|
| | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024 HB5120 Introduced 2/8/2024, by Rep. Patrick Windhorst - Dan Ugaste - Amy L. Grant - John M. Cabello and Dave Severin SYNOPSIS AS INTRODUCED: | | 725 ILCS 5/110-6.1 | from Ch. 38, par. 110-6.1 |
| Amends the Code of Criminal Procedure of 1963. Provides that upon verified petition by the State, the court shall hold a hearing and may deny a defendant pretrial release if: (1) the defendant is charged with a felony offense (rather than specified felonies) and it is alleged that the defendant's pretrial release poses a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case; (2) the defendant is charged with a felony offense (rather than specific felonies) and has a high likelihood of willful flight to avoid prosecution; or (3) the defendant has been convicted of 2 or more of the same felonies or misdemeanors and either: (i) it is alleged that the defendant's pretrial release poses a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case; or (ii) the defendant has a high likelihood of willful flight to avoid prosecution. Changes the State's burden of proof in a pretrial detention hearing seeking the defendant's detention from clear and convincing evidence to a preponderance of the evidence. |
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| | A BILL FOR |
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1 | | AN ACT concerning criminal law. |
2 | | Be it enacted by the People of the State of Illinois, |
3 | | represented in the General Assembly: |
4 | | Section 5. The Code of Criminal Procedure of 1963 is |
5 | | amended by changing Section 110-6.1 as follows: |
6 | | (725 ILCS 5/110-6.1) (from Ch. 38, par. 110-6.1) |
7 | | Sec. 110-6.1. Denial of pretrial release. |
8 | | (a) Upon verified petition by the State, the court shall |
9 | | hold a hearing and may deny a defendant pretrial release only |
10 | | if: |
11 | | (1) the defendant is charged with a felony offense |
12 | | other than a forcible felony for which, based on the |
13 | | charge or the defendant's criminal history, a sentence of |
14 | | imprisonment, without probation, periodic imprisonment or |
15 | | conditional discharge, is required by law upon conviction, |
16 | | and it is alleged that the defendant's pretrial release |
17 | | poses a real and present threat to the safety of any person |
18 | | or persons or the community, based on the specific |
19 | | articulable facts of the case; |
20 | | (1.5) (blank); the defendant's pretrial release poses |
21 | | a real and present threat to the safety of any person or |
22 | | persons or the community, based on the specific |
23 | | articulable facts of the case, and the defendant is |
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1 | | charged with a forcible felony, which as used in this |
2 | | Section, means treason, first degree murder, second degree |
3 | | murder, predatory criminal sexual assault of a child, |
4 | | aggravated criminal sexual assault, criminal sexual |
5 | | assault, armed robbery, aggravated robbery, robbery, |
6 | | burglary where there is use of force against another |
7 | | person, residential burglary, home invasion, vehicular |
8 | | invasion, aggravated arson, arson, aggravated kidnaping, |
9 | | kidnaping, aggravated battery resulting in great bodily |
10 | | harm or permanent disability or disfigurement or any other |
11 | | felony which involves the threat of or infliction of great |
12 | | bodily harm or permanent disability or disfigurement; |
13 | | (2) (blank); the defendant is charged with stalking or |
14 | | aggravated stalking, and it is alleged that the |
15 | | defendant's pre-trial release poses a real and present |
16 | | threat to the safety of a victim of the alleged offense, |
17 | | and denial of release is necessary to prevent fulfillment |
18 | | of the threat upon which the charge is based; |
19 | | (3) the defendant is charged with a violation of an |
20 | | order of protection issued under Section 112A-14 of this |
21 | | Code or Section 214 of the Illinois Domestic Violence Act |
22 | | of 1986, a stalking no contact order under Section 80 of |
23 | | the Stalking No Contact Order Act, or of a civil no contact |
24 | | order under Section 213 of the Civil No Contact Order Act, |
25 | | and it is alleged that the defendant's pretrial release |
26 | | poses a real and present threat to the safety of any person |
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1 | | or persons or the community, based on the specific |
