Full Text of HB5130 95th General Assembly
HB5130 95TH GENERAL ASSEMBLY
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95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 HB5130
Introduced , by Rep. Robert S. Molaro SYNOPSIS AS INTRODUCED: |
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20 ILCS 2630/5 |
from Ch. 38, par. 206-5 |
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Amends the Criminal Identification Act. Makes a technical change in a Section concerning arrest reports and the expungement and sealing of criminal arrest and conviction records.
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A BILL FOR
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HB5130 |
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LRB095 18086 RLC 44169 b |
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| AN ACT concerning State government.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Criminal Identification Act is amended by | 5 |
| changing Section 5 as follows:
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| (20 ILCS 2630/5) (from Ch. 38, par. 206-5)
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| Sec. 5. Arrest reports; expungement.
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| (a) All policing bodies of this State shall shall furnish | 9 |
| to the Department,
daily, in the form and detail the Department | 10 |
| requires, fingerprints and
descriptions of all persons who are | 11 |
| arrested on charges of violating any penal
statute of this | 12 |
| State for offenses that are classified as felonies and Class
A | 13 |
| or B misdemeanors and of all minors of the age of 10 and over | 14 |
| who have been
arrested for an offense which would be a felony | 15 |
| if committed by an adult, and
may forward such fingerprints and | 16 |
| descriptions for minors arrested for Class A
or B misdemeanors. | 17 |
| Moving or nonmoving traffic violations under the Illinois
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| Vehicle Code shall not be reported except for violations of | 19 |
| Chapter 4, Section
11-204.1, or Section 11-501 of that Code. In | 20 |
| addition, conservation offenses,
as defined in the Supreme | 21 |
| Court Rule 501(c), that are classified as Class B
misdemeanors | 22 |
| shall not be reported.
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| Whenever an adult or minor prosecuted as an adult,
not |
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| having previously been convicted of any criminal offense or | 2 |
| municipal
ordinance violation, charged with a violation of a | 3 |
| municipal ordinance or a
felony or misdemeanor, is acquitted or | 4 |
| released without being convicted,
whether the acquittal or | 5 |
| release occurred before, on, or after the
effective date of | 6 |
| this amendatory Act of 1991, the Chief Judge of the circuit
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| wherein the charge was brought, any judge of that circuit | 8 |
| designated by the
Chief Judge, or in counties of less than | 9 |
| 3,000,000 inhabitants, the presiding
trial judge at the | 10 |
| defendant's trial may upon verified petition of the
defendant | 11 |
| order the record of arrest expunged from the official records | 12 |
| of the
arresting authority and the Department and order that | 13 |
| the records of the clerk
of the circuit court be sealed until | 14 |
| further order of the court upon good cause
shown and the name | 15 |
| of the defendant obliterated on the official index required
to | 16 |
| be kept by the circuit court clerk under Section 16 of the | 17 |
| Clerks of Courts
Act, but the order shall not affect any index | 18 |
| issued by the circuit court clerk
before the entry of the | 19 |
| order. The Department may charge the petitioner a fee
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| equivalent to the cost of processing any order to expunge or | 21 |
| seal the records,
and the fee shall be deposited into the State | 22 |
| Police Services Fund. The
records of those arrests, however, | 23 |
| that result in a disposition of
supervision for any offense | 24 |
| shall not be expunged from the records of the
arresting | 25 |
| authority or the Department nor impounded by the court until 2 | 26 |
| years
after discharge and dismissal of supervision. Those |
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| records
that result from a supervision for a violation of | 2 |
| Section 3-707, 3-708, 3-710,
5-401.3, or 11-503 of the Illinois | 3 |
| Vehicle Code or a similar provision
of a local ordinance, or | 4 |
| for a violation of Section 12-3.2, 12-15 or 16A-3
of the | 5 |
| Criminal Code of 1961, or probation under Section 10 of the | 6 |
| Cannabis
Control Act, Section 410 of the Illinois Controlled | 7 |
| Substances Act, Section 70 of the Methamphetamine Control and | 8 |
| Community Protection Act, Section
12-4.3(b)(1) and (2) of the | 9 |
| Criminal Code of 1961 (as those provisions
existed before their | 10 |
| deletion by Public Act 89-313), Section 10-102 of the
Illinois | 11 |
| Alcoholism and Other Drug Dependency Act when the judgment of
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| conviction has been vacated, Section 40-10 of the Alcoholism | 13 |
| and Other Drug
Abuse and Dependency Act when the judgment of | 14 |
| conviction has been vacated,
or Section 10 of the Steroid | 15 |
| Control Act shall not be expunged from the records
of the | 16 |
| arresting authority nor impounded by the court until 5 years | 17 |
| after
termination of probation or supervision. Those records | 18 |
| that result from a
supervision for a violation of Section | 19 |
| 11-501 of the Illinois Vehicle Code or
a similar provision of a | 20 |
| local ordinance, shall not be expunged. All records
set out | 21 |
| above may be ordered by the court to be expunged from the | 22 |
| records of
the arresting authority and impounded by the court | 23 |
| after 5 years, but shall
not be expunged by the Department, but | 24 |
| shall, on court order be sealed by the
Department and may be | 25 |
| disseminated by the Department only as required by law or
to | 26 |
| the arresting authority, the State's Attorney, and the court |
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| upon a later
arrest for the same or a similar offense or for | 2 |
| the purpose of sentencing for
any subsequent felony. Upon | 3 |
| conviction for any offense, the Department of
Corrections shall | 4 |
| have access to all sealed records of the Department
pertaining | 5 |
| to that individual.
