Full Text of HB4598 96th General Assembly
HB4598sam001 96TH GENERAL ASSEMBLY
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Sen. Kwame Raoul
Filed: 4/20/2010
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09600HB4598sam001 |
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LRB096 13433 RLC 40238 a |
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| AMENDMENT TO HOUSE BILL 4598
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| AMENDMENT NO. ______. Amend House Bill 4598 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 5. The Criminal Identification Act is amended by | 5 |
| changing Section 5.2 as follows: | 6 |
| (20 ILCS 2630/5.2) | 7 |
| Sec. 5.2. Expungement and sealing. | 8 |
| (a) General Provisions. | 9 |
| (1) Definitions. In this Act, words and phrases have
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| the meanings set forth in this subsection, except when a
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| particular context clearly requires a different meaning. | 12 |
| (A) The following terms shall have the meanings | 13 |
| ascribed to them in the Unified Code of Corrections, | 14 |
| 730 ILCS 5/5-1-2 through 5/5-1-22: | 15 |
| (i) Business Offense (730 ILCS 5/5-1-2), | 16 |
| (ii) Charge (730 ILCS 5/5-1-3), |
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| (iii) Court (730 ILCS 5/5-1-6), | 2 |
| (iv) Defendant (730 ILCS 5/5-1-7), | 3 |
| (v) Felony (730 ILCS 5/5-1-9), | 4 |
| (vi) Imprisonment (730 ILCS 5/5-1-10), | 5 |
| (vii) Judgment (730 ILCS 5/5-1-12), | 6 |
| (viii) Misdemeanor (730 ILCS 5/5-1-14), | 7 |
| (ix) Offense (730 ILCS 5/5-1-15), | 8 |
| (x) Parole (730 ILCS 5/5-1-16), | 9 |
| (xi) Petty Offense (730 ILCS 5/5-1-17), | 10 |
| (xii) Probation (730 ILCS 5/5-1-18), | 11 |
| (xiii) Sentence (730 ILCS 5/5-1-19), | 12 |
| (xiv) Supervision (730 ILCS 5/5-1-21), and | 13 |
| (xv) Victim (730 ILCS 5/5-1-22). | 14 |
| (B) As used in this Section, "charge not initiated | 15 |
| by arrest" means a charge (as defined by 730 ILCS | 16 |
| 5/5-1-3) brought against a defendant where the | 17 |
| defendant is not arrested prior to or as a direct | 18 |
| result of the charge. | 19 |
| (C) "Conviction" means a judgment of conviction or | 20 |
| sentence entered upon a plea of guilty or upon a | 21 |
| verdict or finding of guilty of an offense, rendered by | 22 |
| a legally constituted jury or by a court of competent | 23 |
| jurisdiction authorized to try the case without a jury. | 24 |
| An order of supervision successfully completed by the | 25 |
| petitioner is not a conviction. An order of qualified | 26 |
| probation (as defined in subsection (a)(1)(J)) |
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| successfully completed by the petitioner is not a | 2 |
| conviction. An order of supervision or an order of | 3 |
| qualified probation that is terminated | 4 |
| unsatisfactorily is a conviction, unless the | 5 |
| unsatisfactory termination is reversed, vacated, or | 6 |
| modified and the judgment of conviction, if any, is | 7 |
| reversed or vacated. | 8 |
| (D) "Criminal offense" means a petty offense, | 9 |
| business offense, misdemeanor, felony, or municipal | 10 |
| ordinance violation (as defined in subsection | 11 |
| (a)(1)(H)). As used in this Section, a minor traffic | 12 |
| offense (as defined in subsection (a)(1)(G)) shall not | 13 |
| be considered a criminal offense. | 14 |
| (E) "Expunge" means to physically destroy the | 15 |
| records or return them to the petitioner and to | 16 |
| obliterate the petitioner's name from any official | 17 |
| index or public record, or both. Nothing in this Act | 18 |
| shall require the physical destruction of the circuit | 19 |
| court file, but such records relating to arrests or | 20 |
| charges, or both, ordered expunged shall be impounded | 21 |
| as required by subsections (d)(9)(A)(ii) and | 22 |
| (d)(9)(B)(ii). | 23 |
| (F) As used in this Section, "last sentence" means | 24 |
| the sentence, order of supervision, or order of | 25 |
| qualified probation (as defined by subsection | 26 |
| (a)(1)(J)), for a criminal offense (as defined by |
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| subsection (a)(1)(D)) that terminates last in time in | 2 |
| any jurisdiction, regardless of whether the petitioner | 3 |
| has included the criminal offense for which the | 4 |
| sentence or order of supervision or qualified | 5 |
| probation was imposed in his or her petition. If | 6 |
| multiple sentences, orders of supervision, or orders | 7 |
| of qualified probation terminate on the same day and | 8 |
| are last in time, they shall be collectively considered | 9 |
| the "last sentence" regardless of whether they were | 10 |
| ordered to run concurrently. | 11 |
| (G) "Minor traffic offense" means a petty offense, | 12 |
| business offense, or Class C misdemeanor under the | 13 |
| Illinois Vehicle Code or a similar provision of a | 14 |
| municipal or local ordinance. | 15 |
| (H) "Municipal ordinance violation" means an | 16 |
| offense defined by a municipal or local ordinance that | 17 |
| is criminal in nature and with which the petitioner was | 18 |
| charged or for which the petitioner was arrested and | 19 |
| released without charging. | 20 |
| (I) "Petitioner" means an adult or a minor | 21 |
| prosecuted as an
adult who has applied for relief under | 22 |
| this Section. | 23 |
| (J) "Qualified probation" means an order of | 24 |
| probation under Section 10 of the Cannabis Control Act, | 25 |
