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Full Text of SB3007  93rd General Assembly

SB3007ham006 93RD GENERAL ASSEMBLY

Rep. Constance A. Howard

Filed: 5/26/2004

 

 


 

 


 
09300SB3007ham006 LRB093 21097 RLC 51746 a

1
AMENDMENT TO SENATE BILL 3007

2     AMENDMENT NO. ______. Amend Senate Bill 3007, AS AMENDED,
3 by replacing all of subsections (h), (i), (j), and (k) of Sec.
4 5 of Section 5 with the following:
5     "(h) (1) Applicability. Notwithstanding any other
6 provision of this Act to the contrary and cumulative with any
7 rights to expungement of criminal records, this subsection
8 authorizes the sealing of criminal records of adults and of
9 minors prosecuted as adults.
10     (2) Sealable offenses. The following offenses may be
11 sealed:
12         (A) All municipal ordinance violations and
13     misdemeanors, with the exception of the following:
14             (i) violations of Section 11-501 of the Illinois
15         Vehicle Code or a similar provision of a local
16         ordinance;
17             (ii) violations of Article 11 of the Criminal Code
18         of 1961 or a similar provision of a local ordinance,
19         except Section 11-14 of the Criminal Code of 1961 as
20         provided in clause B(i) of this subsection (h);
21             (iii) violations of Section 12-15, 12-30, or 26-5
22         of the Criminal Code of 1961 or a similar provision of
23         a local ordinance;
24             (iv) violations that are a crime of violence as
25         defined in Section 2 of the Crime Victims Compensation
26         Act or a similar provision of a local ordinance;

 

 

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1             (v) Class A misdemeanor violations of the Humane
2         Care for Animals Act; and
3             (vi) any offense or attempted offense that would
4         subject a person to registration under the Sex Offender
5         Registration Act.
6         (B) Misdemeanor and Class 4 felony violations of:
7             (i) Section 11-14 of the Criminal Code of 1961;
8             (ii) Section 4 of the Cannabis Control Act;
9             (iii) Section 402 of the Illinois Controlled
10         Substances Act; and
11             (iv) However, for purposes of this subsection (h),
12         a sentence of first offender probation under Section 10
13         of the Cannabis Control Act and Section 410 of the
14         Illinois Controlled Substances Act shall be treated as
15         a Class 4 felony conviction.
16     (3) Requirements for sealing. Records identified as
17 sealable under clause (h) (2) may be sealed when the individual
18 was:
19         (A) Acquitted of the offense or offenses or released
20     without being convicted.
21         (B) Convicted of the offense or offenses and the
22     conviction or convictions were reversed.
23         (C) Placed on misdemeanor supervision for an offense or
24     offenses; and
25             (i) at least 3 years have elapsed since the
26         completion of the term of supervision, or terms of
27         supervision, if more than one term has been ordered;
28         and
29             (ii) the individual has not been convicted of a
30         felony or misdemeanor or placed on supervision for a
31         misdemeanor or felony during the period specified in
32         clause (i).
33         (D) Convicted of an offense or offenses; and
34             (i) at least 4 years have elapsed since the last

 

 

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1         such conviction or term of any sentence, probation,
2         parole, or supervision, if any, whichever is last in
3         time; and
4             (ii) the individual has not been convicted of a
5         felony or misdemeanor or placed on supervision for a
6         misdemeanor or felony during the period specified in
7         clause (i).
8     (4) Requirements for sealing of records when more than one
9 charge and disposition have been filed. When multiple offenses
10 are petitioned to be sealed under this subsection (h), the
11 requirements of the relevant provisions of clauses (h)(3)(A)
12 through (D) each apply. In instances in which more than one
13 waiting period is applicable under clauses (h)(C)(i) and (ii)
14 and (h)(D)(i) and (ii), the longer applicable period applies,
15 and the requirements of clause (h) (3) shall be considered met
16 when the petition is filed after the passage of the longer
17 applicable waiting period. That period commences on the date of
18 the completion of the last sentence or the end of supervision,
19 probation, or parole, whichever is last in time.
20     (5) Subsequent convictions. A person may not have
21 subsequent felony conviction records sealed as provided in this
22 subsection (h) if he or she is convicted of any felony offense
23 after the date of the sealing of prior felony records as
24 provided in this subsection (h).
25     (6) Notice of eligibility for sealing. Upon acquittal,
26 release without conviction, or being placed on supervision for
27 a sealable offense, or upon conviction of a sealable offense,
28 the person shall be informed by the court of the right to have
29 the records sealed and the procedures for the sealing of the
30 records.
31     (7) Procedure. Upon becoming eligible for the sealing of
32 records under this subsection (h), the person who seeks the
33 sealing of his or her records shall file a petition requesting
34 the sealing of records with the clerk of the court where the

