Public Act 93-0211
SB788 Enrolled LRB093 03211 RLC 03228 b
AN ACT in relation to courts.
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 and adding Sections 11, 12, and 13 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.
(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.
(h) (1) Notwithstanding any other provision of this Act
to the contrary and cumulative with any rights to expungement
of criminal records, whenever an adult or minor prosecuted as
an adult charged with a violation of a municipal ordinance or
a misdemeanor is acquitted or released without being
convicted, or if the person is convicted but the conviction
is reversed, or if the person has been placed on supervision
for a misdemeanor and has not been convicted of a felony or
misdemeanor or placed on supervision for a misdemeanor within
3 years after the acquittal or release or reversal of
conviction, or the completion of the terms and conditions of
the supervision, if the acquittal, release, finding of not
guilty, or reversal of conviction occurred on or after the
effective date of this amendatory Act of the 93rd General
Assembly, the Chief Judge of the circuit in which the charge
was brought may have the official records of the arresting
authority, the Department, and the clerk of the circuit court
sealed 3 years after the dismissal of the charge, the finding
of not guilty, the reversal of conviction, or the completion
of the terms and conditions of the supervision, except those
records are subject to inspection and use by the court for
the purposes of subsequent sentencing for misdemeanor and
felony violations and inspection and use by law enforcement
agencies and State's Attorneys or other prosecutors in
carrying out the duties of their offices. This subsection
(h) does not apply to persons placed on supervision for: (1)
a violation of Section 11-501 of the Illinois Vehicle Code or
a similar provision of a local ordinance; (2) a misdemeanor
violation of Article 11 of the Criminal Code of 1961 or a
similar provision of a local ordinance; (3) a misdemeanor
violation of Section 12-15, 12-30, or 26-5 of the Criminal
Code of 1961 or a similar provision of a local ordinance; (4)
a misdemeanor violation that is a crime of violence as
defined in Section 2 of the Crime Victims Compensation Act or
a similar provision of a local ordinance; (5) a Class A
misdemeanor violation of the Humane Care for Animals Act; or
(6) any offense or attempted offense that would subject a
person to registration under the Sex Offender Registration
Act.
(2) Upon acquittal, release without conviction, or being
placed on supervision, the person charged with the offense
shall be informed by the court of the right to have the
records sealed and the procedures for the sealing of the
records. Three years after the dismissal of the charge, the
finding of not guilty, the reversal of conviction, or the
completion of the terms and conditions of the supervision,
the defendant shall provide the clerk of the court with a
notice of request for sealing of records and payment of the
applicable fee and a current address and shall promptly
notify the clerk of the court of any change of address. The
clerk shall promptly serve notice that the person's records
are to be sealed on 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 effecting
the arrest. Unless the State's Attorney or prosecutor, the
Department of State Police, the arresting agency or such
chief legal officer objects to sealing of the records within
90 days of notice the court shall enter an order sealing the
defendant's records 3 years after the dismissal of the
charge, the finding of not guilty, the reversal of
conviction, or the completion of the terms and conditions of
the supervision. The clerk of the court shall promptly serve
by mail or in person 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. If an objection is filed, the court
shall set a date for hearing. At the hearing the court shall
hear evidence on whether the sealing of the records should or
should not be granted.
(3) The clerk may charge a fee equivalent to the cost
associated with the sealing of records by the clerk and the
Department of State Police. The clerk shall forward the
Department of State Police portion of the fee to the
Department and it shall be deposited into the State Police
Services Fund.
(4) Whenever sealing of records is required under this
subsection (h), the notification of the sealing must be given
by the circuit court where the arrest occurred to the
Department in a form and manner prescribed by the Department.