| Section 410 of the Illinois Controlled Substances Act, | 26 |
| Section 70 of the Methamphetamine Control and |
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| Community Protection Act, Offender Initiative | 2 |
| Probation under Section 5-6-3.3 of the Unified Code of | 3 |
| Corrections, Section 12-4.3(b)(1) and (2) of the | 4 |
| Criminal Code of 1961 (as those provisions existed | 5 |
| before their deletion by Public Act 89-313), Section | 6 |
| 10-102 of the Illinois Alcoholism and Other Drug | 7 |
| Dependency Act, Section 40-10 of the Alcoholism and | 8 |
| Other Drug Abuse and Dependency Act, or Section 10 of | 9 |
| the Steroid Control Act. For the purpose of this | 10 |
| Section, "successful completion" of an order of | 11 |
| qualified probation under Section 10-102 of the | 12 |
| Illinois Alcoholism and Other Drug Dependency Act and | 13 |
| Section 40-10 of the Alcoholism and Other Drug Abuse | 14 |
| and Dependency Act means that the probation was | 15 |
| terminated satisfactorily and the judgment of | 16 |
| conviction was vacated. | 17 |
| (K) "Seal" means to physically and electronically | 18 |
| maintain the records, unless the records would | 19 |
| otherwise be destroyed due to age, but to make the | 20 |
| records unavailable without a court order, subject to | 21 |
| the exceptions in Sections 12 and 13 of this Act. The | 22 |
| petitioner's name shall also be obliterated from the | 23 |
| official index required to be kept by the circuit court | 24 |
| clerk under Section 16 of the Clerks of Courts Act, but | 25 |
| any index issued by the circuit court clerk before the | 26 |
| entry of the order to seal shall not be affected. |
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| (L) "Sexual offense committed against a minor" | 2 |
| includes but is
not limited to the offenses of indecent | 3 |
| solicitation of a child
or criminal sexual abuse when | 4 |
| the victim of such offense is
under 18 years of age. | 5 |
| (M) "Terminate" as it relates to a sentence or | 6 |
| order of supervision or qualified probation includes | 7 |
| either satisfactory or unsatisfactory termination of | 8 |
| the sentence, unless otherwise specified in this | 9 |
| Section. | 10 |
| (2) Minor Traffic Offenses.
Orders of supervision or | 11 |
| convictions for minor traffic offenses shall not affect a | 12 |
| petitioner's eligibility to expunge or seal records | 13 |
| pursuant to this Section. | 14 |
| (3) Exclusions. Except as otherwise provided in | 15 |
| subsections (b)(5), (b)(6), and (e) of this Section, the | 16 |
| court shall not order: | 17 |
| (A) the sealing or expungement of the records of | 18 |
| arrests or charges not initiated by arrest that result | 19 |
| in an order of supervision for or conviction of:
(i) | 20 |
| any sexual offense committed against a
minor; (ii) | 21 |
| Section 11-501 of the Illinois Vehicle Code or a | 22 |
| similar provision of a local ordinance; or (iii) | 23 |
| Section 11-503 of the Illinois Vehicle Code or a | 24 |
| similar provision of a local ordinance. | 25 |
| (B) the sealing or expungement of records of minor | 26 |
| traffic offenses (as defined in subsection (a)(1)(G)), |
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| unless the petitioner was arrested and released | 2 |
| without charging. | 3 |
| (C) the sealing of the records of arrests or | 4 |
| charges not initiated by arrest which result in an | 5 |
| order of supervision, an order of qualified probation | 6 |
| (as defined in subsection (a)(1)(J)), or a conviction | 7 |
| for the following offenses: | 8 |
| (i) offenses included in Article 11 of the | 9 |
| Criminal Code of 1961 or a similar provision of a | 10 |
| local ordinance, except Section 11-14 of the | 11 |
| Criminal Code of 1961 or a similar provision of a | 12 |
| local ordinance; | 13 |
| (ii) Section 12-15, 12-30, or 26-5 of the | 14 |
| Criminal Code of 1961 or a similar provision of a | 15 |
| local ordinance; | 16 |
| (iii) offenses defined as "crimes of violence" | 17 |
| in Section 2 of the Crime Victims Compensation Act | 18 |
| or a similar provision of a local ordinance; | 19 |
| (iv) offenses which are Class A misdemeanors | 20 |
| under the Humane Care for Animals Act; or | 21 |
| (v) any offense or attempted offense that | 22 |
| would subject a person to registration under the | 23 |
| Sex Offender Registration Act. | 24 |
| (D) the sealing of the records of an arrest which | 25 |
| results in
the petitioner being charged with a felony | 26 |
| offense or records of a charge not initiated by arrest |
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| for a felony offense, regardless of the disposition, | 2 |
| unless: | 3 |
| (i) the charge is amended to a misdemeanor and | 4 |
| is otherwise
eligible to be sealed pursuant to | 5 |
| subsection (c); | 6 |
| (ii) the charge results in first offender | 7 |
| probation as set forth in subsection (c)(2)(E); or | 8 |
| (iii) the charge is for a Class 4 felony | 9 |
| offense listed in subsection (c)(2)(F) or the | 10 |
| charge is amended to a Class 4 felony offense | 11 |
| listed in subsection (c)(2)(F). Records of arrests | 12 |
| which result in the petitioner being charged with a | 13 |
| Class 4 felony offense listed in subsection | 14 |
| (c)(2)(F), records of charges not initiated by | 15 |
| arrest for Class 4 felony offenses listed in | 16 |
| subsection (c)(2)(F), and records of charges | 17 |
| amended to a Class 4 felony offense listed in | 18 |
| (c)(2)(F) may be sealed, regardless of the | 19 |
