Illinois General Assembly - Full Text of HB5523
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Full Text of HB5523  98th General Assembly




HB5523 EnrolledLRB098 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), 9-3
14    (involuntary manslaughter and reckless homicide), 10-2
15    (aggravated kidnaping), 11-1.20 (criminal sexual assault),
16    11-1.30 (aggravated criminal sexual assault), 11-1.40
17    (predatory criminal sexual assault of a child), subsection
18    (a) of Section 11-1.50 (criminal sexual abuse), subsection
19    (a), (c), or (d) of Section 11-1.60 (aggravated criminal
20    sexual abuse), Section 11-6 (indecent solicitation of a
21    child), 11-14.4 (promoting juvenile prostitution except
22    for keeping a place of juvenile prostitution), 11-15.1,
23    11-19.1, 11-19.2, 11-20.1 (child pornography), paragraph



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1    (a)(1), (a)(2), (a)(4), (b)(1), (b)(2), (e)(1), (e)(2),
2    (e)(3), (e)(4), (e)(5), (e)(6), or (e)(7) of Section
3    12-3.05 (aggravated battery), 11-20.1B, 11-20.3, 12-4.1,
4    12-4.2, 12-4.2-5, 12-4.3, 12-4.6, 12-7.3 (stalking),
5    12-7.4 (aggravated stalking), 12-13, 12-14, 16-1 (theft if
6    the theft is of precious metal or of scrap metal),
7    subdivision (f)(2) or (f)(3) of Section 16-25 (retail
8    theft), Section 18-2 (armed robbery), 19-1 (burglary),
9    19-2 (possession of burglary tools), 19-3 (residential
10    burglary), 20-1 (arson; residential arson; place of
11    worship arson), 20-2 (possession of explosives or
12    explosive or incendiary devices), subdivision (a)(6) or
13    (a)(7) of Section 24-1 (unlawful use of weapons), Section ,
14    24-1.2 (aggravated discharge of a firearm), 24-1.2-5
15    (aggravated discharge of a machine gun or a firearm
16    equipped with a device designed or used for silencing the
17    report of a firearm), 24-1.5 (reckless discharge of a
18    firearm), 28-1 (gambling), or 29D-15.2 (possession of a
19    deadly substance) of this Code; , subdivision (a)(1),
20    (a)(2), (a)(4), (b)(1), (e)(1), (e)(2), (e)(3), (e)(4),
21    (e)(5), (e)(6), or (e)(7) of Section 12-3.05, paragraph (a)
22    of Section 12-4 of this Code, paragraph (a) of Section
23    11-1.50, paragraph (a) of Section 12-15, paragraph (a),
24    (c), or (d) of Section 11-1.60, or paragraphs (a), (c) or
25    (d) of Section 12-16 of this Code, or paragraph (a)(6) or
26    (a)(7) of Section 24-1 of this Code;



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1        (2) (b) Section 21, 22, 23, 24 or 26 of the Cigarette
2    Tax Act if the vessel, vehicle, or aircraft contains more
3    than 10 cartons of such cigarettes;
4        (3) (c) Section 28, 29, or 30 of the Cigarette Use Tax
5    Act if the vessel, vehicle, or aircraft contains more than
6    10 cartons of such cigarettes;
7        (4) (d) Section 44 of the Environmental Protection Act;
8        (5) (e) Section 11-204.1 of the Illinois Vehicle Code
9    (aggravated fleeing or attempting to elude a peace
10    officer);
11        (6) Section 11-501 of the Illinois Vehicle Code
12    (driving while under the influence of alcohol or other drug
13    or drugs, intoxicating compound or compounds or any
14    combination thereof) or a similar provision of a local
15    ordinance, and:
16        (f) (1) driving under the influence of alcohol or other drug or
17        drugs, intoxicating compound or compounds or any
18        combination thereof under Section 11-501 of the
19        Illinois Vehicle Code during a period in which
20            (A) during a period in which his or her driving
21        privileges are revoked or suspended if where the
22        revocation or suspension was for:
23                (i) Section 11-501 (driving under the
24            influence of alcohol or other drug or drugs,
25            intoxicating compound or compounds or any
26            combination thereof),



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1                (ii) Section 11-501.1 (statutory summary
2            suspension or revocation),
3                (iii) paragraph (b) of Section 11-401 (motor
4            vehicle accidents involving death or personal
5            injuries), or for
6                (iv) reckless homicide as defined in Section
7            9-3 of this the Criminal Code of 1961 or the
8            Criminal Code of 2012;
9            (B) (2) driving while under the influence of
10        alcohol, other drug or drugs, intoxicating compound or
11        compounds or any combination thereof and has been
12        previously convicted of reckless homicide or a similar
13        provision of a law of another state relating to
14        reckless homicide in which the person was determined to
15        have been under the influence of alcohol, other drug or
16        drugs, or intoxicating compound or compounds as an
17        element of the offense or the person has previously
18        been convicted of committing a violation of driving
19        under the influence of alcohol or other drug or drugs,
20        intoxicating compound or compounds or any combination
21        thereof and was involved in a motor vehicle accident
22        that resulted in death, great bodily harm, or permanent
23        disability or disfigurement to another, when the
24        violation was a proximate cause of the death or
25        injuries;
26            (C) (3) the person committed a violation of driving



