What is the Illinois Statute That Deals With Expunging Records?
Under the Illinois Statute (20 ILCS 2630/5.2), many people have the chance to expunge or seal their past criminal records in order to clear their names once and for all. In fact, expunging and sealing records has become easier than ever before. Since 2017, when HB 2373 was passed, prior convictions no longer prohibit an individual from expunging a separate charge that would otherwise be expungable. Moreover, now even some felony convictions may qualify to be sealed from public view.
So, what does it mean to expunge your record?
In very simple terms, expunging a criminal charge means that certain Illinois records for that particular charge will be destroyed or erased. The general public, Illinois courts, and local and state police will no longer have access to such information relating to an arrest or to court records from an expunged case.
However, our government is set up in such a way that the Federal Government supersedes all the State Governments. This means that when an Illinois court allows a criminal charge to be expunged, the Federal Government is not obligated to destroy their records. This is because the State Court doesn’t have authority over the Federal Government to tell them what to do. As of now, there is no Federal equivalent to expunging records at the Federal level. Even after a State Court orders the expungement of records, the Federal Government will still maintain their records. All fingerprints, DNA, arrest records, and case dispositions will still be visible to Federal Governmental agencies. This is especially important if the individual petitioning to have their charges expunged is not a US citizen. The US immigration agency will still see the records after they have been expunged and this may still cause complications with maintaining or adjusting their legal status in the US.
What does sealing mean?
Unlike expunged charges, a sealed charge isn’t fully destroyed or erased. It is sealed from the public’s view only. This means that the arrest and court records are fully maintained, but the general public will no longer be able to see the charges. It is primarily intended to help people gain employment without their potential employer being able to see certain records. However, the court, local, and state police will still have full access to the records and may still be able to use these charges against you in future criminal proceedings.
What’s the difference between expunging and sealing?
The main difference between expunging and sealing a charge is who still has access to it. In an expungement, certain case records are destroyed. In a sealed case, the case records remain intact, but only visible to government agencies. In both expungements and sealings, the general public is not intended to have access to any reports.
What can be expunged?
Illinois laws relating to expungements have become more lenient over the past several years. Now, many misdemeanors, felonies, and ordinance violations can be expunged from your record.
In general, criminal cases where the defendant was found not guilty are eligible for expungement. But that’s not all. Cases that resulted in the defendant pleading guilty and receiving a sentence of court supervision, 710 probation, 1410 probation, TASC probation, drug probation, first offender probation, and second chance probation also will likely qualify for expungement.
Common charges that may qualify (depending on the specific court sentence) include:
- Possession of Cannabis
- Possession of Drug Paraphernalia
- Assault & Battery
- Disorderly Conduct
- Retail Theft
- Unlawful Use of Weapon
- Criminal Trespass
- Criminal Damage to Property
What can’t be expunged?
In certain instances, a criminal charge will not qualify for an expungement, but the law in Illinois may still allow it to be sealed. Such instances may include situations where the defendant was found guilty at a trial and a conviction was entered. These convictions include regular probation (not the probations specifically listed above under what can be expunged section) and conditional discharge.
Additionally, there are some situations where a criminal charge cannot be expunged or sealed. under Illinois law. As relates to this current law, neither convictions nor court supervisions can be expunged or sealed from a criminal record for matters including:
- DUI (unless it was dismissed without pleading guilty or a finding of guilt)
- Minor and most Major Traffic Offenses
- Animal abuse crimes
- Domestic Battery
- Most Sex Crimes
Under what circumstances am I eligible for an expungement?
Granting an expungement is always discretionary with a judge. Just because you meet all the criteria, it doesn’t guarantee that a judge will grant your expungement, although a high percentage of petitions in which the Petitioner was eligible are in fact granted. The criteria for determining whether you are eligible for filing include:
- Convictions are generally not expungable, regardless of whether they are misdemeanors or felonies. But if your conviction was vacated or reversed, OR if you received a pardon from the Governor that allows expungement, OR if you were found “factually innocent”, OR if received what is called a Certificate of Eligibility for Expungement given to you by the Prisoner Review Board, then such a conviction will not disqualify you.
- Another exception to the rule that you can’t expunge convictions is if you received a special type of Qualified Probation and then you wait at least 5 years after the probation terminates and you pass a drug test within 30 days of requesting the expungement.
- The crime needs to relate to something for which you were released after being arrested, without any charges being filed against you, OR you were released from custody for a minor traffic offense without being charged, OR you were formally charged with the crime, but you were later found not guilty or released without a conviction being entered.
- A crime can be expungable if you received a special type of “qualified probation” AND you pass a drug test in the 30 days before filing AND at least 5 years has gone by since successful completion of that special probation.
- A crime can be expungable if you successfully completed a sentence of supervision. Then depending on the specific crime, you would be eligible for an expungement either 2 years or 5 years after successful completion. Exceptions to this rule include DUI cases, reckless driving supervisions when over 25 years of age, and sex offenses committed against a victim under the age of 18.
- If you received a reckless driving supervision when under the age of 25 and have not been convicted of any other DUIs or reckless driving charges and have now attained the age of 25 years old or greater, you should also qualify for an expungement.
What happens after I petition to expunge?
After filing a petition to expunge records, the State will have 60 days to object to the petition. In some Illinois counties, the clerk of the circuit court will automatically schedule a court date for a hearing on the petition. In other Illinois counties a court date is only scheduled if the State decides to object. In Chicago, it’s necessary for us to file a special motion, called a “motion to expedite” in order to get the hearing scheduled.
If the State doesn’t object to the petition to expunge, and no court date has been scheduled, the Judge will review the petition and decide to grant or deny the petition. If granted, the Judge will sign a court order and then the process of destroying/sealing the records will begin. The clerk of the circuit court will be the first agency to seal their records and hide any mention of it on their computer system. They will then forward the order from the Court to the other government agencies involved in the case to destroy their records. This can be a time-consuming process, and often takes a number of months before all applicable records have been successfully destroyed or sealed. Keep in mind that that an expungement in Illinois cannot order a private company (such as a background check company) to purge their records. This is discussed in our article titled: Will an Expungement Erase my Whole Criminal History?
What if the State’s Attorney objects to my expungement?
If the State objects to the petition, then a hearing will be scheduled, if it hasn’t already been scheduled. Both the petitioner and the State will argue before the Judge why the court should grant or deny the petition and the Judge will ultimately decide this question.
In some situations, if a petition is filed in an untimely manner or is barred from being expunged or sealed for certain reasons. In such circumstances, the law may prohibit the Judge from granting the petition. In other situations, the State may choose to object because they believe it is in the best interest of the public for the record to remain visible. In this situation, it is in the Judge’s discretion as to whether to grant the petition over a State’s Attorney’s objection.
Speak to an experienced expungement attorney
At Mitchell S. Sexner & Associates LLC, we have been representing both criminal and traffic clients for over 30 years, as well as working to expunge their records afterwards. The vast majority of all the expungements we file are successfully granted. If you’d like to discuss a possible expungement, please contact us at (312) 644-0444