 

 

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1 charge or charges were brought. The records may be sealed by
2 the Chief Judge of the circuit wherein the charge was brought,
3 any judge of that circuit designated by the Chief Judge, or in
4 counties of less than 3,000,000 inhabitants, the presiding
5 trial judge at the defendant's trial, if any. If charges were
6 brought in multiple jurisdictions, a petition must be filed in
7 each such jurisdiction. The petitioner shall pay the applicable
8 fee, if not waived.
9         (A) Contents of petition. The petition shall contain
10     the petitioner's name, date of birth, current address, each
11     charge, each case number, the date of each charge, the
12     identity of the arresting authority, and such other
13     information as the court may require. During the pendency
14     of the proceeding, the petitioner shall promptly notify the
15     clerk of the court of any change of address.
16         (B) Drug test. A person filing a petition to have his
17     or her records sealed for a Class 4 felony violation of
18     Section 4 of the Cannabis Control Act or for a Class 4
19     felony violation of Section 402 of the Illinois Controlled
20     Substances Act must attach to the petition proof that the
21     petitioner has passed a test taken within the previous 30
22     days before the filing of the petition showing the absence
23     within his or her body of all illegal substances in
24     violation of either the Illinois Controlled Substances Act
25     or the Cannabis Control Act.
26         (C) Service of petition. The clerk shall promptly serve
27     a copy of the petition on the State's Attorney or
28     prosecutor charged with the duty of prosecuting the
29     offense, the Department of State Police, the arresting
30     agency and the chief legal officer of the unit of local
31     government effecting the arrest.
32         (D) Entry of order. Unless the State's Attorney or
33     prosecutor, the Department of State Police, the arresting
34     agency or such chief legal officer objects to sealing of

 

 

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1     the records within 90 days of notice the court shall enter
2     an order sealing the defendant's records.
3         (E) Hearing upon objection. If an objection is filed,
4     the court shall set a date for a hearing and notify the
5     petitioner and the parties on whom the petition had been
6     served, and shall hear evidence on whether the sealing of
7     the records should or should not be granted, and shall make
8     a determination on whether to issue an order to seal the
9     records based on the evidence presented at the hearing.
10         (F) Service of order. After entering the order to seal
11     records, the court must provide copies of the order to the
12     Department, in a form and manner prescribed by the
13     Department, to the petitioner, to the State's Attorney or
14     prosecutor charged with the duty of prosecuting the
15     offense, to the arresting agency, to the chief legal
16     officer of the unit of local government effecting the
17     arrest, and to such other criminal justice agencies as may
18     be ordered by the court.
19     (8) Fees. Notwithstanding any provision of the Clerk of the
20 Courts Act to the contrary, and subject to the approval of the
21 county board, the clerk may charge a fee equivalent to the cost
22 associated with the sealing of records by the clerk and the
23 Department of State Police. The clerk shall forward the
24 Department of State Police portion of the fee to the Department
25 and it shall be deposited into the State Police Services Fund.
26     
27     (h) (1) Notwithstanding any other provision of this Act to
28 the contrary and cumulative with any rights to expungement of
29 criminal records, whenever an adult or minor prosecuted as an
30 adult charged with a violation of a municipal ordinance or a
31 misdemeanor is acquitted or released without being convicted,
32 or if the person is convicted but the conviction is reversed,
33 or if the person has been placed on supervision for a
34 misdemeanor and has not been convicted of a felony or

 

 

