093_HB2391ham002

 










                                     LRB093 07037 RLC 13831 a

 1                    AMENDMENT TO HOUSE BILL 2391

 2        AMENDMENT NO.     .  Amend House Bill 2391 as follows:

 3    by replacing everything after the enacting  clause  with  the
 4    following:

 5        "Section 5. The Criminal Identification Act is amended by
 6    changing  Section  5  and  adding  Sections 11, 12, and 13 as
 7    follows:

 8        (20 ILCS 2630/5) (from Ch. 38, par. 206-5)
 9        Sec. 5. Arrest reports; expungement.
10        (a)  All policing bodies of this State shall  furnish  to
11    the  Department, daily, in the form and detail the Department
12    requires, fingerprints and descriptions of  all  persons  who
13    are  arrested  on  charges  of violating any penal statute of
14    this State for offenses that are classified as  felonies  and
15    Class  A or B misdemeanors and of all minors of the age of 10
16    and over who have been arrested for an offense which would be
17    a felony if committed by  an  adult,  and  may  forward  such
18    fingerprints and descriptions for minors arrested for Class A
19    or  B  misdemeanors.   Moving or nonmoving traffic violations
20    under the Illinois Vehicle Code shall not be reported  except
21    for  violations  of  Chapter  4, Section 11-204.1, or Section
 
                            -2-      LRB093 07037 RLC 13831 a
 1    11-501 of that Code.  In addition, conservation offenses,  as
 2    defined in the Supreme Court Rule 501(c), that are classified
 3    as Class B misdemeanors shall not be reported.
 4        Whenever  an  adult  or minor prosecuted as an adult, not
 5    having previously been convicted of any criminal  offense  or
 6    municipal  ordinance violation, charged with a violation of a
 7    municipal ordinance or a felony or misdemeanor, is  acquitted
 8    or  the  charges are dismissed or no billed, or if the person
 9    is convicted, but the conviction is reversed released without
10    being convicted, whether the acquittal  or  release  occurred
11    before,  on,  or  after the effective date of this amendatory
12    Act of the 93rd General Assembly 1991, the Chief Judge of the
13    circuit wherein the charge was brought,  any  judge  of  that
14    circuit designated by the Chief Judge, or in counties of less
15    than  3,000,000 inhabitants, the presiding trial judge at the
16    defendant's trial shall may upon  verified  petition  of  the
17    defendant  order  the  record  of  arrest  expunged  from the
18    official  records  of  the  arresting   authority   and   the
19    Department  and  order  that  the records of the clerk of the
20    circuit court be sealed until further order of the court upon
21    good cause shown and the name of the defendant obliterated on
22    the official index required to be kept by the  circuit  court
23    clerk  under  Section 16 of the Clerks of Courts Act, but the
24    order shall not affect any index issued by the circuit  court
25    clerk  before  the  entry  of  the order.  The Department may
26    charge the  petitioner  a  fee  equivalent  to  the  cost  of
27    processing  any order to expunge or seal the records, and the
28    fee shall be deposited into the State Police  Services  Fund,
29    except there shall be no fee to apply to expunge an aggrieved
30    party's  records resulting from a case in which the aggrieved
31    party's identity was stolen.  The records of  those  arrests,
32    however,  that result in a disposition of supervision for any
33    offense shall  not  be  expunged  from  the  records  of  the
34    arresting  authority  or  the Department nor impounded by the
 
