Full Text of HB0239 95th General Assembly
HB0239enr 95TH GENERAL ASSEMBLY
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| AN ACT concerning criminal law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Criminal Code of 1961 is amended by changing | 5 |
| Section 17-1b as follows:
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| (720 ILCS 5/17-1b)
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| Sec. 17-lb. State's Attorney's bad check diversion | 8 |
| program.
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| (a) In this Section:
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| "Offender" means a person charged with, or for whom | 11 |
| probable cause
exists to charge the person with, deceptive | 12 |
| practices.
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| "Pretrial diversion" means the decision of a prosecutor to | 14 |
| refer an
offender to a diversion program on condition that the | 15 |
| criminal charges against
the offender will be dismissed after a | 16 |
| specified period of time, or the case
will not be charged, if | 17 |
| the offender successfully completes the program.
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| "Restitution" means all amounts payable to a victim of | 19 |
| deceptive practices
under the bad check diversion program | 20 |
| created under this Section, including
the amount of the check | 21 |
| and any transaction fees payable to a victim as set
forth in | 22 |
| subsection (g)
but does not include amounts
recoverable under | 23 |
| Section 3-806 of the Uniform Commercial Code and Section
17-1a |
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LRB095 04650 RLC 24708 b |
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| of this Code.
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| (b) A State's Attorney may create within his or her office | 3 |
| a bad check
diversion program for offenders who agree to | 4 |
| voluntarily participate in the
program instead of undergoing | 5 |
| prosecution. The program may be conducted by the
State's | 6 |
| Attorney or by a private entity under contract with the State's
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| Attorney. If the State's Attorney contracts with a private | 8 |
| entity to perform
any services in operating the program, the | 9 |
| entity shall operate under the
supervision, direction, and | 10 |
| control of the State's Attorney. Any private entity
providing | 11 |
| services under this Section is not a "collection agency" as | 12 |
| that
term is defined under the Collection Agency Act.
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| (c) If an offender is referred to the State's Attorney, the | 14 |
| State's
Attorney may determine whether the offender is | 15 |
| appropriate for acceptance in
the
program. The State's Attorney | 16 |
| may consider, but shall not be limited to
consideration of, the
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| following factors:
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| (1) the amount of the check that was drawn or passed;
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| (2) prior referrals of the offender to the program;
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| (3) whether other charges of deceptive practices are | 21 |
| pending
against the offender;
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| (4) the evidence presented to the State's Attorney | 23 |
| regarding the
facts and circumstances of the incident;
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| (5) the offender's criminal history; and
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| (6) the reason the check was dishonored by the | 26 |
| financial
institution.
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| (d) The bad check diversion program may require an offender | 2 |
| to do one or
more of the following:
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| (i) pay for, at his or her own expense, and | 4 |
| successfully
complete an educational class held by the | 5 |
| State's Attorney or a private
entity under contract with | 6 |
| the State's Attorney;
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| (ii) make full restitution for the offense;
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| (iii) pay a per-check administrative fee as set forth | 9 |
| in this
Section.
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| (e) If an offender is diverted to the program, the State's | 11 |
| Attorney shall
agree in writing not to prosecute the offender | 12 |
| upon the offender's successful
completion of the program | 13 |
| conditions. The State's Attorney's agreement to
divert the | 14 |
| offender shall specify the
offenses that will not be prosecuted | 15 |
| by identifying the checks involved in the
transactions.
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| (f) The State's Attorney, or private entity under contract | 17 |
| with the
State's Attorney, may collect a fee from an offender | 18 |
| diverted to the State's
Attorney's bad check diversion program. | 19 |
| This fee may be deposited in a
bank account maintained by the | 20 |
| State's Attorney for the purpose of
depositing fees and paying | 21 |
| the expenses of the program or for use in the enforcement and | 22 |
| prosecution of criminal laws . The State's
Attorney may require | 23 |
| that the fee be paid directly to a private entity that
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| administers the program under a contract with the State's | 25 |
| Attorney.
The amount of the administrative fees collected by | 26 |
| the State's Attorney
under the program may not exceed $35 per |
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| check. The county board may,
however, by ordinance, increase | 2 |
| the fees allowed by this Section if the
increase is justified | 3 |
| by an acceptable cost study showing that the fees
allowed by | 4 |
| this Section are not sufficient to cover the cost of providing | 5 |
| the
service.
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| (g) (1) The private entity shall be required to maintain | 7 |
| adequate
general
liability insurance of $1,000,000 per | 8 |
| occurrence as well as adequate
coverage for potential loss | 9 |
| resulting from employee dishonesty. The State's
Attorney | 10 |
| may require a surety bond payable to the State's Attorney | 11 |
| if in the
State's Attorney's opinion it is determined that | 12 |
| the private entity is not
adequately insured or funded.
