093_HB2391sam004 LRB093 07037 RLC 16190 a 1 AMENDMENT TO HOUSE BILL 2391 2 AMENDMENT NO. . Amend House Bill 2391 by replacing 3 everything after the enacting clause with the following: 4 "Section 5. The Criminal Identification Act is amended 5 by changing Section 5 and adding Sections 11, 12, and 13 as 6 follows: 7 (20 ILCS 2630/5) (from Ch. 38, par. 206-5) 8 Sec. 5. Arrest reports; expungement. 9 (a) All policing bodies of this State shall furnish to 10 the Department, daily, in the form and detail the Department 11 requires, fingerprints and descriptions of all persons who 12 are arrested on charges of violating any penal statute of 13 this State for offenses that are classified as felonies and 14 Class A or B misdemeanors and of all minors of the age of 10 15 and over who have been arrested for an offense which would be 16 a felony if committed by an adult, and may forward such 17 fingerprints and descriptions for minors arrested for Class A 18 or B misdemeanors. Moving or nonmoving traffic violations 19 under the Illinois Vehicle Code shall not be reported except 20 for violations of Chapter 4, Section 11-204.1, or Section 21 11-501 of that Code. In addition, conservation offenses, as 22 defined in the Supreme Court Rule 501(c), that are classified -2- LRB093 07037 RLC 16190 a 1 as Class B misdemeanors shall not be reported. 2 Whenever an adult or minor prosecuted as an adult, not 3 having previously been convicted of any criminal offense or 4 municipal ordinance violation, charged with a violation of a 5 municipal ordinance or a felony or misdemeanor, is acquitted 6 or released without being convicted, whether the acquittal or 7 release occurred before, on, or after the effective date of 8 this amendatory Act of 1991, the Chief Judge of the circuit 9 wherein the charge was brought, any judge of that circuit 10 designated by the Chief Judge, or in counties of less than 11 3,000,000 inhabitants, the presiding trial judge at the 12 defendant's trial may upon verified petition of the defendant 13 order the record of arrest expunged from the official records 14 of the arresting authority and the Department and order that 15 the records of the clerk of the circuit court be sealed until 16 further order of the court upon good cause shown and the name 17 of the defendant obliterated on the official index required 18 to be kept by the circuit court clerk under Section 16 of the 19 Clerks of Courts Act, but the order shall not affect any 20 index issued by the circuit court clerk before the entry of 21 the order. The Department may charge the petitioner a fee 22 equivalent to the cost of processing any order to expunge or 23 seal the records, and the fee shall be deposited into the 24 State Police Services Fund. The records of those arrests, 25 however, that result in a disposition of supervision for any 26 offense shall not be expunged from the records of the 27 arresting authority or the Department nor impounded by the 28 court until 2 years after discharge and dismissal of 29 supervision. Those records that result from a supervision 30 for a violation of Section 3-707, 3-708, 3-710, 5-401.3, or 31 11-503 of the Illinois Vehicle Code or a similar provision of 32 a local ordinance, or for a violation of Section 12-3.2, 33 12-15 or 16A-3 of the Criminal Code of 1961, or probation 34 under Section 10 of the Cannabis Control Act, Section 410 of -3- LRB093 07037 RLC 16190 a 1 the Illinois Controlled Substances Act, Section 12-4.3(b)(1) 2 and (2) of the Criminal Code of 1961 (as those provisions 3 existed before their deletion by Public Act 89-313), Section 4 10-102 of the Illinois Alcoholism and Other Drug Dependency 5 Act when the judgment of conviction has been vacated, Section 6 40-10 of the Alcoholism and Other Drug Abuse and Dependency 7 Act when the judgment of conviction has been vacated, or 8 Section 10 of the Steroid Control Act shall not be expunged 9 from the records of the arresting authority nor impounded by 10 the court until 5 years after termination of probation or 11 supervision. Those records that result from a supervision 12 for a violation of Section 11-501 of the Illinois Vehicle 13 Code or a similar provision of a local ordinance, shall not 14 be expunged. All records set out above may be ordered by the 15 court to be expunged from the records of the arresting 16 authority and impounded by the court after 5 years, but shall 17 not be expunged by the Department, but shall, on court order 18 be sealed by the Department and may be disseminated by the 19 Department only as required by law or to the arresting 20 authority, the State's Attorney, and the court upon a later 21 arrest for the same or a similar offense or for the purpose 22 of sentencing for any subsequent felony. Upon conviction for 23 any offense, the Department of Corrections shall have access 24 to all sealed records of the Department pertaining to that 25 individual. 