 RLC 16190 a
 1    court  clerk  of  any  person  granted  supervision  for   or
 2    convicted  of  any  sexual  offense committed against a minor
 3    under 18 years of age.  For the  purposes  of  this  Section,
 4    "sexual  offense  committed  against a minor" includes but is
 5    not limited to the offenses of  indecent  solicitation  of  a
 6    child  or  criminal  sexual  abuse  when  the  victim of such
 7    offense is under 18 years of age.
 8        (h) (1) Notwithstanding any other provision of  this  Act
 9    to the contrary and cumulative with any rights to expungement
10    of criminal records, whenever an adult or minor prosecuted as
11    an adult charged with a violation of a municipal ordinance or
12    a   misdemeanor   is  acquitted  or  released  without  being
13    convicted, or if the person is convicted but  the  conviction
14    is reversed, or if the person has been convicted of or placed
15    on  supervision  for a misdemeanor and has not been convicted
16    of a felony or misdemeanor or placed  on  supervision  for  a
17    misdemeanor  within 3 years after the acquittal or release or
18    reversal of conviction, the completion  of  the  sentence  or
19    completion of the terms and conditions of the supervision, if
20    the  acquittal, release, finding of not guilty, or conviction
21    occurred on or after the effective date  of  this  amendatory
22    Act  of  the  93rd  General  Assembly, the Chief Judge of the
23    circuit in which the charge was brought may have the official
24    records of the arresting authority, the Department,  and  the
25    clerk of the circuit court sealed 3 years after the dismissal
26    of  the  charge,  the  finding of not guilty, the reversal of
27    conviction, or the completion of the sentence  or  terms  and
28    conditions  of  the  supervision,  except  those  records are
29    subject to inspection and use by the court for  the  purposes
30    of   subsequent   sentencing   for   misdemeanor  and  felony
31    violations and inspection and use by law enforcement agencies
32    and State's Attorneys or other prosecutors  in  carrying  out
33    the  duties  of  their offices.  This subsection (h) does not
34    apply to persons convicted of or placed on  supervision  for:
 
                            -8-      LRB093 07037 RLC 16190 a
 1    (1)  a  violation  of  Section 11-501 of the Illinois Vehicle
 2    Code or a similar provision  of  a  local  ordinance;  (2)  a
 3    misdemeanor  violation  of Article 11 of the Criminal Code of
 4    1961 or a similar provision  of  a  local  ordinance;  (3)  a
 5    misdemeanor violation of Section 12-15, 12-30, or 26-5 of the
 6    Criminal  Code  of  1961  or  a  similar provision of a local
 7    ordinance; (4) a misdemeanor violation that  is  a  crime  of
 8    violence  as  defined  in  Section  2  of  the  Crime Victims
 9    Compensation Act or a similar provision of a local ordinance;
10    (5) a Class A misdemeanor violation of the  Humane  Care  for
11    Animals  Act;  or  (6)  any offense or attempted offense that
12    would subject a person to registration under the Sex Offender
13    Registration Act.
14        (2)  Upon  acquittal,  release  without  conviction,   or
15    conviction  of  such  offense,  the  person  charged with the
16    offense shall be informed by the court of the right  to  have
17    the  records sealed and the procedures for the sealing of the
18    records.  Three years after the dismissal of the charge,  the
19    finding  of  not  guilty,  the reversal of conviction, or the
20    completion of the sentence or the terms and conditions of the
21    supervision, the defendant shall provide  the  clerk  of  the
22    court  with  a  notice  of request for sealing of records and
23    payment of the applicable fee and a current address and shall
24    promptly notify the clerk of  the  court  of  any  change  of
25    address.  The  clerk  shall  promptly  serve  notice that the
26    person's records are to be sealed on the State's Attorney  or
27    prosecutor  charged with the duty of prosecuting the offense,
28    the Department of State Police, the arresting agency and  the
29    chief legal officer of the unit of local government effecting
30    the  arrest.  Unless  the State's Attorney or prosecutor, the
31    Department of State Police,  the  arresting  agency  or  such
32    chief  legal officer objects to sealing of the records within
33    90 days of notice the court shall enter an order sealing  the
34    defendant's  records  3  years  after  the  dismissal  of the
 
                            -9-      LRB093 07037 RLC 16190 a
 1    charge,  the  finding  of  not  guilty,   the   reversal   of
 2    conviction,  or  the  completion of the sentence or the terms
 3    and conditions of the supervision. The  clerk  of  the  court
 4    shall promptly serve by mail or in person a copy of the order
 5    to  the  person,  the  arresting  agency, the prosecutor, the
 6    Department of State Police and such  other  criminal  justice
 7    agencies  as  may be ordered by the judge. If an objection is
 8    filed, the court shall set a date for hearing. At the hearing
 9    the court shall hear evidence on whether the sealing  of  the
10    records should or should not be granted.
11        (3)  The  clerk  may  charge a fee equivalent to the cost
12    associated with the sealing of records by the clerk  and  the
13    Department  of  State  Police.  The  clerk  shall forward the
14    Department  of  State  Police  portion  of  the  fee  to  the
15    Department and it shall be deposited into  the  State  Police
16    Services Fund.
17        (4)  Whenever  sealing  of records is required under this
18    subsection (h), the notification of the sealing must be given
19    by the  circuit  court  where  the  arrest  occurred  to  the
20    Department in a form and manner prescribed by the Department.
21        (5)  An  adult  or a minor prosecuted as an adult who was
22    charged with a  violation  of  a  municipal  ordinance  or  a
23    misdemeanor   who   was  acquitted,  released  without  being
24    convicted,  convicted  and  the  conviction   was   reversed,
25    convicted  of  a  misdemeanor  or placed on supervision for a
26    misdemeanor before the date of this  amendatory  Act  of  the
27    93rd  General  Assembly  and was not convicted of a felony or
28    misdemeanor or placed on supervision for a misdemeanor for  3
29    years   after   the  acquittal  or  release  or  reversal  of
30    conviction, the completion of the sentence or  completion  of
31    the  terms and conditions of the supervision may petition the
32    Chief Judge of the circuit in which the charge  was  brought,
33    any  judge  of  that circuit in which the charge was brought,
34    any judge of the circuit designated by the Chief  Judge,  or,
 