| disposition, subject to any waiting periods set | 20 |
| forth in subsection (c)(3). | 21 |
| (b) Expungement. | 22 |
| (1) A petitioner may petition the circuit court to | 23 |
| expunge the
records of his or her arrests and charges not | 24 |
| initiated by arrest when: | 25 |
| (A) He or she has never been convicted of a | 26 |
| criminal offense; and |
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| (B) Each arrest or charge not initiated by arrest
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| sought to be expunged resulted in:
(i) acquittal, | 3 |
| dismissal, or the petitioner's release without | 4 |
| charging, unless excluded by subsection (a)(3)(B);
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| (ii) a conviction which was vacated or reversed, unless | 6 |
| excluded by subsection (a)(3)(B);
(iii) an order of | 7 |
| supervision and such supervision was successfully | 8 |
| completed by the petitioner, unless excluded by | 9 |
| subsection (a)(3)(A) or (a)(3)(B); or
(iv) an order of | 10 |
| qualified probation (as defined in subsection | 11 |
| (a)(1)(J)) and such probation was successfully | 12 |
| completed by the petitioner. | 13 |
| (2) Time frame for filing a petition to expunge. | 14 |
| (A) When the arrest or charge not initiated by | 15 |
| arrest sought to be expunged resulted in an acquittal, | 16 |
| dismissal, the petitioner's release without charging, | 17 |
| or the reversal or vacation of a conviction, there is | 18 |
| no waiting period to petition for the expungement of | 19 |
| such records. | 20 |
| (B) When the arrest or charge not initiated by | 21 |
| arrest
sought to be expunged resulted in an order of | 22 |
| supervision, successfully
completed by the petitioner, | 23 |
| the following time frames will apply: | 24 |
| (i) Those arrests or charges that resulted in | 25 |
| orders of
supervision under Section 3-707, 3-708, | 26 |
| 3-710, or 5-401.3 of the Illinois Vehicle Code or a |
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| similar provision of a local ordinance, or under | 2 |
| Section 12-3.2, 12-15 or 16A-3 of the Criminal Code | 3 |
| of 1961, shall not be eligible for expungement | 4 |
| until 5 years have passed following the | 5 |
| satisfactory termination of the supervision. | 6 |
| (ii) Those arrests or charges that resulted in | 7 |
| orders
of supervision for any other offenses shall | 8 |
| not be
eligible for expungement until 2 years have | 9 |
| passed
following the satisfactory termination of | 10 |
| the supervision. | 11 |
| (C) When the arrest or charge not initiated by | 12 |
| arrest sought to
be expunged resulted in an order of | 13 |
| qualified probation, successfully
completed by the | 14 |
| petitioner, such records shall not be eligible for
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| expungement until 5 years have passed following the | 16 |
| satisfactory
termination of the probation. | 17 |
| (3) Those records maintained by the Department for
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| persons arrested prior to their 17th birthday shall be
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| expunged as provided in Section 5-915 of the Juvenile Court
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| Act of 1987. | 21 |
| (4) Whenever a person has been arrested for or | 22 |
| convicted of any
offense, in the name of a person whose | 23 |
| identity he or she has stolen or otherwise
come into | 24 |
| possession of, the aggrieved person from whom the identity
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| was stolen or otherwise obtained without authorization,
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| upon learning of the person having been arrested using his
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| or her identity, may, upon verified petition to the chief | 2 |
| judge of
the circuit wherein the arrest was made, have a | 3 |
| court order
entered nunc pro tunc by the Chief Judge to | 4 |
| correct the
arrest record, conviction record, if any, and | 5 |
| all official
records of the arresting authority, the | 6 |
| Department, other
criminal justice agencies, the | 7 |
| prosecutor, and the trial
court concerning such arrest, if | 8 |
| any, by removing his or her name
from all such records in | 9 |
| connection with the arrest and
conviction, if any, and by | 10 |
| inserting in the records the
name of the offender, if known | 11 |
| or ascertainable, in lieu of
the aggrieved's name. The | 12 |
| records of the circuit court clerk shall be sealed until | 13 |
| further order of
the court upon good cause shown and the | 14 |
| name of the
aggrieved person obliterated on the official | 15 |
| index
required to be kept by the circuit court clerk under
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| Section 16 of the Clerks of Courts Act, but the order shall
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| not affect any index issued by the circuit court clerk
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| before the entry of the order. Nothing in this Section
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| shall limit the Department of State Police or other
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| criminal justice agencies or prosecutors from listing
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| under an offender's name the false names he or she has
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| used. | 23 |