2 | | articulable facts of the case; |
3 | | (4) the defendant is charged with misdemeanor domestic |
4 | | battery or aggravated domestic battery under Section |
5 | | 12-3.2 or 12-3.3 of the Criminal Code of 2012 and it is |
6 | | alleged that the defendant's pretrial release poses a real |
7 | | and present threat to the safety of any person or persons |
8 | | or the community, based on the specific articulable facts |
9 | | of the case; |
10 | | (5) the defendant is charged with any offense under |
11 | | Article 11 of the Criminal Code of 2012, except for |
12 | | Sections 11-14, 11-14.1, 11-18, 11-20, 11-30, 11-35, |
13 | | 11-40, and 11-45 of the Criminal Code of 2012, or similar |
14 | | provisions of the Criminal Code of 1961 and it is alleged |
15 | | that the defendant's pretrial release poses a real and |
16 | | present threat to the safety of any person or persons or |
17 | | the community, based on the specific articulable facts of |
18 | | the case; |
19 | | (6) (blank); the defendant is charged with any of the |
20 | | following offenses under the Criminal Code of 2012, and it |
21 | | is alleged that the defendant's pretrial release poses a |
22 | | real and present threat to the safety of any person or |
23 | | persons or the community, based on the specific |
24 | | articulable facts of the case: |
25 | | (A) Section 24-1.2 (aggravated discharge of a |
26 | | firearm); |
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1 | | (B) Section 24-2.5 (aggravated discharge of a |
2 | | machine gun or a firearm equipped with a device |
3 | | designed or use for silencing the report of a |
4 | | firearm); |
5 | | (C) Section 24-1.5 (reckless discharge of a |
6 | | firearm); |
7 | | (D) Section 24-1.7 (armed habitual criminal); |
8 | | (E) Section 24-2.2 (manufacture, sale or transfer |
9 | | of bullets or shells represented to be armor piercing |
10 | | bullets, dragon's breath shotgun shells, bolo shells, |
11 | | or flechette shells); |
12 | | (F) Section 24-3 (unlawful sale or delivery of |
13 | | firearms); |
14 | | (G) Section 24-3.3 (unlawful sale or delivery of |
15 | | firearms on the premises of any school); |
16 | | (H) Section 24-34 (unlawful sale of firearms by |
17 | | liquor license); |
18 | | (I) Section 24-3.5 (unlawful purchase of a |
19 | | firearm); |
20 | | (J) Section 24-3A (gunrunning); |
21 | | (K) Section 24-3B (firearms trafficking); |
22 | | (L) Section 10-9 (b) (involuntary servitude); |
23 | | (M) Section 10-9 (c) (involuntary sexual servitude |
24 | | of a minor); |
25 | | (N) Section 10-9(d) (trafficking in persons); |
26 | | (O) Non-probationable violations: (i) unlawful use |
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1 | | or possession of weapons by felons or persons in the |
2 | | Custody of the Department of Corrections facilities |
3 | | (Section 24-1.1), (ii) aggravated unlawful use of a |
4 | | weapon (Section 24-1.6), or (iii) aggravated |
5 | | possession of a stolen firearm (Section 24-3.9); |
6 | | (P) Section 9-3 (reckless homicide and involuntary |
7 | | manslaughter); |
8 | | (Q) Section 19-3 (residential burglary); |
9 | | (R) Section 10-5 (child abduction); |
10 | | (S) Felony violations of Section 12C-5 (child |
11 | | endangerment); |
12 | | (T) Section 12-7.1 (hate crime); |
13 | | (U) Section 10-3.1 (aggravated unlawful |
14 | | restraint); |
15 | | (V) Section 12-9 (threatening a public official); |
16 | | (W) Subdivision (f)(1) of Section 12-3.05 |
17 | | (aggravated battery with a deadly weapon other than by |
18 | | discharge of a firearm); |
19 | | (6.5) (blank); the defendant is charged with any of |
20 | | the following offenses, and it is alleged that the |
21 | | defendant's pretrial release poses a real and present |
22 | | threat to the safety of any person or persons or the |
23 | | community, based on the specific articulable facts of the |
24 | | case: |
25 | | (A) Felony violations of Sections 3.01, 3.02, or |
26 | | 3.03 of the Humane Care for Animals Act (cruel |
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1 | | treatment, aggravated cruelty, and animal torture); |
2 | | (B) Subdivision (d)(1)(B) of Section 11-501 of the |
3 | | Illinois Vehicle Code (aggravated driving under the |
4 | | influence while operating a school bus with |
5 | | passengers); |
6 | | (C) Subdivision (d)(1)(C) of Section 11-501 of the |
7 | | Illinois Vehicle Code (aggravated driving under the |
