NOTE: This article was updated to reflect 2020 changes in Illinois law with passage of Public Act 101-027. These changes became effective on January 1st, amending Illinois law to legalize recreational use of marijuana and expunge certain possession charges.
State lawmakers changed the law for the expungement process in Illinois significantly in 2010. The new changes impact the eligibility of thousands of persons who have either a conviction or court supervision in their background.
Under the new law, the process is generally the same. The person seeking to expunge or seal a court record of his or her criminal charge(s) or arrest(s) must file a petition with the Circuit Court. That person 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.
After the waiting period, if the Circuit Court hears no objection, then the presiding judge will decide whether to grant or deny the petition for expungement or sealing. If granted, the court issues an order directing all concerned parties to expunge or seal the record.
But the new law changes who can get a criminal record expunged or sealed, which offenses are no longer eligible, and the waiting period.
Highlights from new Illinois expungement law
Aggravated Reckless Driving
These charges cannot be expunged or sealed anymore. The reason is that multiple DUI offenders were avoiding the minimum conviction that comes on a second DUI offense – by clearing any trace of prior DUIs reduced to reckless driving. Reckless driving, like DUI, is now permanently displayed on a person’s driving record.
Unlawful Possession of a Controlled Substance
First offenders who completed two years of Section 410 probation for possession of cocaine, heroin, ecstasy or some other controlled substance may have their records expunged. Except, the court may require the offender to submit to a drug test before granting the expungement.
With Illinois legalizing recreational use of marijuana in 2020, offenders with lower-level possession charges qualify for automatic record expungement. Correspondingly, many felons serving prison sentences for marijuana possession will qualify for immediate release. For more serious marijuana possession crimes, the offender can file a petition to request expungement, but it is not guaranteed.
Waiting Period
After the petitioner has filed for expungement or sealing and notified the four concerned parties, the waiting period for an objection has doubled. The petitioner must now wait for 60 days for an objection rather than 30 days.
Traffic Violations
Professional drivers such as persons with commercial driver’s licenses (CDLs) who want to protect their driving record cannot have moving violations expunged. This has substantially reduced the relief available for these professional drivers.
But the legislature cleared up an ambiguity in the statute concerning convictions that disqualify a person from expungement or sealing. Previously, the statute said that a person could have a record expunged only if they were not convicted of any other offense. The problem this created was: Would a conviction for speeding cause the court to deny expungement, or would law enforcement object because of a conviction for a traffic violation?
The author actually spoke with a clerk from the State Police about their policy concerning traffic violations. The clerk indicated that they would not object because of a moving violation under the old law.
Nonetheless, all ambiguity has been removed because the law now says a minor moving violation does not affect a person’s eligibility for relief.
Hearings
Under the old law, if a party objected (the State’s Attorney typically objects), then some county courts would deny the petition right then and there. Now, each person is entitled to a hearing whenever there is an objection to a petition for expungement.
Statistics
The Illinois State Police must post various statistics about expungement online. To satisfy this requirement, the Illinois State Police maintains an online record of expungement statistics.
Felony Offense Reduced to Misdemeanor
Often a defendant with no prior convictions who is charged with a felony can negotiate a plea agreement and reduce the charges to a misdemeanor. While a reduction to court supervision is possible, it is very unlikely. If this occurs, and the court supervision is completed successfully, then the offender would likely qualify for expungement.
On the other hand, if the misdemeanor resulted in a conviction, then the defendant should be eligible for sealing the record, provided all other conditions are met.