| (5) Whenever a person has been convicted of criminal
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| sexual assault, aggravated criminal sexual assault,
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| predatory criminal sexual assault of a child, criminal
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| sexual abuse, or aggravated criminal sexual abuse, the
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| victim of that offense may request that the State's
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| Attorney of the county in which the conviction occurred
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| file a verified petition with the presiding trial judge at
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| the petitioner's trial to have a court order entered to | 5 |
| seal
the records of the circuit court clerk in connection
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| with the proceedings of the trial court concerning that
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| offense. However, the records of the arresting authority
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| and the Department of State Police concerning the offense
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| shall not be sealed. The court, upon good cause shown,
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| shall make the records of the circuit court clerk in
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| connection with the proceedings of the trial court
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| concerning the offense available for public inspection. | 13 |
| (6) If a conviction has been set aside on direct review
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| or on collateral attack and the court determines by clear
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| and convincing evidence that the petitioner was factually
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| innocent of the charge, the court shall enter an
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| expungement order as provided in subsection (b) of Section
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| 5-5-4 of the Unified Code of Corrections. | 19 |
| (7) Nothing in this Section shall prevent the | 20 |
| Department of
State Police from maintaining all records of | 21 |
| any person who
is admitted to probation upon terms and | 22 |
| conditions and who
fulfills those terms and conditions | 23 |
| pursuant to Section 10
of the Cannabis Control Act, Section | 24 |
| 410 of the Illinois
Controlled Substances Act, Section 70 | 25 |
| of the
Methamphetamine Control and Community Protection | 26 |
| Act, Offender Initiative Probation under Section 5-6-3.3 |
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| of the Unified Code of Corrections,
Section 12-4.3 of the | 2 |
| Criminal Code of 1961, Section 10-102
of the Illinois | 3 |
| Alcoholism and Other Drug Dependency Act,
Section 40-10 of | 4 |
| the Alcoholism and Other Drug Abuse and
Dependency Act, or | 5 |
| Section 10 of the Steroid Control Act. | 6 |
| (c) Sealing. | 7 |
| (1) Applicability. Notwithstanding any other provision | 8 |
| of this Act to the contrary, and cumulative with any rights | 9 |
| to expungement of criminal records, this subsection | 10 |
| authorizes the sealing of criminal records of adults and of | 11 |
| minors prosecuted as adults. | 12 |
| (2) Eligible Records. The following records may be | 13 |
| sealed: | 14 |
| (A) All arrests resulting in release without | 15 |
| charging; | 16 |
| (B) Arrests or charges not initiated by arrest | 17 |
| resulting in acquittal, dismissal, or conviction when | 18 |
| the conviction was reversed or vacated, except as | 19 |
| excluded by subsection (a)(3)(B) or (a)(3)(D); | 20 |
| (C) Arrests or charges not initiated by arrest | 21 |
| resulting in orders of supervision successfully | 22 |
| completed by the petitioner, unless excluded by | 23 |
| subsection (a)(3); | 24 |
| (D) Arrests or charges not initiated by arrest | 25 |
| resulting in convictions unless excluded by subsection | 26 |
| (a)(3); |
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| (E) Arrests or charges not initiated by arrest | 2 |
| resulting in orders of first offender probation under | 3 |
| Section 10 of the Cannabis Control Act, Section 410 of | 4 |
| the Illinois Controlled Substances Act, or Section 70 | 5 |
| of the Methamphetamine Control and Community | 6 |
| Protection Act; and | 7 |
| (F) Arrests or charges not initiated by arrest | 8 |
| resulting in Class 4 felony convictions for the | 9 |
| following offenses: | 10 |
| (i) Section 11-14 of the Criminal Code of 1961; | 11 |
| (ii) Section 4 of the Cannabis Control Act; | 12 |
| (iii) Section 402 of the Illinois Controlled | 13 |
| Substances Act; | 14 |
| (iv) the Methamphetamine Precursor Control | 15 |
| Act; and | 16 |
| (v) the Steroid Control Act. | 17 |
| (3) When Records Are Eligible to Be Sealed. Records | 18 |
| identified as eligible under subsection (c)(2) may be | 19 |
| sealed as follows: | 20 |
| (A) Records identified as eligible under | 21 |
| subsection (c)(2)(A) and (c)(2)(B) may be sealed at any | 22 |
| time. | 23 |
| (B) Records identified as eligible under | 24 |
| subsection (c)(2)(C) may be sealed
(i) 3 years after | 25 |
| the termination of petitioner's last sentence (as | 26 |
| defined in subsection (a)(1)(F)) if the petitioner has |
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| never been convicted of a criminal offense (as defined | 2 |