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| (a-5) Those records maintained by the Department for | 7 |
| persons arrested
prior to their 17th birthday shall be expunged | 8 |
| as provided in Section 5-915 of
the Juvenile Court Act of 1987.
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| (b) Whenever a person has been convicted of a crime or of | 10 |
| the violation of
a municipal ordinance, in the name of a person | 11 |
| whose identity he has stolen
or otherwise come into possession | 12 |
| of, the aggrieved person from whom the
identity was stolen or | 13 |
| otherwise obtained without authorization, upon learning
of the | 14 |
| person having been arrested using his identity, may, upon | 15 |
| verified
petition to the chief judge of the circuit wherein the | 16 |
| arrest was made,
have a court order entered nunc pro tunc by | 17 |
| the chief judge to correct
the arrest record, conviction | 18 |
| record, if any, and all official records of the
arresting | 19 |
| authority, the Department, other criminal justice agencies, | 20 |
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prosecutor, and the trial court concerning such arrest, if | 21 |
| any, by removing his
name from all such records in connection | 22 |
| with the arrest and conviction, if
any, and by inserting in the | 23 |
| records the name of the offender, if known or
ascertainable, in | 24 |
| lieu of the aggrieved's name. The records of the
clerk of
the | 25 |
| circuit court clerk shall be sealed until further order of the | 26 |
| court upon
good cause shown and the name of the aggrieved |
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| person obliterated on the
official index required to be kept by | 2 |
| the circuit court clerk under Section 16
of the Clerks of | 3 |
| Courts Act, but the order shall not affect any index issued by
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| the circuit court clerk before the entry of the order. Nothing | 5 |
| in this Section
shall limit the Department of State Police or | 6 |
| other criminal justice agencies
or prosecutors from listing | 7 |
| under an offender's name the false names he or she
has used. | 8 |
| For purposes of this Section, convictions for moving and | 9 |
| nonmoving
traffic violations other than convictions for | 10 |
| violations of Chapter 4, Section
11-204.1 or Section 11-501 of | 11 |
| the Illinois Vehicle Code shall not be a bar to
expunging the | 12 |
| record of arrest and court records for
violation of a | 13 |
| misdemeanor or municipal ordinance.
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| (c) Whenever a person who has been convicted of an offense | 15 |
| is granted
a pardon by the Governor which specifically | 16 |
| authorizes expungement, he may,
upon verified petition to the | 17 |
| chief judge of the circuit where the person had
been convicted, | 18 |
| any judge of the circuit designated by the Chief Judge, or in
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| counties of less than 3,000,000 inhabitants, the presiding | 20 |
| trial judge at the
defendant's trial, may have a court order | 21 |
| entered expunging the record of
arrest from the official | 22 |
| records of the arresting authority and order that the
records | 23 |
| of the clerk of the circuit court and the Department be sealed | 24 |
| until
further order of the court upon good cause shown or as | 25 |
| otherwise provided
herein, and the name of the defendant | 26 |
| obliterated from the official index
requested to be kept by the |
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| circuit court clerk under Section 16 of the Clerks
of Courts | 2 |
| Act in connection with the arrest and conviction for the | 3 |
| offense for
which he had been pardoned but the order shall not | 4 |
| affect any index issued by
the circuit court clerk before the | 5 |
| entry of the order. All records sealed by
the Department may be | 6 |
| disseminated by the Department only as required by law or
to | 7 |
| the arresting authority, the State's Attorney, and the court | 8 |
| upon a later
arrest for the same or similar offense or for the | 9 |
| purpose of sentencing for any
subsequent felony. Upon | 10 |
| conviction for any subsequent offense, the Department
of | 11 |
| Corrections shall have access to all sealed records of the | 12 |
| Department
pertaining to that individual. Upon entry of the | 13 |
| order of expungement, the
clerk of the circuit court shall | 14 |
| promptly mail a copy of the order to the
person who was | 15 |
| pardoned.
