Sen. Kwame Raoul

Filed: 3/29/2011

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1906

2    AMENDMENT NO. ______. Amend Senate Bill 1906 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Code of Criminal Procedure of 1963 is
5amended by changing Sections 103-1, 103-8, and 109-1 as
6follows:
 
7    (725 ILCS 5/103-1)  (from Ch. 38, par. 103-1)
8    Sec. 103-1. Rights on arrest. (a) After an arrest on a
9warrant the person making the arrest shall inform the person
10arrested that a warrant has been issued for his arrest and the
11nature of the offense specified in the warrant.
12    (b) After an arrest without a warrant the person making the
13arrest shall inform the person arrested of the nature of the
14offense on which the arrest is based.
15    (b-5) This subsection is intended to implement and be
16interpreted consistently with the Vienna Convention on

 

 

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1Consular Relations, to which the United States is a party.
2Article 36 of that Convention guarantees that when foreign
3nationals are arrested or detained, they must be advised of
4their right to have their consular officials notified, and if
5an individual chooses to exercise that right, a law enforcement
6official is required to notify the consulate. It does not
7create any new substantive State right or remedy.
8        (1) In accordance with federal law and the provisions
9    of this Section, the law enforcement official in charge of
10    a custodial facility shall ensure that any individual
11    booked and detained at such facility, within 48 hours of
12    booking or detention, shall be advised that if that
13    individual is a foreign national, he or she has a right to
14    communicate with an official from the consulate of his or
15    her country.
16        (2) If the foreign national requests consular
17    notification or such notification is mandatory by law, the
18    law enforcement official in charge of the custodial
19    facility shall ensure such notice is given to the
20    appropriate officer at the consulate of the foreign
21    national in accordance with the U.S. Department of State
22    Instructions for Consular Notification and Access.
23        (3) The law enforcement official in charge of the
24    custodial facility where a foreign national is located
25    shall ensure that the foreign national is allowed to
26    communicate with, correspond with, and be visited by, a

 

 

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1    consular officer of his or her country.
2    (c) No person arrested for a traffic, regulatory or
3misdemeanor offense, except in cases involving weapons or a
4controlled substance, shall be strip searched unless there is
5reasonable belief that the individual is concealing a weapon or
6controlled substance.
7    (d) "Strip search" means having an arrested person remove
8or arrange some or all of his or her clothing so as to permit a
9visual inspection of the genitals, buttocks, anus, female
10breasts or undergarments of such person.
11    (e) All strip searches conducted under this Section shall
12be performed by persons of the same sex as the arrested person
13and on premises where the search cannot be observed by persons
14not physically conducting the search.
15    (f) Every peace officer or employee of a police department
16conducting a strip search shall:
17    (1) Obtain the written permission of the police commander
18or an agent thereof designated for the purposes of authorizing
19a strip search in accordance with this Section.
20    (2) Prepare a report of the strip search. The report shall
21include the written authorization required by paragraph (1) of
22this subsection (f), the name of the person subjected to the
23search, the names of the persons conducting the search, and the
24time, date and place of the search. A copy of the report shall
25be provided to the person subject to the search.
26    (g) No search of any body cavity other than the mouth shall

 

 

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1be conducted without a duly executed search warrant; any
2warrant authorizing a body cavity search shall specify that the
3search must be performed under sanitary conditions and
4conducted either by or under the supervision of a physician
5licensed to practice medicine in all of its branches in this
6State.
7    (h) Any peace officer or employee who knowingly or
8intentionally fails to comply with any provision of this
9Section, except subsection (b-5) of this Section, is guilty of
10official misconduct as provided in Section 103-8; provided
11however, that nothing contained in this Section shall preclude
12prosecution of a peace officer or employee under another
13section of this Code.
14    (i) Nothing in this Section shall be construed as limiting
15any statutory or common law rights of any person for purposes
16of any civil action or injunctive relief.
17    (j) The provisions of subsections (c) through (h) of this
18Section shall not apply when the person is taken into custody
19by or remanded to the sheriff or correctional institution
20pursuant to a court order.
21(Source: P.A. 81-1509.)
 
22    (725 ILCS 5/103-8)  (from Ch. 38, par. 103-8)
23    Sec. 103-8. Mandatory duty of officers.
24    Any peace officer who intentionally prevents the exercise
25by an accused of any right conferred by this Article, except

 

 

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1subsection (b-5) of Section 103-1, or who intentionally fails
2to perform any act required of him or her by this Article,
3except subsection (b-5) of Section 103-1, shall be guilty of
4official misconduct and may be punished in accordance with
5Section 33-3 of the "Criminal Code of 1961" approved July 28,
61961, as heretofore and hereafter amended.
7(Source: Laws 1963, p. 2836.)
 
8    (725 ILCS 5/109-1)  (from Ch. 38, par. 109-1)
9    Sec. 109-1. Person arrested.
10    (a) A person arrested with or without a warrant shall be
11taken without unnecessary delay before the nearest and most
12accessible judge in that county, except when such county is a
13participant in a regional jail authority, in which event such
14person may be taken to the nearest and most accessible judge,
15irrespective of the county where such judge presides, and a
16charge shall be filed. Whenever a person arrested either with
17or without a warrant is required to be taken before a judge, a
18charge may be filed against such person by way of a two-way
19closed circuit television system, except that a hearing to deny
20bail to the defendant may not be conducted by way of closed
21circuit television.
22    (b) The judge shall:
23        (1) Inform the defendant of the charge against him and
24    shall provide him with a copy of the charge.
25        (2) Advise the defendant of his right to counsel and if

 

 

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1    indigent shall appoint a public defender or licensed
2    attorney at law of this State to represent him in
3    accordance with the provisions of Section 113-3 of this
4    Code.
5        (3) Schedule a preliminary hearing in appropriate
6    cases; and
7        (4) Admit the defendant to bail in accordance with the
8    provisions of Article 110 of this Code.
9    (c) The court may issue an order of protection in
10accordance with the provisions of Article 112A of this Code.
11    (d) At the initial appearance of a defendant in any
12criminal proceeding, the court must advise the defendant in
13open court that any foreign national who is arrested or
14detained has the right to have notice of the arrest or
15detention given to his or her country's consular
16representatives and the right to communicate with those
17consular representatives if such notice has not already been
18provided. The court must make a written record of so advising
19the defendant.
20    (e) If consular notification is not provided to a defendant
21before his or her first appearance in court, the court shall
22grant any reasonable request for a continuance of the
23proceedings to allow contact with the defendant's consulate.
24Any delay caused by the granting of the request by a defendant
25shall temporarily suspend for the time of the delay the period
26within which a person shall be tried as prescribed by

 

 

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1subsections (a), (b), or (e) of Section 103-5 of this Code and
2on the day of the expiration of delay the period shall continue
3at the point at which it was suspended. If consular notice is
4not provided before conviction and sentencing, the Appellate
5Court shall remand the case to the trial court if the defendant
6can show that he or she suffered prejudice as a result of the
7lack of consular notice.
8(Source: P.A. 90-140, eff. 1-1-98.)".