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1        under the influence of alcohol or other drug or drugs,
2        intoxicating compound or compounds or any combination
3        thereof under Section 11-501 of the Illinois Vehicle
4        Code or a similar provision for the third or subsequent
5        time;
6            (D) (4) the person committed the violation while he
7        or she did not possess a valid driver's license or
8        permit or a valid restricted driving permit or a valid
9        judicial driving permit or a valid monitoring device
10        driving permit; or
11            (E) (5) the person committed the violation while he
12        or she knew or should have known that the vehicle he or
13        she was driving was not covered by a liability
14        insurance policy;
15        (7) (g) an offense described in subsection (g) of
16    Section 6-303 of the Illinois Vehicle Code; or
17        (8) (h) an offense described in subsection (e) of
18    Section 6-101 of the Illinois Vehicle Code; may be seized
19    and delivered forthwith to the sheriff of the county of
20    seizure.
21    Within 15 days after such delivery the sheriff shall give
22notice of seizure to each person according to the following
23method: Upon each such person whose right, title or interest is
24of record in the office of the Secretary of State, the
25Secretary of Transportation, the Administrator of the Federal
26Aviation Agency, or any other Department of this State, or any



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1other state of the United States if such vessel, vehicle or
2aircraft is required to be so registered, as the case may be,
3by mailing a copy of the notice by certified mail to the
4address as given upon the records of the Secretary of State,
5the Department of Aeronautics, Department of Public Works and
6Buildings or any other Department of this State or the United
7States if such vessel, vehicle or aircraft is required to be so
8registered. Within that 15 day period the sheriff shall also
9notify the State's Attorney of the county of seizure about the
11    (b) In addition, any mobile or portable equipment used in
12the commission of an act which is in violation of Section 7g of
13the Metropolitan Water Reclamation District Act shall be
14subject to seizure and forfeiture under the same procedures
15provided in this Article for the seizure and forfeiture of
16vessels, vehicles, and aircraft, and any such equipment shall
17be deemed a vessel, vehicle, or aircraft for purposes of this
19    (c) In addition, when When a person discharges a firearm at
20another individual from a vehicle with the knowledge and
21consent of the owner of the vehicle and with the intent to
22cause death or great bodily harm to that individual and as a
23result causes death or great bodily harm to that individual,
24the vehicle shall be subject to seizure and forfeiture under
25the same procedures provided in this Article for the seizure
26and forfeiture of vehicles used in violations of clauses (1),



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1(2), (3), or (4) of subsection (a) (a), (b), (c), or (d) of
2this Section.
3    (d) If the spouse of the owner of a vehicle seized for an
4offense described in subsection (g) of Section 6-303 of the
5Illinois Vehicle Code, a violation of subdivision (d)(1)(A),
6(d)(1)(D), (d)(1)(G), (d)(1)(H), or (d)(1)(I) of Section
711-501 of the Illinois Vehicle Code, or Section 9-3 of this
8Code makes a showing that the seized vehicle is the only source
9of transportation and it is determined that the financial
10hardship to the family as a result of the seizure outweighs the
11benefit to the State from the seizure, the vehicle may be
12forfeited to the spouse or family member and the title to the
13vehicle shall be transferred to the spouse or family member who
14is properly licensed and who requires the use of the vehicle
15for employment or family transportation purposes. A written
16declaration of forfeiture of a vehicle under this Section shall
17be sufficient cause for the title to be transferred to the
18spouse or family member. The provisions of this paragraph shall
19apply only to one forfeiture per vehicle. If the vehicle is the
20subject of a subsequent forfeiture proceeding by virtue of a
21subsequent conviction of either spouse or the family member,
22the spouse or family member to whom the vehicle was forfeited
23under the first forfeiture proceeding may not utilize the
24provisions of this paragraph in another forfeiture proceeding.
25If the owner of the vehicle seized owns more than one vehicle,
26the procedure set out in this paragraph may be used for only