8 | | influence causing great bodily harm); |
9 | | (D) Subdivision (d)(1)(D) of Section 11-501 of the |
10 | | Illinois Vehicle Code (aggravated driving under the |
11 | | influence after a previous reckless homicide |
12 | | conviction); |
13 | | (E) Subdivision (d)(1)(F) of Section 11-501 of the |
14 | | Illinois Vehicle Code (aggravated driving under the |
15 | | influence leading to death); or |
16 | | (F) Subdivision (d)(1)(J) of Section 11-501 of the |
17 | | Illinois Vehicle Code (aggravated driving under the |
18 | | influence that resulted in bodily harm to a child |
19 | | under the age of 16); |
20 | | (7) the defendant is charged with an attempt to commit |
21 | | any charge listed in paragraphs (1) through (5) (6.5) , and |
22 | | it is alleged that the defendant's pretrial release poses |
23 | | a real and present threat to the safety of any person or |
24 | | persons or the community, based on the specific |
25 | | articulable facts of the case; or |
26 | | (8) the person has a high likelihood of willful flight |
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1 | | to avoid prosecution and is charged with a felony; or |
2 | | (9) the defendant has been convicted of 2 or more of |
3 | | the same felonies or misdemeanors and either: |
4 | | (A) it is alleged that the defendant's pretrial |
5 | | release poses a real and present threat to the safety |
6 | | of any person or persons or the community, based on the |
7 | | specific articulable facts of the case; or |
8 | | (B) the defendant has a high likelihood of willful |
9 | | flight to avoid prosecution. : |
10 | | (A) Any felony described in subdivisions (a)(1) |
11 | | through (a)(7) of this Section; or |
12 | | (B) A felony offense other than a Class 4 offense. |
13 | | (b) If the charged offense is a felony, as part of the |
14 | | detention hearing, the court shall determine whether there is |
15 | | probable cause the defendant has committed an offense, unless |
16 | | a hearing pursuant to Section 109-3 of this Code has already |
17 | | been held or a grand jury has returned a true bill of |
18 | | indictment against the defendant. If there is a finding of no |
19 | | probable cause, the defendant shall be released. No such |
20 | | finding is necessary if the defendant is charged with a |
21 | | misdemeanor. |
22 | | (c) Timing of petition. |
23 | | (1) A petition may be filed without prior notice to |
24 | | the defendant at the first appearance before a judge, or |
25 | | within the 21 calendar days, except as provided in Section |
26 | | 110-6, after arrest and release of the defendant upon |
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1 | | reasonable notice to defendant; provided that while such |
2 | | petition is pending before the court, the defendant if |
3 | | previously released shall not be detained. |
4 | | (2) Upon filing, the court shall immediately hold a |
5 | | hearing on the petition unless a continuance is requested. |
6 | | If a continuance is requested and granted, the hearing |
7 | | shall be held within 48 hours of the defendant's first |
8 | | appearance if the defendant is charged with first degree |
9 | | murder or a Class X, Class 1, Class 2, or Class 3 felony, |
10 | | and within 24 hours if the defendant is charged with a |
11 | | Class 4 or misdemeanor offense. The Court may deny or |
12 | | grant the request for continuance. If the court decides to |
13 | | grant the continuance, the Court retains the discretion to |
14 | | detain or release the defendant in the time between the |
15 | | filing of the petition and the hearing. |
16 | | (d) Contents of petition. |
17 | | (1) The petition shall be verified by the State and |
18 | | shall state the grounds upon which it contends the |
19 | | defendant should be denied pretrial release, including the |
20 | | real and present threat to the safety of any person or |
21 | | persons or the community, based on the specific |
22 | | articulable facts or flight risk, as appropriate. |
23 | | (2) If the State seeks to file a second or subsequent |
24 | | petition under this Section, the State shall be required |
25 | | to present a verified application setting forth in detail |
26 | | any new facts not known or obtainable at the time of the |
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1 | | filing of the previous petition. |
2 | | (e) Eligibility: All defendants shall be presumed eligible |
3 | | for pretrial release, and the State shall bear the burden of |
