Public Act 097-0680
 
HB1927 EnrolledLRB097 08502 RLC 48629 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 36-1.5 as follows:
 
    (720 ILCS 5/36-1.5)
    Sec. 36-1.5. Preliminary Review.
    (a) Within 14 days of the seizure, the State shall seek a 
preliminary determination from the circuit court as to whether 
there is probable cause that the property may be subject to 
forfeiture.
    (b) The rules of evidence shall not apply to any proceeding 
conducted under this Section.
    (c) The court may conduct the review under subsection (a) 
simultaneously with a proceeding pursuant to Section 109-1 of 
the Code of Criminal Procedure of 1963 for a related criminal 
offense if a prosecution is commenced by information or 
complaint.
    (d) The court may accept a finding of probable cause at a 
preliminary hearing following the filing of an information or 
complaint charging a related criminal offense or following the 
return of indictment by a grand jury charging the related 
offense as sufficient evidence of probable cause as required 
under subsection (a).
    (e) Upon making a finding of probable cause as required 
under this Section, the circuit court shall order the property 
subject to the provisions of the applicable forfeiture Act held 
until the conclusion of any forfeiture proceeding.
    For seizures of conveyances, within 7 days of a finding of 
probable cause under subsection (a), the registered owner or 
other claimant may file a motion in writing supported by sworn 
affidavits claiming that denial of the use of the conveyance 
during the pendency of the forfeiture proceedings creates a 
substantial hardship.  The court shall consider the following 
factors in determining whether a substantial hardship has been 
proven:
        (1) the nature of the claimed hardship;
        (2) the availability of public transportation or other 
    available means of transportation; and
        (3) any available alternatives to alleviate the 
    hardship other than the return of the seized conveyance.
    If the court determines that a substantial hardship has 
been proven, the court shall then balance the nature of the 
hardship against the State's interest in safeguarding the 
conveyance.  If the court determines that the hardship outweighs 
the State's interest in safeguarding the conveyance, the court 
may temporarily release the conveyance to the registered owner 
or the registered owner's authorized designee, or both, until 
the conclusion of the forfeiture proceedings or for such 
shorter period as ordered by the court provided that the person 
to whom the conveyance is released provides proof of insurance 
and a valid driver's license and all State and local 
registrations for operation of the conveyance are current.  The 
court shall place conditions on the conveyance limiting its use 
to the stated hardship and restricting the conveyance's use to 
only those individuals authorized to use the conveyance by the 
registered owner.  The court shall revoke the order releasing 
the conveyance and order that the conveyance be reseized by law 
enforcement if the conditions of release are violated or if the 
conveyance is used in the commission of any offense identified 
in subsection (a) of Section 6-205 of the Illinois Vehicle 
Code.
    If the court orders the release of the conveyance during 
the pendency of the forfeiture proceedings, the registered 
owner or his or her  authorized designee shall post a cash 
security with the Clerk of the Court as ordered by the court.  
The court shall consider the following factors in determining 
the amount of the cash security:
        (A) the full market value of the conveyance;
        (B) the  nature of the hardship;
        (C) the extent and length of the usage of the 
    conveyance; and
        (D) such other conditions as the court deems necessary 
    to safeguard the conveyance.
    If the conveyance is released, the court shall order that 
the registered owner or his or her  designee safeguard the 
conveyance, not remove the conveyance from the jurisdiction, 
not conceal, destroy, or otherwise dispose of the conveyance, 
not encumber the conveyance, and not diminish the value of the 
conveyance in any way.  The court shall also make a 
determination of the full market value of the conveyance prior 
to it being released based on a source or sources defined in 50 
Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
    If the conveyance subject to forfeiture is released under 
this Section and is subsequently forfeited, the person to whom 
the conveyance was released shall return the conveyance to the 
law enforcement agency that seized the conveyance within 7 days 
from the date of the declaration of forfeiture or order of 
forfeiture.  If the conveyance is not returned within 7 days, 
the cash security shall be forfeited in the same manner as the 
conveyance subject to forfeiture.  If the cash security was less 
than the full market value, a judgment shall be entered against 
the parties to whom the conveyance was released and the 
registered owner, jointly and severally, for the difference 
between the full market value and the amount of the cash 
security.  If the conveyance is returned in a condition other 
than the condition in which it was released, the cash security 
shall be returned to the surety who posted the security minus 
the amount of the diminished value, and that amount shall be 
forfeited in the same manner as the conveyance subject to 
forfeiture.  Additionally, the court may enter an order allowing 
any law enforcement agency in the State of Illinois to seize 
the conveyance wherever it may be found in the State to satisfy 
the judgment if the cash security was less than the full market 
value of the conveyance. Upon making a finding of probable 
cause as required under this Section, and after taking into 
account the respective interests of all known claimants to the 
property including the State, the circuit court shall enter a 
restraining order or injunction, or take other appropriate 
action, as necessary to ensure that the property is not removed 
from the court's jurisdiction and is not concealed, destroyed, 
or otherwise disposed of by the property owner or interest 
holder before a forfeiture hearing is conducted.

(Source: P.A. 97-544, eff. 1-1-12.)
 
