QUESTION: I have a criminal record in Illinois.  How can I clear it?

ANSWER:  There are actually three ways you can have your Illinois criminal record cleared: 1) expungement, 2) sealing, and 3) Governor's pardon. Illinois law defines what State crimes can/cannot be expunged or sealed.

The first step in determining one's eligibility for expungement, sealing or pardon is to look at the record as a whole. All arrests, even those that did NOT result in conviction are on an individual's record. So, your "record” refers to all cases for which a person has ever been arrested. 

QUESTION: I was arrested one time and the case was dismissed.  I was told the case wouldn’t be on my record.  Why does it keep popping up on my background checks when I apply for a job?

ANSWER:  If you have ever been fingerprinted you have a record that can be accessed by the police and prospective employers. At the time of your arrest, your fingerprints are transmitted from the local police station, to the IL State Police, to the FBI.  Even though the judge may throw out your case, your prints, along with a record of your arrest, are still archived. 

QUESTION: How do I know if I can expunge my record?

ANSWER: Expungement is only an option if you have no convictions (misdemeanor or felony) on your record.  That means you can’t have convictions in other states either.  Even if you are eligible for expungement, the decision is entirely a matter of judicial discretion. (For example, a judge may not grant a petition to expunge for a person arrested 10 times for battery, even if none resulted in conviction because the state’s interest in preserving the record may outweigh the individual’s interest in having it expunged.) In most cases, however, such petitions are granted.

* Exception: Class 4 Possession of a Controlled Substance and Class 4 Prostitution can now be expunged if the Offender received 1410/710 Probation. Remember, this is only if the person has no other convictions on their record! This is a special type of probation given to “first-offenders” and if you get a subsequent conviction for any other crime, you cannot expunge either of these offenses.  Again this is a special type of probation that is viewed as a non-conviction; it does not apply to regular probation.

QUESTION: What is a conviction?

ANSWER:

A conviction is any case that did not result in dismissal (Nolle Pros, Stricken on Leave), not guilty, or supervision.  If you were placed on probation, conditional discharge or fined, you have a conviction.  Also, jail and prison is a conviction.

QUESTION: What exactly is an Expungement?

ANSWER:

The judge of the county where the arrest occurred orders the arresting agency (example: Chicago Police), the IL State Police and the FBI to return all original records of all arrests, original fingerprints and mug shots.  Any internal computer records must be destroyed and removed from any public access system. The courthouse seals the file(s) so the public can't gain access. If there were arrests in multiple counties, petitions must be filed with each county courthouse. 

QUESTION: I was arrested for a DUI in IL and given supervision.  You said that supervision is not a conviction.  So can I expunge my DUI?

ANSWER:

There is an exception to the Expungement law in Illinois regarding a DUI.  If you were arrested for DUI in Illinois, you either pleaded guilty or were found guilty and you received supervision, conditional discharge, probation or jail, you cannot expunge or seal the DUI; furthermore, you cannot expunge any other arrests on your record, if any.  If you have other arrests on your record, you can seal those pending their eligibility. 

Essentially, a finding of guilt on a DUI, no matter what the sentence, is viewed as a conviction.  Basically, your only option to have your DUI removed from your record is a Governor’s pardon.  Unless, of course, you were found not guilty of the DUI or the case was dismissed, then you can expunge it, so long as you don’t have other convictions on your record.

QUESTION: I have a conviction on my record, since I can’t expunge my record, can I seal my record?

ANSWER

Since Sealing is an option for those with a conviction on their record. There are two ways to seal a record: 1) partial sealing and 2) complete sealing.

Partial sealing is for someone with a non-sealable offense on their record plus other sealable offenses. (For example, the person has a felony conviction for burglary on their record - which is not sealable - and 3 misdemeanor arrests that were thrown out - which are sealable. The 3 dismissed cases are sealed, but the burglary remains on record.) In essence, the whole record isn’t sealed but it looks a lot better than it did before it was sealed. So instead of having a long criminal history, the person may just have a conviction or two.

Complete sealing is for someone with nothing but sealable offenses on their record. This applies to the person who has a sealable conviction; but for the conviction, the record would be expungeable.  For example, the person was sentenced to conditional discharge instead of supervision for retail theft.  Had the person been given supervision the record would have been expungeable. 

What are sealable convictions? No felony conviction is sealable and no misdemeanor violent crime conviction is sealable. * Exception: Class 4 Possession of a Controlled Substance and Class 4 Prostitution convictions can be sealed if the person received 1410/710 probation.  However, most misdemeanor convictions are sealable.

QUESTION: What exactly is a Sealing?

ANSWER

Unlike expungement, the record is not destroyed; instead, the arresting agency (for example, Chicago Police), the Illinois State Police and the Clerk's Office will seal the record and remove the applicant's name from the electronic index. Government agencies can still access the file but only a judicial order can allow public view of the record.  For purposes of a criminal background check by a prospective employer, sealing will be sufficient and your name will not be publicly accessed.  Be careful, however, if you are applying for a government job.

QUESTION: I didn’t go to prison but instead the judge gave me probation on my felony case.  Since I didn’t go to prison, is it still a conviction?

ANSWER: Yes, probation is a conviction.  The judge could have sent you to prison but instead chose the punishment of probation.  The person who went to prison is in the same boat as the person who was given probation: both have felony convictions on their record and both will need a governor’s pardon.

QUESTION: Since I can’t expunge or seal my record, is there any way I can remove the conviction from my record?