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| (2) (A) Each private entity that has a contract with | 14 |
| the State's
Attorney to conduct a bad check diversion | 15 |
| program shall at all times
maintain a separate bank | 16 |
| account in which all moneys received from the
offenders | 17 |
| participating in the program shall be deposited, | 18 |
| referred to as a
"Trust Account", except that | 19 |
| negotiable instruments received may be
forwarded | 20 |
| directly to a victim of the deceptive practice | 21 |
| committed by the
offender if that procedure is provided | 22 |
| for by a writing executed by the
victim. Moneys | 23 |
| received shall be so deposited within 5 business days
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| after posting to the private entity's books of account.
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| There shall be sufficient funds in the trust account at | 26 |
| all times to
pay the victims the amount due them.
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| (B) The trust account shall be established in a | 2 |
| bank, savings and
loan association, or other | 3 |
| recognized depository which is federally or
State | 4 |
| insured or otherwise secured as defined by rule. If the | 5 |
| account is
interest bearing, the private entity shall | 6 |
| pay to the victim interest
earned on funds on deposit | 7 |
| after the 60th day.
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| (C) Each private entity shall keep on file the name | 9 |
| of the bank,
savings and loan association, or other | 10 |
| recognized depository in which
each trust account is | 11 |
| maintained, the name of each trust account, and
the | 12 |
| names of the persons authorized to withdraw funds from | 13 |
| each account.
The private entity, within 30 days of the | 14 |
| time of a change of
depository or person authorized to | 15 |
| make withdrawal, shall update its
files to reflect that | 16 |
| change.
An examination and audit of a private entity's | 17 |
| trust accounts may be
made by the State's Attorney as | 18 |
| the State's Attorney deems appropriate.
A trust | 19 |
| account financial report shall be submitted annually | 20 |
| on
forms acceptable to the State's Attorney.
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| (3) The State's Attorney may cancel a contract entered | 22 |
| into
with a
private entity under this Section for any one | 23 |
| or any
combination of the following causes:
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| (A) Conviction of the private entity or the | 25 |
| principals of
the private entity of any crime under the | 26 |
| laws of any U.S. jurisdiction
which is a felony, a |
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| misdemeanor an essential element of which is
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| dishonesty, or of any crime which directly relates to | 3 |
| the practice
of the profession.
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| (B) A determination that the private entity has | 5 |
| engaged in conduct
prohibited in item (4).
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| (4) The State's Attorney may determine whether the | 7 |
| private entity has
engaged in the following prohibited | 8 |
| conduct:
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| (A) Using or threatening to use force or violence | 10 |
| to cause
physical harm to an offender, his or her | 11 |
| family, or his or her property.
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| (B) Threatening the seizure, attachment, or sale | 13 |
| of an offender's
property where such action can only be | 14 |
| taken pursuant to court order
without disclosing that | 15 |
| prior court proceedings are required.
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| (C) Disclosing or threatening to disclose | 17 |
| information
adversely affecting an offender's | 18 |
| reputation for creditworthiness with
knowledge the | 19 |
| information is false.
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| (D) Initiating or threatening to initiate | 21 |
| communication with
an offender's employer unless there | 22 |
| has been a default of the payment
of the obligation for | 23 |
| at least 30 days and at least 5 days prior
written | 24 |
| notice, to the last known address of the offender, of | 25 |
| the
intention to communicate with the employer has been | 26 |
| given to the
employee, except as expressly permitted by |
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| law or court order.
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| (E) Communicating with the offender or any member | 3 |
| of the
offender's family at such a time of day or night | 4 |
| and with such
frequency as to constitute harassment of | 5 |
| the offender or any member of
the offender's family. | 6 |
| For purposes of this clause (E) the following
conduct | 7 |
| shall constitute harassment:
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| (i) Communicating with the offender or any | 9 |
| member of his or
her family at any unusual time or | 10 |
| place or a time
or place known or which should be | 11 |
| known to be inconvenient to
the offender. In the | 12 |
| absence of knowledge of circumstances to
the | 13 |
| contrary, a private entity shall assume that the | 14 |
| convenient
time for communicating with a consumer | 15 |
| is after 8 o'clock a.m.
and before 9 o'clock p.m. | 16 |
| local time at the offender's residence.
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| (ii) The threat of publication or publication | 18 |
| of a list of
offenders who allegedly refuse to pay | 19 |
| restitution, except by the State's
Attorney.
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| (iii) The threat of advertisement or | 21 |
| advertisement for sale
of any restitution to | 22 |
| coerce payment of the restitution.
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| (iv) Causing a telephone to ring or engaging | 24 |
| any person in
telephone conversation repeatedly or | 25 |
| continuously with intent
to annoy, abuse, or | 26 |
| harass any person at the called number.
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| (v) Using profane, obscene or abusive language | 2 |
| in
communicating with an offender, his or her | 3 |
| family, or others.
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| (vi) Disclosing or threatening to disclose | 5 |
| information
relating to a offender's case to any | 6 |
| other person except
the victim and appropriate law | 7 |
| enforcement personnel.