                            -3-      LRB093 07037 RLC 13831 a
 1    court  until  2  years  after  discharge  and  dismissal   of
 2    supervision.   Those  records  that result from a supervision
 3    for a violation of Section 3-707, 3-708, 3-710,  5-401.3,  or
 4    11-503 of the Illinois Vehicle Code or a similar provision of
 5    a  local  ordinance,  or  for  a violation of Section 12-3.2,
 6    12-15 or 16A-3 of the Criminal Code  of  1961,  or  probation
 7    under  Section 10 of the Cannabis Control Act, Section 410 of
 8    the Illinois Controlled Substances Act, Section  12-4.3(b)(1)
 9    and  (2)  of  the  Criminal Code of 1961 (as those provisions
10    existed before their deletion by Public Act 89-313),  Section
11    10-102  of  the Illinois Alcoholism and Other Drug Dependency
12    Act when the judgment of conviction has been vacated, Section
13    40-10 of the Alcoholism and Other Drug Abuse  and  Dependency
14    Act  when  the  judgment  of  conviction has been vacated, or
15    Section 10 of the Steroid Control Act shall not  be  expunged
16    from  the records of the arresting authority nor impounded by
17    the court until 5 years after  termination  of  probation  or
18    supervision.   Those  records  that result from a supervision
19    for a violation of Section 11-501  of  the  Illinois  Vehicle
20    Code  or  a similar provision of a local ordinance, shall not
21    be expunged.  All records set out above may be ordered by the
22    court to be  expunged  from  the  records  of  the  arresting
23    authority and impounded by the court after 5 years, but shall
24    not  be expunged by the Department, but shall, on court order
25    be sealed by the Department and may be  disseminated  by  the
26    Department  only  as  required  by  law  or  to the arresting
27    authority, the State's Attorney, and the court upon  a  later
28    arrest  for  the same or a similar offense or for the purpose
29    of sentencing for any subsequent felony.  Upon conviction for
30    any offense, the Department of Corrections shall have  access
31    to  all  sealed  records of the Department pertaining to that
32    individual.
33        (a-2) An adult or  minor  prosecuted  as  an  adult  who,
34    previous  to the effective date of this amendatory Act of the
 
                            -4-      LRB093 07037 RLC 13831 a
 1    93rd General Assembly, was charged  with  a  violation  of  a
 2    municipal  ordinance or a felony or a misdemeanor and who was
 3    acquitted, had the charges dismissed or no billed, or  had  a
 4    conviction  reversed may, upon verified petition to the Chief
 5    Judge of the circuit wherein  the  charge  was  brought,  any
 6    judge  of  that  circuit designated by the Chief Judge, or in
 7    counties of less than 3,000,000  inhabitants,  the  presiding
 8    trial  judge at the defendant's trial, request expungement of
 9    those arrest records. Upon finding the applicant  statutorily
10    eligible  for  expungement, the court shall order the records
11    of arrest expunged from the official records of the arresting
12    authority and the Department and order that  the  records  of
13    the  clerk of the circuit court be sealed until further order
14    of the court upon good  cause  shown  and  the  name  of  the
15    defendant  obliterated  on  the official index required to be
16    kept by the circuit court  clerk  under  Section  16  of  the
17    Clerks  of  Courts  Act,  but  the order shall not affect any
18    index issued by the circuit court clerk before the  entry  of
19    the order.
20        (a-5)  Those  records  maintained  by  the Department for
21    persons arrested  prior  to  their  17th  birthday  shall  be
22    expunged  as  provided in Section 5-915 of the Juvenile Court
23    Act of 1987.
24        (b)  Whenever a person has been convicted of a  crime  or
25    of  the  violation of a municipal ordinance, in the name of a
26    person whose identity he has stolen or  otherwise  come  into
27    possession  of,  the  aggrieved person from whom the identity
28    was stolen or otherwise obtained without authorization,  upon
29    learning  of  the  person  having  been  arrested  using  his
30    identity,  may,  upon verified petition to the chief judge of
31    the circuit wherein the arrest was made, have a  court  order
32    entered  nunc  pro  tunc  by  the  chief judge to correct the
33    arrest record, conviction record, if any,  and  all  official
34    records  of  the  arresting  authority, the Department, other
 
