Waiting Period to Expunge or Seal an Illinois Criminal Record Rarely Up for Debate
The rules for expunging or sealing a criminal record in Illinois are fairly straightforward. That said, it never ceases to amaze me how often petitioners file to expunge or seal a criminal record too soon -- before their waiting period to file has run out.
Expungement Waiting Periods
As a general rule when a case is dismissed without a finding of guilt, the record is immediately eligible to expunge. Conversely, when someone is sentenced to “deferred prosecution” -- supervision (for a misdemeanor) or special probation (for a felony, e.g., first offender, 710/1410, TASC) – different waiting periods apply.
A two-year waiting period to expunge a misdemeanor record applies following a supervision sentence. There is a five-year waiting period to expunge a felony charge following a special probation sentence. In both cases, the waiting period runs from the date the sentence is satisfactorily terminated.
Sealing Waiting Periods
There is a three-year waiting period to seal a criminal conviction. Like expungement, the waiting period runs from the date the sentence is terminated. If someone is ordered to pay a fine and nothing else (no jail time or probation), the waiting period runs from the date the fine is paid in full.
To seal a record, it makes no difference if you complete your sentence satisfactorily. However, it can influence whether a judge grants or denies your petition. As I explain to clients: it is one thing to be “eligible” to seal/expunge a record but yet another thing to convince a judge you deserve to have your record sealed/expunged.
When Can a Waiting Period to Seal be Set Aside?
Illinois law allows the three-year waiting period (to seal) to be set aside (waived) when a petitioner can show they obtained a diploma, college degree, or received career/occupational training while serving their sentence. This provision -- which we refer to as an “education waiver” -- has been on the books since 2016. 20 ILCS § 2650/5.2(c)(3)E). If eligible, a petitioner can apply to seal their criminal record the same day their sentence is terminated.
Because the legislature made no attempt to list every possible qualifying program, judges are often left to decide who qualifies, taking into account the legislature’s underlying goal: encouraging people to obtain more marketable job skills.
To qualify for a waiver, petitioners must attach (to their petition paperwork) written proof of eligibility: a diploma, college transcript, or a certificate of completion.
How long does the course of study/training need to be? No one knows. Judges decide these matters on a case-by-case basis.
Over the years, I’ve seen one judge deny a waiver to a petitioner who took a day-long course in how to apply false eyelashes (she was going into the business). On another occasion, I observed a judge grant an education waiver to a petitioner who got forklift training. As I recall, both trainings were about the same number of hours.
While what education/training qualifies for a waiver is debatable, what is not debatable is when the petitioner must do it. You must be serving your sentence when you enroll and finish the program.
Once I argued that a client qualified for a waiver despite the fact she’d completed her college degree prior to sentencing. After sentencing, the client took and failed her professional licensing exam. In order to retake the exam, the client was required to take a refresher course.
I was able to convince the judge that the refresher course satisfied the waiver requirement because without a license my client would never have been able to use her college degree.
In short, there is no winnable argument for setting aside a waiting period in the event you don’t qualify for an education waiver.
Thus, if the State’s Attorney objects to your petition to seal because you still have a waiting period to file under the law, you will leave the courtroom empty handed -- no ifs, ands, or buts about it.