97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB4460
 
Introduced 1/30/2012, by Rep. Anthony DeLuca
 
SYNOPSIS AS INTRODUCED:
 

 
    
725 ILCS 5/112A-17  from Ch. 38, par. 112A-17
750 ILCS 60/217  from Ch. 40, par. 2312-17

     Amends the Code of Criminal Procedure of 1963 and the Illinois Domestic Violence Act of 1986.  Provides that upon petition, the court shall order that a person against whom an emergency order of protection was issued shall have all records related to the emergency order expunged (unless the person violated the order) from the court's records and from the Department of the State Police's Law Enforcement Agencies Data System if: (1) the person who sought the emergency order fails to seek a plenary order of protection before the emergency order expires; (2) there is an agreed dismissal; or (3) the court denies the issuance of a plenary order of protection following the emergency order. Provides that the clerk shall immediately file the expungement order and all records to be expunged shall be expunged no later than 3 business days after the order. Effective June 1, 2012.
  


LRB097 16790 AJO 64376 b

FISCAL NOTE ACT MAY APPLY
 
 
A BILL FOR
 

  
HB4460LRB097 16790 AJO 64376 b


  
1    AN ACT concerning domestic violence.
  
 
2    Be it enacted by the People of the State of Illinois,
 
3represented in the General Assembly:
  
 
 
4    Section 5. The Code of Criminal Procedure of 1963 is 
5amended  by changing Section 112A-17 as follows:
 



6    (725 ILCS 5/112A-17)  (from Ch. 38, par. 112A-17)



7    Sec. 112A-17. Emergency order of protection. 

8    (a) Prerequisites.  An emergency order of protection shall 
9issue if
petitioner
satisfies the requirements of this 
10subsection for one or more of the requested
remedies.  For each 
11remedy requested, petitioner shall establish that:


12        (1) The court has jurisdiction under Section 112A-9;


13        (2) The requirements of Section 112A-14 are satisfied; 
14    and


15        (3) There is good cause to grant the remedy, regardless 
16    of prior service
of process or of notice upon the 
17    respondent, because:


18            (i) For the remedies of "prohibition of abuse" 
19        described in
Section 112A-14(b)(1), "stay away order 
20        and additional prohibitions" described
in Section

21        112A-14(b)(3), "removal or concealment of minor child" 
22        described in Section
112A-14(b)(8), "order to appear" 
23        described in Section 112A-14(b)(9), "physical
care and 
 
 
HB4460- 2 -LRB097 16790 AJO 64376 b

1        possession of the minor child" described in Section 
2        112A-14(b)(5),
"protection of property" described in 
3        Section 112A-14(b)(11), "prohibition
of entry" 
4        described in Section 112A-14(b)(14), "prohibition of 
5        firearm possession" described in Section 
6        112A-14(b)(14.5), "prohibition of access to
records" 
7        described in Section 112A-14(b)(15), and "injunctive 
8        relief"
described in Section 112A-14(b)(16), the harm 
9        which that remedy
is intended to prevent would be 
10        likely to occur if the respondent were given
any prior 
11        notice, or greater notice than was actually given, of 
12        the petitioner's
efforts to obtain judicial relief;


13            (ii) For the remedy of "grant of exclusive 
14        possession of residence"
described in Section 
15        112A-14(b)(2), the immediate danger of further
abuse 
16        of petitioner by respondent,
if petitioner chooses or 
17        had chosen to remain in the residence or household

18        while respondent was given any prior notice or greater 
19        notice than was
actually given of petitioner's efforts 
20        to obtain judicial relief,
outweighs the hardships to 
21        respondent of an emergency order
granting petitioner 
22        exclusive possession of the residence or household.

23        This remedy shall not be denied because petitioner has 
24        or could obtain temporary
shelter elsewhere while 
25        prior notice is given to respondent, unless the

26        hardships to respondent from exclusion from the home 
 
 
HB4460- 3 -LRB097 16790 AJO 64376 b

1        substantially outweigh
those to petitioner.


2            (iii) For the remedy of "possession of personal 
3        property"
described in
Section 112A-14(b)(10), 
4        improper disposition of the
personal property would be 
5        likely
to occur if respondent were given any prior 
6        notice, or greater notice than
was actually given, of 
7        petitioner's efforts to obtain judicial relief, or

8        petitioner has an immediate and pressing need for 
9        possession of that property.

10    An emergency order may not include the counseling, legal 
11custody, payment
of support or monetary compensation remedies.

12    (b) Appearance by respondent.
If respondent appears in 
13court for this hearing for an emergency order,
he or she may 
14elect to file a general appearance and testify.  Any
resulting 
15order may be an emergency order, governed by this Section.  
16Notwithstanding the
requirements of this Section, if all 
17requirements of Section 112A-18 have been
met, the Court may 
18issue a 30-day interim order.

19    (c) Emergency orders: court holidays and evenings.


