Clearing your Criminal Record: Expungement, Sealing and Clemency

 Posted on August 27, 2021 in Family Law

Wheaton Expungement AttorneyWhen you are arrested or charged with an offense, a criminal record is created, even if the case is dismissed or you are found not guilty. Unless you take the steps necessary to petition the court, the record of the arrest and/or the charges remain on your permanent record. In fact, sometimes these criminal records can be accessed by the public, including your family, friends, employers, trade organizations, banks, and credit agencies. To have your record erased or hidden you must file a Request to Expunge and/or Seal Criminal Records with the court and have a judge approve your Request. There are 3 ways to clear your criminal record: (1) expungement, (2) sealing, or (3) clemency.

An expungement essentially “erases” arrests and court supervisions from your criminal record so it is as if they never happened. Once an expungement is granted, all records of your arrest and charges will be removed from public criminal records and are destroyed. No one, not even law enforcement, will be able to access the expunged records and use them against you. This can be extremely beneficial when you apply for a job, an apartment, a professional license, or any other application that requests information regarding whether or not you have ever been charged or arrested for a criminal offense. In fact, after your record has been expunged, you can answer “no” to any such questions on these types of applications.

However, it is important to know that not all offenses are eligible for expungement and certain things in your history could make you ineligible for expungement.  Specifically, if you have any pending criminal charges that will prevent you from being eligible for having a prior arrest or charge expunged. In addition, any sentences that you have not yet completed, including parole, probation, or court supervision will also make you ineligible for expungement. In addition, there is either a two or five-year waiting period from the date of satisfactory termination of eligible court supervisions and qualified probations.

Some cannabis offenses may be eligible for automatic expungement of police records. As of January 1, 2020, possessing cannabis up to certain amounts is legal in the State of Illinois. Part of the same law that legalized possession of cannabis also created ways to clear criminal records relating to cannabis. Under that law, you may qualify for automatic expungement of police records if you have an arrest as an adult for a “minor cannabis offense,” which includes possession, manufacture/delivery, or possession with intent to manufacture/deliver 30 grams or less before June 25, 2019. It must be at least one year since the arrest. There must not have been any charges filed in court or, the charges must have been dismissed or vacated, or you were acquitted. Also, you must not have:

  • Given marijuana to someone under 18 who was at least three years younger than you, or
  • Been arrested for a violent crime in the same case as the cannabis charges.

If all of this is true, the police will automatically remove your law enforcement record based on when you were arrested:

  • Arrested 1/1/2013 or later: Record expunged by 1/1/2021.
  • Arrested between 1/1/2000 and 12/31/2012: Record expunged by 1/1/2023.
  • Arrested before 1/1/2000: Record expunged by 1/1/2025.

It is important to note, however, that this automatic expungement process for minor cannabis arrests does not expunge court records. You will still need to file a Petition Expunge your record to have this happen. You may also file earlier than these time frames, if you do not want to wait for the automatic process to occur, but you still must wait until one year after the arrest before you file.

If you are not eligible for expungement, you may seek a petition to seal your record. Sealing hides your criminal record from most of the public. Law enforcement agencies can still see sealed records. Employers required by law to conduct background checks can see sealed felony convictions. They cannot see sealed misdemeanor convictions or cases not resulting in convictions unless the employer is a law enforcement agency. Similar to expungements, you are not eligible for sealing if you have any pending criminal charges, any sentences you have not yet completed, or the necessary “waiting period” has not passed.

The final means by which you may clear your criminal record is a clemency petition, which applies in cases where you do not qualify for expungement or sealing. Clemency is, essentially, an application for a pardon from the Governor forgiving you for your criminal convictions. A pardon does not erase or hide your conviction on its own. If you get a pardon authorizing expungement, you can then apply to have your record expunged. There is a high burden for clemency petitions and this should be considered a rare remedy, reserved for unique cases.

The negative consequences of having a criminal record can impact your life for many years. Fortunately, there are means by which you can clear your record. The expungement and sealing process can be confusing and varies from courthouse to courthouse, so it is important to have a skilled attorney who can explain the process and discuss your eligibility. If you qualify, we can assist you in filing the necessary paperwork or walk you through the process, whether you wish to expunge or seal something from your past. Contact attorney Maria Gabriella Antoniolli at McSwain Nagle Giese & Rapp, P.C. for a consultation regarding your criminal record.  

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