(5) An adult or a minor prosecuted as an adult who was
charged with a violation of a municipal ordinance or a
misdemeanor who was acquitted, released without being
convicted, convicted and the conviction was reversed, or
placed on supervision for a misdemeanor before the date of
this amendatory Act of the 93rd General Assembly and was not
convicted of a felony or misdemeanor or placed on supervision
for a misdemeanor for 3 years after the acquittal or release
or reversal of conviction, or completion of the terms and
conditions of the supervision may petition the Chief Judge of
the circuit in which the charge was brought, any judge of
that circuit in which the charge was brought, 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
that defendant's trial, to seal the official records of the
arresting authority, the Department, and the clerk of the
court, except those records are subject to inspection and use
by the court for the purposes of subsequent sentencing for
misdemeanor and felony violations and inspection and use by
law enforcement agencies, the Department of Corrections, and
State's Attorneys and other prosecutors in carrying out the
duties of their offices. This subsection (h) does not apply
to persons placed on supervision for: (1) a violation of
Section 11-501 of the Illinois Vehicle Code or a similar
provision of a local ordinance; (2) a misdemeanor violation
of Article 11 of the Criminal Code of 1961 or a similar
provision of a local ordinance; (3) a misdemeanor violation
of Section 12-15, 12-30, or 26-5 of the Criminal Code of 1961
or a similar provision of a local ordinance; (4) a
misdemeanor violation that is a crime of violence as defined
in Section 2 of the Crime Victims Compensation Act or a
similar provision of a local ordinance; (5) a Class A
misdemeanor violation of the Humane Care for Animals Act; or
(6) any offense or attempted offense that would subject a
person to registration under the Sex Offender Registration
Act. 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 effecting the arrest shall be
served with a copy of the verified petition and shall have 90
days to object. If an objection is filed, the court shall set
a date for hearing. At the hearing the court shall hear
evidence on whether the sealing of the records should or
should not be granted. The person whose records are sealed
under the provisions of this Act shall pay to the clerk of
the court and the Department of State Police a fee equivalent
to the cost associated with the sealing of records. The fees
shall be paid to the clerk of the court who shall forward the
appropriate portion to the Department at the time the court
order to seal the defendant's record is forwarded to the
Department for processing. The Department of State Police
portion of the fee shall be deposited into the State Police
Services Fund.
(i) (1) Notwithstanding any other provision of this Act
to the contrary and cumulative with any rights to expungement
of criminal records, whenever an adult or minor prosecuted as
an adult charged with a violation of a municipal ordinance or
a misdemeanor is convicted of a misdemeanor and has not been
convicted of a felony or misdemeanor or placed on supervision
for a misdemeanor within 4 years after the completion of the
sentence, if the conviction occurred on or after the
effective date of this amendatory Act of the 93rd General
Assembly, the Chief Judge of the circuit in which the charge
was brought may have the official records of the arresting
authority, the Department, and the clerk of the circuit court
sealed 4 years after the completion of the sentence, except
those records are subject to inspection and use by the court
for the purposes of subsequent sentencing for misdemeanor and
felony violations and inspection and use by law enforcement
agencies and State's Attorneys or other prosecutors in
carrying out the duties of their offices. This subsection
(i) does not apply to persons convicted of: (1) a violation
of Section 11-501 of the Illinois Vehicle Code or a similar
provision of a local ordinance; (2) a misdemeanor violation
of Article 11 of the Criminal Code of 1961 or a similar
provision of a local ordinance; (3) a misdemeanor violation
of Section 12-15, 12-30, or 26-5 of the Criminal Code of 1961
or a similar provision of a local ordinance; (4) a
misdemeanor violation that is a crime of violence as defined
in Section 2 of the Crime Victims Compensation Act or a
similar provision of a local ordinance; (5) a Class A
misdemeanor violation of the Humane Care for Animals Act; or
(6) any offense or attempted offense that would subject a
person to registration under the Sex Offender Registration
Act.
(2) Upon the conviction of such offense, the person
charged with the offense shall be informed by the court of
the right to have the records sealed and the procedures for
the sealing of the records. Four years after the completion
of the sentence, the defendant shall provide the clerk of the
court with a notice of request for sealing of records and
payment of the applicable fee and a current address and shall
promptly notify the clerk of the court of any change of
address. The clerk shall promptly serve notice that the
person's records are to be sealed on 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 effecting
the arrest. Unless the State's Attorney or prosecutor, the
Department of State Police, the arresting agency or such
chief legal officer objects to sealing of the records within
90 days of notice the court shall enter an order sealing the
defendant's records 4 years after the completion of the
sentence. The clerk of the court shall promptly serve by mail
or in person 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. If an objection is filed, the court shall set a date
for hearing. At the hearing the court shall hear evidence on
whether the sealing of the records should or should not be
granted.
(3) The clerk may charge a fee equivalent to the cost
associated with the sealing of records by the clerk and the
Department of State Police. The clerk shall forward the
Department of State Police portion of the fee to the
Department and it shall be deposited into the State Police
Services Fund.