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1 misdemeanor or placed on supervision for a misdemeanor within 3
2 years after the acquittal or release or reversal of conviction,
3 or the completion of the terms and conditions of the
4 supervision, if the acquittal, release, finding of not guilty,
5 or reversal of conviction occurred on or after the effective
6 date of this amendatory Act of the 93rd General Assembly, the
7 Chief Judge of the circuit in which the charge was brought may
8 have the official records of the arresting authority, the
9 Department, and the clerk of the circuit court sealed 3 years
10 after the dismissal of the charge, the finding of not guilty,
11 the reversal of conviction, or the completion of the terms and
12 conditions of the supervision, except those records are subject
13 to inspection and use by the court for the purposes of
14 subsequent sentencing for misdemeanor and felony violations
15 and inspection and use by law enforcement agencies and State's
16 Attorneys or other prosecutors in carrying out the duties of
17 their offices. This subsection (h) does not apply to persons
18 placed on supervision for: (1) a violation of Section 11 501 of
19 the Illinois Vehicle Code or a similar provision of a local
20 ordinance; (2) a misdemeanor violation of Article 11 of the
21 Criminal Code of 1961 or a similar provision of a local
22 ordinance; (3) a misdemeanor violation of Section 12 15, 12 30,
23 or 26 5 of the Criminal Code of 1961 or a similar provision of a
24 local ordinance; (4) a misdemeanor violation that is a crime of
25 violence as defined in Section 2 of the Crime Victims
26 Compensation Act or a similar provision of a local ordinance;
27 (5) a Class A misdemeanor violation of the Humane Care for
28 Animals Act; or (6) any offense or attempted offense that would
29 subject a person to registration under the Sex Offender
30 Registration Act.
31     (2) Upon acquittal, release without conviction, or being
32 placed on supervision, the person charged with the offense
33 shall be informed by the court of the right to have the records
34 sealed and the procedures for the sealing of the records. Three

 

 

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1 years after the dismissal of the charge, the finding of not
2 guilty, the reversal of conviction, or the completion of the
3 terms and conditions of the supervision, the defendant shall
4 provide the clerk of the court with a notice of request for
5 sealing of records and payment of the applicable fee and a
6 current address and shall promptly notify the clerk of the
7 court of any change of address. The clerk shall promptly serve
8 notice that the person's records are to be sealed on the
9 State's Attorney or prosecutor charged with the duty of
10 prosecuting the offense, the Department of State Police, the
11 arresting agency and the chief legal officer of the unit of
12 local government effecting the arrest. Unless the State's
13 Attorney or prosecutor, the Department of State Police, the
14 arresting agency or such chief legal officer objects to sealing
15 of the records within 90 days of notice the court shall enter
16 an order sealing the defendant's records 3 years after the
17 dismissal of the charge, the finding of not guilty, the
18 reversal of conviction, or the completion of the terms and
19 conditions of the supervision. The clerk of the court shall
20 promptly serve by mail or in person a copy of the order to the
21 person, the arresting agency, the prosecutor, the Department of
22 State Police and such other criminal justice agencies as may be
23 ordered by the judge. If an objection is filed, the court shall
24 set a date for hearing. At the hearing the court shall hear
25 evidence on whether the sealing of the records should or should
26 not be granted.
27     (3) The clerk may charge a fee equivalent to the cost
28 associated with the sealing of records by the clerk and the
29 Department of State Police. The clerk shall forward the
30 Department of State Police portion of the fee to the Department
31 and it shall be deposited into the State Police Services Fund.
32     (4) Whenever sealing of records is required under this
33 subsection (h), the notification of the sealing must be given
34 by the circuit court where the arrest occurred to the

 

 

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1 Department in a form and manner prescribed by the Department.
2     (5) An adult or a minor prosecuted as an adult who was
3 charged with a violation of a municipal ordinance or a
4 misdemeanor who was acquitted, released without being
5 convicted, convicted and the conviction was reversed, or placed
6 on supervision for a misdemeanor before the date of this
7 amendatory Act of the 93rd General Assembly and was not
8 convicted of a felony or misdemeanor or placed on supervision
9 for a misdemeanor for 3 years after the acquittal or release or
10 reversal of conviction, or completion of the terms and
11 conditions of the supervision may petition the Chief Judge of
12 the circuit in which the charge was brought, any judge of that
13 circuit in which the charge was brought, any judge of the
14 circuit designated by the Chief Judge, or, in counties of less
15 than 3,000,000 inhabitants, the presiding trial judge at that
16 defendant's trial, to seal the official records of the
17 arresting authority, the Department, and the clerk of the
18 court, except those records are subject to inspection and use
19 by the court for the purposes of subsequent sentencing for
20 misdemeanor and felony violations and inspection and use by law
21 enforcement agencies, the Department of Corrections, and
22 State's Attorneys and other prosecutors in carrying out the
23 duties of their offices. This subsection (h) does not apply to
24 persons placed on supervision for: (1) a violation of Section
25 11 501 of the Illinois Vehicle Code or a similar provision of a
26 local ordinance; (2) a misdemeanor violation of Article 11 of
27 the Criminal Code of 1961 or a similar provision of a local
28 ordinance; (3) a misdemeanor violation of Section 12 15, 12 30,
29 or 26 5 of the Criminal Code of 1961 or a similar provision of a
30 local ordinance; (4) a misdemeanor violation that is a crime of
31 violence as defined in Section 2 of the Crime Victims
32 Compensation Act or a similar provision of a local ordinance;
33 (5) a Class A misdemeanor violation of the Humane Care for
34 Animals Act; or (6) any offense or attempted offense that would

