Getting FOID with felony expungement?

[XxWINxX94]

Hello,

A friend made some serious mistakes and had a bit of a run-in with the law. He was charged with felony (class 4) drug possesion in Cook County, IL.

However, since it was a small amount, he has never been in trouble before, and he qualified, the court allowed him to do "cook county state's attorneys drug school." Its a program for non-violent first time offenders. He has completed the program and was told that the case can be expunged after the state and local authorities approve it.

In the mean time though, he was told that he is a felon, and assumed he couldn't qualify for a FOID card because on the form he would have to check "Yes" under felony or conviction.

Now, once the expungement has been completed in a few months, shouldn't he be eligible for a FOID card, considering the records will be gone, or need a court order to obtain?

The state police have already notified him via mail they have no objection to the expungement. He is now waiting for a letter from the court.

Can anyone offer any advice on this topic? Special felony expungement and FOID card eligibility?

 

[Trent]

Tagging this thread for updates.

I have an employee who is in a similar boat, except;

His felony is over 20 years old, was a minor one. Stole checks from his mother and wrote about $300 worth of checks, forging her name. Was convicted of a felony, got time served, and put on house arrest for 6 months. He hasn't had any convictions (misdemeanor or felony) in over 20 years now, has been a member of AA for the same duration, and chaired his local AA organization for 18 years now.

He's also trying to figure out how to get his firearms rights restored. Lawyers are expensive though, and he doesn't want to start spending money if there's no chance.

 

[bikemutt]

AFAIK, felony expungement means it's as if it never happened, the crime will not be reported on a background check. Accordingly the applicant may answer the "have you ever been convicted of a felony" in the negative.

You state that he was "charged" with the felony, that's a far cry from being convicted of the same. If the program he was in resulted in him not being convicted and this is all about having the charge itself expunged, then he should be in even better shape.

Now, there is a good chance the situation has caused an FBI criminal record to exist. It is important to make sure the State Police, or whomever is responsible, to update the FBI when the expungement is complete. They are not always in a rush to undo what's done. Failure of this step will most likely cause a FOID denial and almost certainly will cause the NICS to deny a transfer.

 

[Trent]

What is the process with the IL State Police to begin the expungement process?

I read the following, which is the state law on restoration of firearms rights, but it confused me. (Trying to avoid spending money with a lawyer until we're more confident it can actually be accomplished; lawyers love taking money)

Source: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1657&ChapterID=39

(430 ILCS 65/10) (from Ch. 38, par. 83-10)
Sec. 10. Appeal to director; hearing; relief from firearm prohibitions.
(a) Whenever an application for a Firearm Owner's Identification Card is denied, whenever the Department fails to act on an application within 30 days of its receipt, or whenever such a Card is revoked or seized as provided for in Section 8 of this Act, the aggrieved party may appeal to the Director of State Police for a hearing upon such denial, revocation or seizure, unless the denial, revocation, or seizure was based upon a forcible felony, stalking, aggravated stalking, domestic battery, any violation of the Illinois Controlled Substances Act, the Methamphetamine Control and Community Protection Act, or the Cannabis Control Act that is classified as a Class 2 or greater felony, any felony violation of Article 24 of the Criminal Code of 1961, or any adjudication as a delinquent minor for the commission of an offense that if committed by an adult would be a felony, in which case the aggrieved party may petition the circuit court in writing in the county of his or her residence for a hearing upon such denial, revocation, or seizure.
(b) At least 30 days before any hearing in the circuit court, the petitioner shall serve the relevant State's Attorney with a copy of the petition. The State's Attorney may object to the petition and present evidence. At the hearing the court shall determine whether substantial justice has been done. Should the court determine that substantial justice has not been done, the court shall issue an order directing the Department of State Police to issue a Card. However, the court shall not issue the order if the petitioner is otherwise prohibited from obtaining, possessing, or using a firearm under federal law.
(c) Any person prohibited from possessing a firearm under Sections 24-1.1 or 24-3.1 of the Criminal Code of 1961 or acquiring a Firearm Owner's Identification Card under Section 8 of this Act may apply to the Director of State Police or petition the circuit court in the county where the petitioner resides, whichever is applicable in accordance with subsection (a) of this Section, requesting relief from such prohibition and the Director or court may grant such relief if it is established by the applicant to the court's or Director's satisfaction that:
(0.05) when in the circuit court, the State's