| in subsection (a)(1)(D)); or
(ii) 4 years after the | 3 |
| termination of the petitioner's last sentence (as | 4 |
| defined in subsection (a)(1)(F)) if the petitioner has | 5 |
| ever been convicted of a criminal offense (as defined | 6 |
| in subsection (a)(1)(D)). | 7 |
| (C) Records identified as eligible under | 8 |
| subsections (c)(2)(D), (c)(2)(E), and (c)(2)(F) may be | 9 |
| sealed 4 years after the termination of the | 10 |
| petitioner's last sentence (as defined in subsection | 11 |
| (a)(1)(F)). | 12 |
| (4) Subsequent felony convictions. A person may not | 13 |
| have
subsequent felony conviction records sealed as | 14 |
| provided in this subsection
(c) if he or she is convicted | 15 |
| of any felony offense after the date of the
sealing of | 16 |
| prior felony convictions as provided in this subsection | 17 |
| (c). The court may, upon conviction for a subsequent felony | 18 |
| offense, order the unsealing of prior felony conviction | 19 |
| records previously ordered sealed by the court. | 20 |
| (5) Notice of eligibility for sealing. Upon entry of a | 21 |
| disposition for an eligible record under this subsection | 22 |
| (c), the petitioner shall be informed by the court of the | 23 |
| right to have the records sealed and the procedures for the | 24 |
| sealing of the records. | 25 |
| (d) Procedure. The following procedures apply to | 26 |
| expungement under subsections (b) and (e), and sealing under |
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| subsection (c): | 2 |
| (1) Filing the petition. Upon becoming eligible to | 3 |
| petition for
the expungement or sealing of records under | 4 |
| this Section, the petitioner shall file a petition | 5 |
| requesting the expungement
or sealing of records with the | 6 |
| clerk of the court where the arrests occurred or the | 7 |
| charges were brought, or both. If arrests occurred or | 8 |
| charges were brought in multiple jurisdictions, a petition | 9 |
| must be filed in each such jurisdiction. The petitioner | 10 |
| shall pay the applicable fee, if not waived. | 11 |
| (2) Contents of petition. The petition shall be
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| verified and shall contain the petitioner's name, date of
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| birth, current address and, for each arrest or charge not | 14 |
| initiated by
arrest sought to be sealed or expunged, the | 15 |
| case number, the date of
arrest (if any), the identity of | 16 |
| the arresting authority, and such
other information as the | 17 |
| court may require. During the pendency
of the proceeding, | 18 |
| the petitioner shall promptly notify the
circuit court | 19 |
| clerk of any change of his or her address. | 20 |
| (3) Drug test. The petitioner must attach to the | 21 |
| petition proof that the petitioner has passed a test taken | 22 |
| within 30 days before the filing of the petition showing | 23 |
| the absence within his or her body of all illegal | 24 |
| substances as defined by the Illinois Controlled | 25 |
| Substances Act, the Methamphetamine Control and Community | 26 |
| Protection Act, and the Cannabis Control Act if he or she |
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| is petitioning to seal felony records pursuant to clause | 2 |
| (c)(2)(E) or (c)(2)(F)(ii)-(v) or if he or she is | 3 |
| petitioning to expunge felony records of a qualified | 4 |
| probation pursuant to clause (b)(1)(B)(iv). | 5 |
| (4) Service of petition. The circuit court clerk shall | 6 |
| promptly
serve a copy of the petition on the State's | 7 |
| Attorney or
prosecutor charged with the duty of prosecuting | 8 |
| the
offense, the Department of State Police, the arresting
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| agency and the chief legal officer of the unit of local
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| government effecting the arrest. | 11 |
| (5) Objections. | 12 |
| (A) Any party entitled to notice of the petition | 13 |
| may file an objection to the petition. All objections | 14 |
| shall be in writing, shall be filed with the circuit | 15 |
| court clerk, and shall state with specificity the basis | 16 |
| of the objection. | 17 |
| (B) Objections to a petition to expunge or seal | 18 |
| must be filed within 60 days of the date of service of | 19 |
| the petition. | 20 |
| (6) Entry of order. | 21 |
| (A) The Chief Judge of the circuit wherein the | 22 |
| charge was brought, any judge of that circuit | 23 |
| designated by the Chief Judge, or in counties of less | 24 |
| than 3,000,000 inhabitants, the presiding trial judge | 25 |
| at the petitioner's trial, if any, shall rule on the | 26 |
| petition to expunge or seal as set forth in this |
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| subsection (d)(6). | 2 |
| (B) Unless the State's Attorney or prosecutor, the | 3 |
| Department of
State Police, the arresting agency, or | 4 |
| the chief legal officer
files an objection to the | 5 |
| petition to expunge or seal within 60 days from the | 6 |
| date of service of the petition, the court shall enter | 7 |
| an order granting or denying the petition. | 8 |
| (7) Hearings. If an objection is filed, the court shall | 9 |
| set a date for a hearing and notify the petitioner and all | 10 |
| parties entitled to notice of the petition of the hearing | 11 |
| date at least 30 days prior to the hearing, and shall hear | 12 |
| evidence on whether the petition should or should not be | 13 |