(4) Whenever sealing of records is required under this
subsection (i), the notification of the sealing must be given
by the circuit court where the arrest occurred to the
Department in a form and manner prescribed by the Department.
(5) An adult or a minor prosecuted as an adult who was
charged with a violation of a municipal ordinance or a
misdemeanor who was convicted of a misdemeanor before the
date of this amendatory Act of the 93rd General Assembly and
was not convicted of a felony or misdemeanor or placed on
supervision for a misdemeanor for 4 years after the
completion of the sentence may petition the Chief Judge of
the circuit in which the charge was brought, any judge of
that circuit in which the charge was brought, 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
that defendant's trial, to seal the official records of the
arresting authority, the Department, and the clerk of the
court, except those records are subject to inspection and use
by the court for the purposes of subsequent sentencing for
misdemeanor and felony violations and inspection and use by
law enforcement agencies, the Department of Corrections, and
State's Attorneys and other prosecutors in carrying out the
duties of their offices. This subsection (i) does not apply
to persons convicted of: (1) a violation of Section 11-501 of
the Illinois Vehicle Code or a similar provision of a local
ordinance; (2) a misdemeanor violation of Article 11 of the
Criminal Code of 1961 or a similar provision of a local
ordinance; (3) a misdemeanor violation of Section 12-15,
12-30, or 26-5 of the Criminal Code of 1961 or a similar
provision of a local ordinance; (4) a misdemeanor violation
that is a crime of violence as defined in Section 2 of the
Crime Victims Compensation Act or a similar provision of a
local ordinance; (5) a Class A misdemeanor violation of the
Humane Care for Animals Act; or (6) any offense or attempted
offense that would subject a person to registration under the
Sex Offender Registration Act. 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 effecting
the arrest shall be served with a copy of the verified
petition and shall have 90 days to object. If an objection is
filed, the court shall set a date for hearing. At the hearing
the court shall hear evidence on whether the sealing of the
records should or should not be granted. The person whose
records are sealed under the provisions of this Act shall pay
to the clerk of the court and the Department of State Police
a fee equivalent to the cost associated with the sealing of
records. The fees shall be paid to the clerk of the court who
shall forward the appropriate portion to the Department at
the time the court order to seal the defendant's record is
forwarded to the Department for processing. The Department of
State Police portion of the fee shall be deposited into the
State Police Services Fund.
(Source: P.A. 91-295, eff. 1-1-00; 91-357, eff. 7-29-99;
92-651, eff. 7-11-02.)
(20 ILCS 2630/11 new)
Sec. 11. Legal assistance and education. Subject to
appropriation, the State Appellate Defender shall establish,
maintain, and carry out a sealing and expungement program to
provide information to persons eligible to have their arrest
or criminal history records expunged or sealed.
(20 ILCS 2630/12 new)
Sec. 12. Entry of order; effect of expungement or
sealing.
(a) Except with respect to law enforcement agencies, the
Department of Corrections, State's Attorneys, or other
prosecutors, an expunged or sealed record may not be
considered by any private or public entity in employment
matters, certification, licensing, revocation of
certification or licensure, or registration. Applications for
employment must contain specific language which states that
the applicant is not obligated to disclose sealed or expunged
records of conviction or arrest. Employers may not ask if an
applicant has had records expunged or sealed.
(b) A person whose records have been sealed or expunged
is not entitled to remission of any fines, costs, or other
money paid as a consequence of the sealing or expungement.
This amendatory Act of the 93rd General Assembly does not
affect the right of the victim of a crime to prosecute or
defend a civil action for damages. Persons engaged in civil
litigation involving criminal records that have been sealed
may petition the court to open the records for the limited
purpose of using them in the course of litigation.
(20 ILCS 2630/13 new)
Sec. 13. Prohibited conduct; misdemeanor; penalty.
(a) The Department of State Police shall retain records
sealed under subsections (h) and (i) of Section 5. The sealed
records shall be used and disseminated by the Department only
as allowed by law. Upon conviction for any offense, the
Department of Corrections shall have access to all sealed
records of the Department pertaining to that individual.
(b) The sealed records maintained under subsection (a)
are exempt from disclosure under the Freedom of Information
Act.