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| (c-5) Whenever a person has been convicted of criminal | 17 |
| sexual assault,
aggravated criminal sexual assault, predatory | 18 |
| criminal sexual assault of a
child, criminal sexual abuse, or | 19 |
| aggravated criminal sexual abuse, the victim
of that offense | 20 |
| may request that the State's Attorney of the county in which
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| the conviction occurred file a verified petition with the | 22 |
| presiding trial judge
at the defendant's trial to have a court | 23 |
| order entered to seal the records of
the clerk of the circuit | 24 |
| court in connection with the proceedings of the trial
court | 25 |
| concerning that offense. However, the records of the arresting | 26 |
| authority
and the Department of State Police concerning the |
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| offense shall not be
sealed. The court, upon good cause shown, | 2 |
| shall make the records of the clerk
of the circuit court in | 3 |
| connection with the proceedings of the trial court
concerning | 4 |
| the offense available for public inspection.
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| (c-6) If a conviction has been set aside on direct review | 6 |
| or on
collateral attack
and the court determines by clear and | 7 |
| convincing evidence that the defendant
was factually innocent | 8 |
| of
the charge, the court shall enter an expungement order as | 9 |
| provided in
subsection (b) of Section 5-5-4
of the Unified Code | 10 |
| of Corrections.
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| (d) Notice of the petition for subsections (a), (b), and | 12 |
| (c) shall be
served upon the State's Attorney or prosecutor | 13 |
| charged with the duty
of prosecuting the offense, the | 14 |
| Department of State Police, the arresting
agency and the chief | 15 |
| legal officer of the unit of local government
affecting the | 16 |
| arrest. Unless the State's Attorney or prosecutor, the
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| Department of State Police, the arresting agency or such chief | 18 |
| legal officer
objects to the petition within 30 days from the | 19 |
| date of the notice, the
court shall enter an order granting or | 20 |
| denying the petition. The clerk
of the court shall promptly | 21 |
| mail a copy of the order to the person, the
arresting agency, | 22 |
| the prosecutor, the Department of State Police and such
other | 23 |
| criminal justice agencies as may be ordered by the judge.
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| (e) Nothing herein shall prevent the Department of State | 25 |
| Police from
maintaining all records of any person who is | 26 |
| admitted to probation upon
terms and conditions and who |
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| fulfills those terms and conditions pursuant
to Section 10 of | 2 |
| the Cannabis Control Act, Section 410 of the Illinois
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| Controlled Substances Act, Section 70 of the Methamphetamine | 4 |
| Control and Community Protection Act, Section 12-4.3 of the | 5 |
| Criminal Code
of 1961, Section 10-102 of the Illinois | 6 |
| Alcoholism and Other Drug
Dependency Act, Section 40-10 of the | 7 |
| Alcoholism and Other Drug Abuse and
Dependency Act, or Section | 8 |
| 10 of the Steroid Control Act.
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| (f) No court order issued under the expungement provisions | 10 |
| of this
Section shall become final for purposes of appeal until | 11 |
| 30 days after
notice is received by the Department. Any court | 12 |
| order contrary to the
provisions of this Section is void.
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| (g) Except as otherwise provided in subsection (c-5) of | 14 |
| this Section,
the court shall not order the sealing or | 15 |
| expungement of the arrest
records and records of the circuit | 16 |
| court clerk of any person granted
supervision for or convicted | 17 |
| of any sexual offense committed against a minor
under 18 years | 18 |
| of age. For the purposes of this Section, "sexual offense
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| committed against a minor" includes but is not limited to the | 20 |
| offenses of
indecent solicitation of a child or criminal sexual | 21 |
| abuse when the victim of
such offense is under 18 years of age.
