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Offenses That Are Ineligible for Expungement in Illinois

Duncan v. People ex rel. Brady
Appellate Court of Illinois, Third District
April 24, 2013

Holding: A petitioner will be precluded from sealing or expunging records that arise from criminal acts that have been defined by 20 ILCS 2630/5.2, of which includes certain sexual offenses.

Why This Case is Important: Illinois sealing statute allows a petitioner to seal records that arise out of his criminal offense. Generally, such records are limited to records of arrest or charges not initiated by arrests. However, 20 ILCS 2630/5.2(a)(3) states that there are certain offenses that cannot be sealed or expunged. Among those are records for sex offenses. 20 ILCS 2630/5.2(a)(3) specifically states that a court shall not order the sealing or expungement of records of any sexual offenses committed against a minor or any sexual offenses included in Article 11 of the Criminal Code of 1961 or 2012. As a result, a petitioner who has been convicted of a sexual offense listed in the statue will be precluded from obtaining sealing or expungement relief.

It is important to note how this court constructed the statute’s ability to seal or expunge records that were not of “arrests” or “charges not initiated by arrests.” The State’s major point of contention with the sealing of the petitioner’s records was that the petitioner was attempting to seal police records that were not “arrests” or “charges not initiated by arrests.” The court here did not decide on the issue, as it ended its discussion by deciding that the petitioner was ineligible for record sealing because of his sexual offense. However, the court did acknowledge that the term “records” found in the statute could be broader than merely sealing records of “arrests” or “charges not initiated arrests.” Because the court did not rule on this particular issue, there has yet to be authority directly on point as to whether subsequent records aside from that of “arrests” or “charges not imitated by arrests” can be sealed.

Facts of This Case: In 2011, the petitioner in this case filed to seal eight non-criminal police reports that were kept each time he registered as a sex offender. The petitioner had previously been convicted of aggravated criminal sexual abuse as a juvenile, but had since been found to be no risk to the community and was able to have his registration requirement terminated.

The petitioner sought to seal these records because of his inability to find employment in his respective field. The petitioner presented evidence of rehabilitation, and the trial court granted his request.

On appeal, the Appellate Court of Illinois reversed the trial court’s decision. The court of appeals determined that the petitioner’s offenses were not eligible for record sealing. The court of appeals held that the sealing statute specifically precluded certain sexual offenses from record sealing. Because the petitioner was convicted of a sexual offense that was excluded from the sealing statute, the appeals court concluded that the petitioner should not have been granted his requested relief.

As a result, the Appellate Court of Illinois reversed the trial court’s decision and held that there was no authority to seal the police records documenting petitioner’s sex offender registration requirement.

Key Language: The Act excludes certain records from eligibility for either sealing or expungement. Among those records that cannot be sealed are records for sex offenses as definite in article 11 of the Criminal Code of 1961 [or 2012].

Expert Advise: “Not all petitioners are eligible for record sealing or expungement relief. Fortunately, 20 ILCS 2630/5.2(a)(3) clearly states which offenses are excluded from such relief. In these instances, it is important to speak to experienced counsel in order to determine eligibility for record sealing or expungement relief.” -Attorney Mathew Higbee.

To read about more cases that help to define record clearing relief laws click here.

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