John Roska: Change in law allows convictions to be sealed

John Roska: Change in law allows convictions to be sealed

Q: Years ago I was told I couldn't expunge or seal my felony conviction. Now somebody told me I can, because the law changed. Is that true? Can any felony be expunged or sealed?

A: Yes. The law changed. Before, you couldn't seal much — just misdemeanor convictions and a few felonies. Now, you can seal almost anything.

Gov. Buce Rauner signed the new law Aug. 26. It's a huge change. If you couldn't seal a record before, you probably can now.

The difference between expunging and sealing a criminal record is important to understand.

An expunged record is destroyed. It's gone. Nobody can see it, not even law enforcement.

Only non-convictions can be expunged. Non-convictions are all dismissed cases, along with cases where you got supervision, or certain kinds of probation. If you successfully complete supervision, or "special" probation, it's not a conviction.

In the old days, you couldn't expunge anything if there was any kind of conviction on your record. But starting in 2017, having a conviction won't stop you from expunging other cases that did not result in conviction. That makes it possible for lots more people to expunge records.

A sealed record is closed to the public. They don't show up in a search of public records, like at the courthouse or on a website.

But, law enforcement can still see sealed felonies. So can employers who fingerprint you for a background check.

Where expunging is for non-convictions, sealing is for convictions. Now, thanks to the recent change in the law, almost all convictions can be sealed.

But not all. As before, you can't seal convictions for domestic battery; violations of orders of protection or no-contact orders; animal cruelty; DUI and reckless driving; and most sex crimes. (You can seal convictions for prostitution and misdemeanor public indecency.)

So, if your convictions aren't on that excluded list, you can file to have them sealed.

To file, you can't have any pending charges, and it must be three years "after the termination of" your last sentence. That means the sentence in your most recent conviction — not the sentence in the case you'd like to seal.

But there's no waiting period to seal if you get a GED or other degrees or certificates during your "sentence, aftercare release, or mandatory supervised release."

The idea is that you have to stay out of trouble for at least three years or improve yourself before you can seal anything.

There's no waiting period to expunge dismissed charges. It's two years for expunging supervision and five years for expunging special probation. As with sealing, you can't file to expunge if you have any pending charges.

The state's attorney, the arresting agency and the Illinois State Police can object to your request to seal or expunge. A judge has the final say, and can always say no. They have absolute discretion to grant or deny your request. You just get to ask.

Expect more objections now that really serious offenses can be sealed. That could result in mini-clemency hearings, where you must prove you deserve to have your record sealed.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.