Public Act 93-0210

SB423 Enrolled                       LRB093 10646 BDD 10956 b

    AN ACT in relation to  the  expungement  and  sealing  of
arrest and court records.

    Be  it  enacted  by  the People of the State of Illinois,
represented in the General Assembly:

    Section  5.  The Criminal Identification Act  is  amended
by changing Section 5 as follows:

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

    Section  6.   The State Appellate Defender Act is amended
by adding Section 10.6 as follows:

    (725 ILCS 105/10.6 new)
    Sec. 10.6.  Expungement program.
    (a)  The  State  Appellate  Defender   shall   establish,
maintain,  and  carry  out an Expungement Program  to provide
information to persons  eligible  to  have  their  arrest  or
criminal history record information ordered expunged, sealed,
or impounded.
    (b)  The   State   Appellate   Defender   shall   develop
brochures,  pamphlets,  and  other materials in  printed form
and through the agency's World Wide Web site.  The  pamphlets
and other materials shall  include at a minimum the following
information:
         (1)  An   explanation  of  the  State's  expungement
    process;
         (2)  The circumstances under which  expungement  may
    occur;
         (3)  The criminal offenses that may be expunged;
         (4)  The  steps  necessary  to initiate and complete
    the expungement process; and
         (5)  Directions  on  how  to   contact   the   State
    Appellate Defender.
    (c)  The  State  Appellate  Defender  shall establish and
maintain a statewide toll-free telephone number that a person
may use to receive information or assistance  concerning  the
expungement  or  sealing of arrest or criminal history record
information. The State Appellate Defender shall advertise the
toll-free telephone number  statewide.  The  State  Appellate
Defender shall develop an expungement information packet that
may  be sent to eligible persons seeking expungement of their
arrest records, which may include, but is not limited  to,  a
pre-printed  expungement petition with instructions on how to
complete the petition and a pamphlet  containing  information
that   would   assist  individuals  through  the  expungement
process.
    (d)  The  State  Appellate  Defender  shall   compile   a
statewide  list  of  volunteer  attorneys  willing  to assist
eligible individuals through the expungement process.
    (e)  This  Section  shall  be  implemented   from   funds
appropriated  by  the General Assembly to the State Appellate
Defender for this purpose. The State Appellate Defender shall
employ the necessary staff and adopt the necessary rules  for
implementation of this Section.

    Section 10. The Unified Code of Corrections is amended by
changing Section  5-5-4 as follows:

    (730 ILCS 5/5-5-4) (from Ch. 38, par. 1005-5-4)
    Sec. 5-5-4. Resentences.
    (a)  Where a conviction or sentence has been set aside on
direct  review  or  on collateral attack, the court shall not
impose a new sentence for the same offense or for a different
offense based on the same conduct which is more  severe  than
the  prior  sentence  less  the portion of the prior sentence
previously satisfied unless the more severe sentence is based
upon conduct on the part of the defendant occurring after the
original sentencing. If a sentence is vacated on appeal or on
collateral attack due to the failure of the trier of fact  at
trial to determine beyond a reasonable doubt the existence of
a  fact (other than a prior conviction) necessary to increase
the punishment for the offense beyond the  statutory  maximum
otherwise   applicable,   either   the   defendant   may   be
re-sentenced  to  a  term within the range otherwise provided
or, if the State files notice of its intention to again  seek
the  extended sentence, the defendant shall be afforded a new
trial.
    (b)  If a conviction or sentence has been  set  aside  on
direct   review   or  on  collateral  attack  and  the  court
determines  by  clear  and  convincing  evidence   that   the
defendant  was  factually  innocent  of the charge, the court
shall enter an order expunging the record of arrest from  the
official  records  of  the arresting authority and order that
the records of the clerk of the circuit court and  Department
of  State  Police  be sealed until further order of the court
upon good cause shown or as otherwise  provided  herein,  and
the name of the defendant obliterated from the official index
requested to be kept by the circuit court clerk under Section
16  of the Clerks of Courts Act in connection with the arrest
and conviction for the offense but the order shall not affect
any index issued by the circuit court clerk before the  entry
of the order.
    All  records sealed by the Department of State Police may
be disseminated by the Department only as required by law  or
to  the  arresting authority, the State's Attorney, the court
upon a later arrest for the same or similar offense,  or  for
the  purpose  of  sentencing  for any subsequent felony. Upon
conviction for any  subsequent  offense,  the  Department  of
Corrections  shall  have  access to all sealed records of the
Department pertaining to that individual.
    Upon entry of the order of expungement, the clerk of  the
circuit  court shall promptly mail a copy of the order to the
person whose records were expunged and sealed.
(Source: P.A. 91-953, eff. 2-23-01.)
    Section 99.  Effective date.  This Act takes effect  upon
becoming law.
                            INDEX
           Statutes amended in order of appearance
20 ILCS 2630/5            from Ch. 38, par. 206-5
725 ILCS 105/10.6 new
730 ILCS 5/5-5-4          from Ch. 38, par. 1005-5-4

Effective Date: 7/18/2003