Special Pro Bono Week Expungement MCLE Meeting

DuPage Judicial Center - ARC

October 22, 2019

11:45 AM – 12:00 PM Welcome/Introductions

12:00 PM – 1:00 PM Program – Expungement Law and Process: What’s Coming in 2020

and How You Can Make a Difference

Stacey A. McCullough, Mirabella, Kincaid, Frederick & Mirabella,

LLC

Speaker’s Bio - DCBA President Stacey A. McCullough is an

attorney at Mirabella, Kincaid, Frederick & Mirabella, LLC in

Wheaton, where she focuses on criminal, juvenile, and school law

litigation. She received her J.D. from Loyola University Chicago in

1994. Stacey also serves on PILI’s 18th Judicial Circuit Pro Bono

Committee; the Board of Directors of the Lawyers Trust Fund of

Illinois; the ISBA General Assembly and Traffic Laws and Courts

Section Council; and the Leadership Council of Haymarket Center.

See attached

Presentation Summary

Attendees will learn what agencies share information on a person’s

criminal background and how it impacts a person’s ability to obtain

housing, loans, and work. The basic laws and process regarding

expungement and sealing criminal records in Illinois will be covered.

The upcoming changes to the laws in 2020 particularly in dealing with

legalization of cannabis and what will be done to clear those cases will

be addressed. Finally, the attendees will learn of opportunities coming

in 2020 to our legal community where they can assist people in need

by doing this important work.

DCBA Events: October 24th – Pro Bono Week Ask a Lawyer Day – Courthouse

Annex - www.dcba.org/AAL

October 26th – Member Appreciation Family Day – Morton

Arboretum

November 15th & 16th – GAL Training – 421 Building – Auditorium

November 21st – DCBA Unwind – Lynfred Winery - Roselle

Earn CLE Online!

DCBA OnDemand CLE is Now Powered by IICLE The Illinois Institute for Continuing Legal

Education (IICLE®) and the DuPage County Bar Association (DCBA) are excited to offer a new

IICLE®Share collaboration to provide DCBA members a high quality and reliable online

learning experience. Members can find the link to The Illinois Institute for Continuing Legal

Education (IICLE) on the DCBA website under “Legal Community”→OnDemand CLE →Online

CLE Catalog. You must be logged into your DCBA Membership Profile in order to view courses

for free or at a reduced price.

View & Print All CLE Certificates through the DCBA Website:

Manage Profile -> Professional Development (under content & features) and choose the icon to

the left of each meeting to print your certificate directly or choose to have them emailed to you

to save to your computer (you MUST be logged in to view this feature)

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OCTOBER 22, 2019OCTOBER 22, 2019OCTOBER 22, 2019OCTOBER 22, 2019

EXPUNGEMENT LAW AND PROCESS:

What's Coming in 2020and How You Can Makea Difference

Stacey A. McCullough, Esq.

Mirabella, Kincaid, Frederick & Mirabella, LLC

DCBA President

TOPICS

1. The BASICS

⚬ WHY it matters

⚬ WHAT can be done

⚬ WHEN can that happen

⚬ HOW is it accomplished

2. Coming to 2020

Cannabis Laws

3. Making a Difference

Expungement Summit

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The Basics:

WHY IS THIS WORK

IMPORTANT?

Employment

Housing

Licensing

Loans

Education

Travel

Fair Credit

Reporting

Act

HOW LONG CAN

BACKGROUND

COMPANIES REPORT

A CRIMINAL

HISTORY?

Non-Convictions:

7 Years

Convictions:

Forever

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FIND CONSEQUENCESFIND CONSEQUENCESFIND CONSEQUENCESFIND CONSEQUENCES

• JURISDICTIONJURISDICTIONJURISDICTIONJURISDICTION

• CONSEQUENCE TYPECONSEQUENCE TYPECONSEQUENCE TYPECONSEQUENCE TYPE

• OFFENSE TYPEOFFENSE TYPEOFFENSE TYPEOFFENSE TYPE

• DURATIONDURATIONDURATIONDURATION

https://niccc.csgjusticecenter.org/

HOW IS A CRIMINAL RECORD CREATED?