26 (a-5) Those records maintained by the Department for 27 persons arrested prior to their 17th birthday shall be 28 expunged as provided in Section 5-915 of the Juvenile Court 29 Act of 1987. 30 (b) Whenever a person has been convicted of a crime or 31 of the violation of a municipal ordinance, in the name of a 32 person whose identity he has stolen or otherwise come into 33 possession of, the aggrieved person from whom the identity 34 was stolen or otherwise obtained without authorization, upon -4- LRB093 07037 RLC 16190 a 1 learning of the person having been arrested using his 2 identity, may, upon verified petition to the chief judge of 3 the circuit wherein the arrest was made, have a court order 4 entered nunc pro tunc by the chief judge to correct the 5 arrest record, conviction record, if any, and all official 6 records of the arresting authority, the Department, other 7 criminal justice agencies, the prosecutor, and the trial 8 court concerning such arrest, if any, by removing his name 9 from all such records in connection with the arrest and 10 conviction, if any, and by inserting in the records the name 11 of the offender, if known or ascertainable, in lieu of the 12 aggrieved's name. The records of the clerk of the circuit 13 court clerk shall be sealed until further order of the court 14 upon good cause shown and the name of the aggrieved person 15 obliterated on the official index required to be kept by the 16 circuit court clerk under Section 16 of the Clerks of Courts 17 Act, but the order shall not affect any index issued by the 18 circuit court clerk before the entry of the order. Nothing 19 in this Section shall limit the Department of State Police or 20 other criminal justice agencies or prosecutors from listing 21 under an offender's name the false names he or she has used. 22 For purposes of this Section, convictions for moving and 23 nonmoving traffic violations other than convictions for 24 violations of Chapter 4, Section 11-204.1 or Section 11-501 25 of the Illinois Vehicle Code shall not be a bar to expunging 26 the record of arrest and court records for violation of a 27 misdemeanor or municipal ordinance. 28 (c) Whenever a person who has been convicted of an 29 offense is granted a pardon by the Governor which 30 specifically authorizes expungement, he may, upon verified 31 petition to the chief judge of the circuit where the person 32 had been convicted, any judge of the circuit designated by 33 the Chief Judge, or in counties of less than 3,000,000 34 inhabitants, the presiding trial judge at the defendant's -5- LRB093 07037 RLC 16190 a 1 trial, may have a court order entered expunging the record of 2 arrest from the official records of the arresting authority 3 and order that the records of the clerk of the circuit court 4 and the Department be sealed until further order of the court 5 upon good cause shown or as otherwise provided herein, and 6 the name of the defendant obliterated from the official index 7 requested to be kept by the circuit court clerk under Section 8 16 of the Clerks of Courts Act in connection with the arrest 9 and conviction for the offense for which he had been pardoned 10 but the order shall not affect any index issued by the 11 circuit court clerk before the entry of the order. All 12 records sealed by the Department may be disseminated by the 13 Department only as required by law or to the arresting 14 authority, the State's Attorney, and the court upon a later 15 arrest for the same or similar offense or for the purpose of 16 sentencing for any subsequent felony. Upon conviction for 17 any subsequent offense, the Department of Corrections shall 18 have access to all sealed records of the Department 19 pertaining to that individual. Upon entry of the order of 20 expungement, the clerk of the circuit court shall promptly 21 mail a copy of the order to the person who was pardoned. 