4 | | proving by a preponderance of the clear and convincing |
5 | | evidence that: |
6 | | (1) the proof is evident or the presumption great that |
7 | | the defendant has committed an offense listed in |
8 | | subsection (a), and |
9 | | (2) for offenses listed in paragraphs (1) through (7) |
10 | | of subsection (a), the defendant poses a real and present |
11 | | threat to the safety of any person or persons or the |
12 | | community, based on the specific articulable facts of the |
13 | | case, by conduct which may include, but is not limited to, |
14 | | a forcible felony, the obstruction of justice, |
15 | | intimidation, injury, or abuse as defined by paragraph (1) |
16 | | of Section 103 of the Illinois Domestic Violence Act of |
17 | | 1986, and |
18 | | (3) no condition or combination of conditions set |
19 | | forth in subsection (b) of Section 110-10 of this Article |
20 | | can mitigate (i) the real and present threat to the safety |
21 | | of any person or persons or the community, based on the |
22 | | specific articulable facts of the case, for offenses |
23 | | listed in paragraphs (1) through (7) of subsection (a), or |
24 | | (ii) the defendant's willful flight for offenses listed in |
25 | | paragraph (8) of subsection (a), and |
26 | | (4) for offenses under subsection (b) of Section 407 |
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1 | | of the Illinois Controlled Substances Act that are subject |
2 | | to paragraph (1) of subsection (a), no condition or |
3 | | combination of conditions set forth in subsection (b) of |
4 | | Section 110-10 of this Article can mitigate the real and |
5 | | present threat to the safety of any person or persons or |
6 | | the community, based on the specific articulable facts of |
7 | | the case, and the defendant poses a serious risk to not |
8 | | appear in court as required. |
9 | | (f) Conduct of the hearings. |
10 | | (1) Prior to the hearing, the State shall tender to |
11 | | the defendant copies of the defendant's criminal history |
12 | | available, any written or recorded statements, and the |
13 | | substance of any oral statements made by any person, if |
14 | | relied upon by the State in its petition, and any police |
15 | | reports in the prosecutor's possession at the time of the |
16 | | hearing. |
17 | | (2) The State or defendant may present evidence at the |
18 | | hearing by way of proffer based upon reliable information. |
19 | | (3) The defendant has the right to be represented by |
20 | | counsel, and if he or she is indigent, to have counsel |
21 | | appointed for him or her. The defendant shall have the |
22 | | opportunity to testify, to present witnesses on his or her |
23 | | own behalf, and to cross-examine any witnesses that are |
24 | | called by the State. Defense counsel shall be given |
25 | | adequate opportunity to confer with the defendant before |
26 | | any hearing at which conditions of release or the |
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1 | | detention of the defendant are to be considered, with an |
2 | | accommodation for a physical condition made to facilitate |
3 | | attorney/client consultation. If defense counsel needs to |
4 | | confer or consult with the defendant during any hearing |
5 | | conducted via a two-way audio-visual communication system, |
6 | | such consultation shall not be recorded and shall be |
7 | | undertaken consistent with constitutional protections. |
8 | | (3.5) A hearing at which pretrial release may be |
9 | | denied must be conducted in person (and not by way of |
10 | | two-way audio visual communication) unless the accused |
11 | | waives the right to be present physically in court, the |
12 | | court determines that the physical health and safety of |
13 | | any person necessary to the proceedings would be |
14 | | endangered by appearing in court, or the chief judge of |
15 | | the circuit orders use of that system due to operational |
16 | | challenges in conducting the hearing in person. Such |
17 | | operational challenges must be documented and approved by |
18 | | the chief judge of the circuit, and a plan to address the |
19 | | challenges through reasonable efforts must be presented |
20 | | and approved by the Administrative Office of the Illinois |
21 | | Courts every 6 months. |
22 | | (4) If the defense seeks to compel the complaining |
23 | | witness to testify as a witness in its favor, it shall |
24 | | petition the court for permission. When the ends of |
