Full Text of HB1927 97th General Assembly
HB1927enr 97TH GENERAL ASSEMBLY |
| | HB1927 Enrolled | | LRB097 08502 RLC 48629 b |
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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 Criminal Code of 1961 is amended by changing | 5 | | 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 | 17 | | offense if a prosecution is commenced by information or | 18 | | complaint. | 19 | | (d) The court may accept a finding of probable cause at a | 20 | | preliminary hearing following the filing of an information or | 21 | | complaint charging a related criminal offense or following the | 22 | | return of indictment by a grand jury charging the related | 23 | | offense as sufficient evidence of probable cause as required |
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| 1 | | under subsection (a). | 2 | | (e) Upon making a finding of probable cause as required | 3 | | under this Section, the circuit court shall order the property | 4 | | subject to the provisions of the applicable forfeiture Act held | 5 | | until the conclusion of any forfeiture proceeding. | 6 | | For seizures of conveyances, within 7 days of a finding of | 7 | | probable cause under subsection (a), the registered owner or | 8 | | other claimant may file a motion in writing supported by sworn | 9 | | affidavits claiming that denial of the use of the conveyance | 10 | | during the pendency of the forfeiture proceedings creates a | 11 | | substantial hardship. The court shall consider the following | 12 | | factors in determining whether a substantial hardship has been | 13 | | proven: | 14 | | (1) the nature of the claimed hardship; | 15 | | (2) the availability of public transportation or other | 16 | | available means of transportation; and | 17 | | (3) any available alternatives to alleviate the | 18 | | hardship other than the return of the seized conveyance. | 19 | | If the court determines that a substantial hardship has | 20 | | been proven, the court shall then balance the nature of the | 21 | | hardship against the State's interest in safeguarding the | 22 | | conveyance. If the court determines that the hardship outweighs | 23 | | the State's interest in safeguarding the conveyance, the court | 24 | | may temporarily release the conveyance to the registered owner | 25 | | or the registered owner's authorized designee, or both, until | 26 | | the conclusion of the forfeiture proceedings or for such |
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| 1 | | shorter period as ordered by the court provided that the person | 2 | | to whom the conveyance is released provides proof of insurance | 3 | | and a valid driver's license and all State and local | 4 | | registrations for operation of the conveyance are current. The | 5 | | court shall place conditions on the conveyance limiting its use | 6 | | to the stated hardship and restricting the conveyance's use to | 7 | | only those individuals authorized to use the conveyance by the | 8 | | registered owner. The court shall revoke the order releasing | 9 | | the conveyance and order that the conveyance be reseized by law | 10 | | enforcement if the conditions of release are violated or if the | 11 | | conveyance is used in the commission of any offense identified | 12 | | in subsection (a) of Section 6-205 of the Illinois Vehicle | 13 | | Code. | 14 | | If the court orders the release of the conveyance during | 15 | | the pendency of the forfeiture proceedings, the registered | 16 | | owner or his or her authorized designee shall post a cash | 17 | | security with the Clerk of the Court as ordered by the court. | 18 | | The court shall consider the following factors in determining | 19 | | the amount of the cash security: | 20 | | (A) the full market value of the conveyance; | 21 | | (B) the nature of the hardship; | 22 | | (C) the extent and length of the usage of the | 23 | | conveyance; and | 24 | | (D) such other conditions as the court deems necessary | 25 | | to safeguard the conveyance. | 26 | | If the conveyance is released, the court shall order that |
