HB0908ham001 97TH GENERAL ASSEMBLY

Rep. Constance A. Howard

Filed: 4/1/2011

09700HB0908ham001 LRB097 03727 RLC 53801 a

AMENDMENT TO HOUSE BILL 908

AMENDMENT NO. ______. Amend House Bill 908 by replacing everything after the enacting clause with the following:

"Section 5. The Drug Asset Forfeiture Procedure Act is amended by changing Sections 4 and 9 and by adding Sections 5.1 and 5.2 as follows:

(725 ILCS 150/4) (from Ch. 56 1/2, par. 1674)

Sec. 4. Notice to Owner or Interest Holder.

(A) Whenever notice of pending forfeiture or service of an in rem complaint is required under the provisions of this Act, such notice or service shall be given as follows:

(1) If the owner's or interest holder's name and current address are known, then by either personal service or mailing a copy of the notice by certified mail, return receipt requested, to that address. For purposes of notice under this Section, if a person has been arrested for the conduct giving rise to the forfeiture, then the address provided to the arresting agency at the time of arrest shall be deemed to be that person's known address. Provided, however, if an owner or interest holder's address changes prior to the effective date of the notice of pending forfeiture, the owner or interest holder shall promptly notify the seizing agency of the change in address or, if the owner or interest holder's address changes subsequent to the effective date of the notice of pending forfeiture, the owner or interest holder shall promptly notify the State's Attorney of the change in address. A good faith effort shall be made to provide notice at their institutional location to any owners or interest holders who are known to be incarcerated at the time when notice is required to be given under this Section; or

(2) If the property seized is a conveyance, to the address reflected in the office of the agency or official in which title or interest to the conveyance is required by law to be recorded, then by mailing a copy of the notice by certified mail, return receipt requested, to that address; or

(3) If the owner's or interest holder's address is not known, and is not on record as provided in paragraph (2), then by publication for 3 successive weeks in a newspaper of general circulation in the county in which the seizure occurred.

(B) Notice served under this Act is effective upon personal service, the last date of publication, or the mailing of written notice, whichever is earlier.

(Source: P.A. 86-1382; 87-614.)

(725 ILCS 150/5.1 new)

Sec. 5.1. Notice; Right to a Preliminary Hearing. Within 72 hours of a seizure of personal property under the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act, the seizing agency shall provide the owner or interest holder of the property notice in accordance with this Section and in the manner provided by Section 4 of this Act. For purposes of this Section and Section 5.2, the owner or interest holder of the personal property shall be referred to as claimant. Such notice shall state that the seized property is subject to forfeiture. The notice shall give a description of the property, the estimated value of the property, the date and place of seizure, the conduct giving rise to forfeiture or the violation of law alleged, and a summary of procedures and procedural rights applicable to the forfeiture action. Such notice shall state that the claimant has a right to a preliminary adversarial hearing to determine whether there is probable cause that such property is subject to forfeiture. The claimant shall be given 15 business days from the receipt of the notice to request a preliminary adversarial hearing by checking a box that is to be provided upon the face of the notice and returning the notice to the State's Attorney for the county in which the seizure has occurred. Upon the timely receipt of notice, the State's Attorney shall provide for an adversarial preliminary hearing in accordance with Section 5.2. If the seizing agency does not provide notice as required under this Section, the property shall be released pending the commencement of the forfeiture hearing under this Act.

(725 ILCS 150/5.2 new)

Sec. 5.2. Preliminary Forfeiture Review; Remedies.

(a) Where a claimant has requested a hearing in accordance with Section 5.1, within 10 business days of the receipt of such request, the State's Attorney shall commence an adversarial hearing in the circuit court of the county in which such personal property has been seized.

(b) The court shall review all supporting documentation and take any testimony in order to make a preliminary determination whether there is probable cause to believe that the property at issue is subject to forfeiture. In such hearing, it shall be the burden of the State to show probable cause that the property is subject to forfeiture.

(c) A claimant shall have the right and opportunity to cross-examine the State's witnesses and to present evidence in response to the evidence offered by the State in support of probable cause. The claimant shall also have the opportunity to present evidence that he or she is not legally accountable for the conduct giving rise to the forfeiture, did not acquiesce in it, or did not know and could not reasonably have known of the conduct or that the conduct was likely to occur.

(d) If the court finds that the State has not met its burden under subsection (b) of this Section, the property shall be released and all fees and costs associated with the storage and seizure of the property shall be vacated.

(e) If the court finds that the State has met its burden under subsection (b), the State must show by a preponderance of evidence that its need for the retention of the property outweighs the hardship to the claimant that would result from denying him or her access to or use of the property pending the forfeiture hearing.

(f) A claimant shall have the right and opportunity to cross-examine the State's witnesses and to present evidence concerning whether the burden of State's retaining the property pending a forfeiture hearing outweighs the claimant's interest in retaining the property pending the forfeiture hearing.