| granted, and shall grant or deny the petition to expunge or | 14 |
| seal the records based on the evidence presented at the | 15 |
| hearing. | 16 |
| (8) Service of order. After entering an order to | 17 |
| expunge or
seal records, the court must provide copies of | 18 |
| the order to the
Department, in a form and manner | 19 |
| prescribed by the Department,
to the petitioner, to the | 20 |
| State's Attorney or prosecutor
charged with the duty of | 21 |
| prosecuting the offense, to the
arresting agency, to the | 22 |
| chief legal officer of the unit of
local government | 23 |
| effecting the arrest, and to such other
criminal justice | 24 |
| agencies as may be ordered by the court. | 25 |
| (9) Effect of order. | 26 |
| (A) Upon entry of an order to expunge records |
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| pursuant to (b)(2)(A) or (b)(2)(B)(ii), or both: | 2 |
| (i) the records shall be expunged (as defined | 3 |
| in subsection (a)(1)(E)) by the arresting agency, | 4 |
| the Department, and any other agency as ordered by | 5 |
| the court, within 60 days of the date of service of | 6 |
| the order, unless a motion to vacate, modify, or | 7 |
| reconsider the order is filed pursuant to | 8 |
| paragraph (12) of subsection (d) of this Section; | 9 |
| (ii) the records of the circuit court clerk | 10 |
| shall be impounded until further order of the court | 11 |
| upon good cause shown and the name of the | 12 |
| petitioner obliterated on the official index | 13 |
| required to be kept by the circuit court clerk | 14 |
| under Section 16 of the Clerks of Courts Act, but | 15 |
| the order shall not affect any index issued by the | 16 |
| circuit court clerk before the entry of the order; | 17 |
| and | 18 |
| (iii) in response to an inquiry for expunged | 19 |
| records, the court, the Department, or the agency | 20 |
| receiving such inquiry, shall reply as it does in | 21 |
| response to inquiries when no records ever | 22 |
| existed. | 23 |
| (B) Upon entry of an order to expunge records | 24 |
| pursuant to (b)(2)(B)(i) or (b)(2)(C), or both: | 25 |
| (i) the records shall be expunged (as defined | 26 |
| in subsection (a)(1)(E)) by the arresting agency |
|
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| and any other agency as ordered by the court, | 2 |
| within 60 days of the date of service of the order, | 3 |
| unless a motion to vacate, modify, or reconsider | 4 |
| the order is filed pursuant to paragraph (12) of | 5 |
| subsection (d) of this Section; | 6 |
| (ii) the records of the circuit court clerk | 7 |
| shall be impounded until further order of the court | 8 |
| upon good cause shown and the name of the | 9 |
| petitioner obliterated on the official index | 10 |
| required to be kept by the circuit court clerk | 11 |
| under Section 16 of the Clerks of Courts Act, but | 12 |
| the order shall not affect any index issued by the | 13 |
| circuit court clerk before the entry of the order; | 14 |
| (iii) the records shall be impounded by the
| 15 |
| Department within 60 days of the date of service of | 16 |
| the order as ordered by the court, unless a motion | 17 |
| to vacate, modify, or reconsider the order is filed | 18 |
| pursuant to paragraph (12) of subsection (d) of | 19 |
| this Section; | 20 |
| (iv) records impounded by the Department may | 21 |
| be disseminated by the Department only to the | 22 |
| arresting authority, the State's Attorney, and the | 23 |
| court upon a later arrest for the same or a similar | 24 |
| offense or for the purpose of sentencing for any | 25 |
| subsequent felony, and to the Department of | 26 |
| Corrections upon conviction for any offense; and |
|
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LRB096 13433 RLC 40238 a |
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| (v) in response to an inquiry for such records | 2 |
| from anyone not authorized by law to access such | 3 |
| records the court, the Department, or the agency | 4 |
| receiving such inquiry shall reply as it does in | 5 |
| response to inquiries when no records ever | 6 |
| existed. | 7 |
| (C) Upon entry of an order to seal records under | 8 |
| subsection
(c), the arresting agency, any other agency | 9 |
| as ordered by the court, the Department, and the court | 10 |
| shall seal the records (as defined in subsection | 11 |
| (a)(1)(K)). In response to an inquiry for such records | 12 |
| from anyone not authorized by law to access such | 13 |
| records the court, the Department, or the agency | 14 |
| receiving such inquiry shall reply as it does in | 15 |
| response to inquiries when no records ever existed. | 16 |
| (10) Fees. The Department may charge the petitioner a | 17 |
| fee equivalent to the cost of processing any order to | 18 |
| expunge or seal records. Notwithstanding any provision of | 19 |
| the Clerks of Courts Act to the contrary, the circuit court | 20 |
| clerk may charge a fee equivalent to the cost associated | 21 |
| with the sealing or expungement of records by the circuit | 22 |
| court clerk. From the total filing fee collected for the | 23 |
| petition to seal or expunge, the circuit court clerk shall | 24 |
| deposit $10 into the Circuit Court Clerk Operation and | 25 |
| Administrative Fund, to be used to offset the costs | 26 |
| incurred by the circuit court clerk in performing the |
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LRB096 13433 RLC 40238 a |
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| additional duties required to serve the petition to seal or | 2 |
