NOTE: This article was refreshed to account for Public Act 102-933, which became part of Illinois law on January 1, 2023. Since that date, Illinois modified the Criminal Identification Act to enable a person to request expungement, even after testing positive for cannabis.
Expungement is the process where a criminal court disposition is removed from your public record. According to Illinois law, to expunge means “to physically destroy records or return them . . . and to obliterate the [offender’s name] from any official index or public record or both.” See 20 ILCS 2630/5.2(a)(1)(E).
If you have been convicted of certain crimes, you may have a right to expungement. Expunging your criminal record is something any eligible offender should consider due to the significant benefits expungement can have on their life.
Illinois Expungement Laws
The determination of whether you are eligible for expungement depends on 1) the crime you were charged with, 2) the amount of time that has passed since the final disposition on the case, and 3) the offender’s actions between the time of the final disposition and the expungement hearing.
Many misdemeanor crime dispositions can qualify for expungement so long as the disposition of the offense was something other than a conviction. Things that are not considered convictions include charges that:
Were dismissed;
Had probation as a final disposition;
Had conditional discharge as a final disposition; or
Had court supervision as the final disposition.
A “conviction” occurs only when there is a pleading or finding guilty after a trial on the merits of the case. You may also file for expungement if you were arrested but did not have charges brought against you or were found not guilty or acquitted after a trial.
The petitioner (the person seeking the expungement) must also ensure that there are no pending criminal matters against them or subsequent offenses since the record is desired for expungement.
After a petition for expungement is filed, both the prosecution and the state police have an opportunity to contest the petition. This may occur if the offender has pending criminal charges. This may also occur if there is some justifiable reason the state or police believe that the individual’s record should be kept available for public knowledge, such as in cases of violent offenses.
Starting in 2023, Illinois will no longer prevent individuals from seeking expungement if they test positive for cannabis or refuse to submit to a test for cannabis. This adjustment comes in association with the Illinois legalization of cannabis for recreational possession and use in 2020.
Reasons for Getting an Expungement
Employment
Illinois lawmakers recently passed a law that prevents employers from inquiring about an applicant’s criminal history before they are selected for an interview or hired. Private employers (i.e., non-government employers) cannot ask potential candidates about their criminal history in the “first step” of the hiring process. When the time comes to talk about criminal history, however, an expunged record will allow you to truthfully answer that you have never been convicted of a crime in Illinois.
Housing
Many rental applications ask questions pertaining to criminal history. Many of these are phrased such that they are asking about convictions only. Thus, if you have your criminal record expunged, you may state that you have never been convicted of a crime. Being able to answer questions honestly on a housing application, and being able to state you have a clean record, may greatly increase the amount of housing options available to you.
Peace of Mind
Having a criminal record can be embarrassing, frustrating, and not truly representative of a person’s character. In addition to the many financial and professional benefits expunging your record may have on your life, the emotional benefits may be significant as well. Illinois law protects individuals that are serious about taking responsibility for their actions. Illinois law also protects individuals that simply made a one-time lapse in judgment, ensuring that one isolated incident does not necessarily dictate a person’s entire future.
If you have legal questions, contact Sami Azhari to get answers and start planning your defense.