Chicago Expungement Attorneys
What Happens in Court Stays in Court, Right?
Everyone’s heard that a person is presumed innocent until he or she is proven guilty beyond a reasonable doubt by a court of law (or upon a plea of guilty entered into knowingly and voluntarily). Everyone also seems to know that if a person has been found guilty, certain consequences will inevitably follow. There will always be a sentence which, depending upon the charges, might involve a period of incarceration, fines, public service hours, participation in court-ordered counseling, therapy, anger management classes, perhaps restitution, or other special conditions.
It’s very common to assume that once that person has successfully completed his or her court sentence, it’s all over. After all, you’ve done your time, you’ve satisfied the judge, and you’ve paid your fines. It should all be in the past, right?
Not exactly. In Chicago and across Illinois, a finding of "guilty" will likely have additional consequences for an individual that he or she may not have contemplated originally. In fact, there are so many collateral issues faced by criminal defendants once they have been sentenced that since January 1, 2017, every judge is required to tell defendants at sentencing that they may have difficulty finding employment, housing, financial aid or assistance, and that if they are not U.S. citizens, that they may face removal from the United States (once known as deportation) or denial of citizenship.
Expungement to the Rescue
Fortunately, there is a procedure known as expungement that gives a person a second chance or "clean slate." Expungement allows for a person’s criminal arrest record(s) to be destroyed outright, or otherwise kept sealed away from public view. The goal of expungement is to allow people to be able to move past their mistakes; they never have to disclose to anyone the existence of the record once the order has been entered. When applying for work, for housing, or for financial aid, one can then simply remain silent and not disclose the incident(s) which were expunged.
Contact Mitchell S. Sexner & Associates LLC at (800) 996-4824 to discuss whether your case qualifies for an expungement.
What Can - and Can’t - Be Expunged?
Federal Records Can’t Be Expunged.
Not every jurisdiction allows for an expungement of one’s record. For example, there are still no laws that allow a federal defendant (even one convicted of a non-violent offense) to expunge a record. The FBI will routinely refuse to comply with expungement orders entered in state courts, citing the Supremacy Clause of the U.S. Constitution which gives the Feds power over the states, not the other way around.
Although the FBI does maintain all arrest records that it receives from all 50 states plus U.S. territories and commonwealths, that is not an issue for most people, as those records are generally not accessible except to certain law enforcement officials, U.S. government agencies, or state agencies under certain circumstances.
Chicago and All of Illinois Allows Expungement If You Weren’t Convicted.
The rules vary from state to state concerning which states allow for an expungement of which records, so it is always best to consult with an attorney from the state where you want an expungement.
In Illinois, there are procedures to expunge the arrest records for almost any offense that was disposed of by way of dismissal of the charge, where a defendant was granted a "deferred prosecution," or after a finding of "not guilty." Where a sentence of supervision was entered, or in some felony cases when a special form of deferred probation has been successfully completed, an expungement may be had upon successful termination of the sentence, or after a two-year or five-year waiting period; depending upon which is applicable to the particular case.
You May Be Able to Seal a Conviction.
In cases where a conviction was entered, expungement of that conviction is not possible. However, in Illinois, almost all misdemeanor or felony convictions are eligible to be ’’sealed,’’ so that the arrest and conviction records are removed from public view. Once a conviction record has been sealed, it is still accessible to all law enforcement agencies, but most traces of the arrest and court proceedings are sealed away and not available to employers, landlords, and so on. One can simply choose to not disclose the sealed matters to anyone, just as in an expunged matter. The only difference? Unlike expunged matters, which are not visible to local law enforcement during a typical encounter, sealed matters are still accessible to law enforcement agencies, although they are aware of the court seal.
What Types of Cases Can Be Expunged in Illinois?
Before a person can have a criminal case expunged or sealed, it must first be determined if the matter at hand is eligible to be expunged or sealed. There are statutory requirements for what types of cases may be expunged or sealed, and which cases are barred from such relief. The rules have been amended many times over, sometimes to restrict what may be expunged or sealed, other times to expand opportunities to do so. A recent amendment, effective in July of 2017, vastly expanded the opportunities to seal a record of conviction. Now, almost any matter may be sealed, except for the following types of cases, which are still barred:
- Any offense, whether actually committed, or merely attempted, that would require Sex Offender Registration
- Sex crimes against minors
- Battery or Aggravated Battery of an unborn child
- Domestic Battery/Aggravated Domestic Battery
- Violation of an Order of Protection
- Driving Under the Influence
- Animal Cruelty
The popular notion behind expunging or sealing records is that it was created to give a "second chance" to help an otherwise law-abiding citizen who only got into trouble once. Although expungement can indeed help such a person clear his or her name, it’s also relatively common that people with multiple arrests in their background can sometimes successfully seek and obtain the expungement or sealing of their entire record.
You May Have to Expunge Multiple Records in Multiple Courts
Depending on the circumstances, expunging or sealing multiple records in different court locations may be a daunting task, as a petition may only be filed in the court of original jurisdiction over the case.