| expunge on all parties. The circuit court clerk shall | 3 |
| collect and forward the Department of State Police portion | 4 |
| of the fee to the Department and it shall be deposited in | 5 |
| the State Police Services Fund. | 6 |
| (11) Final Order. No court order issued under the | 7 |
| expungement or sealing provisions of this Section shall | 8 |
| become final for purposes of appeal until 30 days after | 9 |
| service of the order on the petitioner and all parties | 10 |
| entitled to notice of the petition. | 11 |
| (12) Motion to Vacate, Modify, or Reconsider. The | 12 |
| petitioner or any party entitled to notice may file a | 13 |
| motion to vacate, modify, or reconsider the order granting | 14 |
| or denying the petition to expunge or seal within 60 days | 15 |
| of service of the order. | 16 |
| (e) Whenever a person who has been convicted of an offense | 17 |
| is granted
a pardon by the Governor which specifically | 18 |
| authorizes expungement, he or she may,
upon verified petition | 19 |
| to the Chief Judge of the circuit where the person had
been | 20 |
| convicted, any judge of the circuit designated by the Chief | 21 |
| Judge, or in
counties of less than 3,000,000 inhabitants, the | 22 |
| presiding trial judge at the
defendant's trial, have a court | 23 |
| order entered expunging the record of
arrest from the official | 24 |
| records of the arresting authority and order that the
records | 25 |
| of the circuit court clerk and the Department be sealed until
| 26 |
| further order of the court upon good cause shown or as |
|
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LRB096 13433 RLC 40238 a |
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| 1 |
| otherwise provided
herein, and the name of the defendant | 2 |
| obliterated from the official index
requested to be kept by the | 3 |
| circuit court clerk under Section 16 of the Clerks
of Courts | 4 |
| Act in connection with the arrest and conviction for the | 5 |
| offense for
which he or she had been pardoned but the order | 6 |
| shall not affect any index issued by
the circuit court clerk | 7 |
| before the entry of the order. All records sealed by
the | 8 |
| Department may be disseminated by the Department only as | 9 |
| required by law or
to the arresting authority, the State's | 10 |
| Attorney, and the court upon a later
arrest for the same or | 11 |
| similar offense or for the purpose of sentencing for any
| 12 |
| subsequent felony. Upon conviction for any subsequent offense, | 13 |
| the Department
of Corrections shall have access to all sealed | 14 |
| records of the Department
pertaining to that individual. Upon | 15 |
| entry of the order of expungement, the
circuit court clerk | 16 |
| shall promptly mail a copy of the order to the
person who was | 17 |
| pardoned. | 18 |
| (f) Subject to available funding, the Illinois Department
| 19 |
| of Corrections shall conduct a study of the impact of sealing,
| 20 |
| especially on employment and recidivism rates, utilizing a
| 21 |
| random sample of those who apply for the sealing of their
| 22 |
| criminal records under Public Act 93-211. At the request of the
| 23 |
| Illinois Department of Corrections, records of the Illinois
| 24 |
| Department of Employment Security shall be utilized as
| 25 |
| appropriate to assist in the study. The study shall not
| 26 |
| disclose any data in a manner that would allow the
|
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LRB096 13433 RLC 40238 a |
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| identification of any particular individual or employing unit.
| 2 |
| The study shall be made available to the General Assembly no
| 3 |
| later than September 1, 2010. | 4 |
| (Source: P.A. 96-409, eff. 1-1-10.) | 5 |
| Section 10. The Unified Code of Corrections is amended by | 6 |
| adding Section 5-6-3.3 as follows: | 7 |
| (730 ILCS 5/5-6-3.3 new) | 8 |
| Sec. 5-6-3.3. Offender Initiative Probation. | 9 |
| (a) Whenever any person who has not previously been | 10 |
| convicted of, or placed on probation or conditional discharge | 11 |
| for, any felony offense under the laws of this State, the laws | 12 |
| of any other state, or the laws of the United States, pleads | 13 |
| guilty to, or is found guilty of, the probationable felony | 14 |
| offense of theft, retail theft, forgery, possession of a stolen | 15 |
| motor vehicle, burglary, possession of burglary tools, | 16 |
| possession of cannabis, possession of a controlled substance, | 17 |
| or possession of methamphetamine, the court, with the consent | 18 |
| of both the defendant and the State's Attorney, may, without | 19 |
| entering a judgment, sentence the defendant to probation. | 20 |
| (a-1) Exemptions. A defendant shall not be eligible for | 21 |
| this probation if the offense he or she has pled guilty to, or | 22 |
| has been found guilty of, is a violent offense. For purposes of | 23 |
| this probation, a "violent offense" is any offense where bodily | 24 |
| harm was inflicted or where force was used against any person |
|
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09600HB4598sam001 |
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LRB096 13433 RLC 40238 a |
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| 1 |
| or threatened against any person, any offense involving sexual | 2 |
| conduct, sexual penetration, or sexual exploitation, any | 3 |
| offense of domestic violence, domestic battery, violation of an | 4 |
