Appeal from the Circuit Court of Cook County. No. Y2-663-369 The Honorable Joseph Urso, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cohen
Petitioner Salvatore Toia appeals the circuit court's denial of his petition to expunge the record of his 1992 arrest for driving while under the influence of alcohol (625 ILCS 5/11-501(a)(1) (West 1992)) (DUI). In denying Toia's petition, the circuit court concluded that Public Act 89-637, a 1997 amendment to section 5-6-3.1(f) of the Unified Code of Corrections (Pub. Act 89-637, eff. Jan. 1, 1997 (amending 730 ILCS 5/5-6-3.1(f) (West 1994) (specifying conditions of supervision)), specifically excluded DUI arrest records from those subject to expungement.
On appeal, Toia argues that by denying him the opportunity to expunge his DUI arrest record, Public Act 89-637 increased his punishment in violation of the ex post facto clauses of the United States and Illinois Constitutions (U.S. Const., art. I, §9; Ill. Const. 1970, art. I, §16). As a matter of first impression, we find that Public Act 89-637 does not violate the ex post facto clauses by barring expungement of DUI arrest records. We therefore affirm the judgment of the trial court.
On April 1, 1992, Salvatore Toia was charged with multiple traffic offenses, including driving while under the influence of alcohol (625 ILCS 5/11-501(a)(1) (West 1992)). Toia pled guilty and was sentenced to one year of court supervision. The terms of Toia's supervision included paying a $450 fine plus costs, as well as attending 10 hours of Level I alcohol and drug remedial education classes. On May 14, 1993, Toia successfully fulfilled the conditions of his supervision. The court then discharged and dismissed the supervision.
Former section 5-6-3.1(f) of the Unified Code of Corrections (730 ILCS 5/5-6-3.1(f) (West 1992)), in effect on the date of Toia's guilty plea, allowed Toia to petition the circuit court for expungement of his DUI arrest record once five years had passed from the date his supervision was discharged and dismissed. During that five-year period, however, the legislature passed Public Act 89-637 (Pub. Act 89-637, eff. January 1, 1997 (amending 730 ILCS 5/5-6-3.1(f) (West 1994))), which abolished the five-year waiting period for expungement of DUI arrest records. Public Act 89-637 further amended section 5-6-3.1(f) to state that "[a] person placed on supervision for [DUI] shall not have his or her record of arrest sealed or expunged." (Emphasis added.) Pub. Act 89-637, eff. January 1, 1997. *fn1
On November 2, 1999, Toia filed a petition for expungement of his DUI arrest record. Following a hearing, the circuit court denied Toia's petition, stating:
"This Court having considered the arguments that I have heard, having considered the Statutes, having considered the law as I understand it, and also being aware that the Motion to Expunge is discretionary on the court, the Court believes that the Legislature did intend by passing [Public Act 89-637] to make supervisions under Driving Under the Influence not expungeable. The Court, therefore in its discretion will deny your Motion to Expunge. The Motion to Expunge is denied."
Before we consider Toia's constitutional challenge, we first clarify the law with respect to the circuit court's statement that it denied Toia's petition "in its discretion." "[A]n individual is eligible for expungement only where the legislature has authorized expungement." People v. Thon, 319 Ill. App. 3d 855, 859 (2001). The pre-amendment version of section 5-6-3.1(f) allowed circuit courts to exercise discretion in deciding whether to expunge DUI arrest records once five years had passed since discharge and dismissal of a petitioner's supervision. 730 ILCS 5/5-6-3.1(f) (West 1992) ("[A] person may have his record of arrest sealed or expunged as may be provided by law"). (Emphasis added.) See also People v. Wells, 294 Ill. App. 3d 405, 408-09 (1998) (finding a substantially similar provision in the Criminal Identification Act (20 ILCS 2630/5 (West 1994)) to be discretionary). In passing Public Act 89-637, however, the legislature was unequivocal: a person placed on supervision for DUI "shall not have his or her record of arrest sealed or expunged." (Emphasis added.) Pub. Act 89-637, eff. January 1, 1997. It is a fundamental canon of statutory construction that use of the word "shall" denotes a "clear expression of legislative intent to impose a mandatory obligation." People v. O'Brien, 197 Ill. 2d 88, 93 (2001); Wells, 294 Ill. App. 3d at 409.
Therefore, expungement of Toia's arrest record was no longer a matter within the circuit court's discretion. The passage of Public Act 89-637 clearly obviated that discretion and imposed an absolute bar to expungement. See People v. Beasley, 109 Ill. App. 3d 446, 453 (1982) (concluding that the passage of Public Act 81-851 (Pub. Act 81-851, eff. September 20, 1979) removed from the circuit courts their discretion under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1979, ch. 91½, par. 120.10) in determining whether to advise defendants of the possibility of being sentenced to probation in return for participating in drug treatment). However, as the circuit court denied Toia's petition, any error it made in stating the basis for its ruling was harmless. See People v. ...