If you have a criminal conviction on your record, your record may not be eligible for expungement, but you may be eligible to seal your criminal record. The difference between expunging and sealing your criminal record was discussed in Part 1 of this series, and we cautioned that filing a petition to expunge your criminal record can be a complicated process. The rules and guidelines for sealing your criminal record can be even more complex and cumbersome.
An important difference between expunging and sealing your criminal record is who or what agency can access the information. A sealed criminal record can be accessed by a court order or, under 20 ILCS 2630/12 and 13, a sealed criminal record can also be accessed by law enforcement, including police officers, prosecutors, and the courts.
Not all criminal records are eligible for sealing. Generally, the only criminal records that can be sealed are minor, non-violent, non-sexual misdemeanors, and certain felony convictions.
Examples of Non-Violent, Non-Sexual Misdemeanors That Can Be Sealed*: theft, trespass, disorderly conduct, possession of cannabis, prostitution, resisting arrest, retail theft, possession of a weapon, and gambling.
Misdemeanors Which CANNOT Be Sealed*:
• Offenses Under Section 2 of the Crime Victims Compensation Act Including*: Battery, Assault, Domestic Battery, Violations of Order of Protection, Reckless Conduct;
• Sex Offenses Under Article 11 of the Criminal Code (except prostitution);
• Sexual offenses committed against a minor;
• Driving under the influence of alcohol or other drugs or intoxicating compounds;
• Reckless driving;
• Violations of the Humane Care for Animals Act Including: Dog Fighting and Animal Cruelty.
WAITING PERIODS: Just as there are waiting periods for expungement—2 years for court supervision and 5 years for qualified probation—there are complex and strict waiting periods for individuals seeking to seal their criminal records.
• You can immediately petition to seal a case that resulted in one of the following dispositions: you were released without being charged, you were acquitted, or your case was dismissed. (Exception: SOL/non-suit waiting period is 120-160 days). Acquittals and dismissals can be sealed at any time.
• If you have never been convicted of a criminal offense, you must wait 3 years from the termination of the last sentence on your record before you can petition to seal any case on your record.
• If you were convicted or sentenced to court supervision, you must wait 4 years from the termination of the last sentence on your record. This 4 year waiting period applies to any findings of guilt no matter how long ago it occurred.
• If you received a conviction for a qualifying misdemeanor, you must wait 4 years from the termination of the last sentence on your record.
• If you received probation, including Cannabis Control Act probation, Illinois Controlled Substances Act probation, Methamphetamine Control and Community Protection Act probation, Alcoholism and Other Drug Use Dependency Act probation, and/or Steroid Control Act probation, your case qualifies for sealing 4 years from the termination of the last sentence on your record.
• If you were convicted of a Class 4 felony including prostitution, possession of cannabis, possession of a controlled substance, theft, retail theft, deceptive practices, forgery, or possession of burglary tools*, your case qualifies for sealing 4 years from the termination of the last sentence on your record.
• If you were convicted of a Class 3 felony including theft, retail theft, deceptive practices, forgery, or possession with intent to manufacture or deliver a controlled substance, your case qualifies for sealing 4 years from the termination of the last sentence on your record.
Sealing a criminal record is on a case by case basis, whereas expunging your record is “all or nothing.” Next time we will discuss frequently asked questions and alternative remedies when expunging or sealing your record is not an option.
* This list is not exhaustive.
See the Illinois General Assembly website for the statute, 20 ILCS 2630/5.2 Expungement and Sealing, and visit the Clerk of Cook County’s website for a very helpful do-it-yourself style procedural guide.
We here at the Law Offices of Laura Morask stand ready to help you with your expunging or sealing needs. If you have any questions, please give us a call!