22 (c-5) Whenever a person has been convicted of criminal 23 sexual assault, aggravated criminal sexual assault, predatory 24 criminal sexual assault of a child, criminal sexual abuse, or 25 aggravated criminal sexual abuse, the victim of that offense 26 may request that the State's Attorney of the county in which 27 the conviction occurred file a verified petition with the 28 presiding trial judge at the defendant's trial to have a 29 court order entered to seal the records of the clerk of the 30 circuit court in connection with the proceedings of the trial 31 court concerning that offense. However, the records of the 32 arresting authority and the Department of State Police 33 concerning the offense shall not be sealed. The court, upon 34 good cause shown, shall make the records of the clerk of the -6- LRB093 07037 RLC 16190 a 1 circuit court in connection with the proceedings of the trial 2 court concerning the offense available for public inspection. 3 (d) Notice of the petition for subsections (a), (b), and 4 (c) shall be served upon the State's Attorney or prosecutor 5 charged with the duty of prosecuting the offense, the 6 Department of State Police, the arresting agency and the 7 chief legal officer of the unit of local government affecting 8 the arrest. Unless the State's Attorney or prosecutor, the 9 Department of State Police, the arresting agency or such 10 chief legal officer objects to the petition within 30 days 11 from the date of the notice, the court shall enter an order 12 granting or denying the petition. The clerk of the court 13 shall promptly mail a copy of the order to the person, the 14 arresting agency, the prosecutor, the Department of State 15 Police and such other criminal justice agencies as may be 16 ordered by the judge. 17 (e) Nothing herein shall prevent the Department of State 18 Police from maintaining all records of any person who is 19 admitted to probation upon terms and conditions and who 20 fulfills those terms and conditions pursuant to Section 10 of 21 the Cannabis Control Act, Section 410 of the Illinois 22 Controlled Substances Act, Section 12-4.3 of the Criminal 23 Code of 1961, Section 10-102 of the Illinois Alcoholism and 24 Other Drug Dependency Act, Section 40-10 of the Alcoholism 25 and Other Drug Abuse and Dependency Act, or Section 10 of the 26 Steroid Control Act. 27 (f) No court order issued pursuant to the expungement 28 provisions of this Section shall become final for purposes of 29 appeal until 30 days after notice is received by the 30 Department. Any court order contrary to the provisions of 31 this Section is void. 32 (g) Except as otherwise provided in subsection (c-5) of 33 this Section, the court shall not order the sealing or 34 expungement of the arrest records and records of the circuit -7- LRB093 07037 RLC 16190 a 1 court clerk of any person granted supervision for or 2 convicted of any sexual offense committed against a minor 3 under 18 years of age. For the purposes of this Section, 4 "sexual offense committed against a minor" includes but is 5 not limited to the offenses of indecent solicitation of a 6 child or criminal sexual abuse when the victim of such 7 offense is under 18 years of age. 8 (h) (1) Notwithstanding any other provision of this Act 9 to the contrary and cumulative with any rights to expungement 10 of criminal records, whenever an adult or minor prosecuted as 11 an adult charged with a violation of a municipal ordinance or 12 a misdemeanor is acquitted or released without being 13 convicted, or if the person is convicted but the conviction 14 is reversed, or if the person has been convicted of or placed 15 on supervision for a misdemeanor and has not been convicted 16 of a felony or misdemeanor or placed on supervision for a 17 misdemeanor within 3 years after the acquittal or release or 18 reversal of conviction, the completion of the sentence or 19 completion of the terms and conditions of the supervision, if 20 the acquittal, release, finding of not guilty, or conviction 21 occurred on or after the effective date of this amendatory 22 Act of the 93rd General Assembly, the Chief Judge of the 23 circuit in which the charge was brought may have the official 24 records of the arresting authority, the Department, and the 25 clerk of the circuit court sealed 3 years after the dismissal 26 of the charge, the finding of not guilty, the reversal of 27 conviction, or the completion of the sentence or terms and 28 conditions of the supervision, except those records are 29 subject to inspection and use by the court for the purposes 30 of subsequent sentencing for misdemeanor and felony 31 violations and inspection and use by law enforcement