Can an Illinois DUI get expunged? The answer to this question may soon change

Can an Illinois DUI get expunged?  The general answer is no, unless there was a finding of not guilty or it was otherwise dismissed.  A DUI sentence of supervision is not eligible for expungement.

This is one of the many situations where DUI offenses are treated differently than other similar offenses.  Most other misdemeanor offenses are expungeable.  Even some felonies, particularly drug offenses, are also eligible for expungement, because our legislature and courts are recognize the benefit of giving people a chance at a clean slate, and not penalizing people forever, especially over an addiction issue.

DUIs were barred from expungement during the “tough on crime” 1990s.  Over the past few years, the pendulum has been swinging back and I have been hopeful that Illinois would give some hope to past DUI offenders.

Now, it looks like it might.

The synopsis of HB 1634 and an amendment state as follows:

Amends the Criminal Identification Act. Provides that a person may petition for sealing or expungement for a violation of driving under the influence of alcohol or drugs, aggravated driving under the influence of alcohol or drugs, or a similar provision of a local ordinance after a period of 10 years after the termination of the petitioner’s sentence if the petitioner has not been arrested for, or convicted of, a subsequent violation.

House Committee Amendment No. 1
Replaces everything after the enacting clause. Amends the Criminal Identification Act. Provides that the court may not order the sealing or expungement of the records of arrests or charges not initiated by arrest that result in an order of supervision for or conviction of driving under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof (DUI) under the Illinois Vehicle Code or a similar provision of a local ordinance; except that the court may order the sealing of one misdemeanor record of arrest or charge not initiated by arrest that results in an order of supervision for or conviction of DUI under the Illinois Vehicle Code or a similar provision of a local ordinance per petitioner if each of the following conditions have been met: (1) the petitioner has not previously been convicted of or placed on supervision for DUI under the Illinois Vehicle Code or a similar provision of a local ordinance; (2) 10 or more years have passed since the termination of the petitioner’s sentence; (3) during the commission of the violation, the petitioner did not proximately cause death or personal injury to any other person or damage the property of any other person and was not arrested for a violation of resisting or obstructing a peace officer; (4) during the arrest or stop of the petitioner by a law enforcement officer for commission of the violation, the petitioner submitted to a test under the Illinois Vehicle Code to determine whether the petitioner was driving under the influence when requested by a law enforcement officer; (5) the petitioner has no other misdemeanor or felony driving charge on his or her driving abstract; and (6) the judge examined the driving abstract of the petitioner petitioning to have his or her records sealed under this provision and made a finding entered on the record that the petitioner did not enter into a plea agreement on a lesser charge other than a DUI under the Illinois Vehicle Code or a similar provision of a local ordinance, and the facts did not support that the petitioner had previously committed a DUI under the Illinois Vehicle Code or a similar provision of a local ordinance.

I’ve been informed by a member of the Illinois State Bar Association that the Office of the Secretary of State opposes this bill.  Hopefully, an agreement can be reached so that a person who gets a DUI (often a young person in their 20’s) does not have to worry about it staying on his or her record for the rest of his or her life, costing employment and other opportunities.

Will my DUI appear on my record?

One of the most common questions I receive is “whether or not my DUI will remain on my record?”

I hate to speak in “lawyer-ese” but unfortunately, there isn’t a clear-cut answer.

The biggest unknown is what is meant by your “record”?  Do you mean a criminal record, and if so, which criminal record?  From the Illinois State Police, the FBI, or some private organization?  Or do you mean the Secretary of State’s driving records, or a nationwide driver database, or insurance records?  What about the clerk of the circuit court’s records?  What about the internet?

It is impossible for me to exhaust all the possible places where an arrest might appear.

Let me start out with a few basic concepts:

1.  In Illinois, first offenders are eligible for “court supervision.” Supervision is a type of sentence, which upon successful completion, results in dismissal of the charge.  730 ILCS 5/5-1-21.

The Illinois Secretary of State does not place supervision dispositions on the standard driving abstract that is readily available to the general public.  However, supervisions are kept on a “court purposes” abstract, which is only available to certain government entities (like police and state’s attorneys), you and your lawyer.

Thus, a DUI supervision will not appear on your public driving record (but it will appear on the hidden “court purposes” one).

Even though you have received supervision, it will still remain on the clerk’s public record.  These can be viewed by the public at the courthouse.  In addition, many circuit court clerks have records available on the internet, or sell them to private companies.  And the ones that don’t do this now may do so in the future.

2.  In Illinois, DUI supervisions or convictions are not eligible for expungement.  Neither are DUIs that were reduced to reckless driving.  20 ILCS 2630/5.2(a)(3)(A).

You can only obtain an expungement of an Illinois DUI if you were found not guilty of the offense, or the charge was otherwise dismissed.

If your case is expunged, then the clerk will remove the charge from their records, the arresting police will destroy their file and the Illinois State Police will remove the arrest from their records.

However, an expungement is not a complete erasure of your case.  An Illinois expungement is not binding on the Federal government, so the FBI is not under any obligation to remove an expunged DUI from their database.

Also, an expungement does not apply to non-Illinois governmental businesses.  For example, if your arrest was reported in a “police blotter” section of a local newspaper, and your name was indexed by a search engine, the arrest may pop up every time someone searches your name, regardless of the expungement.

Confusing, isn’t it?  Feel free to ask me at haroldwallin@gmail.com if you have any questions.