HB5523 EngrossedLRB098 17373 RLC 52471 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 2012 is amended by changing
5Sections 36-1, 36-1.5, 36-2, and 36-5 as follows:
 
6    (720 ILCS 5/36-1)  (from Ch. 38, par. 36-1)
7    Sec. 36-1. Seizure.
8    (a) Any vessel, vehicle, or aircraft may be seized and
9impounded by the law enforcement agency if the vessel, vehicle,
10or aircraft is used with the knowledge and consent of the owner
11in the commission of, or in the attempt to commit as defined in
12Section 8-4 of this Code, an offense prohibited by:
13        (1) (a) Section 9-1 (first degree murder, 720 ILCS
14    5/9-1), 9-3 (involuntary manslaughter and reckless
15    homicide, 720 ILCS 5/9-3), 10-2 (aggravated kidnaping, 720
16    ILCS 5/10-2), 11-1.20 (criminal sexual assault, 720 ILCS
17    5/11-1.20), 11-1.30 (aggravated criminal sexual assault,
18    720 ILCS 5/11-1.30), 11-1.40 (predatory criminal sexual
19    assault of a child, 720 ILCS 5/11-1.40), subsection (a) of
20    Section 11-1.50 (criminal sexual abuse, 720 ILCS 5/11-1.50
21    (a)), subsection (a), (c), or (d) of Section 11-1.60
22    (aggravated criminal sexual abuse, 720 ILCS 5/11-1.60 (a),
23    (c), or (d)), Section 11-6 (indecent solicitation of a

 

 

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1    child, 720 ILCS 5/11-6), 11-14.4 (promoting juvenile
2    prostitution, 720 ILCS 5/11-14.4) except for keeping a
3    place of juvenile prostitution, 11-15.1, 11-19.1, 11-19.2,
4    11-20.1 (child pornography, 720 ILCS 5/11-20.1), paragraph
5    (a)(1), (a)(2), (a)(4), (b)(1), (e)(1), (e)(2), (e)(3),
6    (e)(4), (e)(5), (e)(6), or (e)(7) of Section 12-3.05
7    (aggravated battery, 12-3.05(a)(1), (a)(2), (a)(4),
8    (b)(1), (e)(1), (e)(2), (e)(3), (e)(4), (e)(5), (e)(6), or
9    (e)(7)), 11-20.1B, 11-20.3, 12-4.1, 12-4.2, 12-4.2-5,
10    12-4.3, 12-4.6, 12-7.3 (stalking, 720 ILCS 5/12-7.3),
11    12-7.4 (aggravated stalking, 720 ILCS 5/12-7.4), 12-13,
12    12-14, 16-1 (theft, 720 ILCS 5/16-1) if the theft is of
13    precious metal or of scrap metal, subdivisions (f)(2) or
14    (f)(3) of Section 16-25 (retail theft, 720 ILCS 5/16-25
15    (f)(2) or (f)(3), Section 18-2 (armed robbery, 720 ILCS
16    5/18-2), 19-1 (burglary, 720 ILCS 5/19-1), 19-2
17    (possession of burglary tools, 720 ILCS 5/19-2), 19-3
18    (residential burglary, 720 ILCS 5/19-3), 20-1 (arson;
19    residential arson; place of worship arson, 720 ILCS
20    5/20-1), 20-2 (possession of explosives or explosive or
21    incendiary devices, 720 ILCS 5/20-2), subdivision (a)(6)
22    or (a)(7) of Section 24-1 (unlawful use of weapons, 720
23    ILCS 5/24-1(a)(6) or (a)(7)), Section , 24-1.2 (aggravated
24    discharge of a firearm, 720 ILCS 5/24-1.2), 24-1.2-5
25    (aggravated discharge of a machine gun or a firearm
26    equipped with a device designed or used for silencing the

 

 