ARRESTING POLICE ARRESTING POLICE ARRESTING POLICE ARRESTING POLICE

DEPARTMENTDEPARTMENTDEPARTMENTDEPARTMENT

ILLINOIS STATE ILLINOIS STATE ILLINOIS STATE ILLINOIS STATE

POLICE & FBIPOLICE & FBIPOLICE & FBIPOLICE & FBI

CIRCUIT COURT CIRCUIT COURT CIRCUIT COURT CIRCUIT COURT

CLERK AND CLERK AND CLERK AND CLERK AND

PROSECUTOR'S PROSECUTOR'S PROSECUTOR'S PROSECUTOR'S

OFFICEOFFICEOFFICEOFFICE

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The

Basics:

WHATWHATWHATWHAT

IS

THE

LAW?

Illinois Criminal

Identification Act

20 ILCS 2630/5.2

EXPUNGEMENT

NON-CONVICTIONS• Findings of Not Guilty

• Nolle Prosequi

• Non-Suit

• Stricken Off with Leave to Reinstate

(SOL)

• Finding of No Probable Cause

• Supervision* (exceptions)

• 710/1410 (First Offender) Probation*

• Second Chance Probation*

• TASC Probation*

• Offender Initiative Program*

*Satisfactorily terminated

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SEALING

CONVICTIONS• Conditional Discharge

• Probation (not qualified)

• County Jail

• Time Considered Served

• Illinois Dept. of Corrections

• Prison

• Fine (not supervision)

• Unsatisfactory Termination (of non-

conviction disposition)

Exceptions: Domestic Battery, Violation Order of Protection, Animal

Cruelty, Sex Offenses involving Minor (except public indecency and

prostitution), DUI, Reckless Driving (except Youthful Offender under

25).

WHAT’S THE DIFFERENCE? ACCESS

EXPUNGED: SEALED:

Arrest records physically destroyed Records physically/electronically maintained

Court file sealed and impounded Court file sealed and impounded

No private entity access No private entity access to misdemeanors

As if arrest and case never happened Access to felonies by employers authorized by

law to conduct fingerprint check (schools,

hospitals)

Always accessible by law enforcement

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WHEN: SEALING WAITING PERIODS

CONVICTIONS 3 YEARS FROM COMPLETION OF LAST SENTENCE IN ANY CASE WITH

CONVICTION DISPOSITION

QUALIFIED

PROBATIONS

3 YEARS FROM COMPLETION OF LAST SENTENCE + CLEAN DRUG SCREEN

WITHIN 30 DAYS OF FILING

IMMEDIATENO WAITING PERIOD FOR ACQUITTALS OR

DISMISSALS

(ELIGIBLE FOR EXPUNGEMENT PROCESS)

WHEN: EXPUNGEMENT WAITING PERIODS

ACQUITTALS & DISMISSALS

NONE (except SOL or non-suit 120-160 days)

SUPERVISION 2 YEARS FROM SAT TERM

QUALIFIED PROBATIONS

5 YEARS FROM SAT TERM

TASC 5 YEARS FROM SAT TERM

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EXCEPTION TO THE WAITING PERIOD

ELIGIBLE OFFENSES CAN BE SEALED UPON TERMINATION OF

THE LAST SENTENCE IF CLIENT EARNED A HIGH SCHOOL

DIPLOMA, GED, ASSOCIATES DEGREE, BACHELORS DEGREE, OR

CAREER CERTIFICATE DURING THE TERM OF THE SENTENCE OR

DURING MSR (PAROLE). TELL YOUR CLIENT AT SENTENCING!