25 | | justice so require, the court may exercise its discretion |
26 | | and compel the appearance of a complaining witness. The |
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1 | | court shall state on the record reasons for granting a |
2 | | defense request to compel the presence of a complaining |
3 | | witness only on the issue of the defendant's pretrial |
4 | | detention. In making a determination under this Section, |
5 | | the court shall state on the record the reason for |
6 | | granting a defense request to compel the presence of a |
7 | | complaining witness, and only grant the request if the |
8 | | court finds by clear and convincing evidence that the |
9 | | defendant will be materially prejudiced if the complaining |
10 | | witness does not appear. Cross-examination of a |
11 | | complaining witness at the pretrial detention hearing for |
12 | | the purpose of impeaching the witness' credibility is |
13 | | insufficient reason to compel the presence of the witness. |
14 | | In deciding whether to compel the appearance of a |
15 | | complaining witness, the court shall be considerate of the |
16 | | emotional and physical well-being of the witness. The |
17 | | pre-trial detention hearing is not to be used for purposes |
18 | | of discovery, and the post arraignment rules of discovery |
19 | | do not apply. The State shall tender to the defendant, |
20 | | prior to the hearing, copies, if any, of the defendant's |
21 | | criminal history, if available, and any written or |
22 | | recorded statements and the substance of any oral |
23 | | statements made by any person, if in the State's |
24 | | Attorney's possession at the time of the hearing. |
25 | | (5) The rules concerning the admissibility of evidence |
26 | | in criminal trials do not apply to the presentation and |
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1 | | consideration of information at the hearing. At the trial |
2 | | concerning the offense for which the hearing was conducted |
3 | | neither the finding of the court nor any transcript or |
4 | | other record of the hearing shall be admissible in the |
5 | | State's case-in-chief, but shall be admissible for |
6 | | impeachment, or as provided in Section 115-10.1 of this |
7 | | Code, or in a perjury proceeding. |
8 | | (6) The defendant may not move to suppress evidence or |
9 | | a confession, however, evidence that proof of the charged |
10 | | crime may have been the result of an unlawful search or |
11 | | seizure, or both, or through improper interrogation, is |
12 | | relevant in assessing the weight of the evidence against |
13 | | the defendant. |
14 | | (7) Decisions regarding release, conditions of |
15 | | release, and detention prior to trial must be |
16 | | individualized, and no single factor or standard may be |
17 | | used exclusively to order detention. Risk assessment tools |
18 | | may not be used as the sole basis to deny pretrial release. |
19 | | (g) Factors to be considered in making a determination of |
20 | | dangerousness. The court may, in determining whether the |
21 | | defendant poses a real and present threat to the safety of any |
22 | | person or persons or the community, based on the specific |
23 | | articulable facts of the case, consider, but shall not be |
24 | | limited to, evidence or testimony concerning: |
25 | | (1) The nature and circumstances of any offense |
26 | | charged, including whether the offense is a crime of |
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1 | | violence, involving a weapon, or a sex offense. |
2 | | (2) The history and characteristics of the defendant |
3 | | including: |
4 | | (A) Any evidence of the defendant's prior criminal |
5 | | history indicative of violent, abusive or assaultive |
6 | | behavior, or lack of such behavior. Such evidence may |
7 | | include testimony or documents received in juvenile |
8 | | proceedings, criminal, quasi-criminal, civil |
9 | | commitment, domestic relations, or other proceedings. |
10 | | (B) Any evidence of the defendant's psychological, |
11 | | psychiatric or other similar social history which |
12 | | tends to indicate a violent, abusive, or assaultive |
13 | | nature, or lack of any such history. |
14 | | (3) The identity of any person or persons to whose |
15 | | safety the defendant is believed to pose a threat, and the |
16 | | nature of the threat. |
17 | | (4) Any statements made by, or attributed to the |
18 | | defendant, together with the circumstances surrounding |