20        (1) Prerequisites.  When the court is unavailable at the 
21    close of
business, the petitioner may file a petition for a 
22    21-day emergency order
before any available circuit judge 
23    or associate judge who may grant relief
under this Article.  
24    If the judge finds that there is an immediate and present

25    danger of abuse to petitioner and that petitioner has 
26    satisfied the
prerequisites set forth in subsection (a) of 
 
 
HB4460- 4 -LRB097 16790 AJO 64376 b

1    Section 112A-17, that judge
may issue an emergency order of 
2    protection.


3        (1.5) Issuance of order.  The chief judge of the circuit 
4    court
may designate for each county in the circuit at least 
5    one judge to be
reasonably available to
issue orally, by 
6    telephone, by facsimile, or otherwise, an emergency
order 
7    of protection at all times, whether or not the court is in 
8    session.


9        (2) Certification and transfer.  The judge who issued 
10    the order under this Section shall promptly communicate or 
11    convey the order to the sheriff to facilitate the entry of  
12    the order into the Law Enforcement Agencies Data System by 
13    the Department of State Police pursuant to Section 112A-28. 
14    Any order issued under this Section and
any  documentation 
15    in support thereof shall be certified on the next court
day 
16    to the appropriate court.  The clerk of that court shall 
17    immediately
assign a case number, file the petition, order 
18    and other documents with the
court and enter the order of 
19    record and file it with the sheriff for
service, in 
20    accordance with Section 112A-22.  Filing the petition shall

21    commence proceedings for further relief, under Section 
22    112A-2.
Failure to comply with the requirements of this 
23    subsection shall not affect
the validity of the order.

24    (d) Expungement
25        (1) Upon the petition of a respondent subject to an 
26    emergency order issued under this Section, the court shall 
 
 
HB4460- 5 -LRB097 16790 AJO 64376 b

1    order that all records related to the emergency order be 
2    expunged from the court's records and from the Law 
3    Enforcement Agencies Data System maintained by the 
4    Department of the State Police if the petitioner who sought 
5    the emergency order failed to seek a plenary order of 
6    protection under this Code prior to the expiration of the 
7    emergency order.
8        (2) Following issuance of an emergency order of 
9    protection under this Section, upon the subsequent denial 
10    of a plenary order of protection, an agreed dismissal of an 
11    action for a plenary order of protection, or the dismissal 
12    of an action for a plenary order of protection due to the 
13    petitioner's or the petitioner's legal counsel's failure 
14    to appear, the court shall order all records related to the 
15    emergency order be expunged from the court's records and 
16    from the Law Enforcement Agencies Data System maintained by 
17    the Department of the State Police. 
18        (3) The clerk of the court shall immediately file a 
19    certified copy of the expungement order with the Department 
20    of the State Police. 
21        (4) All records related to the emergency order required 
22    to be expunged under this subsection shall be expunged no 
23    later than 3 business days after the court issues the 
24    expungement order. 
25        (5) Records related to an emergency order of protection 
26    shall not be expunged under this subsection if the 
 
 
HB4460- 6 -LRB097 16790 AJO 64376 b

1    respondent against whom the emergency order was issued 
2    violated the order. 
3(Source: P.A. 96-1239, eff. 1-1-11; 96-1241, eff. 1-1-11; 
497-333, eff. 8-12-11.)

 
5    Section 10. The Illinois Domestic Violence Act of 1986 is 
6amended  by changing Section 217 as follows:
 



7    (750 ILCS 60/217)  (from Ch. 40, par. 2312-17)


8    Sec. 217. Emergency order of protection. 

9    (a) Prerequisites.  An emergency order of protection shall 
10issue if
petitioner satisfies the requirements of this 
11subsection for one or more of the
requested remedies.  For each 
12remedy requested, petitioner shall establish
that:


13        (1) The court has jurisdiction under Section 208;


14        (2) The requirements of Section 214 are satisfied; and


15        (3) There is good cause to grant the remedy, regardless 
16    of prior service
of process or of notice upon the 
17    respondent, because:


18            (i) For
the remedies of "prohibition of abuse" 
19        described in
Section 214(b)(1), "stay away order and 
20        additional prohibitions" described in
Section

21        214(b)(3), "removal or concealment of minor child" 
22        described in Section
214(b)(8), "order to appear" 
23        described in Section 214(b)(9), "physical
care and 
24        possession of the minor child" described in Section 
 
 
HB4460- 7 -LRB097 16790 AJO 64376 b

1        214(b)(5),
"protection of property" described in 
2        Section 214(b)(11), "prohibition
of entry" described 
3        in Section 214(b)(14), "prohibition of firearm 
4        possession" described in Section 214(b)(14.5), 
5        "prohibition of access to
records" described in 
6        Section 214(b)(15), and "injunctive relief"
described 
7        in Section 214(b)(16), the harm which that remedy
is 
8        intended to prevent would be likely to occur if the 
9        respondent were given
any prior notice, or greater 
10        notice than was actually given, of the
petitioner's 
11        efforts to obtain judicial relief;


12            (ii) For the remedy of "grant of exclusive 
13        possession of
residence" described in Section 
14        214(b)(2), the immediate danger of further
abuse of 
15        petitioner by respondent,
if petitioner chooses or had 
16        chosen to remain in the residence or household
while 
17        respondent was given any prior notice or greater notice 
18        than was
actually given of petitioner's efforts to 
19        obtain judicial relief,
outweighs the hardships to 
20        respondent of an emergency order
granting petitioner 
21        exclusive possession of the residence or household.