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1    report of a firearm, 720 ILCS 5/24-1.2-5), 24-1.5 (reckless
2    discharge of a firearm, 720 ILCS 5/24-1.5), 28-1 (gambling,
3    720 ILCS 5/28-1), or 29D-15.2 (possession of a deadly
4    substance, 720 ILCS 5/29D-15.2) of this Code; , subdivision
5    (a)(1), (a)(2), (a)(4), (b)(1), (e)(1), (e)(2), (e)(3),
6    (e)(4), (e)(5), (e)(6), or (e)(7) of Section 12-3.05,
7    paragraph (a) of Section 12-4 of this Code, paragraph (a)
8    of Section 11-1.50, paragraph (a) of Section 12-15,
9    paragraph (a), (c), or (d) of Section 11-1.60, or
10    paragraphs (a), (c) or (d) of Section 12-16 of this Code,
11    or paragraph (a)(6) or (a)(7) of Section 24-1 of this Code;
12        (2) (b) Section 21, 22, 23, 24 or 26 of the Cigarette
13    Tax Act (35 ILCS 130/21, 22, 23, 24 or 26) if the vessel,
14    vehicle, or aircraft contains more than 10 cartons of such
15    cigarettes;
16        (3) (c) Section 28, 29, or 30 of the Cigarette Use Tax
17    Act (35 ILCS 135/28, 29, or 30) if the vessel, vehicle, or
18    aircraft contains more than 10 cartons of such cigarettes;
19        (4) (d) Section 44 of the Environmental Protection Act
20    (415 ILCS 5/44);
21        (5) (e) Section 11-204.1 of the Illinois Vehicle Code
22    (aggravated fleeing or attempting to elude a peace officer,
23    625 ILCS 5/11-204.1);
24        (6) Section 11-501 of the Illinois Vehicle Code
25    (driving while under the influence of alcohol or other drug
26    or drugs, intoxicating compound or compounds or any

 

 

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1    combination thereof) or a similar provision of a local
2    ordinance, and:
3        (f) (1) driving under the influence of alcohol or other drug or
4        drugs, intoxicating compound or compounds or any
5        combination thereof under Section 11-501 of the
6        Illinois Vehicle Code during a period in which
7            (A) during a period in which his or her driving
8        privileges are revoked or suspended if where the
9        revocation or suspension was for:
10                (i) driving under the influence of alcohol or
11            other drug or drugs, intoxicating compound or
12            compounds or any combination thereof (625 ILCS
13            5/11-501),
14                (ii) Section 11-501.1 (625 ILCS 5/11-501.1),
15                (iii) paragraph (b) of Section 11-401 (625
16            ILCS 5/11-401(b)), or for
17                (iv) reckless homicide as defined in Section
18            9-3 of the Criminal Code of 1961 or the Criminal
19            Code of 2012 (720 ILCS 5/9-3);
20            (B) (2) driving while under the influence of
21        alcohol, other drug or drugs, intoxicating compound or
22        compounds or any combination thereof and has been
23        previously convicted of reckless homicide or a similar
24        provision of a law of another state relating to
25        reckless homicide in which the person was determined to
26        have been under the influence of alcohol, other drug or

 

 

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1        drugs, or intoxicating compound or compounds as an
2        element of the offense or the person has previously
3        been convicted of committing a violation of driving
4        under the influence of alcohol or other drug or drugs,
5        intoxicating compound or compounds or any combination
6        thereof and was involved in a motor vehicle accident
7        that resulted in death, great bodily harm, or permanent
8        disability or disfigurement to another, when the
9        violation was a proximate cause of the death or
10        injuries;
11            (C) (3) the person committed a violation of driving
12        under the influence of alcohol or other drug or drugs,
13        intoxicating compound or compounds or any combination
14        thereof under Section 11-501 of the Illinois Vehicle
15        Code or a similar provision for the third or subsequent
16        time;
17            (D) (4) the person committed the violation while he
18        or she did not possess a valid driver's license or
19        permit or a valid restricted driving permit or a valid
20        judicial driving permit or a valid monitoring device
21        driving permit; or
22            (E) (5) the person committed the violation while he
23        or she knew or should have known that the vehicle he or
24        she was driving was not covered by a liability
25        insurance policy;
26        (7) (g) an offense described in subsection (g) of

 

 