| order of protection, stalking, hate crime, driving under the | 5 |
| influence of drugs or alcohol, and any offense involving the | 6 |
| possession of a firearm or dangerous weapon. A defendant shall | 7 |
| not be eligible for this probation if he or she has previously | 8 |
| been adjudicated a delinquent minor for the commission of a | 9 |
| violent offense as defined in this subsection. | 10 |
| (b) When a defendant is placed on probation, the court | 11 |
| shall enter an order specifying a period of probation of not | 12 |
| less than 24 months and shall defer further proceedings in the | 13 |
| case until the conclusion of the period or until the filing of | 14 |
| a petition alleging violation of a term or condition of | 15 |
| probation. | 16 |
| (c) The conditions of probation shall be that the | 17 |
| defendant: | 18 |
| (1) not violate any criminal statute of this State or | 19 |
| any other jurisdiction; | 20 |
| (2) refrain from possessing a firearm or other | 21 |
| dangerous weapon; | 22 |
| (3) make full restitution to the victim or property | 23 |
| owner pursuant to Section 5-5-6 of this Code; | 24 |
| (4) obtain employment or perform not less than 30 hours | 25 |
| of community service, provided community service is | 26 |
| available in the county and is funded and approved by the |
|
|
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LRB096 13433 RLC 40238 a |
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| 1 |
| county board; | 2 |
| (5) pay fines and costs; | 3 |
| (6) attend educational courses designed to prepare the | 4 |
| defendant for obtaining a high school diploma or to work | 5 |
| toward passing the high school level test of General | 6 |
| Educational Development (G.E.D.) or to work toward | 7 |
| completing a vocational training program; and | 8 |
| (7) submit to periodic drug testing at a time and in a | 9 |
| manner as ordered by the court, but no less than 3 times | 10 |
| during the period of probation, with the cost of the | 11 |
| testing to be paid by the defendant. | 12 |
| (d) The court may, in addition to other conditions, require | 13 |
| that the defendant: | 14 |
| (1) make a report to and appear in person before or | 15 |
| participate with the court or such courts, person, or | 16 |
| social service agency as directed by the court in the order | 17 |
| of probation; | 18 |
| (2) undergo medical or psychiatric treatment, or | 19 |
| treatment or rehabilitation approved by the Illinois | 20 |
| Department of Human Services; | 21 |
| (3) attend or reside in a facility established for the | 22 |
| instruction or residence of defendants on probation; | 23 |
| (4) support his or her dependents; | 24 |
| (5) refrain from having in his or her body the presence | 25 |
| of any illicit drug prohibited by the Methamphetamine | 26 |
| Control and Community Protection Act, the Cannabis Control |
|
|
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LRB096 13433 RLC 40238 a |
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| 1 |
| Act, or the Illinois Controlled Substances Act, unless | 2 |
| prescribed by a physician, and submit samples of his or her | 3 |
| blood or urine or both for tests to determine the presence | 4 |
| of any illicit drug; or | 5 |
| (6) if a minor: | 6 |
| (i) reside with his or her parents or in a foster | 7 |
| home; | 8 |
| (ii) attend school; | 9 |
| (iii) attend a non-residential program for youth; | 10 |
| or | 11 |
| (iv) contribute to his or her own support at home | 12 |
| or in a foster home. | 13 |
| (e) Upon violation of a term or condition of probation, the | 14 |
| court may enter a judgment on its original finding of guilt and | 15 |
| proceed as otherwise provided. | 16 |
| (f) Upon fulfillment of the terms and conditions of | 17 |
| probation, the court shall discharge the person and dismiss the | 18 |
| proceedings against the person. | 19 |
| (g) A disposition of probation is considered to be a | 20 |
| conviction for the purposes of imposing the conditions of | 21 |
| probation and for appeal; however, a discharge and dismissal | 22 |
| under this Section is not a conviction for purposes of this | 23 |
| Code or for purposes of disqualifications or disabilities | 24 |
| imposed by law upon conviction of a crime. | 25 |
| (h) There may be only one discharge and dismissal under | 26 |
| this Section, Section 410 of the Illinois Controlled Substances |
|
|
|
09600HB4598sam001 |
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LRB096 13433 RLC 40238 a |
|
| 1 |
| Act, Section 70 of the Methamphetamine Control and Community | 2 |
| Protection Act, Section 10 of the Cannabis Control Act, and | 3 |
| Section 11-14.2 of the Criminal Code of 1961 with respect to | 4 |
| any person. | 5 |
| (i) If a person is convicted of any offense which occurred | 6 |
| within 5 years subsequent to a discharge and dismissal under | 7 |
| this Section, the discharge and dismissal under this Section | 8 |
| shall be admissible in the sentencing proceeding for that | 9 |
| conviction as evidence in aggravation. | 10 |
| (j) Section 410 of the Illinois Controlled Substances Act, | 11 |
| Section 70 of the Methamphetamine Control and Community | 12 |
| Protection Act, Section 10 of the Cannabis Control Act, and | 13 |
| Section 11-14.2 of the Criminal Code of 1961, provide the | 14 |
| conditions of probation regarding the offenses specified | 15 |
| therein. | 16 |
| (k) The probation authorized by this Section may be | 17 |
| referred to as Offender Initiative Probation. ".
|
|