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1one vehicle.
2    (e) In addition, property Property declared contraband
3under Section 40 of the Illinois Streetgang Terrorism Omnibus
4Prevention Act may be seized and forfeited under this Article.
5(Source: P.A. 96-313, eff. 1-1-10; 96-710, eff. 1-1-10;
696-1000, eff. 7-2-10; 96-1267, eff. 7-26-10; 96-1289, eff.
71-1-11; 96-1551, Article 1, Section 960, eff. 7-1-11; 96-1551,
8Article 2, Section 1035, eff. 7-1-11; 97-333, eff. 8-12-11;
997-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)
10    (720 ILCS 5/36-1.5)
11    Sec. 36-1.5. Preliminary Review.
12    (a) Within 14 days of the seizure, the State's Attorney in
13the county in which the seizure occurred State shall seek a
14preliminary determination from the circuit court as to whether
15there is probable cause that the property may be subject to
17    (b) The rules of evidence shall not apply to any proceeding
18conducted under this Section.
19    (c) The court may conduct the review under subsection (a)
20simultaneously with a proceeding pursuant to Section 109-1 of
21the Code of Criminal Procedure of 1963 for a related criminal
22offense if a prosecution is commenced by information or
24    (d) The court may accept a finding of probable cause at a
25preliminary hearing following the filing of an information or



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1complaint charging a related criminal offense or following the
2return of indictment by a grand jury charging the related
3offense as sufficient evidence of probable cause as required
4under subsection (a).
5    (e) Upon making a finding of probable cause as required
6under this Section, the circuit court shall order the property
7subject to the provisions of the applicable forfeiture Act held
8until the conclusion of any forfeiture proceeding.
9    For seizures of conveyances, within 7 days of a finding of
10probable cause under subsection (a), the registered owner or
11other claimant may file a motion in writing supported by sworn
12affidavits claiming that denial of the use of the conveyance
13during the pendency of the forfeiture proceedings creates a
14substantial hardship. The court shall consider the following
15factors in determining whether a substantial hardship has been
17        (1) the nature of the claimed hardship;
18        (2) the availability of public transportation or other
19    available means of transportation; and
20        (3) any available alternatives to alleviate the
21    hardship other than the return of the seized conveyance.
22    If the court determines that a substantial hardship has
23been proven, the court shall then balance the nature of the
24hardship against the State's interest in safeguarding the
25conveyance. If the court determines that the hardship outweighs
26the State's interest in safeguarding the conveyance, the court



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1may temporarily release the conveyance to the registered owner
2or the registered owner's authorized designee, or both, until
3the conclusion of the forfeiture proceedings or for such
4shorter period as ordered by the court provided that the person
5to whom the conveyance is released provides proof of insurance
6and a valid driver's license and all State and local
7registrations for operation of the conveyance are current. The
8court shall place conditions on the conveyance limiting its use
9to the stated hardship and restricting the conveyance's use to
10only those individuals authorized to use the conveyance by the
11registered owner. The court shall revoke the order releasing
12the conveyance and order that the conveyance be reseized by law
13enforcement if the conditions of release are violated or if the
14conveyance is used in the commission of any offense identified
15in subsection (a) of Section 6-205 of the Illinois Vehicle
17    If the court orders the release of the conveyance during
18the pendency of the forfeiture proceedings, the registered
19owner or his or her authorized designee shall post a cash
20security with the Clerk of the Court as ordered by the court.
21The court shall consider the following factors in determining
22the amount of the cash security:
23        (A) the full market value of the conveyance;
24        (B) the nature of the hardship;
25        (C) the extent and length of the usage of the
26    conveyance; and



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1        (D) such other conditions as the court deems necessary
2    to safeguard the conveyance.
3    If the conveyance is released, the court shall order that
4the registered owner or his or her designee safeguard the
5conveyance, not remove the conveyance from the jurisdiction,
6not conceal, destroy, or otherwise dispose of the conveyance,
7not encumber the conveyance, and not diminish the value of the
8conveyance in any way. The court shall also make a
9determination of the full market value of the conveyance prior
10to it being released based on a source or sources defined in 50
11Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
12    If the conveyance subject to forfeiture is released under
13this Section and is subsequently forfeited, the person to whom
14the conveyance was released shall return the conveyance to the
15law enforcement agency that seized the conveyance within 7 days
16from the date of the declaration of forfeiture or order of
17forfeiture. If the conveyance is not returned within 7 days,
18the cash security shall be forfeited in the same manner as the
19conveyance subject to forfeiture. If the cash security was less
20than the full market value, a judgment shall be entered against
21the parties to whom the conveyance was released and the
22registered owner, jointly and severally, for the difference
23between the full market value and the amount of the cash
24security. If the conveyance is returned in a condition other
25than the condition in which it was released, the cash security
26shall be returned to the surety who posted the security minus