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| 1 | | the registered owner or his or her designee safeguard the | 2 | | conveyance, not remove the conveyance from the jurisdiction, | 3 | | not conceal, destroy, or otherwise dispose of the conveyance, | 4 | | not encumber the conveyance, and not diminish the value of the | 5 | | conveyance in any way. The court shall also make a | 6 | | determination of the full market value of the conveyance prior | 7 | | to it being released based on a source or sources defined in 50 | 8 | | Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). | 9 | | If the conveyance subject to forfeiture is released under | 10 | | this Section and is subsequently forfeited, the person to whom | 11 | | the conveyance was released shall return the conveyance to the | 12 | | law enforcement agency that seized the conveyance within 7 days | 13 | | from the date of the declaration of forfeiture or order of | 14 | | forfeiture. If the conveyance is not returned within 7 days, | 15 | | the cash security shall be forfeited in the same manner as the | 16 | | conveyance subject to forfeiture. If the cash security was less | 17 | | than the full market value, a judgment shall be entered against | 18 | | the parties to whom the conveyance was released and the | 19 | | registered owner, jointly and severally, for the difference | 20 | | between the full market value and the amount of the cash | 21 | | security. If the conveyance is returned in a condition other | 22 | | than the condition in which it was released, the cash security | 23 | | shall be returned to the surety who posted the security minus | 24 | | the amount of the diminished value, and that amount shall be | 25 | | forfeited in the same manner as the conveyance subject to | 26 | | forfeiture. Additionally, the court may enter an order allowing |
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| 1 | | any law enforcement agency in the State of Illinois to seize | 2 | | the conveyance wherever it may be found in the State to satisfy | 3 | | the judgment if the cash security was less than the full market | 4 | | value of the conveyance. Upon making a finding of probable | 5 | | cause as required under this Section, and after taking into | 6 | | account the respective interests of all known claimants to the | 7 | | property including the State, the circuit court shall enter a | 8 | | restraining order or injunction, or take other appropriate | 9 | | action, as necessary to ensure that the property is not removed | 10 | | from the court's jurisdiction and is not concealed, destroyed, | 11 | | or otherwise disposed of by the property owner or interest | 12 | | holder before a forfeiture hearing is conducted.
| 13 | | (Source: P.A. 97-544, eff. 1-1-12.) | 14 | | Section 10. The Drug Asset Forfeiture Procedure Act is | 15 | | amended by changing Section 3.5 as follows: | 16 | | (725 ILCS 150/3.5) | 17 | | Sec. 3.5. Preliminary Review. | 18 | | (a) Within 14 days of the seizure, the State shall seek a | 19 | | preliminary determination from the circuit court as to whether | 20 | | there is probable cause that the property may be subject to | 21 | | forfeiture. | 22 | | (b) The rules of evidence shall not apply to any proceeding | 23 | | conducted under this Section. | 24 | | (c) The court may conduct the review under subsection (a) |
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| 1 | | simultaneously with a proceeding pursuant to Section 109-1 of | 2 | | the Code of Criminal Procedure of 1963 for a related criminal | 3 | | offense if a prosecution is commenced by information or | 4 | | complaint. | 5 | | (d) The court may accept a finding of probable cause at a | 6 | | preliminary hearing following the filing of an information or | 7 | | complaint charging a related criminal offense or following the | 8 | | return of indictment by a grand jury charging the related | 9 | | offense as sufficient evidence of probable cause as required | 10 | | under subsection (a). | 11 | | (e) Upon making a finding of probable cause as required | 12 | | under this Section, the circuit court shall order the property | 13 | | subject to the provisions of the applicable forfeiture Act held | 14 | | until the conclusion of any forfeiture proceeding. | 15 | | For seizures of conveyances, within 7 days of a finding of | 16 | | probable cause under subsection (a), the registered owner or | 17 | | other claimant may file a motion in writing supported by sworn | 18 | | affidavits claiming that denial of the use of the conveyance | 19 | | during the pendency of the forfeiture proceedings creates a | 20 | | substantial hardship. The court shall consider the following | 21 | | factors in determining whether a substantial hardship has been | 22 | | proven: | 23 | | (1) the nature of the claimed hardship; | 24 | | (2) the availability of public transportation or other | 25 | | available means of transportation; and | 26 | | (3) any available alternatives to alleviate the |