agencies 32 and State's Attorneys or other prosecutors in carrying out 33 the duties of their offices. This subsection (h) does not 34 apply to persons convicted of or placed on supervision for: -8- LRB093 07037 RLC 16190 a 1 (1) a violation of Section 11-501 of the Illinois Vehicle 2 Code or a similar provision of a local ordinance; (2) a 3 misdemeanor violation of Article 11 of the Criminal Code of 4 1961 or a similar provision of a local ordinance; (3) a 5 misdemeanor violation of Section 12-15, 12-30, or 26-5 of the 6 Criminal Code of 1961 or a similar provision of a local 7 ordinance; (4) a misdemeanor violation that is a crime of 8 violence as defined in Section 2 of the Crime Victims 9 Compensation Act or a similar provision of a local ordinance; 10 (5) a Class A misdemeanor violation of the Humane Care for 11 Animals Act; or (6) any offense or attempted offense that 12 would subject a person to registration under the Sex Offender 13 Registration Act. 14 (2) Upon acquittal, release without conviction, or 15 conviction of such offense, the person charged with the 16 offense shall be informed by the court of the right to have 17 the records sealed and the procedures for the sealing of the 18 records. Three years after the dismissal of the charge, the 19 finding of not guilty, the reversal of conviction, or the 20 completion of the sentence or the terms and conditions of the 21 supervision, the defendant shall provide the clerk of the 22 court with a notice of request for sealing of records and 23 payment of the applicable fee and a current address and shall 24 promptly notify the clerk of the court of any change of 25 address. The clerk shall promptly serve notice that the 26 person's records are to be sealed on the State's Attorney or 27 prosecutor charged with the duty of prosecuting the offense, 28 the Department of State Police, the arresting agency and the 29 chief legal officer of the unit of local government effecting 30 the arrest. Unless the State's Attorney or prosecutor, the 31 Department of State Police, the arresting agency or such 32 chief legal officer objects to sealing of the records within 33 90 days of notice the court shall enter an order sealing the 34 defendant's records 3 years after the dismissal of the -9- LRB093 07037 RLC 16190 a 1 charge, the finding of not guilty, the reversal of 2 conviction, or the completion of the sentence or the terms 3 and conditions of the supervision. The clerk of the court 4 shall promptly serve by mail or in person a copy of the order 5 to the person, the arresting agency, the prosecutor, the 6 Department of State Police and such other criminal justice 7 agencies as may be ordered by the judge. If an objection is 8 filed, the court shall set a date for hearing. At the hearing 9 the court shall hear evidence on whether the sealing of the 10 records should or should not be granted. 11 (3) The clerk may charge a fee equivalent to the cost 12 associated with the sealing of records by the clerk and the 13 Department of State Police. The clerk shall forward the 14 Department of State Police portion of the fee to the 15 Department and it shall be deposited into the State Police 16 Services Fund. 17 (4) Whenever sealing of records is required under this 18 subsection (h), the notification of the sealing must be given 19 by the circuit court where the arrest occurred to the 20 Department in a form and manner prescribed by the Department. 21 (5) An adult or a minor prosecuted as an adult who was 22 charged with a violation of a municipal ordinance or a 23 misdemeanor who was acquitted, released without being 24 convicted, convicted and the conviction was reversed, 25 convicted of a misdemeanor or placed on supervision for a 26 misdemeanor before the date of this amendatory Act of the 27 93rd General Assembly and was not convicted of a felony or 28 misdemeanor or placed on supervision for a misdemeanor for 3 29 years after the acquittal or release or reversal of 30 conviction, the completion of the sentence or completion of 31 the terms and conditions of the supervision may petition the 32 Chief Judge of the circuit in which the charge was brought, 33 any judge of that circuit in which the charge was brought, 34 any judge of the circuit designated by the Chief Judge, or, -10- LRB093 07037 RLC 16190 a 1 in counties of less than 3,000,000 inhabitants, the presiding 2 trial judge at that defendant's trial, to seal the official 3 records of the arresting authority, the Department, and the 4 