Friday, December 2, 2011

Erase Your Criminal Record

By attorney Jeffrey R. Hall of Hall, Rustom & Fritz, LLC

2014 EXPUNGEMENT/SEALING LAW UPDATE:

The Illinois General Legislative Assembly (GLA) has extended the powers of the Expungement/Sealing law allowing citizens to expunge/seal their records for more felony convictions.  

The current law allows for only 3 felony convictions to be eligible for expungement/sealing (Prostitution, Possession of Cannabis and/or with the intent to deliver, and Possession of a Controlled Substance).  

Effective January 1, 2014, the GLA added the following offenses:  

Class 4 Felony Convictions for:
  • Offenses under the Methamphetamine Precursor Control Act
  • Offenses under the Steroid Control Act
  • Theft
  • Retail Theft
  • Deceptive Practices
  • Forgery
  • Possession of Burglary tools
Class 3 Felony Convictions for:
  • Theft
  • Retail Theft
  • Deceptive Practices
  • Forgery
  • Possession with intent to manufacture or deliver a controlled substance under Section 401 of the Illinois Controlled Substances Act.

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Every day, job applicants are denied employment due to past criminal history.  Even college graduates that were accepted to universities, graduated with honors, and possessed great recommendations are denied employment after a criminal background is performed by the employer.  Further, the most common myth about your criminal record is that your record will automatically “go away” after time.  Unfortunately, this is not true.  Once you are arrested and “booked,” you have a record.  This is so even if your case was dismissed, or if you received court supervision or even if you were acquitted of the crime.

               In order to clear your record, it requires time, patience and experience to successfully meet that end.  It is highly recommended you seek the assistance of an attorney concentrating in expungements/sealing of records to maximize your potential to “clean up” your past.  Hall, Rustom & Fritz L.L.C. concentrates in this area and has successfully achieved expungements for many clients over the years.  Below are frequently asked questions involving expungements to assist you in determining to contact one of our attorneys.

What is Record Expungement?

In terms of your permanent criminal record, the term “expunge” means to physically destroy records or to return the records to the petitioner and to obliterate (remove) the petitioner’s name from any official index or public record.  Expunging your record does not remove the record from the county’s office of adult services (probation).  For example, if you plead guilty to a misdemeanor and received court supervision from the court as your sentence, the particular county’s probation office will still maintain your record in their files.  While they cannot divulge the contents of that record to the public, it could affect any new case you obtain where the probation office is familiar with your past indiscretions. 

What is Record Sealing?

               In terms of your permanent criminal record, the term “seal” means to physically and electronically maintain records, but to make the records unavailable to the public without a court order and to obliterate (remove) the petitioner’s name from any official index or public record.  However, law enforcement agencies and the courts will still have access to the records, as will other entities and employers allowed by law or court order.  Thus, if your employer obtains a court order to view the record if it has already been sealed, they will be allowed to under the terms of the judge’s order.  In simple terms, the record will still exist, but it will be much harder for non-court/governmental officials to view.  While it is rare employers will utilize this method to determine what your record shows, they may simply reject your application in favor of someone that does not appear to have any conviction in their background.  Since sealing the record removes it from the public record, your employer will not see your name in the court records thereby alleviating any potential suspicion in your criminal history.

How will I know if my criminal record is eligible for expungement or sealing?

Under 20 ILCS 2630/5.2), you are allowed to expunge/seal qualifying arrests, supervision, and convictions (only convictions allowed to be sealed are Class 4 Drug possession under Section 4 of the Cannabis Control Act or Section 402 of the Controlled Substance Act, Class 4 convictions under the Methamphetamine Precursor Control Act and the Steroid Control Act, and Class 4 prostitution convictions under 720 ILCS 5/11-14). 

However, only those individuals who have never been convicted of a criminal offense or municipal ordinance violation are eligible to expunge records.  If you have ever been convicted of a criminal offense or a municipal ordinance violation, your records may still be eligible for sealing, but you cannot expunge any records, regardless of the outcome of the individual case.

Further, only criminal records prosecuted and maintained by the State of Illinois are affected.  Federal and out-of state-convictions do not fall under Illinois law.

What is a conviction?

A conviction is defined as a final judgment of guilt by the court.  If you received a jail sentence, time served, probation, and/or conditional discharge, you were convicted of that offense and you will likely not qualify for expungement.

What is NOT a conviction?

Dispositions that are not considered convictions are court supervision, Nolle Prosequi (NP), Stricken off with leave to reinstate (SOL), Dismissed, Not guilty, acquittal, or successful completion of first offender drug probation or TASC probation.

