Criminal Defense FAQ

QUESTION: I have a criminal record in Illinois. How can I clear it?

ANSWER: There are actually three ways you can have your Illinois criminal record cleared: 1) expungement, 2) sealing, and 3) Governor's pardon. Illinois law defines what State crimes can/cannot be expunged or sealed.

The first step in determining one's eligibility for expungement, sealing or pardon is to look at the record as a whole. All arrests, even those that did NOT result in conviction are on an individual's record. So, your "record" refers to all cases for which a person has ever been arrested.

QUESTION: I was arrested one time and the case was dismissed. I was told the case wouldn't be on my record. Why does it keep popping up on my background checks when I apply for a job?

ANSWER: If you have ever been fingerprinted you have a record that can be accessed by the police and prospective employers. At the time of your arrest, your fingerprints are transmitted from the local police station, to the IL State Police, to the FBI. Even though the judge may throw out your case, your prints, along with a record of your arrest, are still archived.

QUESTION: How do I know if I can expunge my record?

ANSWER: Expungement is only an option if you have no convictions (misdemeanor or felony) on your record. That means you can't have convictions in other states either. Even if you are eligible for expungement, the decision is entirely a matter of judicial discretion. (For example, a judge may not grant a petition to expunge for a person arrested 10 times for battery, even if none resulted in conviction because the state's interest in preserving the record may outweigh the individual's interest in having it expunged.) In most cases, however, such petitions are granted.

* Exception: Class 4 Possession of a Controlled Substance and Class 4 Prostitution can now be expunged if the Offender received 1410/710 Probation. Remember, this is only if the person has no other convictions on their record! This is a special type of probation given to "first-offenders" and if you get a subsequent conviction for any other crime, you cannot expunge either of these offenses. Again this is a special type of probation that is viewed as a non-conviction; it does not apply to regular probation.

QUESTION: What is a conviction?

ANSWER: A conviction is any case that did not result in dismissal (Nolle Pros, Stricken on Leave), not guilty, or supervision. If you were placed on probation, conditional discharge or fined, you have a conviction. Also, jail and prison is a conviction.

QUESTION: What exactly is an Expungement?

ANSWER: The judge of the county where the arrest occurred orders the arresting agency (example: Lake County Sheriff ), the IL State Police and the FBI to return all original records of all arrests, original fingerprints and mug shots. Any internal computer records must be destroyed and removed from any public access system. The courthouse seals the file(s) so the public can't gain access. If there were arrests in multiple counties, petitions must be filed with each county courthouse.

QUESTION: I was arrested for a DUI in IL and given supervision. You said that supervision is not a conviction. So can I expunge my DUI?

ANSWER: There is an exception to the Expungement law in Illinois regarding a DUI. If you were arrested for DUI in Illinois, you either pleaded guilty or were found guilty and you received supervision, conditional discharge, probation or jail, you cannot expunge or seal the DUI; furthermore, you cannot expunge any other arrests on your record, if any. If you have other arrests on your record, you can seal those pending their eligibility.

Essentially, a finding of guilt on a DUI, no matter what the sentence, is viewed as a conviction. Basically, your only option to have your DUI removed from your record is a Governor's pardon. Unless, of course, you were found not guilty of the DUI or the case was dismissed, then you can expunge it, so long as you don't have other convictions on your record.

QUESTION: I have a conviction on my record, since I can't expunge my record, can I seal my record?

ANSWER: Since Sealing is an option for those with a conviction on their record. There are two ways to seal a record: 1) partial sealing and 2) complete sealing.

Partial sealing is for someone with a non-sealable offense on their record plus other sealable offenses. (For example, the person has a felony conviction for burglary on their record - which is not sealable - and 3 misdemeanor arrests that were thrown out - which are sealable. The 3 dismissed cases are sealed, but the burglary remains on record.) In essence, the whole record isn't sealed but it looks a lot better than it did before it was sealed. So instead of having a long criminal history, the person may just have a conviction or two.

Complete sealing is for someone with nothing but sealable offenses on their record. This applies to the person who has a sealable conviction; but for the conviction, the record would be expungeable. For example, a person was sentenced to conditional discharge instead of supervision for retail theft. Had the person been given supervision the record would have been expungeable.

What are sealable convictions? No felony conviction is sealable and no misdemeanor violent crime conviction is sealable. * Exception: Class 4 Possession of a Controlled Substance and Class 4 Prostitution convictions can be sealed if the person received 1410/710 probation. However, most misdemeanor convictions are sealable.

QUESTION: What exactly is a Sealing?

ANSWER: Unlike expungement, the record is not destroyed; instead, the arresting agency (for example, Chicago Police), the Illinois State Police and the Clerk's Office will seal the record and remove the applicant's name from the electronic index. Government agencies can still access the file but only a judicial order can allow public view of the record. For purposes of a criminal background check by a prospective employer, sealing will be sufficient and your name will not be publicly accessed. Be careful, however, if you are applying for a government job.

