Debunking Expungement Myths
Having a criminal record can have a dramatic impact on various aspects of your life, including education, tax implications, employment issues, and housing consequences. Many people assume that if you wait long enough that your criminal conviction or even dismissed charges will disappear from your record. That is not the case. In Illinois, there are three options to “remove” these types of records, but is a process that is the exception rather than the rule. Each option is fairly limited and often includes a waiting period.
Each of the three options generally requires filling out the appropriate paperwork and paying a court filing fee. Often, the local court will require a hearing if the expungement or sealing is contested, but may waive the need for a hearing otherwise. However, that process varies greatly based on the individual court.
The first option is called expungement. Expungement is a statutory process that involves removing and destroying the record from your dismissed charge. You cannot expunge a conviction; instead, you can only expunge charges that did not result in a conviction. In fact, if you have ever had a conviction, then you cannot expunge the record. However, cases where the court orders supervision, which is a form of probation that does not result in a conviction, or a rehabilitation program might be eligible for expungement. Exceptions to this general rule include any charge that involves a sex offense regarding a minor, supervisions for driving under the influence, and reckless driving.
Normally, before you can expunge a charge, you must go through the waiting period. Generally, the waiting period varies according to the type of offense. For court supervisions, for example, the waiting period is two years after completion of successful supervision. In cases involving Treatment Alternatives for Safe Communities, which involves alcohol, drug, or mental health issues, the waiting period is generally five years. However, no waiting period is required for cases that result in dismissal or acquittal.
The second option is a sealing of the record, which is also a statutory process. Sealing does not destroy the record like expungement, but it does limit who can see the record. The courts and law enforcement can still see the record, but the average employer, for example, will not be able to access the information. Certain financial institutions, the military, child care providers, school districts, and health care facilities may still be able to see sealed records. Unlike expungement, this option is available even if you have a previous criminal record.
Like expungement, cases that result in dismissal or acquittal do not have a waiting period, but most other types do. The waiting period is normally four years for court supervision or conviction periods. The waiting period begins after you have finished servicing your last sentence for any criminal offense. Often, the waiting period implies that more than one record can be sealed at one time if there are multiple offenses.
Crimes of violence, in particular, cannot be sealed, including misdemeanors. Driving under the influence and reckless driving offenses also do not have an option to seal. In addition, violations related to the Humane Care for Animals Act, any offense that would require sex offender registration, and many felony charges (with some exceptions) cannot be sealed.
The final, last resort option is called executive clemency. Executive clemency involves a pardon from the governor that authorizes sealing of your records. Often, this is also referred to as an expungement, but in reality, the records are treated more as if they were sealed. That is, they are not completely destroyed and are still released to some entities. This type of sealing is relatively rare.
Once the governor has granted the pardon, you must still petition the circuit court where the record is held to seal your record. The court may still deny your petition. There is no technical waiting period, but it is strongly suggested that you wait at least five years until attempting this route.
It is important to note that even if your record is expunged or sealed, it is an imperfect process. Records on the internet, in newspapers, or other venues are not affected by these legal processes. In addition, since the process is riddled with exceptions, it is important to consult an attorney with experience in this area to point you in the right direction. Call McCarthy, Callas & Feeney 309-788-2800 and we will be happy to answer your legal questions.