Sen. Don Harmon
Filed: 11/3/2011
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1 | AMENDMENT TO HOUSE BILL 1927
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2 | AMENDMENT NO. ______. Amend House Bill 1927 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Criminal Code of 1961 is amended by | ||||||
5 | changing Section 36-1.5 as follows: | ||||||
6 | (720 ILCS 5/36-1.5) | ||||||
7 | Sec. 36-1.5. Preliminary Review. | ||||||
8 | (a) Within 14 days of the seizure, the State shall seek a | ||||||
9 | preliminary determination from the circuit court as to whether | ||||||
10 | there is probable cause that the property may be subject to | ||||||
11 | forfeiture. | ||||||
12 | (b) The rules of evidence shall not apply to any proceeding | ||||||
13 | conducted under this Section. | ||||||
14 | (c) The court may conduct the review under subsection (a) | ||||||
15 | simultaneously with a proceeding pursuant to Section 109-1 of | ||||||
16 | the Code of Criminal Procedure of 1963 for a related criminal |
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1 | offense if a prosecution is commenced by information or | ||||||
2 | complaint. | ||||||
3 | (d) The court may accept a finding of probable cause at a | ||||||
4 | preliminary hearing following the filing of an information or | ||||||
5 | complaint charging a related criminal offense or following the | ||||||
6 | return of indictment by a grand jury charging the related | ||||||
7 | offense as sufficient evidence of probable cause as required | ||||||
8 | under subsection (a). | ||||||
9 | (e) Upon making a finding of probable cause as required | ||||||
10 | under this Section, the circuit court shall order the property | ||||||
11 | subject to the provisions of the applicable forfeiture Act held | ||||||
12 | until the conclusion of any forfeiture proceeding. | ||||||
13 | For seizures of conveyances, within 7 days of a finding of | ||||||
14 | probable cause under subsection (a), the registered owner or | ||||||
15 | other claimant may file a motion in writing supported by sworn | ||||||
16 | affidavits claiming that denial of the use of the conveyance | ||||||
17 | during the pendency of the forfeiture proceedings creates a | ||||||
18 | substantial hardship. The court shall consider the following | ||||||
19 | factors in determining whether a substantial hardship has been | ||||||
20 | proven: | ||||||
21 | (1) the nature of the claimed hardship; | ||||||
22 | (2) the availability of public transportation or other | ||||||
23 | available means of transportation; and | ||||||
24 | (3) any available alternatives to alleviate the | ||||||
25 | hardship other than the return of the seized conveyance. | ||||||
26 | If the court determines that a substantial hardship has |
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1 | been proven, the court shall then balance the nature of the | ||||||
2 | hardship against the State's interest in safeguarding the | ||||||
3 | conveyance. If the court determines that the hardship outweighs | ||||||
4 | the State's interest in safeguarding the conveyance, the court | ||||||
5 | may temporarily release the conveyance to the registered owner | ||||||
6 | or the registered owner's authorized designee, or both, until | ||||||
7 | the conclusion of the forfeiture proceedings or for such | ||||||
8 | shorter period as ordered by the court provided that the person | ||||||
9 | to whom the conveyance is released provides proof of insurance | ||||||
10 | and a valid driver's license and all State and local | ||||||
11 | registrations for operation of the conveyance are current. The | ||||||
12 | court shall place conditions on the conveyance limiting its use | ||||||
13 | to the stated hardship and restricting the conveyance's use to | ||||||
14 | only those individuals authorized to use the conveyance by the | ||||||
15 | registered owner. The court shall revoke the order releasing | ||||||
16 | the conveyance and order that the conveyance be reseized by law | ||||||
17 | enforcement if the conditions of release are violated or if the | ||||||
18 | conveyance is used in the commission of any offense identified | ||||||
19 | in subsection (a) of Section 6-205 of the Illinois Vehicle | ||||||
20 | Code. | ||||||
21 | If the court orders the release of the conveyance during | ||||||
22 | the pendency of the forfeiture proceedings, the registered | ||||||
23 | owner or his or her authorized designee shall post a cash | ||||||
24 | security with the Clerk of the Court as ordered by the court. | ||||||
25 | The court shall consider the following factors in determining | ||||||
26 | the amount of the cash security: |
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1 | (A) the full market value of the conveyance; | ||||||
2 | (B) the nature of the hardship; | ||||||
3 | (C) the extent and length of the usage of the | ||||||
4 | conveyance; and | ||||||
5 | (D) such other conditions as the court deems necessary | ||||||
6 | to safeguard the conveyance. | ||||||
7 | If the conveyance is released, the court shall order that | ||||||
8 | the registered owner or his or her designee safeguard the | ||||||
9 | conveyance, not remove the conveyance from the jurisdiction, | ||||||
10 | not conceal, destroy, or otherwise dispose of the conveyance, | ||||||
11 | not encumber the conveyance, and not diminish the value of the | ||||||