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| (h) (1) Applicability. Notwithstanding any other provision | 23 |
| of this Act to the contrary and cumulative with any rights to | 24 |
| expungement of criminal records, this subsection authorizes | 25 |
| the sealing of criminal records of adults and of minors | 26 |
| prosecuted as adults. |
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| (2) Sealable offenses. The following offenses may be | 2 |
| sealed: | 3 |
| (A) All municipal ordinance violations and | 4 |
| misdemeanors, with the exception of the following: | 5 |
| (i) violations of Section 11-501 of the Illinois | 6 |
| Vehicle Code or a similar provision of a local | 7 |
| ordinance; | 8 |
| (ii) violations of Article 11 of the Criminal Code | 9 |
| of 1961 or a similar provision of a local ordinance, | 10 |
| except Section 11-14 of the Criminal Code of 1961 as | 11 |
| provided in clause B(i) of this subsection (h); | 12 |
| (iii) violations of Section 12-15, 12-30, or 26-5 | 13 |
| of the Criminal Code of 1961 or a similar provision of | 14 |
| a local ordinance; | 15 |
| (iv) violations that are a crime of violence as | 16 |
| defined in Section 2 of the Crime Victims Compensation | 17 |
| Act or a similar provision of a local ordinance; | 18 |
| (v) Class A misdemeanor violations of the Humane | 19 |
| Care for Animals Act; and | 20 |
| (vi) any offense or attempted offense that would | 21 |
| subject a person to registration under the Sex Offender | 22 |
| Registration Act. | 23 |
| (B) Misdemeanor and Class 4 felony violations of: | 24 |
| (i) Section 11-14 of the Criminal Code of 1961; | 25 |
| (ii) Section 4 of the Cannabis Control Act; | 26 |
| (iii) Section 402 of the Illinois Controlled |
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| Substances Act; and | 2 |
| (iv) Section 60 of the Methamphetamine Control and | 3 |
| Community Protection Act.
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| However, for purposes of this subsection (h), a | 5 |
| sentence of first offender probation under Section 10 of | 6 |
| the Cannabis Control Act, Section 410 of the Illinois | 7 |
| Controlled Substances Act, or Section 70 of the | 8 |
| Methamphetamine Control and Community Protection Act shall | 9 |
| be treated as a Class 4 felony conviction. | 10 |
| (3) Requirements for sealing. Records identified as | 11 |
| sealable under clause (h) (2) may be sealed when the individual | 12 |
| was: | 13 |
| (A) Acquitted of the offense or offenses or released | 14 |
| without being convicted. | 15 |
| (B) Convicted of the offense or offenses and the | 16 |
| conviction or convictions were reversed. | 17 |
| (C) Placed on misdemeanor supervision for an offense or | 18 |
| offenses; and | 19 |
| (i) at least 3 years have elapsed since the | 20 |
| completion of the term of supervision, or terms of | 21 |
| supervision, if more than one term has been ordered; | 22 |
| and | 23 |
| (ii) the individual has not been convicted of a | 24 |
| felony or misdemeanor or placed on supervision for a | 25 |
| misdemeanor or felony during the period specified in | 26 |
| clause (i). |
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| (D) Convicted of an offense or offenses; and | 2 |
| (i) at least 4 years have elapsed since the last | 3 |
| such conviction or term of any sentence, probation, | 4 |
| parole, or supervision, if any, whichever is last in | 5 |
| time; and | 6 |
| (ii) the individual has not been convicted of a | 7 |
| felony or misdemeanor or placed on supervision for a | 8 |
| misdemeanor or felony during the period specified in | 9 |
| clause (i). | 10 |
| (4) Requirements for sealing of records when more than one | 11 |
| charge and disposition have been filed. When multiple offenses | 12 |
| are petitioned to be sealed under this subsection (h), the | 13 |
| requirements of the relevant provisions of clauses (h)(3)(A) | 14 |
| through (D) each apply. In instances in which more than one | 15 |
| waiting period is applicable under clauses (h)(C)(i) and (ii) | 16 |
| and (h)(D)(i) and (ii), the longer applicable period applies, | 17 |
| and the requirements of clause (h) (3) shall be considered met | 18 |
| when the petition is filed after the passage of the longer | 19 |
| applicable waiting period. That period commences on the date of | 20 |
| the completion of the last sentence or the end of supervision, | 21 |
| probation, or parole, whichever is last in time. | 22 |
| (5) Subsequent convictions. A person may not have | 23 |
| subsequent felony conviction records sealed as provided in this | 24 |
| subsection (h) if he or she is convicted of any felony offense | 25 |
| after the date of the sealing of prior felony records as | 26 |
| provided in this subsection (h). |
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| (6) Notice of eligibility for sealing. Upon acquittal, | 2 |
| release without conviction, or being placed on supervision for | 3 |
| a sealable offense, or upon conviction of a sealable offense, | 4 |