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1    Section 6-303 of the Illinois Vehicle Code (625 ILCS
2    5/6-303(g)); or
3        (8) (h) an offense described in subsection (e) of
4    Section 6-101 of the Illinois Vehicle Code (625 ILCS
5    5/6-101). ; may be seized and delivered forthwith to the
6    sheriff of the county of seizure.
7    Within 15 days after such delivery the sheriff shall give
8notice of seizure to each person according to the following
9method: Upon each such person whose right, title or interest is
10of record in the office of the Secretary of State, the
11Secretary of Transportation, the Administrator of the Federal
12Aviation Agency, or any other Department of this State, or any
13other state of the United States if such vessel, vehicle or
14aircraft is required to be so registered, as the case may be,
15by mailing a copy of the notice by certified mail to the
16address as given upon the records of the Secretary of State,
17the Department of Aeronautics, Department of Public Works and
18Buildings or any other Department of this State or the United
19States if such vessel, vehicle or aircraft is required to be so
20registered. Within that 15 day period the sheriff shall also
21notify the State's Attorney of the county of seizure about the
22seizure.
23    (b) In addition, any mobile or portable equipment used in
24the commission of an act which is in violation of Section 7g of
25the Metropolitan Water Reclamation District Act (70 ILCS
262605/7g) shall be subject to seizure and forfeiture under the

 

 

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1same procedures provided in this Article for the seizure and
2forfeiture of vessels, vehicles, and aircraft, and any such
3equipment shall be deemed a vessel, vehicle, or aircraft for
4purposes of this Article.
5    (c) In addition, when When a person discharges a firearm at
6another individual from a vehicle with the knowledge and
7consent of the owner of the vehicle and with the intent to
8cause death or great bodily harm to that individual and as a
9result causes death or great bodily harm to that individual,
10the vehicle shall be subject to seizure and forfeiture under
11the same procedures provided in this Article for the seizure
12and forfeiture of vehicles used in violations of clauses (1),
13(2), (3), or (4) of subsection (a) (a), (b), (c), or (d) of
14this Section.
15    (d) If the spouse of the owner of a vehicle seized for an
16offense described in subsection (g) of Section 6-303 of the
17Illinois Vehicle Code, a violation of subdivision (d)(1)(A),
18(d)(1)(D), (d)(1)(G), (d)(1)(H), or (d)(1)(I) of Section
1911-501 of the Illinois Vehicle Code, or Section 9-3 of this
20Code makes a showing that the seized vehicle is the only source
21of transportation and it is determined that the financial
22hardship to the family as a result of the seizure outweighs the
23benefit to the State from the seizure, the vehicle may be
24forfeited to the spouse or family member and the title to the
25vehicle shall be transferred to the spouse or family member who
26is properly licensed and who requires the use of the vehicle

 

 

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1for employment or family transportation purposes. A written
2declaration of forfeiture of a vehicle under this Section shall
3be sufficient cause for the title to be transferred to the
4spouse or family member. The provisions of this paragraph shall
5apply only to one forfeiture per vehicle. If the vehicle is the
6subject of a subsequent forfeiture proceeding by virtue of a
7subsequent conviction of either spouse or the family member,
8the spouse or family member to whom the vehicle was forfeited
9under the first forfeiture proceeding may not utilize the
10provisions of this paragraph in another forfeiture proceeding.
11If the owner of the vehicle seized owns more than one vehicle,
12the procedure set out in this paragraph may be used for only
13one vehicle.
14    (e) In addition, property Property declared contraband
15under Section 40 of the Illinois Streetgang Terrorism Omnibus
16Prevention Act (740 ILCS 147/40) may be seized and forfeited
17under this Article.
18(Source: P.A. 96-313, eff. 1-1-10; 96-710, eff. 1-1-10;
1996-1000, eff. 7-2-10; 96-1267, eff. 7-26-10; 96-1289, eff.
201-1-11; 96-1551, Article 1, Section 960, eff. 7-1-11; 96-1551,
21Article 2, Section 1035, eff. 7-1-11; 97-333, eff. 8-12-11;
2297-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)
 
23    (720 ILCS 5/36-1.5)
24    Sec. 36-1.5. Preliminary Review.
25    (a) Within 14 days of the seizure, the State's Attorney in

 

 

