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 your arrest and/or criminal court records by private and/or public entities.
Your FBI records show what you have been charged with and convicted for, and can be helpful as you pursue the expungement or sealing of your records. If you're an NIU student, make an appointment with us to discuss your eligibility for 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, probation, 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.
Dispositions which qualify for expungement include:
- An arrest where no charges were filed.
- The dismissal of the charge(s) prior to trial for want of prosecution, sometimes called nolle prosequi.
- A charge or charges stricken with leave to reinstate, referred to as SOL.
- An acquittal or not guilty finding after trial, 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).
- Convictions 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).
- A pardon in which the governor has specifically stated that the records should be expunged.
- Court supervision.
Certain first-time offenses under the Cannabis Control Act, Controlled Substances Act, Steroid Control Act and Alcohol and Drug Dependency Act 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 for ordinary traffic tickets, orders of protection, civil orders or judgments.
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, as well as necessary forms, consult the Office of the State Appellate Defender or call toll-free: 866-431-4907.
Some criminal records, while not expungeable, can be sealed through a court procedure. The categories of records that can be sealed include the following:
- Felony convictions for felony prostitution or certain class four felony convictions under the Cannabis Control Act, Controlled Substances Act or the Methamphetamine Control and Community Protection Act.
- 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 and reckless conduct; violation of an order of protection; violation of the Humane Care for Animals Act; or an offense that would subject a person to registration under the Sex Offender Registration Act.
- 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.
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 and you made a demand for trial, you must wait 120 days after the dismissal. You must wait 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 two years in most cases. The two-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 five years after the termination of court supervision. These cases include domestic battery, retail theft, reckless driving and driving without insurance, as well as first-offense drug, controlled substance, steroid, 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.
If you are seeking to seal the records of a case or cases involving a conviction, you must wait four years after your probation, parole or other sentence is finished. If there is more than one record to be sealed, four years must have elapsed since the last case was finished. You also cannot have been convicted of a felony or misdemeanor or have been placed on court supervision for a felony or misdemeanor during the four years.
If you are seeking to seal the records of a case involving court supervision, you must wait three years after your case was dismissed from court supervision. You cannot have been convicted of a felony or misdemeanor or have been placed on court supervision for a felony or misdemeanor during the three years.
Effects on Employment, Certification/Licensing and Freedom of Information Requests
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 stating 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 (FOIA).
Steps to Follow
Get the Necessary Information
It is not uncommon for someone who has been arrested and been to court to 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. Find location and phone numbers of circuit court clerks in Illinois. 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:
- The case number.
- The arresting agency.
- The date of arrest.
- 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 for determining whether you can expunge or seal the records of the case(s) and, if so, whether it 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. In this event, 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 don't 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 ways to do this: a fingerprint-based search and an alphanumeric-based search. Forms for requesting this information can be ordered online or by phone at 815-740-5216. Instructions for completing the forms are on the back of the form. The Illinois State Police maintains Illinois criminal history record information only.
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 statewide, 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.
Get 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. A complete discussion of the law of expungement and sealing, along with forms, is available at the Office of the State Appellate Defender website. Cook County expungement and sealing forms, along with directions for filing, are available online.
File 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 and other details. Often, circuit clerks will have prepared a booklet which includes the necessary forms for this purpose.
For cases in Cook County, you will need to file the petition in the district where the case arose.
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, so 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 nonexpungeable or nonsealable.
Please note 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.
Be Aware of 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 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.
Provide 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 state's 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 the file is located and through the Office of the Appellate Defender website.
Be Aware of Court Requirements
In some counties, such as DeKalb, a mandatory court date is set for consideration of the petition by a judge. In other counties, such as Cook, 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.
Entering the 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.
Entering the Order to Seal 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.