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1the amount of the diminished value, and that amount shall be
2forfeited in the same manner as the conveyance subject to
3forfeiture. Additionally, the court may enter an order allowing
4any law enforcement agency in the State of Illinois to seize
5the conveyance wherever it may be found in the State to satisfy
6the judgment if the cash security was less than the full market
7value of the conveyance.
8(Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12.)
9    (720 ILCS 5/36-2)  (from Ch. 38, par. 36-2)
10    Sec. 36-2. Action for forfeiture.
11    (a) The State's Attorney in the county in which such
12seizure occurs if he or she finds that the such forfeiture was
13incurred without willful negligence or without any intention on
14the part of the owner of the vessel, vehicle or aircraft or any
15person whose right, title or interest is of record as described
16in Section 36-1, to violate the law, or finds the existence of
17such mitigating circumstances as to justify remission of the
18forfeiture, may cause the law enforcement agency sheriff to
19remit the same upon such terms and conditions as the State's
20Attorney deems reasonable and just. The State's Attorney shall
21exercise his or her discretion under the foregoing provision of
22this Section 36-2(a) prior to or promptly after the preliminary
23review under Section 36-1.5 notice is given in accordance with
24Section 36-1.
25    (b) If the State's Attorney does not cause the forfeiture



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1to be remitted he or she shall forthwith bring an action for
2forfeiture in the Circuit Court within whose jurisdiction the
3seizure and confiscation has taken place. The State's Attorney
4shall give notice of seizure and the forfeiture proceeding to
5each person according to the following method: Upon each person
6whose right, title, or interest is of record in the office of
7the Secretary of State, the Secretary of Transportation, the
8Administrator of the Federal Aviation Agency, or any other
9Department of this State, or any other state of the United
10States if the vessel, vehicle, or aircraft is required to be so
11registered, as the case may be, by delivering the notice and
12complaint in open court or by certified mail to the address as
13given upon the records of the Secretary of State, the Division
14of Aeronautics of the Department of Transportation, the Capital
15Development Board, or any other Department of this State or the
16United States if the vessel, vehicle, or aircraft is required
17to be so registered the forfeiture proceeding by mailing a copy
18of the Complaint in the forfeiture proceeding to the persons,
19and upon the manner, set forth in Section 36-1.
20    (c) The owner of the seized vessel, vehicle, or aircraft or
21any person whose right, title, or interest is of record as
22described in Section 36-1, may within 20 days after delivery in
23open court or the mailing of such notice file a verified answer
24to the Complaint and may appear at the hearing on the action
25for forfeiture.
26    (d) The State shall show at such hearing by a preponderance



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1of the evidence, that such vessel, vehicle, or aircraft was
2used in the commission of an offense described in Section 36-1.
3    (e) The owner of such vessel, vehicle, or aircraft or any
4person whose right, title, or interest is of record as
5described in Section 36-1, may show by a preponderance of the
6evidence that he did not know, and did not have reason to know,
7that the vessel, vehicle, or aircraft was to be used in the
8commission of such an offense or that any of the exceptions set
9forth in Section 36-3 are applicable.
10    (f) Unless the State shall make such showing, the Court
11shall order such vessel, vehicle, or aircraft released to the
12owner. Where the State has made such showing, the Court may
13order the vessel, vehicle, or aircraft destroyed or ; may order
14it forfeited delivered to any local, municipal or county law
15enforcement agency, or the Department of State Police or the
16Department of Revenue of the State of Illinois; or may order it
17sold at public auction.
18    (g) (b) A copy of the order shall be filed with the law
19enforcement agency, sheriff of the county in which the seizure
20occurs and with each Federal or State office or agency with
21which such vessel, vehicle, or aircraft is required to be
22registered. Such order, when filed, constitutes authority for
23the issuance of clear title to such vessel, vehicle, or
24aircraft, or boat to the department or agency to whom it is
25delivered or any purchaser thereof. The law enforcement agency
26sheriff shall comply promptly with instructions to remit



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1received from the State's Attorney or Attorney General in
2accordance with Sections 36-2(a) or 36-3.
3    (h) (c) The proceeds of any sale at public auction pursuant
4to Section 36-2 of this Act, after payment of all liens and
5deduction of the reasonable charges and expenses incurred by
6the State's Attorney's Office sheriff in storing and selling
7such vehicle, shall be paid to into the law enforcement agency
8having seized the vehicle for forfeiture general fund of the
9county of seizure.
10(Source: P.A. 84-25.)
11    (720 ILCS 5/36-5)
12    Sec. 36-5. The law enforcement agency, county or sheriff
13not liable for stored forfeited vehicle. A law enforcement
14agency, county, sheriff, law enforcement officer or employee of
15the law enforcement agency or deputy sheriff, or employee of
16the county sheriff shall not be civilly or criminally liable
17for any damage to a forfeited vehicle stored with a commercial
18vehicle safety relocator.
19(Source: P.A. 96-1274, eff. 7-26-10.)
20    Section 99. Effective date. This Act takes effect upon
21becoming law.