Expungement/Sealing of Criminal Records

Introduction

Under Illinois law, if you have been arrested for a criminal offense, you may have the right to have records of your arrest expunged or sealed. “Expungement” of records and “sealing” of records are different in many respects, but both procedures have the purpose of limiting or preventing access to information regarding an individual’s arrest and/or criminal court records by private and/or public entities.

If you are a Northern Illinois University student, our office can assist you in this process. We are also available to counsel you about seeking a Pardon (below) as well as obtaining a Certificate of Relief from Disabilities (also below), which may facilitate your obtaining licensure in your chosen profession despite having a criminal record. For assistance, contact Students' Legal Assistance at 815-753-1701, Campus Life Building, Room 120.

To see what is on your record we recommend that you obtain a copy of your FBI records. These records will indicate what you have been charged with and convicted for, and make whichever processes you pursue much smoother. For instructions on how these records can be obtained, visit the FBI's website at "Submitting an Identification Record Request to the FBI." To obtain the records you will require a new 10 print fingerprinting. Please contact our office for information on where and how to obtain these prints in the DeKalb area.


Expungement

Expungement is a court procedure in which a person who has been arrested petitions the court in the county where the case was filed for the destruction or return of all records pertaining to his or her case. Typically, an order granting the expungement petition is directed to the arresting police agency, the Illinois State Police Bureau of Identification, and the circuit court clerk of the county in which the case was brought. Records expunged are either destroyed or returned to the petitioner. Records include fingerprints, mug shots, and other records of identification. The circuit clerk does not return or destroy the court file; rather, it impounds or seals the file so that the records will thereafter be unavailable to employers or the general public.


Sealing Records

Sealing is a court procedure that seals court and police records. The records are not destroyed or returned, but are put “under seal,” meaning they are not accessible by employers, members of the general public, or most public entities. Law enforcement officials have access to the records. The procedure for obtaining a court order to seal records is virtually identical to the expungement procedure.


Effects on Employment, Certification/Licensing, and Freedom of Information Requests (FOIA)

Under Illinois law, except with respect to law enforcement agencies, the Department of Corrections, State’s Attorneys and 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 obliged to disclose sealed or expunged records of conviction or arrest. Employers may not ask if an applicant has had records expunged or sealed. Sealed records are exempt from disclosure under the Freedom of Information Act.


Eligibility

Expungement Eligibility Form

Expungement

An expungement is available only where the final outcome of a case, often referred to as the “disposition,” is something other than a conviction. A conviction may be designated by various names, including “conditional discharge,” or “probation,” or “time considered served,” or simply a guilty finding or guilty verdict. The relevant fact is that when a conviction has been entered, the defendant at that point has a “criminal record.” While a conviction cannot be expunged, it can in some instances be “sealed.” See Sealing of Records below.

Dispositions, which qualify for expungement, include:

  1. an arrest where no charge(s) were filed;
  2. the dismissal of the charge(s) prior to trial for want of prosecution, sometimes called “nolle prosequi;”
  3. a charge(s) stricken with leave to reinstate, referred to as “SOL;”
  4. an acquittal or not guilty finding after trial; or on a collateral attack where the appellate court determines clear and convincing evidence that the defendant is factually innocent of the charge(s);
  5. conviction(s) which have been set aside on direct appeal or on a collateral attack where the appellate court determines, by clear and convincing evidence, that the defendant is factually innocent of the charge(s);
  6. a pardon in which the Governor has specifically stated that the records should be expunged; and
  7. court supervision.

Certain first-time offenses under the Cannabis Control Act, Control Substances Act, Steroid Control Act, and Alcohol and Drug Dependency Act offenses are also expungeable.

Expungement is not available for a Driving Under the Influence of Alcohol offense, even where an order of court supervision was entered in the case. Expungement is also not available where a defendant was granted court supervision for a sexual offense committed against a minor under 18 years of age.

Expungement is not available to persons (adults or minors charged as adults) who have been previously convicted of a criminal offense or municipal ordinance violation.

Expungement is not available for ordinary traffic tickets, Orders of Protection, or civil orders or judgments.