 

 

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1 subject a person to registration under the Sex Offender
2 Registration Act. The State's Attorney or prosecutor charged
3 with the duty of prosecuting the offense, the Department of
4 State Police, the arresting agency and the chief legal officer
5 of the unit of local government effecting the arrest shall be
6 served with a copy of the verified petition and shall have 90
7 days to object. If an objection is filed, the court shall set a
8 date for hearing. At the hearing the court shall hear evidence
9 on whether the sealing of the records should or should not be
10 granted. The person whose records are sealed under the
11 provisions of this Act shall pay to the clerk of the court and
12 the Department of State Police a fee equivalent to the cost
13 associated with the sealing of records. The fees shall be paid
14 to the clerk of the court who shall forward the appropriate
15 portion to the Department at the time the court order to seal
16 the defendant's record is forwarded to the Department for
17 processing. The Department of State Police portion of the fee
18 shall be deposited into the State Police Services Fund.
19     (i) (1) Notwithstanding any other provision of this Act to
20 the contrary and cumulative with any rights to expungement of
21 criminal records, whenever an adult or minor prosecuted as an
22 adult charged with a violation of a municipal ordinance or a
23 misdemeanor is convicted of a misdemeanor and has not been
24 convicted of a felony or misdemeanor or placed on supervision
25 for a misdemeanor within 4 years after the completion of the
26 sentence, if the conviction occurred on or after the effective
27 date of this amendatory Act of the 93rd General Assembly, the
28 Chief Judge of the circuit in which the charge was brought may
29 have the official records of the arresting authority, the
30 Department, and the clerk of the circuit court sealed 4 years
31 after the completion of the sentence, except those records are
32 subject to inspection and use by the court for the purposes of
33 subsequent sentencing for misdemeanor and felony violations
34 and inspection and use by law enforcement agencies and State's

 

 

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1 Attorneys or other prosecutors in carrying out the duties of
2 their offices. This subsection (i) does not apply to persons
3 convicted of: (1) a violation of Section 11 501 of the Illinois
4 Vehicle Code or a similar provision of a local ordinance; (2) a
5 misdemeanor violation of Article 11 of the Criminal Code of
6 1961 or a similar provision of a local ordinance; (3) a
7 misdemeanor violation of Section 12 15, 12 30, or 26 5 of the
8 Criminal Code of 1961 or a similar provision of a local
9 ordinance; (4) a misdemeanor violation that is a crime of
10 violence as defined in Section 2 of the Crime Victims
11 Compensation Act or a similar provision of a local ordinance;
12 (5) a Class A misdemeanor violation of the Humane Care for
13 Animals Act; or (6) any offense or attempted offense that would
14 subject a person to registration under the Sex Offender
15 Registration Act.
16     (2) Upon the conviction of such offense, the person charged
17 with the offense shall be informed by the court of the right to
18 have the records sealed and the procedures for the sealing of
19 the records. Four years after the completion of the sentence,
20 the defendant shall provide the clerk of the court with a
21 notice of request for sealing of records and payment of the
22 applicable fee and a current address and shall promptly notify
23 the clerk of the court of any change of address. The clerk
24 shall promptly serve notice that the person's records are to be
25 sealed on the State's Attorney or prosecutor charged with the
26 duty of prosecuting the offense, the Department of State
27 Police, the arresting agency and the chief legal officer of the
28 unit of local government effecting the arrest. Unless the
29 State's Attorney or prosecutor, the Department of State Police,
30 the arresting agency or such chief legal officer objects to
31 sealing of the records within 90 days of notice the court shall
32 enter an order sealing the defendant's records 4 years after
33 the completion of the sentence. The clerk of the court shall
34 promptly serve by mail or in person a copy of the order to the

 

 