                            -5-      LRB093 07037 RLC 13831 a
 1    criminal justice agencies,  the  prosecutor,  and  the  trial
 2    court  concerning  such  arrest, if any, by removing his name
 3    from all such records  in  connection  with  the  arrest  and
 4    conviction,  if any, and by inserting in the records the name
 5    of the offender, if known or ascertainable, in  lieu  of  the
 6    aggrieved's  name.   The  records of the clerk of the circuit
 7    court clerk shall be sealed until further order of the  court
 8    upon  good  cause  shown and the name of the aggrieved person
 9    obliterated on the official index required to be kept by  the
10    circuit  court clerk under Section 16 of the Clerks of Courts
11    Act, but the order shall not affect any index issued  by  the
12    circuit  court  clerk before the entry of the order.  Nothing
13    in this Section shall limit the Department of State Police or
14    other criminal justice agencies or prosecutors  from  listing
15    under  an offender's name the false names he or she has used.
16    For purposes of this  Section,  convictions  for  moving  and
17    nonmoving  traffic  violations  other  than  convictions  for
18    violations  of  Chapter 4, Section 11-204.1 or Section 11-501
19    of the Illinois Vehicle Code shall not be a bar to  expunging
20    the  record  of  arrest  and court records for violation of a
21    misdemeanor or municipal ordinance.
22        (c)  Whenever a person  who  has  been  convicted  of  an
23    offense   is   granted   a   pardon  by  the  Governor  which
24    specifically authorizes expungement, he  may,  upon  verified
25    petition  to  the chief judge of the circuit where the person
26    had been convicted, any judge of the  circuit  designated  by
27    the  Chief  Judge,  or  in  counties  of  less than 3,000,000
28    inhabitants, the presiding trial  judge  at  the  defendant's
29    trial, may have a court order entered expunging the record of
30    arrest  from  the official records of the arresting authority
31    and order that the records of the clerk of the circuit  court
32    and the Department be sealed until further order of the court
33    upon  good  cause  shown or as otherwise provided herein, and
34    the name of the defendant obliterated from the official index
 
                            -6-      LRB093 07037 RLC 13831 a
 1    requested to be kept by the circuit court clerk under Section
 2    16 of the Clerks of Courts Act in connection with the  arrest
 3    and conviction for the offense for which he had been pardoned
 4    but  the  order  shall  not  affect  any  index issued by the
 5    circuit court clerk before  the  entry  of  the  order.   All
 6    records  sealed  by the Department may be disseminated by the
 7    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 similar offense or for the purpose  of
10    sentencing  for  any  subsequent felony.  Upon conviction for
11    any subsequent offense, the Department of  Corrections  shall
12    have   access   to  all  sealed  records  of  the  Department
13    pertaining to that individual.  Upon entry of  the  order  of
14    expungement,  the  clerk  of the circuit court shall promptly
15    mail a copy of the order to the person who was pardoned.
16        (c-5)  Whenever a person has been convicted  of  criminal
17    sexual assault, aggravated criminal sexual assault, predatory
18    criminal sexual assault of a child, criminal sexual abuse, or
19    aggravated  criminal sexual abuse, the victim of that offense
20    may request that the State's Attorney of the county in  which
21    the  conviction  occurred  file  a verified petition with the
22    presiding trial judge at the  defendant's  trial  to  have  a
23    court  order  entered to seal the records of the clerk of the
24    circuit court in connection with the proceedings of the trial
25    court concerning that offense.  However, the records  of  the
26    arresting  authority  and  the  Department  of  State  Police
27    concerning  the offense shall not be sealed.  The court, upon
28    good cause shown, shall make the records of the clerk of  the
29    circuit court in connection with the proceedings of the trial
30    court concerning the offense available for public inspection.
31        (d)  Notice of the petition for subsections (a), (b), and
32    (c)  shall  be served upon the State's Attorney or prosecutor
33    charged  with  the  duty  of  prosecuting  the  offense,  the
34    Department of State Police,  the  arresting  agency  and  the
 