12 | conveyance in any way. The court shall also make a | ||||||
13 | determination of the full market value of the conveyance prior | ||||||
14 | to it being released based on a source or sources defined in 50 | ||||||
15 | Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). | ||||||
16 | If the conveyance subject to forfeiture is released under | ||||||
17 | this Section and is subsequently forfeited, the person to whom | ||||||
18 | the conveyance was released shall return the conveyance to the | ||||||
19 | law enforcement agency that seized the conveyance within 7 days | ||||||
20 | from the date of the declaration of forfeiture or order of | ||||||
21 | forfeiture. If the conveyance is not returned within 7 days, | ||||||
22 | the cash security shall be forfeited in the same manner as the | ||||||
23 | conveyance subject to forfeiture. If the cash security was less | ||||||
24 | than the full market value, a judgment shall be entered against | ||||||
25 | the parties to whom the conveyance was released and the | ||||||
26 | registered owner, jointly and severally, for the difference |
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1 | between the full market value and the amount of the cash | ||||||
2 | security. If the conveyance is returned in a condition other | ||||||
3 | than the condition in which it was released, the cash security | ||||||
4 | shall be returned to the surety who posted the security minus | ||||||
5 | the amount of the diminished value, and that amount shall be | ||||||
6 | forfeited in the same manner as the conveyance subject to | ||||||
7 | forfeiture. Additionally, the court may enter an order allowing | ||||||
8 | any law enforcement agency in the State of Illinois to seize | ||||||
9 | the conveyance wherever it may be found in the State to satisfy | ||||||
10 | the judgment if the cash security was less than the full market | ||||||
11 | value of the conveyance. Upon making a finding of probable | ||||||
12 | cause as required under this Section, and after taking into | ||||||
13 | account the respective interests of all known claimants to the | ||||||
14 | property including the State, the circuit court shall enter a | ||||||
15 | restraining order or injunction, or take other appropriate | ||||||
16 | action, as necessary to ensure that the property is not removed | ||||||
17 | from the court's jurisdiction and is not concealed, destroyed, | ||||||
18 | or otherwise disposed of by the property owner or interest | ||||||
19 | holder before a forfeiture hearing is conducted.
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20 | (Source: P.A. 97-544, eff. 1-1-12.) | ||||||
21 | Section 10. The Drug Asset Forfeiture Procedure Act is | ||||||
22 | amended by changing Section 3.5 as follows: | ||||||
23 | (725 ILCS 150/3.5) | ||||||
24 | Sec. 3.5. Preliminary Review. |
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1 | (a) Within 14 days of the seizure, the State shall seek a | ||||||
2 | preliminary determination from the circuit court as to whether | ||||||
3 | there is probable cause that the property may be subject to | ||||||
4 | forfeiture. | ||||||
5 | (b) The rules of evidence shall not apply to any proceeding | ||||||
6 | conducted under this Section. | ||||||
7 | (c) The court may conduct the review under subsection (a) | ||||||
8 | simultaneously with a proceeding pursuant to Section 109-1 of | ||||||
9 | the Code of Criminal Procedure of 1963 for a related criminal | ||||||
10 | offense if a prosecution is commenced by information or | ||||||
11 | complaint. | ||||||
12 | (d) The court may accept a finding of probable cause at a | ||||||
13 | preliminary hearing following the filing of an information or | ||||||
14 | complaint charging a related criminal offense or following the | ||||||
15 | return of indictment by a grand jury charging the related | ||||||
16 | offense as sufficient evidence of probable cause as required | ||||||
17 | under subsection (a). | ||||||
18 | (e) Upon making a finding of probable cause as required | ||||||
19 | under this Section, the circuit court shall order the property | ||||||
20 | subject to the provisions of the applicable forfeiture Act held | ||||||
21 | until the conclusion of any forfeiture proceeding. | ||||||
22 | For seizures of conveyances, within 7 days of a finding of | ||||||
23 | probable cause under subsection (a), the registered owner or | ||||||
24 | other claimant may file a motion in writing supported by sworn | ||||||
25 | affidavits claiming that denial of the use of the conveyance | ||||||
26 | during the pendency of the forfeiture proceedings creates a |
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1 | substantial hardship. The court shall consider the following | ||||||
2 | factors in determining whether a substantial hardship has been | ||||||
3 | proven: | ||||||
4 | (1) the nature of the claimed hardship; | ||||||
5 | (2) the availability of public transportation or other | ||||||
6 | available means of transportation; and | ||||||
7 | (3) any available alternatives to alleviate the | ||||||
8 | hardship other than the return of the seized conveyance. | ||||||
9 | If the court determines that a substantial hardship has | ||||||
10 | been proven, the court shall then balance the nature of the | ||||||
