Public Act 095-0041
 
HB0239 Enrolled LRB095 04650 RLC 24708 b

    AN ACT concerning criminal law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Criminal Code of 1961 is amended by changing
Section 17-1b as follows:
 
    (720 ILCS 5/17-1b)
    Sec. 17-lb. State's Attorney's bad check diversion
program.
    (a) In this Section:
    "Offender" means a person charged with, or for whom
probable cause exists to charge the person with, deceptive
practices.
    "Pretrial diversion" means the decision of a prosecutor to
refer an offender to a diversion program on condition that the
criminal charges against the offender will be dismissed after a
specified period of time, or the case will not be charged, if
the offender successfully completes the program.
    "Restitution" means all amounts payable to a victim of
deceptive practices under the bad check diversion program
created under this Section, including the amount of the check
and any transaction fees payable to a victim as set forth in
subsection (g) but does not include amounts recoverable under
Section 3-806 of the Uniform Commercial Code and Section 17-1a
of this Code.
    (b) A State's Attorney may create within his or her office
a bad check diversion program for offenders who agree to
voluntarily participate in the program instead of undergoing
prosecution. The program may be conducted by the State's
Attorney or by a private entity under contract with the State's
Attorney. If the State's Attorney contracts with a private
entity to perform any services in operating the program, the
entity shall operate under the supervision, direction, and
control of the State's Attorney. Any private entity providing
services under this Section is not a "collection agency" as
that term is defined under the Collection Agency Act.
    (c) If an offender is referred to the State's Attorney, the
State's Attorney may determine whether the offender is
appropriate for acceptance in the program. The State's Attorney
may consider, but shall not be limited to consideration of, the
following factors:
        (1) the amount of the check that was drawn or passed;
        (2) prior referrals of the offender to the program;
        (3) whether other charges of deceptive practices are
    pending against the offender;
        (4) the evidence presented to the State's Attorney
    regarding the facts and circumstances of the incident;
        (5) the offender's criminal history; and
        (6) the reason the check was dishonored by the
    financial institution.
    (d) The bad check diversion program may require an offender
to do one or more of the following:
        (i) pay for, at his or her own expense, and
    successfully complete an educational class held by the
    State's Attorney or a private entity under contract with
    the State's Attorney;
        (ii) make full restitution for the offense;
        (iii) pay a per-check administrative fee as set forth
    in this Section.
    (e) If an offender is diverted to the program, the State's
Attorney shall agree in writing not to prosecute the offender
upon the offender's successful completion of the program
conditions. The State's Attorney's agreement to divert the
offender shall specify the offenses that will not be prosecuted
by identifying the checks involved in the transactions.
    (f) The State's Attorney, or private entity under contract
with the State's Attorney, may collect a fee from an offender
diverted to the State's Attorney's bad check diversion program.
This fee may be deposited in a bank account maintained by the
State's Attorney for the purpose of depositing fees and paying
the expenses of the program or for use in the enforcement and
prosecution of criminal laws. The State's Attorney may require
that the fee be paid directly to a private entity that
administers the program under a contract with the State's
Attorney. The amount of the administrative fees collected by
the State's Attorney under the program may not exceed $35 per
check. The county board may, however, by ordinance, increase
the fees allowed by this Section if the increase is justified
by an acceptable cost study showing that the fees allowed by
this Section are not sufficient to cover the cost of providing
the service.
    (g)  (1) The private entity shall be required to maintain
    adequate general liability insurance of $1,000,000 per
    occurrence as well as adequate coverage for potential loss
    resulting from employee dishonesty. The State's Attorney
    may require a surety bond payable to the State's Attorney
    if in the State's Attorney's opinion it is determined that
    the private entity is not adequately insured or funded.
        (2)  (A) Each private entity that has a contract with
        the State's Attorney to conduct a bad check diversion
        program shall at all times maintain a separate bank
        account in which all moneys received from the offenders
        participating in the program shall be deposited,
        referred to as a "Trust Account", except that
        negotiable instruments received may be forwarded
        directly to a victim of the deceptive practice
        committed by the offender if that procedure is provided
        for by a writing executed by the victim. Moneys
        received shall be so deposited within 5 business days
        after posting to the private entity's books of account.
        There shall be sufficient funds in the trust account at
        all times to pay the victims the amount due them.
            (B) The trust account shall be established in a
        bank, savings and loan association, or other
        recognized depository which is federally or State
        insured or otherwise secured as defined by rule. If the
        account is interest bearing, the private entity shall
        pay to the victim interest earned on funds on deposit
        after the 60th day.
            (C) Each private entity shall keep on file the name
        of the bank, savings and loan association, or other
        recognized depository in which each trust account is
        maintained, the name of each trust account, and the
        names of the persons authorized to withdraw funds from
        each account. The private entity, within 30 days of the
        time of a change of depository or person authorized to
        make withdrawal, shall update its files to reflect that
        change. An examination and audit of a private entity's
        trust accounts may be made by the State's Attorney as
        the State's Attorney deems appropriate. A trust
        account financial report shall be submitted annually
        on forms acceptable to the State's Attorney.
        (3) The State's Attorney may cancel a contract entered
    into with a private entity under this Section for any one
    or any combination of the following causes:
            (A) Conviction of the private entity or the
        principals of the private entity of any crime under the
        laws of any U.S. jurisdiction which is a felony, a
        misdemeanor an essential element of which is
        dishonesty, or of any crime which directly relates to
        the practice of the profession.
            (B) A determination that the private entity has
        engaged in conduct prohibited in item (4).
        (4) The State's Attorney may determine whether the
    private entity has engaged in the following prohibited
    conduct:
            (A) Using or threatening to use force or violence
        to cause physical harm to an offender, his or her
        family, or his or her property.
            (B) Threatening the seizure, attachment, or sale
        of an offender's property where such action can only be
        taken pursuant to court order without disclosing that
        prior court proceedings are required.
