CAN YOU EXPUNGE OR SEAL A DUI?
NO
BUT SOME ILLINOIS LAWMAKERS ARE TRYING TO CHANGE THAT
When Illinois enacted the most sweeping expungement and sealing reform in the nation to date, individuals with a DUI on their criminal history were left out in the cold. These sweeping changes in the law did not include eligibility for DUI sealing or expungement.
The law in Illinois clear:
YOU CANNOT EXPUNGE OR SEAL A DUI.
PERIOD.
There is no way around it. There is no legal loophole or some hidden fee you can pay to make it happen. The Illinois Criminal Identification Act specifically excludes DUIs as eligible offense for expungement or sealing.
The only way to currently get a DUI off your record is to get a pardon for your DUI that allows you the ability to expunge.
That means if you get a DUI, even if you didn’t get a conviction and it was your first, it is on your record. FOREVER. Worse yet, as the law stands, there is nothing you can do to get it off your record.
You might ask why? Why can’t you expunge or seal a DUI in Illinois? The reason is actually fairly simple. Punishment is dependent on priors, with some exceptions. So there’s got to be a criminal record.
American society decided about 30 years ago that drunk driving is a dangerous social problem. There was nationwide effort to combat this problem that resulted in drastic changes to the law on DUIs. One of the principle features of this legal development was a simple idea: the more DUIs, the harsher the punishment. Punishment dependent on priors.
So there’s got to be a criminal record.
This created the modern framework for DUI sentencing in Illinois. Currently, DUI punishment, based on prior DUIs, is as follows:
- No Prior/1st Offense- Supervision (non-conviction) eligible ;
- 2nd DUI offense- DUI conviction mandatory (unless charges reduced);
- 3rd DUI offense- Class 2 felony-Probation OR 3-7 years PRISON;
- 4th DUI offense- Class 1 felony- probation OR 4-15 years PRISON;
- 5th DUI offense- Class 1 felony- not eligible for probation-4-15 years PRISON;
- 6th + DUI offense- Class X felony- 6-30 years PRISON
As you can see, the more Illinois DUIs you get, the higher the punishment goes. That’s why when you are sentenced on a DUI, the State has to enter certified copies of your prior DUI record in order to get the Judge to impose the enhanced punishment.
That’s why you can’t get rid of even a 1st time, out of character, fluke of a DUI. Had no record before your DUI and want that DUI supervision/probation off your record? Sorry. Not happening. 20 years have passed since that DUI? Nope. Still not getting off your record. 40 years. Nice try, but still no.
Unless……
Illinois House Bill 1634 gets passed.
House Bill 1634 would allow certain eligible individuals the ability to seal 1 prior misdemeanor DUI that resulted in a sentence of supervision or a conviction. But the proposal behind the bill isn’t as simple as a all access sealing pass for first time DUI offenders. The proposed bill lists a set of very specific conditions that need to be met for sealing eligibility:
- 10 years from Termination of Sentence have passed
- no new DUI violations
- CLEAN (criminally) DRIVING RECORD
- No other misdemeanor or felonies on your driving record
- ONLY MISDEMEANOR DUIs
- Sentences of Supervision and/or conviction.
- Prior DUI did not involve:
- Damage to person or property
- Arrest for Resisting or obstructing arrest
- Prior DUI did involve:
- Refusal of Standardized Field Tests
- Refusal of Breathalyzer
- Prior DUI was not reduced to a Reckless Driving
**PLUS/REMEMBER: as it is now written, you can only SEAL the prior DUI, you cannot EXPUNGE the DUI.
10 years from the Termination of the sentence:
Not 10 years from the night you were arrested. Not ten years from the date you pled guilty or were found guilty after a trial. 10 years after your case was completely done. As in the judge said “ good bye.” As is no more court, no more classes, no more prosecutors, no more anything.
No NEW DUI violations
The key word here is violations. That means is you get a second DUI arrest and beat it at trial or after a motion to suppress, too bad, you can’t get your first DUI sealed.
Clean (criminal) Driving Record:
That doesn’t mean you got a parking ticket. Sometimes, a traffic ticket isn’t just a plain old traffic ticket. Traffic offenses can be crimes. DUI is technically a traffic offense, it’s found in the Illinois Vehicle Code.
This bill would prevent sealing for your DUI if you have previous or subsequent violations for:
- Aggravated Speeding
- Driving While License Revoked
- Driving Without a License
- Driving Without Insurance
- Any other traffic violation that is a misdemeanor or felony.
Only Misdemeanor DUIs
Felony DUI offenders will receive no relief from this proposed. Only first time DUI offenders who received supervision or a conviction are eligible.
Prior DUI Did Not Involve Injury to Person or Property:
Did you run into a house? How about a nun? Too bad, you can’t get your DUI sealed.
Prior DUI also had Resting or Obstructing Arrest Charges:
Were you a dick to the police? Were they a dick to you and slapped resisting charges on you? Sorry, no DUI sealing for you the way the bill is written now.
You Refused the Field Sobriety Tests AND/OR BREATHALYZER
Let’s be clear: never, ever, ever, EVER do the field sobriety tests or give a breathalyzer. Ever. If you follow that advice you’ve got the best chances of never needing to seal your DUI.
No Reckless Driving Reduction
Looks like you can’t have your cake and eat it too once again. If you got your DUI reduced to a reckless, you basically got the benefit on the front end. You can’t get it now.
What type of drivers are typically arrested for DUI?
According to the Illinois Secretary of State 2019 DUI Fact book, the typical DUI offender is:
- Average AGE: 34
- 58% under 35.
- SEX: Male
- 77%
- WHEN DRIVING:
- 11 PM to 4 AM on a weekend
- HOW DRUNK:
- Average BAC = .17
Every year, over 20,000 people are arrested for DUI in Illinois. (Nationally over 1.5 million are arrested for DUI each year). The vast majority of those people arrested have never had a DUI before. In 2017, the last year statistics are available, 86% of DUI arrests were first timers.
No one wants a criminal record. Certainly no one wants a DUI on there. But it happens. To all types of people, in all walks of life. It doesn’t make you a career criminal, but keep it up. The way the law is designed you’ll be felon in no time. For the repeat, chronic drunk driver, this Bill has nothing for them. This Bill is only for the people who really made that “one” mistake and never drank and drove again. They will have no problem with the ten year requirement. And while ten years is a long time to have something on your record, it’s better being on there forever.
It takes a lot of courage to be a politician putting forth bills that appear to give breaks to DUI offenders. But that’s not what is happening with this Bill. This is a common sense proposal to provide otherwise law-abiding citizens the ability to protect their criminal record the same as a person who completed a felony deferred prosecution. Since the changes in the Criminal Identification Act the vast majority of felony offenses, technically even murder, can be sealed, but misdemeanor DUIs can’t. That doesn’t seem to make sense. Nor should it. Sealing and expungement shouldn’t be just for felons trying to get their life back on track. It should be available to the young teacher who had a little too much to drink and got a .09 on the breathalyzer when pulled over going home.
This is just a proposed bill. The eligibility requirements and exclusions are not set in stone. They’re far from law yet. But don’t expect the eligibility to get broader or more inclusive. We’re not on the tip of some wave of DUI repeal and relax laws, but the water could be getting warmer for sensible reform.
To see the full text of the proposed House Bill 1634:
If you are charged with a DUI, or any criminal offense, you need an experienced and informed criminal defense firm ready to fight for your rights. At Robert Callahan & Associates, we know the law, when it changes, and how it’s going to change. Call us at 312 322 9000 to discuss any and all of your criminal law problems.