                            -10-     LRB093 07037 RLC 16190 a
 1    in counties of less than 3,000,000 inhabitants, the presiding
 2    trial  judge  at that defendant's trial, to seal the official
 3    records of the arresting authority, the Department,  and  the
 4    clerk  of  the  court,  except  those  records are subject to
 5    inspection  and  use  by  the  court  for  the  purposes   of
 6    subsequent  sentencing  for misdemeanor and felony violations
 7    and inspection and  use  by  law  enforcement  agencies,  the
 8    Department  of  Corrections,  and State's Attorneys and other
 9    prosecutors in carrying out the duties of their offices. This
10    subsection (h) does not apply  to  persons  convicted  of  or
11    placed  on supervision for: (1) a violation of Section 11-501
12    of the Illinois Vehicle Code or  a  similar  provision  of  a
13    local ordinance; (2) a misdemeanor violation of Article 11 of
14    the  Criminal  Code of 1961 or a similar provision of a local
15    ordinance; (3) a  misdemeanor  violation  of  Section  12-15,
16    12-30,  or  26-5  of  the  Criminal Code of 1961 or a similar
17    provision of a local ordinance; (4) a  misdemeanor  violation
18    that  is  a  crime of violence as defined in Section 2 of the
19    Crime Victims Compensation Act or a similar  provision  of  a
20    local  ordinance;  (5) a Class A misdemeanor violation of the
21    Humane Care for Animals Act; or (6) any offense or  attempted
22    offense that would subject a person to registration under the
23    Sex  Offender  Registration  Act.    The  State's Attorney or
24    prosecutor charged with the duty of prosecuting the  offense,
25    the  Department of State Police, the arresting agency and the
26    chief legal officer of the unit of local government effecting
27    the arrest shall be  served  with  a  copy  of  the  verified
28    petition and shall have 90 days to object. If an objection is
29    filed, the court shall set a date for hearing. At the hearing
30    the  court  shall hear evidence on whether the sealing of the
31    records should or should not be  granted.  The  person  whose
32    records are sealed under the provisions of this Act shall pay
33    to  the clerk of the court and the Department of State Police
34    a fee equivalent to the cost associated with the  sealing  of
 
                            -11-     LRB093 07037 RLC 16190 a
 1    records. The fees shall be paid to the clerk of the court who
 2    shall  forward  the  appropriate portion to the Department at
 3    the time the court order to seal the  defendant's  record  is
 4    forwarded to the Department for processing. The Department of
 5    State  Police  portion of the fee shall be deposited into the
 6    State Police Services Fund.
 7    (Source: P.A. 91-295,  eff.  1-1-00;  91-357,  eff.  7-29-99;
 8    92-651, eff. 7-11-02.)

 9        (20 ILCS 2630/11 new)
10        Sec.  11.  Legal  assistance  and  education.  Subject to
11    appropriation, the State Appellate Defender shall  establish,
12    maintain,  and carry out a sealing and expungement program to
13    provide information to persons eligible to have their  arrest
14    or criminal history records expunged or sealed.

15        (20 ILCS 2630/12 new)
16        Sec   12.  Entry  of  order;  effect  of  expungement  or
17    sealing.
18        (a)  Except with respect to law enforcement agencies, the
19    Department  of  Corrections,  State's  Attorneys,  or   other
20    prosecutors,   an  expunged  or  sealed  record  may  not  be
21    considered by any private  or  public  entity  in  employment
22    matters,     certification,    licensing,    revocation    of
23    certification or licensure, or registration. Applications for
24    employment must contain specific language which  states  that
25    the applicant is not obligated to disclose sealed or expunged
26    records  of conviction or arrest. Employers may not ask if an
27    applicant has had records expunged or sealed.
28        (b)  A person whose records have been sealed or  expunged
29    is  not  entitled  to remission of any fines, costs, or other
30    money paid as a consequence of the  sealing  or  expungement.
31    This  amendatory  Act  of  the 93rd General Assembly does not
32    affect the right of the victim of a  crime  to  prosecute  or
 
                            -12-     LRB093 07037 RLC 16190 a
 1    defend  a  civil action for damages. Persons engaged in civil
 2    litigation involving criminal records that have  been  sealed
 3    may  petition  the  court to open the records for the limited
 4    purpose of using them in the course of litigation.

 5        (20 ILCS 2630/13 new)
 6        Sec. 13.  Prohibited conduct; misdemeanor; penalty.
 7        (a)  The Department of State Police shall retain  records
 8    sealed  under subsection (h) of Section 5. The sealed records
 9    shall be used and disseminated  by  the  Department  only  as
10    allowed   by  law.  Upon  conviction  for  any  offense,  the
11    Department of Corrections shall have  access  to  all  sealed
12    records of the Department pertaining to that individual.
13        (b)  The  sealed  records maintained under subsection (a)
14    are exempt from disclosure under the Freedom  of  Information
15    Act.".