Expungement

Whenever someone is arrested, a record is created documenting that an arrest took place. This occurs even where no formal criminal charges are filed against the arrestee in court.

An arrest record is as potentially damaging to someone’s reputation as is a conviction record. This sentiment applies to juvenile arrest records, even though they are technically not available to the public. For more information on why you should expunge these records, continue reading or schedule a free consultation.  

Adult Arrest Records

If you have been arrested in connection with a crime in Illinois you may be eligible to expunge your arrest record.

Prior to 2017, you were only eligible to expunge your arrest record if you had never been convicted of a crime in Illinois or anywhere else (in another state or under federal law).  In 2016, the Illinois General Assembly amended the law to allow individuals who have been convicted of a crime to now expunge their arrest history.

The 2016 amendment also waived the filing fee but only for individuals who have cases in Cook County. The fee waiver remains in effect until December 31, 2018 only. If you want to take advantage of the fee waiver, don't procrastinate.

The expanded right to expunge only extends to the following arrest records:

1) no case was filed after the arrest (the charges were never referred to the state's attorney's office) or,
2) where charges were filed, the court dismissed the case.

Conversely, the Cook County fee waiver does not apply when the disposition of the case resulted in:

1) a sentence of court supervision; or,
2) a deferred sentence, resulting in the eventual dismissal of all charges.

The only other way to waive court fees is to apply for a fee waiver, arguing financial hardship (i.e., unemployed, underemployed, low wage earner). There is a state-wide fee waiver court form you can use to apply.

Please note that filing fees vary from county to county. The only portion of the filing fee for a petition to expunge (or seal) that is the same from county to county is the $60 fee that must be paid to the Illinois State Police.

It is important to remember that the right to expunge your record is not guaranteed. It is always within a judge’s sole discretion to grant or deny a petition to expunge. Some courts will not grant a petition to expunge without a court hearing to determine whether your petition should be granted. In some counties, your court appearance may be mandatory, even if you are represented by an attorney.

When a judge orders a criminal record to be expunged, it is as if the arrest never took place. The information is removed from the Illinois State Police criminal history database. The FBI is also notified.  If you need assurance that the FBI has complied with the court order, you can request a copy of your criminal history from the FBI for a small fee.

In the event you receive court supervision or special probation, your right to expunge your record hinges on successfully completing the terms of your sentence. If, on the other hand, a judge terminates your supervision or special probation “unsatisfactorily,” because you failed to comply with the terms of your sentence (e.g., unpaid court fines and fees, testing positive on a drug screen, picking up a new case), the sentence is treated as a conviction, and you will no longer be able to expunge the record of that case.

Some offenses, such as driving under the influence (DUI) or reckless driving, do not qualify for expungement, even in the event you receive supervision and complete the terms of your sentence successfully. The only scenario under which these charges can be expunged is if the charges are dismissed.

Juvenile Arrest & Delinquency Records

Juveniles Aren't as Old as You Think

Often people are confused as to whether they were prosecuted as a juvenile or an adult after they got arrested as a teen. Many people assume, incorrectly, they must have been charged as a juvenile because they were only 17 at the time.

Prior to 2010, in Illinois, if you were 17 at the time of your arrest you were charged as an adult. In 2010, Illinois raised the juvenile age from 17 to 18 but only as it relates to misdemeanor charges.  In 2013, Illinois raised the age of a juvenile from 17 to 18 for felony charges. Since January 1, 2014, all 17-year-olds are tried for criminal offenses in juvenile court. Currently, there is a growing trend in the U.S. to raise the age for a juvenile for criminal prosecution purposes to as high as 21 years of age.

There are several notable distinctions between being charged as a juvenile versus an adult. In Illinois, the most significant difference is that juvenile court records are not public while adult court records are. Another important distinction is that juveniles are not "convicted" of crimes. Rather, juveniles are adjudicated “delinquent.” Finally, because juvenile records are not available to the public, most Illinois employers are prohibited from asking a job applicant if he/she has a juvenile record.

Juvenile Expungement Rules

The rules for juvenile expungement differ from those for adult expungement.  For one thing, adults are not permitted to expunge convictions. A juvenile, however, can expunge a “delinquency” finding.  A “delinquency” finding is similar but not identical to being found “guilty” of a crime in adult criminal court.

Automatic/Mandatory Expungement

Over the last couple years, the Illinois General Assembly has enacted several provisions directing the Illinois State Police (ISP), local police departments, and juvenile courts to automatically expunge juvenile arrest and court records.

Currently, there are three categories of juvenile records entitled to expungement that either takes place automatically (Category One) or where a petition to expunge must be filed and the juvenile judge has to grant the request to expunge (Categories Two and Three). In other words, the judge's decision to grant the expungement is mandated by law.

If you know you have a juvenile record and are interested in getting that record expunged, please download this file, which goes into greater detail about the three categories of juvenile records eligible for expungement.

Juvenile Court Records the Public Can See: The Exception to the Rule

Although Illinois juvenile records are sealed as a matter of law (not available to the public), if a juvenile was ticketed or charged under a City's municipal code or local ordinance and the matter was referred to state court for prosecution, the court record will be publicly available.

The only way to eliminate this record is to petition for adult expungement or sealing. No one should underestimate the possible negative ramifications of a public court record for a municipal code violation.

Restrictions Placed on What Juvenile Records Must be Reported to ISP and FBI

Since 2010, the Illinois General Assembly has placed strict limits on what juvenile record information can be reported to the ISP or the FBI, the two primary state and federal criminal record depositories.

Today, the Illinois juvenile arrest records permitted to be reported to the ISP and the FBI include:

• Weapons offenses
• Any Class X or 1 felony
• All forcible felony offenses, as defined under the Criminal Code
• Any Class X, 1, or 2 felony involving cannabis, a controlled substance (e.g., cocaine, heroin), or methamphetamine
• Felony violations under Chapter 4 of the Vehicle Code (e.g., vehicle theft, tampering with vehicle title/registration)

Prior to 2010, local police departments routinely reported juvenile arrests to the ISP; in turn, the ISP reported this information to the FBI.

Consequently, if you were arrested as a juvenile prior to January 1, 2010 and have not expunged your juvenile record, there is a good chance your juvenile record will be disclosed should you have to undergo a FBI criminal background check.  Individuals seeking employment or licensing in the financial services industry (e.g., banking, securities), industries subject to U.S. Department of Homeland Security oversight (airlines, businesses associated with air travel), or in the federal government, can expect to undergo an FBI criminal background check.

In summary, there are several reasons why it is just as beneficial to expunge a juvenile record as it is to expunge an adult record -- especially if the juvenile record was generated prior to 2010. Today, it is difficult to control what personal or embarrassing information gets released to the public. That's why your best defense is a good offense: expunge it.