11 | hardship against the State's interest in safeguarding the | ||||||
12 | conveyance. If the court determines that the hardship outweighs | ||||||
13 | the State's interest in safeguarding the conveyance, the court | ||||||
14 | may temporarily release the conveyance to the registered owner | ||||||
15 | or the registered owner's authorized designee, or both, until | ||||||
16 | the conclusion of the forfeiture proceedings or for such | ||||||
17 | shorter period as ordered by the court provided that the person | ||||||
18 | to whom the conveyance is released provides proof of insurance | ||||||
19 | and a valid driver's license and all State and local | ||||||
20 | registrations for operation of the conveyance are current. The | ||||||
21 | court shall place conditions on the conveyance limiting its use | ||||||
22 | to the stated hardship and restricting the conveyance's use to | ||||||
23 | only those individuals authorized to use the conveyance by the | ||||||
24 | registered owner. The court shall revoke the order releasing | ||||||
25 | the conveyance and order that the conveyance be reseized by law | ||||||
26 | enforcement if the conditions of release are violated or if the |
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1 | conveyance is used in the commission of any offense identified | ||||||
2 | in subsection (a) of Section 6-205 of the Illinois Vehicle | ||||||
3 | Code. | ||||||
4 | If the court orders the release of the conveyance during | ||||||
5 | the pendency of the forfeiture proceedings, the registered | ||||||
6 | owner or his or her authorized designee shall post a cash | ||||||
7 | security with the Clerk of the Court as ordered by the court. | ||||||
8 | The court shall consider the following factors in determining | ||||||
9 | the amount of the cash security: | ||||||
10 | (A) the full market value of the conveyance; | ||||||
11 | (B) the nature of the hardship; | ||||||
12 | (C) the extent and length of the usage of the | ||||||
13 | conveyance; and | ||||||
14 | (D) such other conditions as the court deems necessary | ||||||
15 | to safeguard the conveyance. | ||||||
16 | If the conveyance is released, the court shall order that | ||||||
17 | the registered owner or his or her designee safeguard the | ||||||
18 | conveyance, not remove the conveyance from the jurisdiction, | ||||||
19 | not conceal, destroy, or otherwise dispose of the conveyance, | ||||||
20 | not encumber the conveyance, and not diminish the value of the | ||||||
21 | conveyance in any way. The court shall also make a | ||||||
22 | determination of the full market value of the conveyance prior | ||||||
23 | to it being released based on a source or sources defined in 50 | ||||||
24 | Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). | ||||||
25 | If the conveyance subject to forfeiture is released under | ||||||
26 | this Section and is subsequently forfeited, the person to whom |
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1 | the conveyance was released shall return the conveyance to the | ||||||
2 | law enforcement agency that seized the conveyance within 7 days | ||||||
3 | from the date of the declaration of forfeiture or order of | ||||||
4 | forfeiture. If the conveyance is not returned within 7 days, | ||||||
5 | the cash security shall be forfeited in the same manner as the | ||||||
6 | conveyance subject to forfeiture. If the cash security was less | ||||||
7 | than the full market value, a judgment shall be entered against | ||||||
8 | the parties to whom the conveyance was released and the | ||||||
9 | registered owner, jointly and severally, for the difference | ||||||
10 | between the full market value and the amount of the cash | ||||||
11 | security. If the conveyance is returned in a condition other | ||||||
12 | than the condition in which it was released, the cash security | ||||||
13 | shall be returned to the surety who posted the security minus | ||||||
14 | the amount of the diminished value, and that amount shall be | ||||||
15 | forfeited in the same manner as the conveyance subject to | ||||||
16 | forfeiture. Additionally, the court may enter an order allowing | ||||||
17 | any law enforcement agency in the State of Illinois to seize | ||||||
18 | the conveyance wherever it may be found in the State to satisfy | ||||||
19 | the judgment if the cash security was less than the full market | ||||||
20 | value of the conveyance. Upon making a finding of probable | ||||||
21 | cause as required under this Section, and after taking into | ||||||
22 | account the respective interests of all known claimants to the | ||||||
23 | property including the State, the circuit court shall enter a | ||||||
24 | restraining order or injunction, or take other appropriate | ||||||
25 | action, as necessary to ensure that the property is not removed | ||||||
26 | from the court's jurisdiction and is not concealed, destroyed, |
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1 | or otherwise disposed of by the property owner or interest | ||||||
2 | holder before a forfeiture hearing is conducted.
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3 | (Source: P.A. 97-544, eff. 1-1-12.)
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4 | Section 99. Effective date. This Act takes effect January | ||||||
5 | 1, 2012.".
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