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1the county in which the seizure occurred State shall seek a
2preliminary determination from the circuit court as to whether
3there is probable cause that the property may be subject to
4forfeiture.
5    (b) The rules of evidence shall not apply to any proceeding
6conducted under this Section.
7    (c) The court may conduct the review under subsection (a)
8simultaneously with a proceeding pursuant to Section 109-1 of
9the Code of Criminal Procedure of 1963 for a related criminal
10offense if a prosecution is commenced by information or
11complaint.
12    (d) The court may accept a finding of probable cause at a
13preliminary hearing following the filing of an information or
14complaint charging a related criminal offense or following the
15return of indictment by a grand jury charging the related
16offense as sufficient evidence of probable cause as required
17under subsection (a).
18    (e) Upon making a finding of probable cause as required
19under this Section, the circuit court shall order the property
20subject to the provisions of the applicable forfeiture Act held
21until the conclusion of any forfeiture proceeding.
22    For seizures of conveyances, within 7 days of a finding of
23probable cause under subsection (a), the registered owner or
24other claimant may file a motion in writing supported by sworn
25affidavits claiming that denial of the use of the conveyance
26during the pendency of the forfeiture proceedings creates a

 

 

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1substantial hardship. The court shall consider the following
2factors in determining whether a substantial hardship has been
3proven:
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
10been proven, the court shall then balance the nature of the
11hardship against the State's interest in safeguarding the
12conveyance. If the court determines that the hardship outweighs
13the State's interest in safeguarding the conveyance, the court
14may temporarily release the conveyance to the registered owner
15or the registered owner's authorized designee, or both, until
16the conclusion of the forfeiture proceedings or for such
17shorter period as ordered by the court provided that the person
18to whom the conveyance is released provides proof of insurance
19and a valid driver's license and all State and local
20registrations for operation of the conveyance are current. The
21court shall place conditions on the conveyance limiting its use
22to the stated hardship and restricting the conveyance's use to
23only those individuals authorized to use the conveyance by the
24registered owner. The court shall revoke the order releasing
25the conveyance and order that the conveyance be reseized by law
26enforcement if the conditions of release are violated or if the

 

 

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1conveyance is used in the commission of any offense identified
2in subsection (a) of Section 6-205 of the Illinois Vehicle
3Code.
4    If the court orders the release of the conveyance during
5the pendency of the forfeiture proceedings, the registered
6owner or his or her authorized designee shall post a cash
7security with the Clerk of the Court as ordered by the court.
8The court shall consider the following factors in determining
9the 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
17the registered owner or his or her designee safeguard the
18conveyance, not remove the conveyance from the jurisdiction,
19not conceal, destroy, or otherwise dispose of the conveyance,
20not encumber the conveyance, and not diminish the value of the
21conveyance in any way. The court shall also make a
22determination of the full market value of the conveyance prior
23to it being released based on a source or sources defined in 50
24Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
25    If the conveyance subject to forfeiture is released under
26this Section and is subsequently forfeited, the person to whom

 

 

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1the conveyance was released shall return the conveyance to the
2law enforcement agency that seized the conveyance within 7 days
3from the date of the declaration of forfeiture or order of
4forfeiture. If the conveyance is not returned within 7 days,
5the cash security shall be forfeited in the same manner as the
6conveyance subject to forfeiture. If the cash security was less
7than the full market value, a judgment shall be entered against
8the parties to whom the conveyance was released and the
9registered owner, jointly and severally, for the difference
10between the full market value and the amount of the cash
11security. If the conveyance is returned in a condition other
12than the condition in which it was released, the cash security
13shall be returned to the surety who posted the security minus
14the amount of the diminished value, and that amount shall be
15forfeited in the same manner as the conveyance subject to
16forfeiture. Additionally, the court may enter an order allowing
17any law enforcement agency in the State of Illinois to seize
18the conveyance wherever it may be found in the State to satisfy
19the judgment if the cash security was less than the full market
20value of the conveyance.
21(Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12.)
 