I pled guilty (or was found guilty after trial by judge or jury) and I received court supervision as my sentence.  Is my record eligible to be expunged or sealed?

             Many times, petitioners receive court supervision from the court.  Court supervision is defined as a court order holding the case open for a specific period of time, usually between 3 months and two years (minimum 1 day, maximum 2 years).  During that time, no judgment of guilt is entered.  If all the conditions of supervision are followed, the case is “dismissed” and no conviction is ever entered against the defendant.  (Note:  The case is not technically dismissed, per se.  The court simply does NOT enter a conviction against you and the case is closed.  There is still a record of the case that shows you pled guilty to an offense.  However, it is NOT a final adjudication of guilt).
               
              Certain offenses do not qualify to be expunged or sealed—even if you received court supervision.  Those offenses are:

·        625 ILCS 5/11-501            DUI
·        625 ILCS 5/11-503            Reckless Driving,
·        Any sexual offense committed against a minor under the age of 18 years of age.  Sexual offense committed against a minor includes, but is not limited to, the offense of indecent solicitation of a child or criminal sexual abuse when the victim of such offense is under 18 years of age.

On the other hand, some offenses ARE eligible for expungement; however, you must wait 5 years from the date your court supervision terminated successfully to petition the court AND you must not have any pending criminal charges at the time of filing OR any subsequent arrests, formal charges, convictions or court supervision dispositions since the offense you are petitioning to expunge.  These offenses are:

·        625 ICLS 3-707                  Operating an Uninsured Motor Vehicle
·        625 ILCS 3-708                  Suspended Registration or Non-insurance
·        625 ILCS 3-710                  Displaying False Insurance
·        625 ILCS 401.3                  Failure of Scrap Dealer to Keep Records
·        720 ILCS 5/12-3.2             Domestic Battery
·        720 ILCS 5/12-15              Criminal Sexual Abuse (if the victim was 18 yrs or older)
·        720 ILCS 5/16A-3              Retail Theft

If the offense you received court supervision for is not listed above and 2 years has elapsed since you successfully completed your supervision without any other violations AND you do not have any pending criminal charges at the time of filing OR any subsequent arrests, formal charges, convictions or court supervision dispositions since the offense you are petitioning to expunge, you may qualify to have your record expunged. 

If it has not been 2 years since the court supervision was discharged, you will need to wait until 2 years have passed before you qualify to have your record expunged.
What if I was only arrested but no formal charges were filed against me (the charges were dropped)?

Once you are arrested, you have a record.  Sometimes, petitioners have an embarrassing arrest from their past that may show up on a criminal background check.  No matter how insignificant or serious the arrest, many employers factor this into their hiring decision.  You must be proactive in expunging your record even if you were simply arrested for a minor ordinance violation and the charges were dropped.

How will I know if my criminal record is eligible to be sealed?

If you were convicted of one of the following crimes, your record is not eligible to be sealed:

·        625 ILCS 5/11-501            DUI
·        625 ILCS 5/11-503            Reckless Driving,
·        720 ILCS 5/26-5                Dog Fighting,
·        720 ILCS 5/11-6.5             Indecent Solicitation of an Adult,
·        720 ILCS 5/11-7                Adultery,
·        720 ILCS 5/11-9                Fornication,
·        720 ILCS 5/11-9                Public Indecency,
·        720 ILCS 5/11-13              Marrying a Bigamist
·         720 ILCS 5/11-14.1          Solicitation of a Sexual Act,
·        720 ILCS 5/11-15              Solicitation of a prostitute
·        720 ILCS 5/11-17              Keeping a Place of Prostitution
·        720 ILCS 5/11-18              Patronizing a Prostitute
·        720 ILCS 5/11-19              Pimping
·        720 ILCS 5/11-20              Obscenity
·        720 ILCS 5/11-21              Distribution of Harmful Material

If you were convicted of any of the following crimes of violence as defined in Section 2 of the Crime Victims Compensation Act (740 ILCS 45/2), you are NOT eligible for sealing:

·        720 ILCS 5/12-1          Assault
·        720 ILCS 5/12-2          Aggravated Assault
·        720 ILCS 5/12-3          Battery
·        720 ILCS 5/12-3.2       Domestic Battery
·        720 ILCS 5/12-15        Criminal Sexual Abuse
·        720 ILCS 5/12-5          Reckless Conduct
·        720 ILCS 5/12-30        Violation of an Order of Protection,
·        510 ILCS 70/1              A misdemeanor violation of the Humane Care for Animals Act
·        730 ILCS 150/1            Any offense or attempted offense that would subject a person
to registration under the Sex Offender Registration Act

Do I have any other relief under the law if my criminal record does not apply to seal or expunge?