clerk of the court, except those records are subject to 5 inspection and use by the court for the purposes of 6 subsequent sentencing for misdemeanor and felony violations 7 and inspection and use by law enforcement agencies, the 8 Department of Corrections, and State's Attorneys and other 9 prosecutors in carrying out the duties of their offices. This 10 subsection (h) does not apply to persons convicted of or 11 placed on supervision for: (1) a violation of Section 11-501 12 of the Illinois Vehicle Code or a similar provision of a 13 local ordinance; (2) a misdemeanor violation of Article 11 of 14 the Criminal Code of 1961 or a similar provision of a local 15 ordinance; (3) a misdemeanor violation of Section 12-15, 16 12-30, or 26-5 of the Criminal Code of 1961 or a similar 17 provision of a local ordinance; (4) a misdemeanor violation 18 that is a crime of violence as defined in Section 2 of the 19 Crime Victims Compensation Act or a similar provision of a 20 local ordinance; (5) a Class A misdemeanor violation of the 21 Humane Care for Animals Act; or (6) any offense or attempted 22 offense that would subject a person to registration under the 23 Sex Offender Registration Act. The State's Attorney or 24 prosecutor charged with the duty of prosecuting the offense, 25 the Department of State Police, the arresting agency and the 26 chief legal officer of the unit of local government effecting 27 the arrest shall be served with a copy of the verified 28 petition and shall have 90 days to object. If an objection is 29 filed, the court shall set a date for hearing. At the hearing 30 the court shall hear evidence on whether the sealing of the 31 records should or should not be granted. The person whose 32 records are sealed under the provisions of this Act shall pay 33 to the clerk of the court and the Department of State Police 34 a fee equivalent to the cost associated with the sealing of -11- LRB093 07037 RLC 16190 a 1 records. The fees shall be paid to the clerk of the court who 2 shall forward the appropriate portion to the Department at 3 the time the court order to seal the defendant's record is 4 forwarded to the Department for processing. The Department of 5 State Police portion of the fee shall be deposited into the 6 State Police Services Fund. 7 (Source: P.A. 91-295, eff. 1-1-00; 91-357, eff. 7-29-99; 8 92-651, eff. 7-11-02.) 9 (20 ILCS 2630/11 new) 10 Sec. 11. Legal assistance and education. Subject to 11 appropriation, the State Appellate Defender shall establish, 12 maintain, and carry out a sealing and expungement program to 13 provide information to persons eligible to have their arrest 14 or criminal history records expunged or sealed. 15 (20 ILCS 2630/12 new) 16 Sec 12. Entry of order; effect of expungement or 17 sealing. 18 (a) Except with respect to law enforcement agencies, the 19 Department of Corrections, State's Attorneys, or other 20 prosecutors, an expunged or sealed record may not be 21 considered by any private or public entity in employment 22 matters, certification, licensing, revocation of 23 certification or licensure, or registration. Applications for 24 employment must contain specific language which states that 25 the applicant is not obligated to disclose sealed or expunged 26 records of conviction or arrest. Employers may not ask if an 27 applicant has had records expunged or sealed. 28 (b) A person whose records have been sealed or expunged 29 is not entitled to remission of any fines, costs, or other 30 money paid as a consequence of the sealing or expungement. 31 This amendatory Act of the 93rd General Assembly does not 32 affect the right of the victim of a crime to prosecute or -12- LRB093 07037 RLC 16190 a 1 defend a civil action for damages. Persons engaged in civil 2 litigation involving criminal records that have been sealed 3 may petition the court to open the records for the limited 4 purpose of using them in the course of litigation. 5 (20 ILCS 2630/13 new) 6 Sec. 13. Prohibited conduct; misdemeanor; penalty. 7 (a) The Department of State Police shall retain records 8 sealed under subsection (h) of Section 5. The sealed records 9 shall be used and disseminated by the Department only as 10 allowed by law. Upon conviction for any offense, the 11 Department of Corrections shall have access to all sealed 12 records of the Department pertaining to that individual. 13 (b) The sealed records maintained under subsection (a) 14 are exempt from disclosure under the Freedom of Information 15 Act.".