QUESTION: I didn't go to prison but instead the judge gave me probation on my felony case. Since I didn't go to prison, is it still a conviction?

ANSWER: Yes, probation is a conviction. The judge could have sent you to prison but instead chose the punishment of probation. The person who went to prison is in the same boat as the person who was given probation: both have felony convictions on their record and both will need a governor's pardon.

QUESTION: Since I can't expunge or seal my record, is there any way I can remove the conviction from my record?

ANSWER: If you don't qualify for expungement or sealing, you must seek a pardon from the governor. Pardons are not just for people who've done time in prison! Anyone who has a conviction needs a pardon! (Unless it's a sealable conviction or a Class 4 exception. See above.) However, the governor has the power to both pardon an offender and issue an executive order to expunge the conviction. In the case of Sharon Latiker, former Governor Ryan granted a pardon but did not order an expungement. Gov. Blagojevich, on the other hand, does not grant pardons without a following order for expungement - which is a good practice! Who wants a pardon when the crime is still visible to the public?!? Pardons are also a matter of discretion, and they are handled on a case-by-case basis. There is no requirement for the governor to address a pardon application within any period of time. However, he must make a decision on all petitions before he leaves office. It is not uncommon for a governor to wait until the end of the final term to make such decisions and avoid potential political backlash.

QUESTION: What is the difference between a pardon and clemency?

ANSWER: There is no difference. Technically, clemency is the general term for commutation, pardon and reprieve. Commutation is for the person in prison, who is seeking to be released early but isn't necessarily looking to have the conviction pardoned. A pardon is for the person who is not in custody or on probation and wants to be "forgiven" for their offense. A pardon can also be granted for a person who is in prison. A reprieve is a delay in punishment, usually for a person sentenced to the death penalty. The Governor can stay the execution pending appeals, etc. Although the death penalty is technically still legal in Illinois, Governor Ryan suspended the death penalty indefinitely in 2000.

QUESTION: I petitioned the Governor for a pardon but I haven't heard anything. What do I do?

ANSWER: The only thing you can do is patiently wait for the Governor to make a decision. The law states that a petitioner cannot re-petition the Governor for a pardon until he has been denied and waits for a period of one year before resubmission. So, if the Governor does not make a decision for years, the petitioner cannot make amend his/her petition for re-submission. I have a client who submitted 3 years ago and is waiting for a decision. In the past 3 years, he has gotten an MBA, built a homeless shelter and moved his sick mother into his home to care for her full-time. I think re-submission each year should be allowed, even if the Governor hasn't made a decision. This allows the Governor to see how petitioners have progressed as productive members of society. Under current law, the petitioner who waited for a response since 2003 must simply continue to wait. That person should be able to knock on the Governor's door every 365 days.

TOPIC: SUCCESSFUL FELONY PROBATION

Example: I was arrested in 1995 for 3 counts of felony Unlawful Delivery of Cannabis. The prosecutor gave me the option of turning over my suppliers to dismiss the charges. I refused to do this. Instead, I pleaded guilty to Count 3. I was sentenced to 18 months probation. My terms of probation were completed successfully. I was discharged from probation in 1998. I have never been arrested or charged with anything before this happened or since. I have always been employed (up until now). What are my options?

ANSWER: Just because you did not go to prison, it does not mean you don't have a conviction. In fact, to the contrary, felony probation is a conviction, just as much as going to prison. The judge could have sentenced you to prison but instead he gave you felony probation. Felony probation is not expungeable, and it is not sealable. (Exception: if you were given "1410 Probation" and that's usually given to people convicted of Class 4 Drug possession.) Your only option is to seek a Governor's pardon.

TOPIC: PROCEDURE OF SEEKING A GOVERNOR'S PARDON

ISSUE: I understand this could only be cleared if the Governor's Board of Review approves and sends a recommendation to the Governor. Is that correct? Is there even a remote chance this could be done successfully?

ANSWER: This is not true in Illinois. The Gov must grant the pardon subsequent to the recommendation by the "Illinois Prisoner Review Board." Said another way, even if the Board recommends the pardon, one must still be "pardoned" by the Governor. The Board's "recommendation" is just a suggestion.

A pardon petition is submitted to Board. They review the case, hold a hearing that you have the option of attending to state your case, they then make a recommendation to the Governor. The Governor does not have to follow their recommendation; he can grant a pardon for a petitioner who the Board did not recommend. But again, just because the Board recommends the pardon, that does not mean you have received the pardon.

QUESTION: What are my chances of receiving a governor's pardon?

ANSWER: There is no guarantee that your pardon will be granted because the final decision is left up to one person: the Governor. If a pardon is your only option, then you should petition for one; otherwise, the felony conviction is on your record forever. Your chances are as good as your case. If you made one mistake many years ago and since then you haven't been in trouble, you have gotten a job and raised a family, then your chances are better than the person who has been arrested several times since the conviction, has no job experience and no education. The better you can present yourself and your case to the IL Prisoner Review Board and the Governor, the better your chance of receiving the pardon.