State lawmakers changed the law for the expungement process in Illinois significantly in 2010. The new changes impact the eligibility of thousands of persons who have either a conviction or supervision in their background.
Under the new law, the process is generally the same. The person seeking to expunge or seal a court record of his or her criminal charge(s) and arrest must file a petition with the Circuit Court. That person must also serve notice on four governmental agencies of the petition: 1) the law enforcement agency that made the arrest; 2) the chief legal officer of the town, city, or municipality for that police or sheriff’s department; 3) the county State’s Attorney; and 4) the Illinois State Police.
After the waiting period, if the Circuit Court hears no objection, then the presiding judge will make a decision whether to grant or deny the petition to expunge or seal. If granted, the court issues an order directing all concerned parties to expunge or seal the record.
But the new law changes who can get a criminal record expunged or sealed, which offenses are no longer eligible, and the waiting period.
The highlights of the new law are as follows:
Reckless driving and aggravated reckless driving charges cannot be expunged or sealed anymore. The reason is, multiple DUI offenders were avoiding the minimum conviction that comes on a second DUI offense by clearing any trace of prior DUIs which were reduced to reckless driving. Reckless driving, like DUI, is now permanently displayed on a person’s driver’s abstract.
Unlawful Possession of a Controlled Substance
First offenders who completed two years of Section 410 probation for possession of cocaine, heroin, ecstasy or some other controlled substance may have their records expunged, except the court may require them to submit to a drug test before granting the expungement.
After the petitioner has filed for expungement or sealing and notified the four concerned parties, the waiting period for an objection is now double the length of time. The petitioner must now wait for 60 days for an objection rather than 30 days.
Professional drivers such as persons with commercial driver’s licenses (CDLs) who want to protect their driving record cannot have moving violations expunged. This has substantially reduced the relief available for some persons.
But the legislature cleared an ambiguity in the statute concerning convictions that disqualify a person from expungement or sealing. Previously, the statue said that a person could have a record expunged only if they were not convicted of any other offense. The problem this created was, would a conviction for speeding cause the court to deny expungement, or would law enforcement object because of a conviction for a traffic violation?
The author actually spoke with a clerk from the State Police about their policy concerning traffic violations, and she indicated that they would not object because of a moving violation under the old law.
Nonetheless, all ambiguity has been removed because the law now says a minor moving violation does not affect a person’s eligibility for relief.
Under the old law, if a party objected (the State’s Attorney typically objects), then some county courts would deny the petition right then and there. Now, each person is entitled to a hearing whenever one of the four interested parties objects.
The Illinois State Police must post statistics about expungement online. On the date of this article, the author has not seen any release of information from the State Police.
Felony Offense Reduced to Misdemeanor
Often a defendant with no prior convictions who is charged with a felony can negotiate a plea to a misdemeanor. While a reduction to supervision is possible, it is very unlikely. If this occurs and the supervision is completed successfully, then the supervision should be subject to expungement.
On the other hand, if the misdemeanor resulted in a conviction, then the defendant should be eligible for sealing the record, provided all other conditions are met.
Expunging a criminal record is a process that requires a knowledgeable and skilled attorney. Lewis Gainor is the author of this blog and dedicates his practice to criminal law and expungement.