22        This remedy shall not be denied because petitioner has 
23        or could obtain
temporary shelter elsewhere while 
24        prior notice is given to respondent, unless
the

25        hardships to respondent from exclusion from the home 
26        substantially outweigh
those to petitioner;


 
 
HB4460- 8 -LRB097 16790 AJO 64376 b

1            (iii) For the remedy of "possession of personal 
2        property"
described in
Section 214(b)(10), improper 
3        disposition of the personal
property would be likely
to 
4        occur if respondent were given any prior notice, or 
5        greater notice than
was actually given, of 
6        petitioner's efforts to obtain judicial relief, or

7        petitioner has an immediate and pressing need for 
8        possession of that property.

9    An emergency order may not include the counseling, legal 
10custody, payment
of support or monetary compensation remedies.

11    (b) Appearance by respondent.
If respondent appears in 
12court for this hearing for an emergency order,
he or she may 
13elect to file a general appearance and testify.
Any resulting 
14order may be an emergency order, governed
by this Section.

15Notwithstanding the requirements of this Section, if all 
16requirements of
Section 218 have been met, the court may issue 
17a 30-day interim order.

18    (c) Emergency orders:  court holidays and evenings.


19        (1) Prerequisites.  When the court is unavailable at the 
20    close of
business, the petitioner may file a petition for a 
21    21-day emergency order
before any available circuit judge 
22    or associate judge who may grant relief
under this Act.  If 
23    the judge finds that there is an immediate and present

24    danger of abuse to petitioner and that petitioner has 
25    satisfied the
prerequisites set forth in subsection (a) of 
26    Section 217, that judge may
issue an emergency order of 
 
 
HB4460- 9 -LRB097 16790 AJO 64376 b

1    protection.


2        (1.5) Issuance of order.  The chief judge of the circuit 
3    court
may designate for each county in the circuit at least 
4    one judge to be
reasonably available to
issue orally, by 
5    telephone, by facsimile, or otherwise, an emergency
order 
6    of protection at all times, whether or not the court is in 
7    session.


8        (2) Certification and transfer. The judge who issued 
9    the order under this Section shall promptly communicate or 
10    convey the order to the sheriff to facilitate the entry of 
11    the order into the Law Enforcement Agencies Data System by 
12    the Department of State Police pursuant to Section 302.  Any 
13    order issued under this Section and
any documentation in 
14    support thereof shall be certified on the next court
day to 
15    the appropriate court.  The clerk of that court shall 
16    immediately
assign a case number, file the petition, order 
17    and other documents with the
court, and enter the order of 
18    record and file it with the sheriff for
service, in 
19    accordance with Section 222.  Filing the petition
shall 
20    commence proceedings for further relief under Section 202.

21    Failure to comply with the requirements of this subsection 
22    shall not
affect the validity of the order.

23    (d) Expungement.
24        (1) Upon the petition of a respondent subject to an 
25    emergency order issued under this Section, the court shall 
26    order that all records related to the emergency order be 
 
 
HB4460- 10 -LRB097 16790 AJO 64376 b

1    expunged from the court's records and from the Law 
2    Enforcement Agencies Data System maintained by the 
3    Department of the State Police if the petitioner who sought 
4    the emergency order failed to seek a plenary order of 
5    protection under this Act prior to the expiration of the 
6    emergency order.
7        (2) Following issuance of an emergency order of 
8    protection under this Section, upon the subsequent denial 
9    of a plenary order of protection, an agreed dismissal of an 
10    action for a plenary order of protection, or the dismissal 
11    of an action for a plenary order of protection due to the 
12    petitioner's or the petitioner's legal counsel's failure 
13    to appear, the court shall order all records related to the 
14    emergency order be expunged from the court's records and 
15    from the Law Enforcement Agencies Data System maintained by 
16    the Department of the State Police. 
17        (3) The clerk of the court shall immediately file a 
18    certified copy of the expungement order with the Department 
19    of the State Police. 
20        (4) All records related to an emergency order required 
21    to be expunged under this subsection shall be expunged no 
22    later than 3 business days after the court issues the 
23    expungement order. 
24        (5) Records related to an emergency order of protection 
25    shall not be expunged under this subsection if the 
26    respondent against whom the emergency order was issued 
 
 
HB4460- 11 -LRB097 16790 AJO 64376 b

1    violated the order. 
2(Source: P.A. 96-701, eff. 1-1-10; 96-1241, eff. 1-1-11.)

 
 
3    Section 99. Effective date. This Act takes effect June 1, 
42012.