(g) If the court finds the State did not show under subsection (e) that its need to retain the property is greater than the claimant's need to keep the property, the court shall grant the claimant reasonable access to and use of the property pending the commencement of a forfeiture hearing. In such case, the court shall order the property to be restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding. The court may order the owner or interest holder to post a bond or other adequate security.

(h) The rules of evidence shall not apply to hearings conducted under this Section.

(725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)

Sec. 9. Judicial in rem procedures. If property seized under the provisions of the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act is non-real property that exceeds $20,000 in value excluding the value of any conveyance, or is real property, or a claimant has filed a claim and a cost bond under subsection (C) of Section 6 of this Act, the following judicial in rem procedures shall apply:

(A) If, after a review of the facts surrounding the seizure, the State's Attorney is of the opinion that the seized property is subject to forfeiture, then within 45 days of the receipt of notice of seizure by the seizing agency or the filing of the claim and cost bond, whichever is later, the State's Attorney shall institute judicial forfeiture proceedings by filing a verified complaint for forfeiture and, if the claimant has filed a claim and cost bond, by depositing the cost bond with the clerk of the court. When authorized by law, a forfeiture must be ordered by a court on an action in rem brought by a State's Attorney under a verified complaint for forfeiture.

(B) During the probable cause portion of the judicial in rem proceeding wherein the State presents its case-in-chief, the court must receive and consider, among other things, all relevant hearsay evidence and information. The laws of evidence relating to civil actions shall apply to all other portions of the judicial in rem proceeding.

(C) Only an owner of or interest holder in the property may file an answer asserting a claim against the property in the action in rem. For purposes of this Section, the owner or interest holder shall be referred to as claimant.

(D) The answer must be signed by the owner or interest holder under penalty of perjury and must set forth:

(i) the caption of the proceedings as set forth on the notice of pending forfeiture and the name of the claimant;

(ii) the address at which the claimant will accept mail;

(iii) the nature and extent of the claimant's interest in the property;

(iv) the date, identity of transferor, and circumstances of the claimant's acquisition of the interest in the property;

(v) the name and address of all other persons known to have an interest in the property;

(vi) the specific provisions of Section 8 of this Act relied on in asserting it is not subject to forfeiture;

(vii) all essential facts supporting each assertion; and

(viii) the precise relief sought.

(E) The answer must be filed with the court within 45 days after service of the civil in rem complaint.

(F) The hearing must be held within 60 days after filing of the answer unless continued for good cause.

(G) The State shall show the property is subject to forfeiture by a preponderance of the evidence existence of probable cause for forfeiture of the property. If the State shows the property is subject to forfeiture by a preponderance of the evidence probable cause, the claimant has the burden of showing by a preponderance of the evidence that the claimant's interest in the property is not subject to forfeiture.

(H) If the State does not show the property is subject to forfeiture by a preponderance of the evidence existence of probable cause or a claimant has established by a preponderance of evidence that the claimant has an interest that is exempt under Section 8 of this Act, the court shall order the interest in the property returned or conveyed to the claimant and shall order all other property forfeited to the State. If the State does show the property is subject to forfeiture by a preponderance of the evidence existence of probable cause and the claimant does not establish by a preponderance of evidence that the claimant has an interest that is exempt under Section 8 of this Act, the court shall order all property forfeited to the State.

(I) A defendant convicted in any criminal proceeding is precluded from later denying the essential allegations of the criminal offense of which the defendant was convicted in any proceeding under this Act regardless of the pendency of an appeal from that conviction. However, evidence of the pendency of an appeal is admissible.

(J) An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this Act; however, for good cause shown, on a motion by the State's Attorney, the court may stay civil forfeiture proceedings during the criminal trial for a related criminal indictment or information alleging a violation of the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act. Such a stay shall not be available pending an appeal. Property subject to forfeiture under the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act shall not be subject to return or release by a court exercising jurisdiction over a criminal case involving the seizure of such property unless such return or release is consented to by the State's Attorney.

(K) All property declared forfeited under this Act vests in this State on the commission of the conduct giving rise to forfeiture together with the proceeds of the property after that time. Any such property or proceeds subsequently transferred to any person remain subject to forfeiture and thereafter shall be ordered forfeited unless the transferee claims and establishes in a hearing under the provisions of this Act that the transferee's interest is exempt under Section 8 of this Act.

(L) A civil action under this Act must be commenced within 5 years after the last conduct giving rise to forfeiture became known or should have become known or 5 years after the forfeitable property is discovered, whichever is later, excluding any time during which either the property or claimant is out of the State or in confinement or during which criminal proceedings relating to the same conduct are in progress.

(Source: P.A. 94-556, eff. 9-11-05.)".