HOW: FILING A PETITION

Illinois Supreme Court Forms

http://www.illinoiscourts.gov/forms/approved/expungem

ent/expungement.asp

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WHAT THE COURT CONSIDERS:

RELIEF IS ALWAYS

DISCRETIONARY

STRENGTH OF STATE'S CASE

CRIMINAL HISTORY/EDUCATION/EMPLOYMENT

HISTORY

ADVERSE CONSEQUENCES IF RELIEF DENIED

TIME PERIOD SINCE OFFENSE

WHAT HAPPENS AFTER FILING?

NOTICE OF PETITION

• TO PROSECUTOR, ISP, AND ARRESTING AGENCY

OBJECTION PERIOD

• 60 DAYS FROM DATE OF SERVICE

COURT APPEARANCE FOR HEARING

• SOME JURISDICTIONS NO COURT DATE IF NO OBJECTION

ORDER OR DENIAL

• ALWAYS DISCRETIONARY

COMPLIANCE

• REQUIRED WITHIN 60 DAYS OF SERVICE OF THE ORDER

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What if denied or ineligible?

ALTERNATIVE REMEDIES

CERTIFICATE OF GOOD CONDUCT

CERTIFICATE OF RELIEF FROM DISABILITY

HEALTHCARE WAIVER

PETITION FOR EXECUTIVE CLEMENCY

PETITION FOR CERTIFICATE OF ELIGIBILITY OF SEALING

CANNABIS 2020

USE AND POSSESSION

• Illinois Resident

• 21 years of age or older

• Can possess up to 30 grams of raw cannabis

• Can possess cannabis infused product containing no

more than 500 mg of THC

• Can possess 5 grams of cannabis product in concentrated

form

• No possession on bus, in school, in jail, in car unless

sealed and inaccessible while moving, in daycare

• No use in above, in public place where close proximity to

under 21 year olds, where reasonably expected to be

observed by others, or where smoking prohibited by

Smoke Free Illinois Act (restaurants, stores, offices, etc.)

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CANNABIS 2020

Expungement

AUTOMATIC• Arrests Not Resulting in Criminal Charges: already eligible

for expungement. Starting 1/1/20: automatic expungement

of arrest records for possession under 30 grams

automatically expunged if 1 year or more has elapsed

since the date of the arrest.

• Arrests Resulting in Criminal Charges, No Conviction:

already eligible for expungement (supervision, acquittal).

Timetable:• Records created 1/1/13 – 1/1/20: automatically expunged

prior to JANUARY 1, 2021

• Records created 1/1/00 – 12/31/12: automatically expunged

prior to JANUARY 1, 2023

• Records created before 1/1/00: automatically expunged prior

to JANUARY 1, 2025.

• Arrests Resulting in Convictions, Possession of 30 grams

or less: Illinois State Police to identify eligible records and

forward to Prisoner Review Board. Board to review and

makes recommendations to Governor for pardons. If

pardon granted, Attorney General petitions court to

expunge.

EXCEPTION TO AUTOMATIC ELIGIBILITY

Marijuana arrests and convictions associated with:

Violent sexual offenses

• Sexual offenses against a minor

• Stalking offenses

• Offenses requiring registration as Sex Offender

• Animal abuse offenses

• Violations of local ordinances

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Possession of 30-500 grams can

petition the court for expungement:

RELIEF IS STILL DISCRETIONARY

COURT WILL LOOK TO:

LAW ENFORCEMENT REASON TO RETAIN RECORDS

PETITIONER’S AGE NOW AND AT TIME OF OFFENSE, CRIMINAL

HISTORY/EDUCATION/EMPLOYMENT HISTORY

ADVERSE CONSEQUENCES IF RELIEF DENIED

TIME PERIOD SINCE OFFENSE

DUPAGE

EXPUNGEMENT

SUMMIT

COMING APRIL 2020

Fight for the things that you care

about, but do it in a way that will

lead others to join you.

RUTH BADER GINSBURGRUTH BADER GINSBURGRUTH BADER GINSBURGRUTH BADER GINSBURG

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