In Illinois, it is possible to expunge and/or seal your criminal record, depending on the type of criminal charge, the outcome of the case, and how much time has passed since the disposition of the case and/or sentence. Below are general answers to common questions involving the process and eligibility. Consult with an experienced criminal defense attorney who can help you navigate the process and review your criminal history and case dispositions to determine if you are eligible for expungement or sealing relief, as there are nuances to the process/eligibility not covered here as this is meant to be an overview of a sometimes technical and nuanced area of the law.
What is the Difference Between Expungement and Sealing?
An expungement essentially erases the arrest and outcomes of any case, making it functionally as though the arrest never happened according to your official criminal record on the State level. There are instances when state law enforcement does not send proof of the expungement to the National Crime Information Center (NCIC) run by the F.B.I. and the arrest and or original disposition still appears on what is essentially a federal “rap sheet.” Sealing is similar, in that the records of an arrest and/or conviction are hidden from the general public record, but there are various exceptions for who can see this hidden criminal record. Law enforcement agencies have full access to a sealed criminal record, and by law in Illinois any employers who are legally required to run background checks have access to felony convictions (but not all sealed misdemeanor convictions or felony arrests). For example, professional regulators, banks, school districts, and government employers will also have access. A major difference between these outcomes is that with an expungement, Illinois State Police, the arresting agency, and the Court where the case was handled are instructed to destroy all documents within a certain timeframe, whereas it is possible that a judge can order a criminal record unsealed if they think its necessary for some legal reason. For example, some people end up petitioning the Court to unseal and then impound the records if they need the original court documents for licensing background checks, like medical boards.
Am I Eligible to Have My Record Expunged/Sealed?
In short, you are generally eligible to have your criminal record of arrest and the charges expunged if it did not end in a conviction (whether through plea or being found guilty at trial), your conviction was later reversed or vacated, you were given a sentence of supervision, or received a qualified probation which was successfully completed. If you received a sentence of supervision or qualified probation in your case, there is a time period that must pass, either 2 or 5 years depending on the charge/sentence, before you are eligible for expungement. Also, there are some sentences of supervision or types of matter, for example sex-based offenses or traffic matters, that will not qualify for expungement or sealing.
If you do not qualify for expungement, you may still qualify for having your record sealed. In general, most convictions can be sealed 3 or 5 years after the end of successfully completing a sentence, except there is a prescribed list of charges that cannot be sealed given the nature of the charge. These include DUIs, reckless driving (with some carveout for those that occur before the age of 25), domestic battery, violations of domestic relations orders, some sexual offenses, some animal-related offenses, and most convictions that require an individual to register under the law until the requirement that they register has passed. You are not eligible for sealing or expungement if you have pending criminal charges and/or if you have not completed any qualifying sentence yet. In addition, eligibility does not mean any petitions to have your record expunged/sealed will automatically happen, as the local police departments/prosecuting authority have the opportunity to object after they are given notice of a petition to expunge/seal a criminal record. And they often do. They routinely object as a matter of public policy and believe certain dispositions should remain public.
In addition to certain offenses being ineligible for expungement/sealing based on the nature of the charge/type of conviction, civil cases, minor traffic cases that do not rise to a Class A or B misdemeanor, and out of state/federal records are not eligible to be expunged through the Illinois courts (although many states do have a similar process). Federal criminal records are not generally expungable, but there are some extreme exceptions, and different federal circuits have reached different conclusions on eligibility or the general powers of the Court to expunge records.
Are There Any Other Avenues for Relief?
Yes, anyone who is not eligible for relief for whatever reason may have their record expunged/sealed through applying for a pardon from the Governor of Illinois, although pardons are rare and normally requires a very compelling reason. Even if someone is pardoned, they still must be eligible for expungement, which is usually spelled out in the pardon itself, which means they still must petition the appropriate Court which means that technically it can also be objected to by State or local law enforcement including the prosecution.
Also note that given the legalization of recreational marijuana in Illinois, certain marijuana offenders were supposed to have their convictions vacated or automatically expunged due to the change in law and allow certain other marijuana offenses to be expunged if approved by the Court. If you are looking to clean up your criminal record, consult with an attorney who can determine if you are eligible and advise you of your potential options.