Juvenile Records

If you were arrested prior to your 17th birthday and prosecuted under the Juvenile Court Act, you can seek expungement of your juvenile court records. For an excellent discussion of qualifications and the process for expungement of juvenile records, plus necessary forms, consult the Office of the State Appellate Defender Web site, http://state.il.us/defender/exp.html, or call toll-free at 866-431-4907.

Sealing of Records

As stated, some criminal records, while not expungeable, can be sealed through a court procedure. The categories of records that can be sealed include the following:

  1. Felony convictions for felony prostitution or certain Class 4 felony convictions under the Cannabis Control Act, Controlled Substances Act, or the Methamphetamine Control and Community Protection Act;
  2. Municipal ordinance and misdemeanor convictions, except for Driving Under the Influence of Alcohol convictions, Adultery, Fornication, Public Indecency, Bigamy, Obscenity, crimes of violence including Assault, Battery, Domestic Battery, Criminal Sexual Abuse, Reckless Conduct, Violation of an Order of Protection, or Violation of the Humane Care for Animals Act, or an offense that would subject a person to registration under the Sex Offender Registration Act;
  3. Cases that were dismissed after a disposition of court supervision, but in which expungement is not available because the defendant had a previous conviction in another case.

Felony convictions, other than those listed above, do not qualify to be sealed unless a pardon has been received which authorizes an expungement. Sealing is not available for civil orders or judgments.


Waiting Periods

Expungements

If you were arrested but not charged, or if you were acquitted after a trial, you may seek an expungement immediately. If your case is dismissed for want of prosecution or SOL, you must wait 120 days after the dismissal if you made a demand for trial, and 160 days if you did not demand a trial. This applies to all cases, including felonies.

If your case was dismissed following a period of court supervision, you must wait 2 years in most cases. The 2-year waiting period is calculated from the date you successfully completed and were dismissed from court supervision, not the date the court supervision order was entered.

In certain cases, the waiting period is 5 years after the termination of court supervision. These cases include domestic battery, retail theft, reckless driving, driving without insurance, and first-offense drug, controlled substance, steroid or alcohol and drug dependency charges. By law, upon court order, the Illinois State Police Bureau of Identification seals these records but does not destroy them.

Sealing Records

If you are seeking to seal the records of a case(s) involving a conviction, you must wait 4 years after your probation, parole, or other sentence is finished. If there is more than one record to be sealed, 4 years must have elapsed since the last case was finished. You also cannot have been convicted of a felony or misdemeanor or been placed on court supervision for a felony or misdemeanor during the 4 years.

If you are seeking to seal the records of a case involving court supervision, you must wait 3 years after your case was dismissed from court supervision. Please note, you cannot have been convicted of a felony, misdemeanor, or placed on court supervision for a felony or misdemeanor during the 3 years.


Steps to Follow

Getting the Necessary Information

It is not uncommon that someone who has been arrested and goes to court does not know the technical disposition of his/her case(s). The best way to find out what happened in the case(s) is to contact the lawyer, if you were represented by an attorney, or the circuit clerk in the county where the charges were brought. The location and phone numbers of circuit court clerks in Illinois are available at Students' Legal Assistance or can be found online at: http://www.state.il.us/court/CircuitCourt/CircuitMap/Map1.asp. The needed information may also be obtained from the law enforcement agency where the arrest was made.

You will need the following information to fill out the Petition to Expunge or Petition to Seal Records:

  1. the case number
  2. the arresting agency
  3. the date of arrest and,
  4. the charge.

You will also need to find out the disposition of the case(s) and the date of the court order disposing of the case(s). This is necessary so you can determine whether you can expunge or seal the records of the case(s) in the first place, and, if so, whether this can be done immediately or whether you will need to wait an additional period of time before filing.

When you were arrested, you may have been charged with several offenses, one or more of which were subsequently dismissed in conjunction with your pleading guilty to one or more of the other charges. This is commonly what happens when cases are resolved through a plea bargain. Be aware in this event that the cases that were dismissed are still part of the record and should be expunged. Obtain the necessary information on all the cases you were charged with, not just the case you pled guilty to.