| the person shall be informed by the court of the right to have | 5 |
| the records sealed and the procedures for the sealing of the | 6 |
| records. | 7 |
| (7) Procedure. Upon becoming eligible for the sealing of | 8 |
| records under this subsection (h), the person who seeks the | 9 |
| sealing of his or her records shall file a petition requesting | 10 |
| the sealing of records with the clerk of the court where the | 11 |
| charge or charges were brought. The records may be sealed by | 12 |
| the Chief Judge of the circuit wherein the charge was brought, | 13 |
| any judge of that circuit designated by the Chief Judge, or in | 14 |
| counties of less than 3,000,000 inhabitants, the presiding | 15 |
| trial judge at the defendant's trial, if any. If charges were | 16 |
| brought in multiple jurisdictions, a petition must be filed in | 17 |
| each such jurisdiction. The petitioner shall pay the applicable | 18 |
| fee, if not waived. | 19 |
| (A) Contents of petition. The petition shall contain | 20 |
| the petitioner's name, date of birth, current address, each | 21 |
| charge, each case number, the date of each charge, the | 22 |
| identity of the arresting authority, and such other | 23 |
| information as the court may require. During the pendency | 24 |
| of the proceeding, the petitioner shall promptly notify the | 25 |
| clerk of the court of any change of address. | 26 |
| (B) Drug test. A person filing a petition to have his |
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| or her records sealed for a Class 4 felony violation of | 2 |
| Section 4 of the Cannabis Control Act or for a Class 4 | 3 |
| felony violation of Section 402 of the Illinois Controlled | 4 |
| Substances Act must attach to the petition proof that the | 5 |
| petitioner has passed a test taken within the previous 30 | 6 |
| days before the filing of the petition showing the absence | 7 |
| within his or her body of all illegal substances in | 8 |
| violation of either the Illinois Controlled Substances Act | 9 |
| or the Cannabis Control Act. | 10 |
| (C) Service of petition. The clerk shall promptly serve | 11 |
| a copy of the petition on the State's Attorney or | 12 |
| prosecutor charged with the duty of prosecuting the | 13 |
| offense, the Department of State Police, the arresting | 14 |
| agency and the chief legal officer of the unit of local | 15 |
| government effecting the arrest. | 16 |
| (D) Entry of order. Unless the State's Attorney or | 17 |
| prosecutor, the Department of State Police, the arresting | 18 |
| agency or such chief legal officer objects to sealing of | 19 |
| the records within 90 days of notice the court shall enter | 20 |
| an order sealing the defendant's records. | 21 |
| (E) Hearing upon objection. If an objection is filed, | 22 |
| the court shall set a date for a hearing and notify the | 23 |
| petitioner and the parties on whom the petition had been | 24 |
| served, and shall hear evidence on whether the sealing of | 25 |
| the records should or should not be granted, and shall make | 26 |
| a determination on whether to issue an order to seal the |
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| records based on the evidence presented at the hearing. | 2 |
| (F) Service of order. After entering the order to seal | 3 |
| records, the court must provide copies of the order to the | 4 |
| Department, in a form and manner prescribed by the | 5 |
| Department, to the petitioner, to the State's Attorney or | 6 |
| prosecutor charged with the duty of prosecuting the | 7 |
| offense, to the arresting agency, to the chief legal | 8 |
| officer of the unit of local government effecting the | 9 |
| arrest, and to such other criminal justice agencies as may | 10 |
| be ordered by the court. | 11 |
| (8) Fees. Notwithstanding any provision of the Clerk of the | 12 |
| Courts Act to the contrary, and subject to the approval of the | 13 |
| county board, the clerk may charge a fee equivalent to the cost | 14 |
| associated with the sealing of records by the clerk and the | 15 |
| Department of State Police. The clerk shall forward the | 16 |
| Department of State Police portion of the fee to the Department | 17 |
| and it shall be deposited into the State Police Services Fund. | 18 |
| (i) 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, in accordance to | 23 |
| rules adopted by the Department. At the request of the Illinois | 24 |
| Department of Corrections, records of the Illinois Department | 25 |
| of Employment Security shall be utilized as appropriate to | 26 |
| assist in the study. The study shall not disclose any data in a |
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| manner that would allow the identification of any particular | 2 |
| individual or employing unit. The study shall be made available | 3 |
| to the General Assembly no later than September 1, 2006.
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| (Source: P.A. 93-210, eff. 7-18-03; 93-211, eff. 1-1-04; | 5 |
| 93-1084, eff. 6-1-05; 94-556, eff. 9-11-05.)
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