22    (720 ILCS 5/36-2)  (from Ch. 38, par. 36-2)
23    Sec. 36-2. Action for forfeiture.
24    (a) The State's Attorney in the county in which such
25seizure occurs if he or she finds that the such forfeiture was

 

 

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1incurred without willful negligence or without any intention on
2the part of the owner of the vessel, vehicle or aircraft or any
3person whose right, title or interest is of record as described
4in Section 36-1, to violate the law, or finds the existence of
5such mitigating circumstances as to justify remission of the
6forfeiture, may cause the law enforcement agency sheriff to
7remit the same upon such terms and conditions as the State's
8Attorney deems reasonable and just. The State's Attorney shall
9exercise his or her discretion under the foregoing provision of
10this Section 36-2(a) prior to or promptly after the preliminary
11review under Section 36-1.5 notice is given in accordance with
12Section 36-1.
13    (b) If the State's Attorney does not cause the forfeiture
14to be remitted he or she shall forthwith bring an action for
15forfeiture in the Circuit Court within whose jurisdiction the
16seizure and confiscation has taken place. The State's Attorney
17shall give notice of seizure and the forfeiture proceeding to
18each person according to the following method: Upon each person
19whose right, title, or interest is of record in the office of
20the Secretary of State, the Secretary of Transportation, the
21Administrator of the Federal Aviation Agency, or any other
22Department of this State, or any other state of the United
23States if the vessel, vehicle, or aircraft is required to be so
24registered, as the case may be, by delivering the notice and
25complaint in open court or by certified mail to the address as
26given upon the records of the Secretary of State, the Division

 

 

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1of Aeronautics of the Department of Transportation, the Capital
2Development Board, or any other Department of this State or the
3United States if the vessel, vehicle, or aircraft is required
4to be so registered the forfeiture proceeding by mailing a copy
5of the Complaint in the forfeiture proceeding to the persons,
6and upon the manner, set forth in Section 36-1.
7    (c) The owner of the seized vessel, vehicle, or aircraft or
8any person whose right, title, or interest is of record as
9described in Section 36-1, may within 20 days after delivery in
10open court or the mailing of such notice file a verified answer
11to the Complaint and may appear at the hearing on the action
12for forfeiture.
13    (d) The State shall show at such hearing by a preponderance
14of the evidence, that such vessel, vehicle, or aircraft was
15used in the commission of an offense described in Section 36-1.
16    (e) The owner of such vessel, vehicle, or aircraft or any
17person whose right, title, or interest is of record as
18described in Section 36-1, may show by a preponderance of the
19evidence that he did not know, and did not have reason to know,
20that the vessel, vehicle, or aircraft was to be used in the
21commission of such an offense or that any of the exceptions set
22forth in Section 36-3 are applicable.
23    (f) Unless the State shall make such showing, the Court
24shall order such vessel, vehicle, or aircraft released to the
25owner. Where the State has made such showing, the Court may
26order the vessel, vehicle, or aircraft destroyed or ; may order

 

 

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1it forfeited delivered to any local, municipal or county law
2enforcement agency, or the Department of State Police or the
3Department of Revenue of the State of Illinois; or may order it
4sold at public auction.
5    (g) (b) A copy of the order shall be filed with the law
6enforcement agency, sheriff of the county in which the seizure
7occurs and with each Federal or State office or agency with
8which such vessel, vehicle, or aircraft is required to be
9registered. Such order, when filed, constitutes authority for
10the issuance of clear title to such vessel, vehicle, or
11aircraft, or boat to the department or agency to whom it is
12delivered or any purchaser thereof. The law enforcement agency
13sheriff shall comply promptly with instructions to remit
14received from the State's Attorney or Attorney General in
15accordance with Sections 36-2(a) or 36-3.
16    (h) (c) The proceeds of any sale at public auction pursuant
17to Section 36-2 of this Act, after payment of all liens and
18deduction of the reasonable charges and expenses incurred by
19the State's Attorney's Office sheriff in storing and selling
20such vehicle, shall be paid to into the law enforcement agency
21having seized the vehicle for forfeiture general fund of the
22county of seizure.
23(Source: P.A. 84-25.)
 
24    (720 ILCS 5/36-5)
25    Sec. 36-5. The law enforcement agency, County or sheriff

 

 

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1not liable for stored forfeited vehicle. A law enforcement
2agency, county, sheriff, law enforcement officer or employee of
3the law enforcement agency or deputy sheriff, or employee of
4the county sheriff shall not be civilly or criminally liable
5for any damage to a forfeited vehicle stored with a commercial
6vehicle safety relocator.
7(Source: P.A. 96-1274, eff. 7-26-10.)
 
8    Section 99. Effective date. This Act takes effect upon
9becoming law.