                            -7-      LRB093 07037 RLC 13831 a
 1    chief legal officer of the unit of local government affecting
 2    the  arrest.   Unless the State's Attorney or prosecutor, the
 3    Department of State Police,  the  arresting  agency  or  such
 4    chief legal officer objects to the petition within 90 30 days
 5    from  the  date of the notice, the court shall enter an order
 6    granting or denying the petition.  The  clerk  of  the  court
 7    shall  promptly  mail  a copy of the order to the person, the
 8    arresting agency, the prosecutor,  the  Department  of  State
 9    Police  and  such  other  criminal justice agencies as may be
10    ordered by the judge. If an objection  is  filed,  the  court
11    shall set a date for hearing.  At the hearing the court shall
12    hear  evidence  on  whether  the  expungement  of the records
13    should or should not be granted.
14        (e)  Nothing herein shall prevent the Department of State
15    Police from maintaining all records  of  any  person  who  is
16    admitted  to  probation  upon  terms  and  conditions and who
17    fulfills those terms and conditions pursuant to Section 10 of
18    the  Cannabis  Control  Act,  Section  410  of  the  Illinois
19    Controlled Substances Act, Section  12-4.3  of  the  Criminal
20    Code  of  1961, Section 10-102 of the Illinois Alcoholism and
21    Other Drug Dependency Act, Section 40-10  of  the  Alcoholism
22    and Other Drug Abuse and Dependency Act, or Section 10 of the
23    Steroid Control Act.
24        (f)  No  court  order  issued pursuant to the expungement
25    provisions of this Section shall become final for purposes of
26    appeal  until  30  days  after  notice  is  received  by  the
27    Department.  Any court order contrary to  the  provisions  of
28    this Section is void.
29        (g)  Except  as otherwise provided in subsection (c-5) of
30    this Section, the  court  shall  not  order  the  sealing  or
31    expungement  of the arrest records and records of the circuit
32    court  clerk  of  any  person  granted  supervision  for   or
33    convicted  of  any  sexual  offense committed against a minor
34    under 18 years of age.  For the  purposes  of  this  Section,
 
                            -8-      LRB093 07037 RLC 13831 a
 1    "sexual  offense  committed  against a minor" includes but is
 2    not limited to the offenses of  indecent  solicitation  of  a
 3    child  or  criminal  sexual  abuse  when  the  victim of such
 4    offense is under 18 years of age.
 5        (h) (1) Notwithstanding any other provision of  this  Act
 6    to  the contrary, whenever an adult or minor prosecuted as an
 7    adult charged with a violation of a municipal ordinance or  a
 8    misdemeanor has been convicted or placed on supervision for a
 9    misdemeanor  and  has  not  been  convicted  of  a  felony or
10    misdemeanor or placed on supervision for a misdemeanor within
11    3 years after the completion of the sentence or completion of
12    the  terms  and  conditions  of  the  supervision   and   the
13    conviction  entered  or the supervision was imposed after the
14    effective date of this amendatory Act  of  the  93rd  General
15    Assembly,  the Chief Judge of the circuit in which the charge
16    was brought, any judge of  that  circuit  designated  by  the
17    Chief   Judge,   or,  in  counties  of  less  then  3,000,000
18    inhabitants, the presiding trial  judge  at  the  defendant's
19    trial  shall  order  the  record  of arrest expunged from the
20    official  records  of  the  arresting   authority   and   the
21    Department  and  order  that  the records of the clerk of the
22    circuit court be sealed until further order of the court upon
23    good cause shown and the name of the defendant obliterated on
24    the official index required to be kept by the  circuit  court
25    clerk  under  Section 16 of the Clerks of Courts Act, but the
26    order shall not affect any index issued by the circuit  court
27    clerk  before  the  entry  of  the  order,  3 years after the
28    completion  of  the  sentence  or  terms  and  conditions  of
29    supervision, except those records are subject  to  inspection
30    and   use  by  the  court  for  the  purposes  of  subsequent
31    sentencing  for  misdemeanor  and   felony   violations   and
32    inspection  and  use  by law enforcement agencies and State's
33    Attorneys or prosecutors in carrying out the duties of  their
34    offices.  This  subsection  (h)  does  not  apply  to persons
 