For example, if a person had arrests in Chicago, Woodstock, Wheaton, Waukegan, and St. Charles, and he wished to expunge or seal them all, then separate petitions would have to be filed with the clerk of the circuit court in each jurisdiction, necessitating trips to each of these courthouses in each of these different cities. Even if a person has all of his arrests within Cook County, there are six municipal districts, and depending upon the location of the arrests, petitions might have to be separately filed at the clerk’s offices for each district, which are located in Chicago (1st District), Skokie (2nd District), Rolling Meadows (3rd District), Maywood (4th District), Bridgeview (5th District), and Markham (6th District).
Of course, if a person managed to get all of his or her arrests in just one jurisdiction, and all of them were allowable to be expunged or sealed, it might be accomplished in a single petition. But if the cases presented a mix of some that could be expunged, while others could only be sealed, that person would have to file a separate expungement petition for some matters, and a separate petition to seal for the others.
In the past, if a person had any criminal conviction for anything - ranging from an ordinance violation on up to a felony - then no records at all could be expunged, not even the cases that were dismissed outright. But recently, the law was amended to permit individuals with cases that resulted in dismissal or acquittal to seek the expungement of those matters even though they had been convicted of some other offenses.
Do You Have a Right to an Expungement?
Although expungement and sealing laws in Illinois define who is eligible for expungement and who is not, they don’t give anyone the "right" to have an expungement. Even where a person is eligible by statute to have a record expunged or sealed, it is not granted automatically. A petition must be ruled upon by a judge, who has unfettered discretion to grant or deny the requested relief. As long as it cannot be shown that a judge abused that discretion, acted capriciously, or out of personal bias, etc., an order denying relief will likely be upheld upon appeal. Therefore, it is always recommended to engage an attorney to assist you in filing and prosecuting an expungement or sealing petition.
How Do You File an Expungement in Illinois?
The process for filing an expungement varies slightly within Illinois, and from county to county. An attorney well-versed in these variances will be able petition more effectively than you could on your own.
Although filing fees vary for each individual clerk’s office, one fee is usually a constant - the fee that one pays to the Illinois State Police; at present, a $60 fee to process the initial petition and to comply with any resulting court order.
The petition is initially filed with the clerk of the circuit court of venue (which means the county where the crime was charged), along with the notice of filing, which is addressed to the State’s attorney of venue, the city/village/town prosecutor where the arrest occurred, the chief of police for said arresting department, and to the Illinois State Police. The court clerk then sends the petition and notice to each party via certified mail.
What If Someone Objects?
Once the prosecuting authorities receive the petition, they have up to 60 days to file a written objection with the clerk’s office, notice of which will be sent to your attorney.
The Illinois State Police will issue an initial statement indicating ’’no objection’’ if there is no statutory disqualifier to their knowledge, or ’’objection’’ if there is such a disqualifier. Certainly, if there is a statutory objection being raised by the State Police, the State and local prosecutors will likely join the objection, and the matter will have to be heard and decided by a judge.
Even if the State Police have "no objection," it is not uncommon for the prosecutor to file a written objection anyway. For example, in the past, the Cook County State’s Attorney’s office often filed objections on virtually every domestic violence case, whether or not there was even a finding of guilt. A knowledgeable Chicago criminal attorney will know how to properly anticipate any objections, and how to respond to them effectively.
Are Your Records Destroyed If You’re Granted an Expungement?
After the court enters the order to expunge a record, the clerk’s office sends certified copies of the order to all of the parties of record. The local police authority will return any records of the arrest directly to the petitioner or his/her attorney of record, if so indicated on the order.
In the past, this included the actual fingerprint card and mug shot photo; most records are digital now, so one mostly just gets a letter saying the records were destroyed and purged from the systems. The Illinois State Police will notify you and/or your attorney that they have likewise destroyed and purged their records, and forwarded a copy of the order to the FBI for its records.
In order to seal a record, the local and state police do not destroy their records outright; they remove them from the public index and from any records inquiry from the general public. The sealed records remain accessible to law enforcement for their limited purposes only. As stated previously, the FBI does not destroy the records, but it also does not disseminate them except under limited circumstances.
How Might Immigration Proceedings Be Affected?
For individuals who are subject to FBI screening, which includes any non-citizen applying for immigration relief, it is always recommended to seek an expungement or sealing order - after immigration proceedings.
That’s because the U.S. Citizenship and Immigration Services always requires original, certified court records for any and all arrests, regardless of the outcome in court, as part of any citizenship application or for admission into the U.S. as a resident alien. If a person had his or her record expunged, the FBI will still be aware of the records, and will notify the USCIS.
One must disclose the information up front in the application process, so it is advisable to wait until after the immigration proceedings are done before seeking expungement. Otherwise, one will have to go back to each court of jurisdiction, file petitions with the clerks to re-open each case, obtain the court order to do so, obtain the records from the clerk, and then serve them upon the USCIS. This will likely delay the proceedings immeasurably. For anyone else, there is no reason to not proceed with a petition at the earliest possible time.
Call Now to See If You Qualify for Expungement
If you wish to reclaim your good name, get a fresh start, and expand your opportunities by expunging or sealing your past criminal history, then you need experienced, knowledgeable, diligent, and aggressive attorneys such as those at Mitchell S. Sexner & Associates LLC. We have years of experience in these matters, and are always ready to serve you. We have offices located in Chicago and Arlington Heights, and are ready to take your call 24 hours a day, seven days a week. To discuss the possibility of an expungement and a brighter future, call us right away at (800) 996-4824.