19 | | them. |
20 | | (5) The age and physical condition of the defendant. |
21 | | (6) The age and physical condition of any victim or |
22 | | complaining witness. |
23 | | (7) Whether the defendant is known to possess or have |
24 | | access to any weapon or weapons. |
25 | | (8) Whether, at the time of the current offense or any |
26 | | other offense or arrest, the defendant was on probation, |
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1 | | parole, aftercare release, mandatory supervised release or |
2 | | other release from custody pending trial, sentencing, |
3 | | appeal or completion of sentence for an offense under |
4 | | federal or state law. |
5 | | (9) Any other factors, including those listed in |
6 | | Section 110-5 of this Article deemed by the court to have a |
7 | | reasonable bearing upon the defendant's propensity or |
8 | | reputation for violent, abusive, or assaultive behavior, |
9 | | or lack of such behavior. |
10 | | (h) Detention order. The court shall, in any order for |
11 | | detention: |
12 | | (1) make a written finding summarizing the court's |
13 | | reasons for concluding that the defendant should be denied |
14 | | pretrial release, including why less restrictive |
15 | | conditions would not avoid a real and present threat to |
16 | | the safety of any person or persons or the community, |
17 | | based on the specific articulable facts of the case, or |
18 | | prevent the defendant's willful flight from prosecution; |
19 | | (2) direct that the defendant be committed to the |
20 | | custody of the sheriff for confinement in the county jail |
21 | | pending trial; |
22 | | (3) direct that the defendant be given a reasonable |
23 | | opportunity for private consultation with counsel, and for |
24 | | communication with others of his or her choice by |
25 | | visitation, mail and telephone; and |
26 | | (4) direct that the sheriff deliver the defendant as |
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1 | | required for appearances in connection with court |
2 | | proceedings. |
3 | | (i) Detention. If the court enters an order for the |
4 | | detention of the defendant pursuant to subsection (e) of this |
5 | | Section, the defendant shall be brought to trial on the |
6 | | offense for which he is detained within 90 days after the date |
7 | | on which the order for detention was entered. If the defendant |
8 | | is not brought to trial within the 90-day period required by |
9 | | the preceding sentence, he shall not be denied pretrial |
10 | | release. In computing the 90-day period, the court shall omit |
11 | | any period of delay resulting from a continuance granted at |
12 | | the request of the defendant and any period of delay resulting |
13 | | from a continuance granted at the request of the State with |
14 | | good cause shown pursuant to Section 103-5. |
15 | | (i-5) At each subsequent appearance of the defendant |
16 | | before the court, the judge must find that continued detention |
17 | | is necessary to avoid a real and present threat to the safety |
18 | | of any person or persons or the community, based on the |
19 | | specific articulable facts of the case, or to prevent the |
20 | | defendant's willful flight from prosecution. |
21 | | (j) Rights of the defendant. The defendant shall be |
22 | | entitled to appeal any order entered under this Section |
23 | | denying his or her pretrial release. |
24 | | (k) Appeal. The State may appeal any order entered under |
25 | | this Section denying any motion for denial of pretrial |
26 | | release. |
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1 | | (l) Presumption of innocence. Nothing in this Section |
2 | | shall be construed as modifying or limiting in any way the |
3 | | defendant's presumption of innocence in further criminal |
4 | | proceedings. |
5 | | (m) Interest of victims. |
6 | | (1) Crime victims shall be given notice by the State's |
7 | | Attorney's office of this hearing as required in paragraph (1) |
8 | | of subsection (b) of Section 4.5 of the Rights of Crime Victims |
9 | | and Witnesses Act and shall be informed of their opportunity |
10 | | at this hearing to obtain a protective order. |
11 | | (2) If the defendant is denied pretrial release, the court |
12 | | may impose a no contact provision with the victim or other |
13 | | interested party that shall be enforced while the defendant |
14 | | remains in custody. |
15 | | (Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23 .) |