                            -9-      LRB093 07037 RLC 13831 a
 1    convicted of or placed on supervision for: (1) a violation of
 2    Section 11-501 of the Illinois  Vehicle  Code  or  a  similar
 3    provision  of  a local ordinance; (2) a misdemeanor violation
 4    of Article 11 of the Criminal  Code  of  1961  or  a  similar
 5    provision  of  a local ordinance; (3) a misdemeanor violation
 6    of Section 12-15 or 12-30 of the Criminal Code of 1961  or  a
 7    similar  provision of a local ordinance; or (4) a misdemeanor
 8    violation that is a crime of violence as defined in Section 2
 9    of the Crime Victims Compensation Act or a similar  provision
10    of a local ordinance.
11        (2)  The  person  whose  records  are  to be sealed shall
12    provide the clerk of the court with  a  current  address  and
13    shall promptly notify the clerk of the court of any change of
14    address.  Notice  that  the person's records are to be sealed
15    shall be served  upon  the  State's  Attorney  or  prosecutor
16    charged  with  the  duty  of  prosecuting  the  offense,  the
17    Department  of  State  Police,  the  arresting agency and the
18    chief legal officer of the unit of local government effecting
19    the arrest within 2 years and 6 months the completion of  the
20    sentence  or  the  terms  and  conditions of the supervision.
21    Unless the State's Attorney or prosecutor, the Department  of
22    State  Police,  the  arresting  agency  or  such  chief legal
23    officer objects to the petition, the  court  shall  enter  an
24    order  sealing  the  defendant's  records  3  years after the
25    completion of the sentence or the terms and conditions of the
26    supervision. The clerk of the court  shall  promptly  mail  a
27    copy  of  the  order to the person, the arresting agency, the
28    prosecutor, the Department of State  Police  and  such  other
29    criminal  justice agencies as may be ordered by the judge. If
30    an objection is  filed,  the  court  shall  set  a  date  for
31    hearing.  At  the  hearing  the  court shall hear evidence on
32    whether the sealing of the records should or  should  not  be
33    granted.
34        (3)  Notwithstanding  any  other provision of this Act to
 
                            -10-     LRB093 07037 RLC 13831 a
 1    the contrary, an  adult  or  minor  prosecuted  as  an  adult
 2    charged  with  a  violation  of  a  municipal  ordinance or a
 3    misdemeanor who was convicted or placed on supervision for  a
 4    misdemeanor  and was not convicted of a felony or misdemeanor
 5    or placed on supervision for a  misdemeanor  within  3  years
 6    after  the  completion  of  the sentence or completion of the
 7    terms and conditions of the supervision, and  if  the  arrest
 8    for  the  offense  that resulted in conviction or supervision
 9    occurred before the effective date of this amendatory Act  of
10    the  93rd General Assembly, the Chief Judge of the circuit in
11    which the charge was  brought,  any  judge  of  that  circuit
12    designated  by  the Chief Judge, or, in counties of less then
13    3,000,000 inhabitants,  the  presiding  trial  judge  at  the
14    defendant's  trial  shall,  upon a verified petition filed by
15    the defendant, order the record of arrest expunged  from  the
16    official   records   of   the  arresting  authority  and  the
17    Department and order that the records of  the  clerk  of  the
18    circuit court be sealed until further order of the court upon
19    good cause shown and the name of the defendant obliterated on
20    the  official  index required to be kept by the circuit court
21    clerk under Section 16 of the Clerks of Courts Act,  but  the
22    order  shall not affect any index issued by the circuit court
23    clerk before the entry of the order, immediately or  3  years
24    after  the completion of the sentence or terms and conditions
25    of the supervision, whichever is later, except those  records
26    are  subject  to  inspection  and  use  by  the court for the
27    purposes of subsequent sentencings for misdemeanor and felony
28    violations and inspection and use by law enforcement agencies
29    and State's Attorneys or  prosecutors  in  carrying  out  the
30    duties  of  their offices. This subsection (h) does not apply
31    to persons convicted of or placed on supervision for:  (1)  a
32    violation of Section 11-501 of the Illinois Vehicle Code or a
33    similar  provision  of  a  local ordinance; (2) a misdemeanor
34    violation of Article 11 of the Criminal Code  of  1961  or  a
 