If you are not certain you remember all the cases you may have been involved in, you can obtain your criminal conviction record history directly from the Illinois State Police Bureau of Identification. There are two methods to do this: a fingerprint-based search, and an alpha-numeric-based search. Forms for requesting this information can be ordered by phone at (815) 740-5216, or online at http://www.isp.state.il.us. Instructions for completing the forms are on the back of the form. The cost to process a fingerprint request is $16.00; the cost for an alpha-numeric search is $20.00. The Illinois State Police maintains Illinois criminal history record information only.

Be aware that the procedure described above will only provide you with the records of convictions in Illinois. To obtain a complete record of all cases, including court supervisions, dismissals, etc., you need to contact a police agency and request to file a "Right of Access and Review." Specify that the search be "state wide," not just for the specific county in which the police agency is located. The police will take your fingerprints and other information and forward your request to the Bureau of Identification, which will return the requested information to the police agency. The police will then contact you and allow you to review the records and obtain the information you need to prepare the petition for expungement or sealing. The police agency should inform you of the cost, if any, for processing the request. Allow at least 30 days for the return of the records.

Getting the Necessary Forms

The circuit clerk will provide you with the necessary forms. Most counties use generic forms, but some, including Cook County, have their own forms. Generic forms and the Cook County forms are available at Students' Legal Assistance and on our Web site under "Forms." A complete discussion of the law of expungement and sealing, with forms, is contained at the Office of the State Appellate Defender Web site, http://state.il.us/defender/exp.html. Cook County expungement and sealing forms, along with directions for filing, are available online at, www.cookcountyclerkofcourt.org.

Filing the Petition

You must file the Petition to Expunge or Petition to Seal Records in the county where the charges were brought. The circuit clerk will provide you with information about filing fees, scheduling court dates, etc. Often, circuit clerks will have prepared a booklet, which includes the necessary forms for this purpose, http://www.state.il.us/court/CircuitCourt/CircuitMap/Map1.asp.

For cases in Cook County, you will need to file the Petition in the District where the case arose. For the addresses and phone numbers of District 1 (Chicago) and the 5 Suburban Districts (Skokie, Rolling Meadows, Maywood, Bridgeview, and Markham) within Cook County, consult www.cookcountyclerkofcourt.org.

Be aware that if there are charges in more than one county, or more than one District in Cook County, you must file a separate Petition in each county or District. If there are multiple charges in the same court or District, you should ask the circuit clerk whether you can list all the charges on a single petition or if a separate petition must be filed for each charge. There is a charge for filing the Petition such that there is a potential savings in listing all the cases for which you are seeking expungement or sealing of records on one petition. On the other hand, you risk having the Petition being denied in full if any of the cases prove to be non-expungeable or non-sealable.

Be aware also that many Petitions to Expunge and Petitions to Seal used by circuit clerks require you to state under oath that there are no criminal cases pending against you.

Costs

The circuit clerk will tell you the cost of filing the Petition. If you believe that you cannot afford the filing fee, the circuit clerk can provide a fee waiver application, called a “Pauper’s Petition,” or “Petition to Sue as a Poor Person.” You should take this Petition to a judge who will decide whether to waive the filing fee. Realize that the judge may believe that college students have sufficient resources to pay the filing fee.

The Illinois State Police Bureau of Identification charges a separate $60 processing fee to expunge or seal a criminal record. This will be due only if the Petition is granted. The State Police will send you a notice by mail. The arresting police agency may also charge a fee to expunge or seal the record. Check with the circuit clerk and the arresting police agency.

Providing Notice of Filing

When filing the Petition, you will need to give notice of the filing of the Petition to the prosecutor who handled the case, either the State’s Attorney (if the case involved a state charge), or the City or Village Attorney (if the case involved a municipal ordinance). Notice also needs to be given to the arresting police agency, the Illinois Department of State Police, and the chief legal officer of the unit of local government effecting the arrest. (In some cases, this will be the States’ Attorney of the county where the case was filed; in other cases, it will be the corporation counsel in the city where the arresting police agency is located.) Notice forms are available from Students' Legal Assistance, the circuit clerk in the county where file is located, and through the Office of the Appellate Defender Web site, http://state.il.us/defender/exp.html.