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1 person, the arresting agency, the prosecutor, the Department of
2 State Police and such other criminal justice agencies as may be
3 ordered by the judge. If an objection is filed, the court shall
4 set a date for hearing. At the hearing the court shall hear
5 evidence on whether the sealing of the records should or should
6 not be granted.
7     (3) The clerk may charge a fee equivalent to the cost
8 associated with the sealing of records by the clerk and the
9 Department of State Police. The clerk shall forward the
10 Department of State Police portion of the fee to the Department
11 and it shall be deposited into the State Police Services Fund.
12     (4) Whenever sealing of records is required under this
13 subsection (i), the notification of the sealing must be given
14 by the circuit court where the arrest occurred to the
15 Department in a form and manner prescribed by the Department.
16     (5) An adult or a minor prosecuted as an adult who was
17 charged with a violation of a municipal ordinance or a
18 misdemeanor who was convicted of a misdemeanor before the date
19 of this amendatory Act of the 93rd General Assembly and was not
20 convicted of a felony or misdemeanor or placed on supervision
21 for a misdemeanor for 4 years after the completion of the
22 sentence may petition the Chief Judge of the circuit in which
23 the charge was brought, any judge of that circuit in which the
24 charge was brought, any judge of the circuit designated by the
25 Chief Judge, or, in counties of less than 3,000,000
26 inhabitants, the presiding trial judge at that defendant's
27 trial, to seal the official records of the arresting authority,
28 the Department, and the clerk of the court, except those
29 records are subject to inspection and use by the court for the
30 purposes of subsequent sentencing for misdemeanor and felony
31 violations and inspection and use by law enforcement agencies,
32 the Department of Corrections, and State's Attorneys and other
33 prosecutors in carrying out the duties of their offices. This
34 subsection (i) does not apply to persons convicted of: (1) a

 

 

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1 violation of Section 11 501 of the Illinois Vehicle Code or a
2 similar provision of a local ordinance; (2) a misdemeanor
3 violation of Article 11 of the Criminal Code of 1961 or a
4 similar provision of a local ordinance; (3) a misdemeanor
5 violation of Section 12 15, 12 30, or 26 5 of the Criminal Code
6 of 1961 or a similar provision of a local ordinance; (4) a
7 misdemeanor violation that is a crime of violence as defined in
8 Section 2 of the Crime Victims Compensation Act or a similar
9 provision of a local ordinance; (5) a Class A misdemeanor
10 violation of the Humane Care for Animals Act; or (6) any
11 offense or attempted offense that would subject a person to
12 registration under the Sex Offender Registration Act. The
13 State's Attorney or prosecutor charged with the duty of
14 prosecuting the offense, the Department of State Police, the
15 arresting agency and the chief legal officer of the unit of
16 local government effecting the arrest shall be served with a
17 copy of the verified petition and shall have 90 days to object.
18 If an objection is filed, the court shall set a date for
19 hearing. At the hearing the court shall hear evidence on
20 whether the sealing of the records should or should not be
21 granted. The person whose records are sealed under the
22 provisions of this Act shall pay to the clerk of the court and
23 the Department of State Police a fee equivalent to the cost
24 associated with the sealing of records. The fees shall be paid
25 to the clerk of the court who shall forward the appropriate
26 portion to the Department at the time the court order to seal
27 the defendant's record is forwarded to the Department for
28 processing. The Department of State Police portion of the fee
29 shall be deposited into the State Police Services Fund."; and
 
30     in Sec. 5 of Section 5 by relettering subsection "(l)" as
31 subsection "(i)"; and
 
32     in subsection (a) of Sec. 13 of Section 5 by changing

 

 

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1 "subsections (h), and (i), and (j)" to "subsection subsections
2 (h) and (i)"; and
3     in subsection (a) of Sec. 13 of Section 5 by replacing
4 "subsection (j)" with "subsection (h)"; and
5     by inserting after the last line of subsection (a) of Sec.
6 13 of Section 5 the following:
7     "(b) Notwithstanding the foregoing, all sealed records are
8 subject to inspection and use by the court and inspection and
9 use by law enforcement agencies and State's Attorneys or other
10 prosecutors in carrying out the duties of their offices."; and
11     in Sec. 13 of Section 5, by changing "(b)" to "(c) (b)";
12 and
13     in Sec. 13 of Section 5, by changing "(c)" to (d)"; and
14     in the relettered subsection (d), by changing "subsection
15 (j)" to "subsection (h)".