               If your criminal conviction or offense does not qualify for expungement or sealing, you may petition the governor of Illinois for a pardon.  A pardon is a type of executive clemency solely granted by the governor.  Obtaining a pardon is extraordinary and only applies to cases which have resulted in a conviction.  While this could be your only option in clearing your record, it is important to note there is no time limit for the governor to make a decision on a pardon.  Thus, you could wait many years to receive an answer from the governor’s office.

Where can I obtain a copy of my criminal record?

               When obtaining your criminal record, there are several places you can go.  Prior to an attorney assisting you with expungement, the attorney will need a full and complete criminal history.  You will likely save time and money to retrieve your record on your own and then present it to your attorney.  It is also recommended that you contact as many agencies as is necessary to make certain that your record is complete and accurate.  The more times you have been arrested, the more work you will need to do in order to get a complete record. To obtain your record, please contact the following locations:

1.      The arresting agency that arrested you for the offense you seek to expunge/seal.
2.      The Illinois State Police, Bureau of Identification, 260 North Chicago Street, Joliet, IL 60432 or call (815) 740-5160.
3.      The Federal Bureau of Investigation FBI CJIS Division Record Request, 1000 Custer Hollow Road, Clarksburg, WV 26306 or call (304) 625-5590. Visit www.fbi.gov for more information.
a.      Requests to the FBI must be made in writing and must include your name, address, phone number and/or email address, date and place of birth, fingerprints and the required fee.

How long does the expungement/sealing process take?

               The process could take several months and hiring an attorney to file the petition for you is recommended.  In a typical process, the petition is filed at the particular county’s circuit clerk where the offenses you seek to expunge were committed and the clerk’s office sets the matter for hearing.  However, the attorney (or petitioner) 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.  Meanwhile, the circuit clerk sets the petition for hearing, generally 2-3 months after you file.  This allows the State’s Attorney’s office time to research your record and determine if they will object to your petition.  By law, the State is allowed 60 days to object to a Petition to Expunge or a Petition to Seal.  If the State or chief legal officer of the governmental body does not object, the attorney or petitioner will appear for the hearing and request the presiding judge to make a decision whether to grant or deny the petition.  If granted, the court will issue an order directing all notified parties to expunge or seal the record.

Even if an offense on my criminal record qualifies for expungement, can my record still not be expunged after a hearing in front of a judge?

               Yes.  While qualifying for expungement is the first (and obvious) step in clearing your record, it is not absolute.  The court is allowed discretion to determine if the person is not only eligible for expungement, but to determine if the person is an appropriate candidate for expungement/sealing based on prior criminal history—whether or not they pled guilty, were found guilty, or were even charged with a crime.  For example, if the petitioner has numerous criminal infractions that did not result in any disposition other than dismissal or dropping of the charges and the court hears evidence of these infractions, the court may use that evidence of past criminal infractions when determining to grant or deny the petition.

What if I was convicted of a crime and I’m later arrested for a felony which does not result in a conviction?

               If this happens to you, the second arrest is not eligible for either expungement or sealing (except for arrests for Class 4 prostitution and the Class 4 drug cases noted above).  Similarly, felony convictions (except prostitution and Class 4 drug cases noted above) can not be expunged or sealed unless you receive a pardon from the Governor which specifically authorizes expungement.

What if I was charged as a juvenile?

               The juvenile expungement process is different from the adult expungement process.  If you have a juvenile record you wish to have expunged, contact an attorney at Hall & Rustom, L.L.C. to determine if you qualify.

If you have further questions, please visit our website at www.centralillinoislawyers.com and complete our online submission form. Or, you can call our office at 309-699-4691 or email us at how@howlawfirm.com.

LEGAL DISCLAIMER: 

The use of the Internet or this form for communication with the firm or individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form nor should the reader rely on the information listed above as true in all circumstances. This information is provided generally and any similarity between the information listed above and an individual reader's case is purely coincidental.

The attorneys at Hall, Rustom & Fritz LLC represent clients throughout the entire state of Illinois, including, but not limited to, the cities of Peoria, Morton, Washington, Pekin, Eureka, East Peoria, Dunlap, Metamora, Bartonville, Bloomington, Normal and any legal matter located in Peoria County, Tazewell County, Woodford County, Marshall County, Stark County, Henry County, Knox County and McLean County.

Article Author: Jeffrey R. Hall




Jeff Hall is managing partner at Hall, Rustom & Fritz LLC and concentrates his law practice in Criminal Law, DUI & Traffic law, driver's license reinstatement hearings and criminal record expungements.

If you have a legal question, email Jeff Hall.



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