Attorney has been served with a written copy of the petition at least 30 days before any such hearing in the circuit court and at the hearing the State's Attorney was afforded an opportunity to present evidence and object to the petition;
(1) the applicant has not been convicted of a

forcible felony under the laws of this State or any other jurisdiction within 20 years of the applicant's application for a Firearm Owner's Identification Card, or at least 20 years have passed since the end of any period of imprisonment imposed in relation to that conviction;
(2) the circumstances regarding a criminal

conviction, where applicable, the applicant's criminal history and his reputation are such that the applicant will not be likely to act in a manner dangerous to public safety;
(3) granting relief would not be contrary to the

public interest; and
(4) granting relief would not be contrary to federal

law.
(d) When a minor is adjudicated delinquent for an offense which if committed by an adult would be a felony, the court shall notify the Department of State Police.
(e) The court shall review the denial of an application or the revocation of a Firearm Owner's Identification Card of a person who has been adjudicated delinquent for an offense that if committed by an adult would be a felony if an application for relief has been filed at least 10 years after the adjudication of delinquency and the court determines that the applicant should be granted relief from disability to obtain a Firearm Owner's Identification Card. If the court grants relief, the court shall notify the Department of State Police that the disability has been removed and that the applicant is eligible to obtain a Firearm Owner's Identification Card.
(f) Any person who is subject to the disabilities of 18 U.S.C. 922(d)(4) and 922(g)(4) of the federal Gun Control Act of 1968 because of an adjudication or commitment that occurred under the laws of this State or who was determined to be subject to the provisions of subsections (e), (f), or (g) of Section 8 of this Act may apply to the Department of State Police requesting relief from that prohibition. The Director shall grant the relief if it is established by a preponderance of the evidence that the person will not be likely to act in a manner dangerous to public safety and that granting relief would not be contrary to the public interest. In making this determination, the Director shall receive evidence concerning (i) the circumstances regarding the firearms disabilities from which relief is sought; (ii) the petitioner's mental health and criminal history records, if any; (iii) the petitioner's reputation, developed at a minimum through character witness statements, testimony, or other character evidence; and (iv) changes in the petitioner's condition or circumstances since the disqualifying events relevant to the relief sought. If relief is granted under this subsection or by order of a court under this Section, the Director shall as soon as practicable but in no case later than 15 business days, update, correct, modify, or remove the person's record in any database that the Department of State Police makes available to the National Instant Criminal Background Check System and notify the United States Attorney General that the basis for the record being made available no longer applies. The Department of State Police shall adopt rules for the administration of this subsection (f).
(Source: P.A. 96-1368, eff. 7-28-10; 97-1131, eff. 1-1-13.)

(430 ILCS 65/11) (from Ch. 38, par. 83-11)
Sec. 11. Judicial review of final administrative decisions.
(a) All final administrative decisions of the Department under this Act, except final administrative decisions of the Director of State Police to deny a person's application for relief under subsection (f) of Section 10 of this Act, shall be subject to judicial review under the provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rules adopted pursuant thereto. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.
(b) Any final administrative decision by the Director of State Police to deny a person's application for relief under subsection (f) of Section 10 of this Act is subject to de novo judicial review by the circuit court, and any party may offer evidence that is otherwise proper and admissible without regard to whether that evidence is part of the administrative record.
(c) The Director of State Police shall submit a report to the General Assembly on March 1 of each year, beginning March 1, 1991, listing all final decisions by a court of this State upholding, reversing, or reversing in part any administrative decision made by the Department of State Police.
(Source: P.A. 97-1131, eff. 1-1-13.)

 

[Trent]

(It appears to me that 20 years have to pass from the conviction of a felony, before ANY relief can be sought.)

Which would mean a governor's pardon is required, or a court ordered expungement of the court records, right?

 

[dprice3844444]

presidential pardon via senators request also

 

[Phatty]

AFAIK, felony expungement means it's as if it never happened, the crime will not be reported on a background check. Accordingly the applicant may answer the "have you ever been convicted of a felony" in the negative.

I don't have an answer for whether a felony expungement allows a person to obtain a FOID, but I can say that it is never good advice to lie on a sworn statement such as a FOID application, because you could be prosecuted for perjury. History cannot be changed. So whether a conviction is expunged, pardoned by the President, or whatever, if you were convicted of a felony in the past the answer to the above question will always be "yes" for the rest of your life unless there is a specific statutory provision that expressly provides you may answer "no" to that question. A proper answer might be, "yes, but the conviction was subsequently expunged."

