Experienced Attorney Expunging or Sealing an Adult Criminal Record
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. An 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, and the circuit court clerk of the county in which the case was brought. Records expunged can include fingerprints, mug shots, and other records of identification, and are either destroyed or returned to the petitioner. 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 identical to the expungement procedure.
Effects on Employment
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 for Expungements and Sealings
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.” Dispositions, which qualify for expungement, include:
- an arrest where no charge(s) were filed;
- the dismissal of the charge(s) prior to trial for want of prosecution, sometimes called “nolle prosequi;”
- charge(s) 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 clear and convincing evidence that the defendant is factually innocent of the charge(s);
- 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);
- a pardon in which the Governor has specifically stated that the records should be expunged; and
- court supervision.
Certain first-time offenses under the Cannabis Control Act, Controlled 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, nor is it available to persons who have been previously convicted of a criminal offense or municipal ordinance violation, ordinary traffic tickets, orders of protection, or civil orders or judgments.
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:
- Felony convictions for felony prostitution or certain Class 4 felony conviction 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, 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;
- 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.
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.
If you are seeking to seal the records of a case 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.
Free Consultation with a Chicago Expungement and Sealing Lawyer
If you have questions getting your criminal record expunged or sealed, contact us today for a free consultation at (312) 626-2871 or (847) 255-2100, 24 hours per day, 7 days per week.