What Is the Difference Between Expungement and Sealing of a Criminal Record?
Expungement of is the process of having your criminal records physically destroyed or returned to you and of removing the record from public view. On the other hand, if your records are sealed, they are not physically destroyed. However, sealed records are not obtainable without a court order and are removed from public view. Niether expunged or sealed records are visible in criminal checks. Employers may not consider expunged or sealed records in determining employment and may not ask an applicant if he or she has had records expunged or sealed.
What Types of Criminal Records Can Be Expunged?
The Illinois Criminal Identification Act (20 ILCS 2630/0.01, et seq.) governs expungement and sealing of criminal records in Illinois. You can have arrests or charges expunged from your criminal record if you have never been convicted of a criminal offense. This means that the arrest or charge that you are seeking to have expunged must have resulted in:
“Qualified probation” includes:
A conviction of a criminal offense bar’s expungement of not only the offense of which you were convicted, but also any other arrests or charges on your record. A “conviction” is defined by Section 5.2(a)(1)(C) of the Criminal Identification Act as a “judgment of a conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense...” Completed court supervision and qualified probation orders are not “convictions” within the meaning of the Act. An exception to this rule, is that you can always expunge a record if you have been declared “factually innocent” of the charge by clear and convincing evidence, even if you have other convictions on your record.
Minor traffic offenses are not considered criminal offenses that would bar expungement. However, if you are convicted for a DUI, driving on a suspended or revoked license, reckless driving, or driving without a valid license, none of your criminal charges and arrests can be expunged.
If you have never been convicted of a criminal offense, you can have records of any arrests or charges expunged, except:
Although supervision for these offenses cannot be expunged, court supervision for these offenses will not prevent expungement of other records, because the supervision does not count as a conviction.
Minor traffic offenses cannot be expunged unless you arrested and released without charging.
Finally, juvenile convictions do not prevent expungement.
When Can a Criminal Record Be Expunged?
Dismissals, acquittals, releases without a charge, and reversals of a charge may be expunged immediately, and do not require a waiting period.
Two years must pass from the termination of supervision for all offenses except for the following, which require a five year waiting period:
Five years must also pass from the termination of “qualified probation” before an expungement petition must be filed.
Sealing of Criminal Records Explained
If you are convicted of certain offenses, your records may be sealed, even though expungement is not available. Section 5.2(c)(2) of the Criminal Identification Act contains an extensive list of the types of the types of Class 4 and Class 3 Felonies that can be sealed, including:
Except for those felonies listed in Section 5.2(c)(2) of the Criminal Identification Act, felonies cannot be sealed, with certain limited exceptions.
Most misdemeanor offenses can be sealed, with the following exceptions:
The waiting period for sealing records varies based on the offense. Some records can be sealed immediately, while some offenses require 2 year, 3 year, or 25 year waiting periods. In addition, some records may be sealed after reaching certain education milestones.
Typically, people choose to seal records because expungement is not available. However, for some records, sealing has a shorter waiting period than expungement, so you may choose to seal your records for this reason and have them expunged at a later date.
How to Expunge or Seal Your Criminal Records
The expungement and sealing processes are nearly identical. First, you must file a petition and pay a fee with the circuit clerk in the county in which the arrests occurred or the charges were brought. If you were arrested or charged in multiple counties, then you must file a petition in each of those county. If you fall below federal poverty guidelines, you may be able to have the fee waived.
The circuit clerk will serve notice of the petition to the State’s Attorney or prosecutor who prosecuted the offense, the Department of State Police, the arresting agency, and the chief legal officer of the unit of local government that made the arrest. Any of these agencies has the right to file an objection to the petition within 60 days of being served notice.
The judge will then either hold a hearing, or, if there are no objections to the petition, the judge may simply enter an order granting the petition. Even if you are eligible for expungement or sealing, the court will have discretion to grant or deny the petition.
Contact DuPage Expungement Attorney Kevin O'Flaherty
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