            (C) Disclosing or threatening to disclose
        information adversely affecting an offender's
        reputation for creditworthiness with knowledge the
        information is false.
            (D) Initiating or threatening to initiate
        communication with an offender's employer unless there
        has been a default of the payment of the obligation for
        at least 30 days and at least 5 days prior written
        notice, to the last known address of the offender, of
        the intention to communicate with the employer has been
        given to the employee, except as expressly permitted by
        law or court order.
            (E) Communicating with the offender or any member
        of the offender's family at such a time of day or night
        and with such frequency as to constitute harassment of
        the offender or any member of the offender's family.
        For purposes of this clause (E) the following conduct
        shall constitute harassment:
                (i) Communicating with the offender or any
            member of his or her family at any unusual time or
            place or a time or place known or which should be
            known to be inconvenient to the offender. In the
            absence of knowledge of circumstances to the
            contrary, a private entity shall assume that the
            convenient time for communicating with a consumer
            is after 8 o'clock a.m. and before 9 o'clock p.m.
            local time at the offender's residence.
                (ii) The threat of publication or publication
            of a list of offenders who allegedly refuse to pay
            restitution, except by the State's Attorney.
                (iii) The threat of advertisement or
            advertisement for sale of any restitution to
            coerce payment of the restitution.
                (iv) Causing a telephone to ring or engaging
            any person in telephone conversation repeatedly or
            continuously with intent to annoy, abuse, or
            harass any person at the called number.
                (v) Using profane, obscene or abusive language
            in communicating with an offender, his or her
            family, or others.
                (vi) Disclosing or threatening to disclose
            information relating to a offender's case to any
            other person except the victim and appropriate law
            enforcement personnel.
                (vii) Disclosing or threatening to disclose
            information concerning the alleged criminal act
            which the private entity knows to be reasonably
            disputed by the offender without disclosing the
            fact that the offender disputes the accusation.
                (viii) Engaging in any conduct which the
            State's Attorney finds was intended to cause and
            did cause mental or physical illness to the
            offender or his or her family.
                (ix) Attempting or threatening to enforce a
            right or remedy with knowledge or reason to know
            that the right or remedy does not exist.
                (x) Except as authorized by the State's
            Attorney, using any form of communication which
            simulates legal or judicial process or which gives
            the appearance of being authorized, issued or
            approved by a governmental agency or official or by
            an attorney at law when it is not.
                (xi) Using any badge, uniform, or other
            indicia of any governmental agency or official,
            except as authorized by law or by the State's
            Attorney.
                (xii) Except as authorized by the State's
            Attorney, conducting business under any name or in
            any manner which suggests or implies that the
            private entity is bonded if such private entity is
            or is a branch of or is affiliated with any
            governmental agency or court if such private
            entity is not.
                (xiii) Misrepresenting the amount of the
            restitution alleged to be owed.
                (xiv) Except as authorized by the State's
            Attorney, representing that an existing
            restitution amount may be increased by the
            addition of attorney's fees, investigation fees,
            or any other fees or charges when those fees or
            charges may not legally be added to the existing
            restitution.
                (xv) Except as authorized by the State's
            Attorney, representing that the private entity is
            an attorney at law or an agent for an attorney if
            the entity is not.
                (xvi) Collecting or attempting to collect any
            interest or other charge or fee in excess of the
            actual restitution or claim unless the interest or
            other charge or fee is expressly authorized by the
            State's Attorney, who shall determine what
            constitutes a reasonable collection fee.
                (xvii) Communicating or threatening to
            communicate with an offender when the private
            entity is informed in writing by an attorney that
            the attorney represents the offender concerning
            the claim, unless authorized by the attorney. If
            the attorney fails to respond within a reasonable
            period of time, the private entity may communicate
            with the offender. The private entity may
            communicate with the offender when the attorney
            gives his consent.
                (xviii) Engaging in dishonorable, unethical,
            or unprofessional conduct of a character likely to
            deceive, defraud, or harm the public.
        (5) The State's Attorney shall audit the accounts of
    the bad check diversion program after notice in writing to
    the private entity.
        (6) Any information obtained by a private entity that
    has a contract with the State's Attorney to conduct a bad
    check diversion program is confidential information
    between the State's Attorney and the private entity and may
    not be sold or used for any other purpose but may be shared
    with other authorized law enforcement agencies as
    determined by the State's Attorney.
    (h) The State's Attorney, or private entity under contract
with the State's Attorney, shall recover, in addition to the
face amount of the dishonored check or draft, a transaction fee
to defray the costs and expenses incurred by a victim who
received a dishonored check that was made or delivered by the
offender. The face amount of the dishonored check or draft and
the transaction fee shall be paid by the State's Attorney or
private entity under contract with the State's Attorney to the
victim as restitution for the offense. The amount of the
transaction fee must not exceed: $25 if the face amount of the
check or draft does not exceed $100; $30 if the face amount of
the check or draft is greater than $100 but does not exceed
$250; $35 if the face amount of the check or draft is greater
than $250 but does not exceed $500; $40 if the face amount of
the check or draft is greater than $500 but does not exceed
$1,000; and $50 if the face amount of the check or draft is
greater than $1,000.
    (i) The offender, if aggrieved by an action of the private
entity contracted to operate a bad check diversion program, may
submit a grievance to the State's Attorney who may then resolve
the grievance. The private entity must give notice to the
offender that the grievance procedure is available. The
grievance procedure shall be established by the State's
Attorney.
(Source: P.A. 93-394, eff. 7-29-03.)

Effective Date: 1/1/2008