    Section 10. The Drug Asset Forfeiture Procedure Act is 
amended  by changing Section 3.5 as follows:
 
    (725 ILCS 150/3.5)
    Sec. 3.5. Preliminary Review.
    (a) Within 14 days of the seizure, the State shall seek a 
preliminary determination from the circuit court as to whether 
there is probable cause that the property may be subject to 
forfeiture.
    (b) The rules of evidence shall not apply to any proceeding 
conducted under this Section.
    (c) The court may conduct the review under subsection (a) 
simultaneously with a proceeding pursuant to Section 109-1 of 
the Code of Criminal Procedure of 1963 for a related criminal 
offense if a prosecution is commenced by information or 
complaint.
    (d) The court may accept a finding of probable cause at a 
preliminary hearing following the filing of an information or 
complaint charging a related criminal offense or following the 
return of indictment by a grand jury charging the related 
offense as sufficient evidence of probable cause as required 
under subsection (a).
    (e) Upon making a finding of probable cause as required 
under this Section, the circuit court shall order the property 
subject to the provisions of the applicable forfeiture Act held 
until the conclusion of any forfeiture proceeding.
    For seizures of conveyances, within 7 days of a finding of 
probable cause under subsection (a), the registered owner or 
other claimant may file a motion in writing supported by sworn 
affidavits claiming that denial of the use of the conveyance 
during the pendency of the forfeiture proceedings creates a 
substantial hardship.  The court shall consider the following 
factors in determining whether a substantial hardship has been 
proven:
        (1) the nature of the claimed hardship;
        (2) the availability of public transportation or other 
    available means of transportation; and
        (3) any available alternatives to alleviate the 
    hardship other than the return of the seized conveyance.
    If the court determines that a substantial hardship has 
been proven, the court shall then balance the nature of the 
hardship against the State's interest in safeguarding the 
conveyance.  If the court determines that the hardship outweighs 
the State's interest in safeguarding the conveyance, the court 
may temporarily release the conveyance to the registered owner 
or the registered owner's authorized designee, or both, until 
the conclusion of the forfeiture proceedings or for such 
shorter period as ordered by the court provided that the person 
to whom the conveyance is released provides proof of insurance 
and   a valid driver's license and all State and local 
registrations for operation of the conveyance are current.  The 
court shall place conditions on the conveyance limiting its use 
to the stated hardship and restricting the conveyance's use to 
only those individuals authorized to use the conveyance by the 
registered owner.  The court shall revoke the order releasing 
the conveyance and order that the conveyance be reseized by law 
enforcement if the conditions of release are violated or if the 
conveyance is used in the commission of any offense identified 
in subsection (a) of Section 6-205 of the Illinois Vehicle 
Code.
    If the court orders the release of the conveyance during 
the pendency of the forfeiture proceedings, the registered 
owner or his or her  authorized designee shall post a cash 
security with the Clerk of the Court as ordered by the court.  
The court shall consider the following factors in determining 
the amount of the cash security:
        (A) the full market value of the conveyance;
        (B) the  nature of the hardship;
        (C) the extent and length of the usage of the 
    conveyance; and
        (D) such other conditions as the court deems necessary 
    to safeguard the conveyance.
    If the conveyance is released, the court shall order that 
the registered owner or his or her  designee safeguard the 
conveyance, not remove the conveyance from the jurisdiction, 
not conceal, destroy, or otherwise dispose of the conveyance, 
not encumber the conveyance, and not diminish the value of the 
conveyance in any way.  The court shall also make a 
determination of the full market value of the conveyance prior 
to it being released based on a source or sources defined in 50 
Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
     If the conveyance subject to forfeiture is released under 
this Section and is subsequently forfeited, the person to whom 
the conveyance was released shall return the conveyance to the 
law enforcement agency that seized the conveyance within 7 days 
from the date of the declaration of forfeiture or order of 
forfeiture.  If the conveyance is not returned within 7 days, 
the cash security shall be forfeited in the same manner as the 
conveyance subject to forfeiture.  If the cash security was less 
than the full market value, a judgment shall be entered against 
the parties to whom the conveyance was released and the 
registered owner, jointly and severally, for the difference 
between the full market value and the amount of the cash 
security.  If the conveyance is returned in a condition other 
than the condition in which it was released, the cash security 
shall be returned to the surety who posted the security minus 
the amount of the diminished value, and that amount shall be 
forfeited in the same manner as the conveyance subject to 
forfeiture.  Additionally, the court may enter an order allowing 
any law enforcement agency in the State of Illinois to seize 
the conveyance wherever it may be found in the State to satisfy 
the judgment if the cash security was less than the full market 
value of the conveyance. Upon making a finding of probable 
cause as required under this Section, and after taking into 
account the respective interests of all known claimants to the 
property including the State, the circuit court shall enter a 
restraining order or injunction, or take other appropriate 
action, as necessary to ensure that the property is not removed 
from the court's jurisdiction and is not concealed, destroyed, 
or otherwise disposed of by the property owner or interest 
holder before a forfeiture hearing is conducted.

(Source: P.A. 97-544, eff. 1-1-12.)
 

    Section 99. Effective date. This Act takes effect January 
1, 2012.