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| (vii) Disclosing or threatening to disclose | 9 |
| information
concerning the alleged criminal act | 10 |
| which the private entity knows to
be reasonably | 11 |
| disputed by the offender without disclosing the | 12 |
| fact
that the offender disputes the accusation.
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| (viii) Engaging in any conduct which the | 14 |
| State's Attorney finds was
intended to cause and | 15 |
| did cause mental or physical illness to the
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| offender or his or her family.
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| (ix) Attempting or threatening to enforce a | 18 |
| right or remedy
with knowledge or reason to know | 19 |
| that the right or remedy does not
exist.
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| (x) Except as authorized by the State's | 21 |
| Attorney, using any form of
communication which | 22 |
| simulates legal or
judicial process or which gives | 23 |
| the appearance of being authorized,
issued or | 24 |
| approved by a governmental agency or official or by | 25 |
| an
attorney at law when it is not.
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| (xi) Using any badge,
uniform, or other |
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| indicia of any
governmental agency or official, | 2 |
| except as authorized by law or by the State's
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| Attorney.
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| (xii) Except as authorized by the State's | 5 |
| Attorney, conducting
business
under any name or in | 6 |
| any manner which
suggests or implies that the | 7 |
| private entity is bonded if such
private entity is | 8 |
| or is a branch of or is affiliated with any
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| governmental agency or court if such private | 10 |
| entity is not.
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| (xiii) Misrepresenting the amount of the | 12 |
| restitution alleged
to be owed.
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| (xiv) Except as authorized by the State's | 14 |
| Attorney, representing that
an
existing | 15 |
| restitution amount may be increased
by
the | 16 |
| addition of attorney's fees, investigation fees, | 17 |
| or any other
fees or charges when those fees or | 18 |
| charges may not legally be added
to the existing | 19 |
| restitution.
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| (xv) Except as authorized by the State's | 21 |
| Attorney, representing that
the
private entity is | 22 |
| an attorney at
law or an agent for an attorney if | 23 |
| the entity is not.
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| (xvi) Collecting or attempting to collect any | 25 |
| interest or other
charge or fee in excess of the | 26 |
| actual restitution or claim unless the
interest or |
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LRB095 04650 RLC 24708 b |
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| other charge or fee is expressly authorized by the
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| State's Attorney, who shall
determine what | 3 |
| constitutes a reasonable collection fee.
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| (xvii) Communicating or threatening to | 5 |
| communicate with an offender
when the private | 6 |
| entity is informed in writing by an attorney that
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| the attorney represents the offender concerning | 8 |
| the claim, unless
authorized by the attorney. If | 9 |
| the attorney fails to respond within
a reasonable | 10 |
| period of time, the private entity may communicate | 11 |
| with the
offender. The private entity may | 12 |
| communicate with the offender when the
attorney | 13 |
| gives his consent.
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| (xviii) Engaging in dishonorable, unethical, | 15 |
| or unprofessional
conduct of a character likely to | 16 |
| deceive, defraud, or harm the
public.
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| (5) The State's Attorney shall audit the accounts of | 18 |
| the bad check
diversion
program after notice in writing to | 19 |
| the private entity.
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| (6) Any information obtained by a private entity that | 21 |
| has a contract with
the State's Attorney to conduct a bad | 22 |
| check diversion program is confidential
information | 23 |
| between the State's Attorney and the private entity and may | 24 |
| not
be sold or used for any other purpose but may be shared | 25 |
| with other authorized
law enforcement agencies as | 26 |
| determined by the State's Attorney.
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HB0239 Enrolled |
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LRB095 04650 RLC 24708 b |
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| (h) The State's Attorney, or private entity under contract | 2 |
| with the
State's Attorney, shall recover, in addition to the | 3 |
| face amount of the
dishonored check or draft, a transaction fee | 4 |
| to defray the costs and expenses
incurred by a victim who | 5 |
| received a dishonored check that was made or
delivered by the | 6 |
| offender. The face amount of the dishonored check or draft and
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| the transaction fee shall be paid by the State's Attorney or | 8 |
| private entity
under contract with the State's Attorney to the | 9 |
| victim as
restitution for the offense. The amount of the | 10 |
| transaction fee must not
exceed: $25 if the face amount of the | 11 |
| check or draft does not exceed $100;
$30 if the face amount of | 12 |
| the check or draft is greater than $100 but does not
exceed | 13 |
| $250; $35 if the face amount of the check or draft is greater | 14 |
| than
$250 but does not exceed $500; $40 if the face amount of | 15 |
| the
check or draft is greater than $500 but does not exceed | 16 |
| $1,000; and $50 if the
face amount of the check or draft is | 17 |
| greater than $1,000.
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| (i) The offender, if aggrieved by an action of the private
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| entity contracted to operate a bad check diversion program, may | 20 |
| submit a
grievance to
the State's Attorney who may then resolve | 21 |
| the grievance. The private entity
must give notice to the | 22 |
| offender that the grievance procedure is available. The
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| grievance procedure shall be established by the State's | 24 |
| Attorney.
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| (Source: P.A. 93-394, eff. 7-29-03.)
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