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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.".
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