Drug Tests May No Longer Be Needed for IL Drug Expungements

This year, the state legislature in Illinois made a big change to the process of sealing or expunging records in the state that will have a huge impact.

Illinois HB 4392 is now waiting for the governor to sign it into law, having passed both the state house and state senate. This bill helps to give those with felony records a chance to have their records expunged – even if they test positive for marijuana.

Yes, that’s right – expungement or record sealing in Illinois is currently dependent on passing a drug test, but this bill is set to change all of that. Here is what you need to know.

What is HB 4392?

HB 4392 is a bill that allows people who want to petition the court to have their criminal records sealed or expunged – even if they happen to test positive for marijuana in the drug test required by the state.

What Is the Current Law?

As of right now, the law requires that those who want to expunge or seal their criminal records to pass a drug screen 30 days before filing their petition to the court. You must attach a drug test with your petition for expungement or sealing or the court will automatically deny you.

However, failure of this drug test also means that your petition will automatically be denied.

What Is Expungement in Illinois?

In the state of Illinois, the law allows some criminal records to be sealed or expunged, but only to those who qualify.

For those who have been arrested for a crime, or arrested and charged with a crime but not convicted, you may be eligible to have your records sealed or expunged. However, anyone who has been convicted of a crime in the state is not eligible to have their record expunged – instead, it can be sealed. Many misdemeanor and felony convictions will allow for a record to be sealed.

Expungement means that any record of an arrest or charges that didn’t result in a conviction can essentially be removed from your record. Sealing, on the other hand, means that your record still exists in the legal sense, as it will be viewable by the court, but it will not show up on any background check done outside of law enforcement. A sealed record cannot be obtained without a court order.

How Do You Know If You Qualify?

You are eligible to have your criminal record expunged if:

• You have completed court supervision successfully
• You were acquitted of charges against you
• The case against you was dismissed

For a record to be sealed, you can be eligible as long as it’s not related to:

• Charges or conviction of a DUI
• Violating a no-contact order
• Domestic battery
• Order of protection violation
• Sex crimes
• Reckless driving
• Crimes against animals

You also have to wait a certain amount of time if you are eligible to have your criminal record sealed in the state. However, you can petition for an expungement right after your case has been dismissed – or you’ve been acquitted.

This new law in Illinois will change record sealing and expungement for many people, especially now that marijuana is legal both recreationally and medically in the state. So, if you are looking to have your records sealed or expunged, discuss this new development with your attorney to make sure it is in effect before petitioning the court and taking your required drug test.

About the Author: Andrew M. Weisberg is a former felony prosecutor who now serves as a defense attorney in the greater Chicago area. He has extensive experience in handling all types of criminal cases, from sex offenses and domestic violence to retail theft-related crimes, murder, and drug crimes. His work has been recognized by Avvo, Expertise, National Trial Lawyers, and others, and he has been featured on countless news outlets for his experience and knowledge in criminal law.