In Illinois, a criminal record is created whenever a person is arrested. Even if a person is released without being charged with a criminal offense, the arrest remains on the person’s record. Likewise, even if the person is charged and found not guilty, the arrest remains on the person’s record.
These criminal records can be viewed by any member of the public. Potential employers and prospective landlords can see them and can make it more challenging to get a job or find housing.
In Illinois, a person may be able to have arrests expunged from their criminal record. If an item on a person’s criminal record is expunged, it is essentially removed and not available for viewing any longer.
Sealing is a different process. The result of sealing is that a criminal record is hidden from the general public’s view, but it may still be viewed by certain special groups, e.g., law enforcement.
Whether a person qualified for expungement or sealing depends on the following factors:
- The type of crime for which a person is arrested;
- The type of crime with which a person is charged;
- What happened in the case; and
- How much time has passed since the arrest, charge, or conviction.
What if an Arrest Resulted in a Conviction?
Generally, a person’s record in a county in Illinois for state crimes cannot be expunged if the person who was charged with a crime was convicted of it. Only if a person was not convicted of the crime for which they were arrested can the record be expunged. This is true whether the arrest was for a misdemeanor or a felony. A person can only expunge a conviction if the person first gets a pardon from the governor of Illinois.
However, some, but not all, misdemeanor and felony convictions can be sealed if the offender completed their sentence successfully and at least 3 years have passed since the person completed their sentence. Whether a crime can be expunged or sealed depends in part on the type of crime. The records of such crimes as theft, prostitution, or possession of a controlled substance are eligible to be sealed but not expunged.
Of course, if the offender has criminal charges pending or if the offender is still on probation or under some other type of court supervision, they cannot get their record of the charge or a past conviction expunged or sealed. The offender does not qualify for either. A person’s criminal record also would not qualify if the conviction is for a federal crime or an out-of-state criminal offense.
How Do I Get an Expungement?
In Illinois, the steps for obtaining the expungement or sealing of a criminal record are as follows:
- Court Dispositions and RAP Sheet: A person must first gather the information they need to fill out the forms needed for requesting expungement or sealing. A person needs records of all of the final court orders in all of their criminal cases. A person also needs their Illinois State RAP sheet.
- If they have arrests or charges in Chicago, they also need their Chicago Police RAP sheet. A person needs the documentation for all of their criminal records. This is true even if the person is asking that only some of them be sealed or expunged;
- Fill Out Forms: A person must fill out the necessary forms that have to be filed with the clerk of the court from which the person seeks expungement. The official forms approved by the Illinois Supreme Court are available online at http://www.illinoiscourts.gov/Forms/approved.
- A main form is required, as well as a notice of filing form. The notice of filing form is given to the law enforcement agency that arrested the person. A person should always be sure to keep a copy of all documents that they send or give to others involved in their case;
- If a person seeks expungement of criminal records in more than 1 county, they must complete separate forms for each. They then have to be filed in separate courts;
- File Forms: Before going to the office of the county circuit court in which the person seeks expungement, they should contact the clerk’s office to ask how much the filing fee is and how it can be paid. A person also wants to ask whether that particular court requires any additional documentation, such as a cover sheet.
- A person also wants to ask the clerk’s office how many copies of their original documents they need to provide. The courts in some Illinois counties also demand that a person attach copies of their court disposition documents for each record they want to have expunged;
- Request Fee Waiver If Needed: If a person cannot afford the filing fees, they can apply for a waiver of the fee. The person must provide information about their employment, income, and assets to justify the waiver. A person who receives government assistance, such as food stamps or Medicaid, usually qualifies for a fee waiver.
- File Forms in Person or by Mail: A person should either take their completed forms and the necessary number of copies to the office of the clerk of the court in which they were arrested. If a person cannot go to the clerk’s office in person, they may be able to file them via the mail.
- The clerk file-stamps the original and copies and returns one copy back to the person filing the request. The person should keep it in a safe place. The request is distributed by the clerk to the appropriate law enforcement agencies. Law enforcement can object to the request;
- If they object in writing, a person receives a copy of the objection in the mail;
- Attend Court Hearing If Required: If an in-person hearing is held, a person must attend it and should bring an order granting the expungement to the hearing for the judge to sign. It is possible to have the hearing by phone or video. A person can call the clerk of the circuit court in which they seek expungement for more information about this option.
- How the hearing goes down varies by county. In many counties, there is a hearing only if the law enforcement agency objects to the request for the expungement;
- If there is a hearing, a person wants to prepare for it. They should tell their story to the judge and explain why they want their record expunged or sealed and why they deserve it. A person should dress nice and conservatively and treat all courthouse personnel respectfully;
- A person’s goal is to make a good impression and act like a person who has left their criminal life behind them;
- A person can bring witnesses to testify for them. For example, a person may bring a supervisor to testify about their work ethic and leadership on the job. Or they might bring someone from their church, synagogue, or mosque who can testify to the person’s good character;
- The judge may sign the order granting the expungement or sealing at the end of the hearing. Otherwise, the clerk mails it to the person;
- Receive Court’s Order Re: Expungement: A person receives the court’s order regarding their expungement from the clerk if it was not signed and given to them at the hearing. Once the order is entered into the official records of the court, a person’s record should be expunged or sealed.
How Much Does It Cost to Get a Case Expunged in Illinois?
Of course, it is important to keep in mind that costs may change at any time. A government agency can always decide to increase the fee for obtaining documents or filing them with a court clerk.
In general, there are multiple fees involved in filing a petition for an expungement that range from $140 to $400. A law enforcement agency may charge a person to provide them with copies of their criminal records and RAP sheets. The county clerk charges a fee for the filing of the petition for expungement or sealing. There may be a fee for issuing the final order granting or denying the request.
As mentioned above, a person can request a waiver of the filing fee, and if the cost of the process is an issue for a person, they should request a waiver of any fees at every step.
Are There Certain Cases in Which Convictions Cannot Be Expunged?
Again, generally, if a person was convicted of an offense, their record cannot be expunged. Most arrests for crimes that did not lead to conviction are eligible to be expunged.
But there are exceptions. If a conviction has been reversed, vacated, or pardoned, it can be expunged. The person must have a Certificate of Eligibility for Expungement from the Prisoner Review Board to obtain an expungement.
Another exception is a crime that was previously a class 4 felony conviction for prostitution. If a person is an honorably discharged veteran, they might be able to obtain an expungement. If a person was sentenced to supervision and the waiting period has passed, they might be able to win an expungement. Finally, if the sentence for the conviction was one of qualified probation and 5 years have passed, they might be able to win an expungement of the conviction.
For example, even the convictions of first-time offenders are not eligible for expungement unless one of the above exceptions applies. Convictions for minor crimes like retail theft, i.e., shoplifting, may be sealed but not expunged.
Should I Consult With an Attorney?
The process of getting an expungement or sealing of criminal records can become complicated. If a person is not sure that they have the stamina to follow the many steps needed or the ability to present themselves to their best advantage at a court hearing, they want to consult an Illinois expungement lawyer.
Your lawyer has been through the process before and can probably complete it more quickly and efficiently. In addition, your lawyer may better understand what type of presentation to make at a hearing if that is necessary. If you want to do it right the first time and get the result you want, then consulting an Illinois expungement lawyer is the right choice.