                            -11-     LRB093 07037 RLC 13831 a
 1    similar  provision  of  a  local ordinance; (3) a misdemeanor
 2    violation of Section 12-15 of 12-30 of the Criminal  Code  of
 3    1961  or  a  similar provision of a local ordinance; or (4) a
 4    misdemeanor violation that is a crime of violence as  defined
 5    in  Section  2  of  the  Crime  Victims Compensation Act or a
 6    similar provision of a local ordinance. The State's  Attorney
 7    or  prosecutor  charged  with  the  duty  of  prosecuting the
 8    offense, the Department of State Police, the arresting agency
 9    and the chief legal officer of the unit of  local  government
10    effecting  the  arrest  shall  be  served  with a copy of the
11    verified petition and shall have 3 months in which to object.
12    If an objection is filed, the court  shall  set  a  date  for
13    hearing.  At  the  hearing  the  court shall hear evidence on
14    whether the sealing of the records should or  should  not  be
15    granted.  Upon  conviction for any offense, the Department of
16    Corrections shall have access to all sealed  records  of  the
17    Department pertaining to that individual.
18        (4)  The  person  whose  records  are  sealed  under this
19    subsection (h) shall pay to the Department a  fee  equivalent
20    to  the  cost  of  processing any sealing of records. The fee
21    shall be paid within 30  days  after  the  dismissal  of  the
22    charge,   the   finding   of  not  guilty,  the  reversal  of
23    conviction, or the completion of the sentence  or  terms  and
24    conditions  of  the  supervision.  The fee shall be deposited
25    into the State Police Services Fund.
26        (5)  Whenever a sealing of records is required under this
27    subsection (h), the notification of the sealing must be given
28    by the  circuit  court  where  the  arrest  occurred  to  the
29    Department in a form and manner prescribed by the Department.
30    (Source: P.A.  91-295,  eff.  1-1-00;  91-357,  eff. 7-29-99;
31    92-651, eff. 7-11-02.)

32        (20 ILCS 2630/11 new)
33        Sec.  11.  Legal  assistance  and  education.  The  State
 
                            -12-     LRB093 07037 RLC 13831 a
 1    Appellate Defender shall establish, maintain, and  carry  out
 2    an  expungement  program  to  provide  information to persons
 3    eligible to have their arrest  or  criminal  history  records
 4    expunged or sealed.

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

25        (20 ILCS 2630/13 new)
26        Sec. 13. Prohibited conduct; misdemeanor; penalty.
27        (a)  The  Department  of  State  Police  shall  retain  a
28    nonpublic sealed or expunged record  under  subsections  (a),
29    (b),  (c), and (h) of Section 5. This nonpublic sealed record
30    shall be used and disseminated  by  the  Department  only  as
31    allowed by law.
32        (b)  The nonpublic record maintained under subsection (a)
 
                            -13-     LRB093 07037 RLC 13831 a
 1    is  exempt  from  disclosure under the Freedom of Information
 2    Act.
 3        (c)  Except as provided in subsection (a), a  person  who
 4    is a keeper of arrest, conviction, or court records who knows
 5    that  a  record  was  expunged  or sealed under Section 5 and
 6    knowingly divulges, uses, or publishes information concerning
 7    an expunged or sealed record under this Section is guilty  of
 8    a Class B misdemeanor punishable by imprisonment for not more
 9    than 90 days or a fine of not more than $500, or both.".