Court

In some counties, such as DeKalb, a mandatory court date is set for consideration of the Petition by a judge; in other counties, as in Cook County, the review is handled administratively and you do not need to appear in court unless the Petition is denied, in which case you can request a hearing, asking the judge to reconsider the denial. To determine if an expungement or sealing of records can be obtained by mail, contact the circuit clerk where the Petition is being filed.

Order of Expungement

By statute, no Order of Expungement can be entered for at least 30 days after notice of the filing of the expungement petition has been received by the entities entitled to notice. This is to allow the prosecutor and the arresting police authority to review the Petition for accuracy and to determine whether, in their judgment, you are eligible for an expungement. If no objection is raised by the prosecutor or police, the case should proceed smoothly.

In many counties, if the Order of Expungement is signed by the judge, the circuit clerk will send the necessary copies to the arresting agency and the Bureau of Identification. Ask the circuit clerk, with whom you are dealing, if this is the case. If the clerk does not send out the Order of Expungement on your behalf, you will need to do this. The expunged records will be returned to you or destroyed. You should be notified by the arresting agency and/or the Bureau of Identification that this has taken place.

Order Sealing Records

By statute, no Order to Seal Records can be entered for at least 90 days after notice of the filing of the Petition to Seal has been received by the entities entitled to notice.


Federal Bureau of Investigation (FBI) Records

The court will send the Illinois State Police a copy of the Expungement Order who will then will forward a copy of the Order to the FBI. The FBI will subsequently notify the Illinois State Police that they have completed their processing; the FBI will not contact you directly. You can call the Illinois State Police to check on the status of the FBI expungement at 815-740-5160. If you want to know what is contained in your FBI record visit the FBI's website for instructions at "Submitting an Identification Record Request to the FBI." Among other requirements these requests require a new 10 print fingerprinting. Contact our office for information on where and how to obtain these prints in the DeKalb area.


Pardons

A Pardon is an act of Executive Clemency, a power afforded to the Governor under the Illinois Constitution to "grant reprieves, commutations, and pardons, after conviction, for all offenses on such terms as he thinks proper." Art.5, Sect 12. By statute, if the pardon specifically authorizes it, a person granted a pardon may petition for an expungement of the records relating to the conviction. In this situation, the records held by the arresting police authority are destroyed, while the records held by the circuit clerk and Bureau of Identification are sealed. Guidelines for filing a Petition for Executive Clemency and Petition for Executive Clemency forms are available from the Illinois Prisoner Review Board, 319 East Madison, Street, Suite A, Springfield, Illinois 62701, 217-782-7273, http://www.state.il.us/prb/prbexclemex.htm, or at Students' Legal Assistance. Please be aware that pardons are very seldom granted.


Certificate of Relief from Disabilities

By law, the Prisoner Review Board may issue a "Certificate of Relief from Disabilities," which would allow first-time criminal offenders, who have not been convicted of a violent crime, to get a license or certification required for the following professions: Athletic trainers, land surveyors, landscape architects, engineers, employment counselors, real estate agents, counselors and architects, professional counselors, marriage and family therapists, court reporters, animal welfare inspectors, electrologists, roofers, barbers, nail technicians, boiler repairers, interior designers, boxers, and farm labor contractors.

Obtaining a certificate does not guarantee licensure in the given profession. The law states only that an application for a license shall not be denied by reason of the applicant's having a criminal record or by reason of a finding of a lack of "good moral character," where the finding is based on a criminal conviction if the applicant has been issued a Certificate of Relief from Disabilities. The law states that the state licensing agency involved may consider whether there is a direct relationship between the previous criminal offense and the specific license sought, or whether the issuance of the license would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. In making its determination, the licensing authority is required by law to consider the public policy of the State to encourage the licensure and employment of persons with a prior criminal records, and evidence of the applicant's rehabilitation and good conduct.

Application forms are available from Students' Legal Assistance or the Illinois Prisoner Review Board, http://www.state.il.us/prb/prbexclemex.htm.