ANSWER

If you don’t qualify for expungement or sealing, you must seek a pardon from the governor. Pardons are not just for people who've done time in prison! Anyone who has a conviction needs a pardon! (Unless it’s a sealable conviction or a Class 4 exception.  See above.) However, the governor has the power to both pardon an offender and issue an executive order to expunge the conviction. In the case of Sharon Latiker, former Governor Ryan granted a pardon but did not order an expungement. Gov. Blagojevich, on the other hand, does not grant pardons without a following order for expungement - which is a good practice! Who wants a pardon when the crime is still visible to the public?!? Pardons are also a matter of discretion, and they are handled on a case-by-case basis. There is no requirement for the governor to address a pardon application within any period of time. However, he must make a decision on all petitions before he leaves office. It is not uncommon for a governor to wait until the end of the final term to make such decisions and avoid potential political backlash.

QUESTION What is the difference between a pardon and clemency?

ANSWER

There is no difference. Technically, clemency is the general term for commutation, pardon and reprieve. Commutation is for the person in prison, who is seeking to be released early but isn’t necessarily looking to have the conviction pardoned.   A pardon is for the person who is not in custody or on probation and wants to be “forgiven” for their offense.  A pardon can also be granted for a person who is in prison.  A reprieve is a delay in punishment, usually for a person sentenced to the death penalty.  The Governor can stay the execution pending appeals, etc.  Although the death penalty is technically still legal in Illinois, Governor Ryan suspended the death penalty indefinitely in 2000.

QUESTION: I petitioned the Governor for a pardon but I haven’t heard anything. What do I do?

ANSWER

The only thing you can do is patiently wait for the Governor to make a decision.  The law states that a petitioner cannot re-petition the Governor for a pardon until he has been denied and waits for a period of one year before resubmission. So, if the Governor does not make a decision for years, the petitioner cannot make amend his/her petition for re-submission. I have a client who submitted 3 years ago and is waiting for a decision. In the past 3 years, he has gotten an MBA, built a homeless shelter and moved his sick mother into his home to care for her full-time. I think re-submission each year should be allowed, even if the Governor hasn't made a decision. This allows the Governor to see how petitioners have progressed as productive members of society. Under current law, the petitioner who waited for a response since 2003 must simply continue to wait. That person should be able to knock on the Governor's door every 365 days.

THE CAR ACCIDENT                    VS.                  THE BAR FIGHT

John is in a car accident. It wasn't his fault. Someone sideswipes him. Vs	John is in a bar fight. It wasn't his fault. Someone punches him in the face.
The paramedics arrive & take him to the hospital because they think he broke his leg.	The police arrive & arrest him because they think he committed a crime.
1) Hospital: the hospital admits him and creates a medical record. The ER doctors take x-rays and an MRI; they place all reports in the hospital file	1) IL Arresting Police: the police book him and create an arrest record. The police take a mug shot, fingerprint him and make a police report. They place all of the above in the police file.
2) Insurance Co: The hospital contacts his insurance company to make sure he is insured. The insurance company opens a claim and makes a file for John.	2) IL State Police and FBI: The arresting police contact the IL State Police and FBI to make sure he doesn't have a warrant out for his arrest. The arresting agencies (ex: Chicago Police), the IL State Police, and the FBI record his new arrest and fingerprints.
3) Family Doctor: The next day, John goes to his family doctor for a follow up. The family doctor creates a file containing a copy of his x-rays from the hospital. The family doctor notes John's accident, his follow up visit and his diagnosis. Diagnosis: The doctor doesn't believe his ankle is broken. The doctor says, “John, you can go home, you don't need to come back to the doctor."	3) Court: The next day, John goes to court. The court creates a file containing the arrest report from the police. The judge notes John's presence in court and hears the facts of the case. Outcome: The judge believes it was the other guy's fault. He throws out the case and says, “John, you can go home and you don't need to come back to court. This won't be on your record."
RULE: JUST BECAUSE JOHN DOES NOT HAVE A BROKEN ANKLE, THAT DOES NOT MEAN THE RECORDS   FROM THE HOSPITAL, THE INSURANCE COMPANY AND THE FAMILY DOCTOR GET DESTROYED. THE RECORDS STILL EXIST! THEY MAY SAY THAT HE DID NOT HAVE A BROKEN ANKLE BUT THE AMBULANCE REPORT, ER XRAYS AND FAMILY DOCTORS DIAGNOSIS STILL EXIST!	RULE: JUST BECAUSE JOHN'S CASE WAS DISMISSED, THAT DOES NOT MEAN THE RECORDS FROM   THE ARRESTING POLICE, THE STATE POLICE/FBI AND THE COURT ARE DESTROYED. THE RECORDS STILL EXIST! THE JUDGE MAY SAY THAT THE CASE WAS THROWN OUT OF COURT BUT THE FINGERPRINTS, ARREST REPORT AND COURT RECORD STILL EXIST!
CAR ACCIDENT MYTH: Many people think: "That car accident wasn't my fault so my insurance rates won't go up."	ARREST MYTH: Many people think: "The fight wasn't my fault so I don't have a conviction on my record so the arrest doesn't matter."
REALITY: Have you ever noticed your insurance rate still goes up just because you filed a claim, even though the accident was not your fault?	REALITY: Have you ever noticed that an employer doesn't want to see that a potential employee had a run-in with the law, no matter how minor? Does a clothing store want to hire someone who was arrested for retail theft? Does a nursing home want to hire someone who was arrested for domestic battery?
RULE: You are being penalized! The insurance company doesn't want to insure someone who has a mere tendency of being in an accident, regardless of fault. THEY CAN INSURE SOMEONE ELSE WHO IS LESS OF A LIABILITY!	RULE: You are being penalized! The potential employer doesn't want to hire someone who has a potential disregard of the law. Even if it wasn’t your fault and your crazy ex-boyfriend/girlfriend called the cops for no reason. THEY CAN HIRE SOMEONE ELSE WHO IS LESS OF A LIABILITY!