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| 1 | | hardship other than the return of the seized conveyance. | 2 | | If the court determines that a substantial hardship has | 3 | | been proven, the court shall then balance the nature of the | 4 | | hardship against the State's interest in safeguarding the | 5 | | conveyance. If the court determines that the hardship outweighs | 6 | | the State's interest in safeguarding the conveyance, the court | 7 | | may temporarily release the conveyance to the registered owner | 8 | | or the registered owner's authorized designee, or both, until | 9 | | the conclusion of the forfeiture proceedings or for such | 10 | | shorter period as ordered by the court provided that the person | 11 | | to whom the conveyance is released provides proof of insurance | 12 | | and a valid driver's license and all State and local | 13 | | registrations for operation of the conveyance are current. The | 14 | | court shall place conditions on the conveyance limiting its use | 15 | | to the stated hardship and restricting the conveyance's use to | 16 | | only those individuals authorized to use the conveyance by the | 17 | | registered owner. The court shall revoke the order releasing | 18 | | the conveyance and order that the conveyance be reseized by law | 19 | | enforcement if the conditions of release are violated or if the | 20 | | conveyance is used in the commission of any offense identified | 21 | | in subsection (a) of Section 6-205 of the Illinois Vehicle | 22 | | Code. | 23 | | If the court orders the release of the conveyance during | 24 | | the pendency of the forfeiture proceedings, the registered | 25 | | owner or his or her authorized designee shall post a cash | 26 | | security with the Clerk of the Court as ordered by the court. |
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| 1 | | The court shall consider the following factors in determining | 2 | | the amount of the cash security: | 3 | | (A) the full market value of the conveyance; | 4 | | (B) the nature of the hardship; | 5 | | (C) the extent and length of the usage of the | 6 | | conveyance; and | 7 | | (D) such other conditions as the court deems necessary | 8 | | to safeguard the conveyance. | 9 | | If the conveyance is released, the court shall order that | 10 | | the registered owner or his or her designee safeguard the | 11 | | conveyance, not remove the conveyance from the jurisdiction, | 12 | | not conceal, destroy, or otherwise dispose of the conveyance, | 13 | | not encumber the conveyance, and not diminish the value of the | 14 | | conveyance in any way. The court shall also make a | 15 | | determination of the full market value of the conveyance prior | 16 | | to it being released based on a source or sources defined in 50 | 17 | | Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). | 18 | | If the conveyance subject to forfeiture is released under | 19 | | this Section and is subsequently forfeited, the person to whom | 20 | | the conveyance was released shall return the conveyance to the | 21 | | law enforcement agency that seized the conveyance within 7 days | 22 | | from the date of the declaration of forfeiture or order of | 23 | | forfeiture. If the conveyance is not returned within 7 days, | 24 | | the cash security shall be forfeited in the same manner as the | 25 | | conveyance subject to forfeiture. If the cash security was less | 26 | | than the full market value, a judgment shall be entered against |
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| 1 | | the parties to whom the conveyance was released and the | 2 | | registered owner, jointly and severally, for the difference | 3 | | between the full market value and the amount of the cash | 4 | | security. If the conveyance is returned in a condition other | 5 | | than the condition in which it was released, the cash security | 6 | | shall be returned to the surety who posted the security minus | 7 | | the amount of the diminished value, and that amount shall be | 8 | | forfeited in the same manner as the conveyance subject to | 9 | | forfeiture. Additionally, the court may enter an order allowing | 10 | | any law enforcement agency in the State of Illinois to seize | 11 | | the conveyance wherever it may be found in the State to satisfy | 12 | | the judgment if the cash security was less than the full market | 13 | | value of the conveyance. Upon making a finding of probable | 14 | | cause as required under this Section, and after taking into | 15 | | account the respective interests of all known claimants to the | 16 | | property including the State, the circuit court shall enter a | 17 | | restraining order or injunction, or take other appropriate | 18 | | action, as necessary to ensure that the property is not removed | 19 | | from the court's jurisdiction and is not concealed, destroyed, | 20 | | or otherwise disposed of by the property owner or interest | 21 | | holder before a forfeiture hearing is conducted.
| 22 | | (Source: P.A. 97-544, eff. 1-1-12.)
| 23 | | Section 99. Effective date. This Act takes effect January | 24 | | 1, 2012.
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