By the way, people think an expungement is truly a complete erasing of a conviction from all records but that's not what happens. In this day and age, the record of that conviction is stored in numerous databases and it won't be magically erased just because a local county judge issued an expungement order. So, if you lie on a form such as the FOID application thinking that it is ok to lie because there is no record to prove you wrong, you are taking a risk.

 

[Sav .250]

This is a serious matter. if it were me,I`d be checking with the proper authorities not asking somebody for an opinion. Opinions, fact based are a horse of another color.
Getting the right answer is key not what somebody thinks. J s/n.

 

[morcey2]

I don't have an answer for whether a felony expungement allows a person to obtain a FOID, but I can say that it is never good advice to lie on a sworn statement such as a FOID application, because you could be prosecuted for perjury. History cannot be changed. So whether a conviction is expunged, pardoned by the President, or whatever, if you were convicted of a felony in the past the answer to the above question will always be "yes" for the rest of your life unless there is a specific statutory provision that expressly provides you may answer "no" to that question. A proper answer might be, "yes, but the conviction was subsequently expunged."

By the way, people think an expungement is truly a complete erasing of a conviction from all records but that's not what happens. In this day and age, the record of that conviction is stored in numerous databases and it won't be magically erased just because a local county judge issued an expungement order. So, if you lie on a form such as the FOID application thinking that it is ok to lie because there is no record to prove you wrong, you are taking a risk.

We went through a little bit of this with a relative of mine. She had a 30-year-old felony expunged and was told by her lawyer that anywhere that asked if she had been convicted of a felony, such as a 4473 form, that she should answer 'No'. The expungement (sp?) meant that it was the same as if she had never had the felony. I'm sure that there are records out there, but the expungement means that she can honestly answer 'No'.

Again, talking to a lawyer is the only way to really get any answers on this. It can be expensive, but your friend may find out that he has nothing to worry about. He can probably request a copy of his criminal record through the state where it happened and he probably should before doing anything else.

Matt

 

[smalls]

I don't have an answer for whether a felony expungement allows a person to obtain a FOID, but I can say that it is never good advice to lie on a sworn statement such as a FOID application, because you could be prosecuted for perjury. History cannot be changed. So whether a conviction is expunged, pardoned by the President, or whatever, if you were convicted of a felony in the past the answer to the above question will always be "yes" for the rest of your life unless there is a specific statutory provision that expressly provides you may answer "no" to that question. A proper answer might be, "yes, but the conviction was subsequently expunged."

Incorrect. An expungement does in fact mean that you can answer no to that question. I'm sure there is still a record of the crime out there, too, but for all intents and purpose you are no longer a felon, and have your rights restored.

 

[Phatty]

Incorrect. An expungement does in fact mean that you can answer no to that question. I'm sure there is still a record of the crime out there, too, but for all intents and purpose you are no longer a felon, and have your rights restored.

That depends completely on the applicable law of each state, so its hard to believe you can so emphatically make that statement. The question isn't asking "Are you currently a felon?" its asking about whether an event occurred in the past. The past cannot be changed. The only reason you can lie is if you are expressly permitted to say "no" to that question by state law -- and I do know that such laws exist but I can't say for certain that it is the case in all states or that federal law would recognize it.

 

[bikemutt]

If a felony expungement doesn't mean "it never happened", what is the point of having a felony expunged?

If it means you have to say "yes, but let me explain", may as well save the attorney expense.

 

[smalls]

If a felony expungement doesn't mean "it never happened", what is the point of having a felony expunged?

Exactly. That's the definition of a felony expungement.

 

[Trent]

Expungement means the court records are PURGED. Not sealed.

E.g., according to the rule of law, it never happened.

 

[XxWINxX94]

Thanks for the info, he'll probably end up speaking with a lawyer. However, if the felony is expunged, the Illinois State Police should not have any record of the crime, because law enforcement has to "destroy" or "return" said records. Therefore if they check his name on a "list" it shouldn't even be there, when applying for a FOID. That's what I initially had in mind. ALso i've heard that the records that are expunged have to have a court order to to bring back up, and could be brought back up if he picked up another case, for example.