Full Text of HB0908 97th General Assembly
HB0908ham001 97TH GENERAL ASSEMBLY | Rep. Constance A. Howard Filed: 4/1/2011
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| 1 | | AMENDMENT TO HOUSE BILL 908
| 2 | | AMENDMENT NO. ______. Amend House Bill 908 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Drug Asset Forfeiture Procedure Act is | 5 | | amended by changing Sections 4 and 9 and by adding Sections 5.1 | 6 | | and 5.2 as follows:
| 7 | | (725 ILCS 150/4) (from Ch. 56 1/2, par. 1674)
| 8 | | Sec. 4. Notice to Owner or Interest Holder.
| 9 | | (A) Whenever notice of pending forfeiture or service of an | 10 | | in rem
complaint is required under the provisions of this Act, | 11 | | such notice or
service shall be given as follows:
| 12 | | (1) If the owner's or interest holder's name and | 13 | | current address are
known, then by either personal service | 14 | | or mailing a copy of the notice by
certified mail, return | 15 | | receipt requested, to that address. For purposes of
notice | 16 | | under this Section, if a person has been arrested for the |
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| 1 | | conduct
giving rise to the forfeiture, then the address | 2 | | provided to the arresting
agency at the time of arrest | 3 | | shall be deemed to be that person's known
address. | 4 | | Provided, however, if an owner or interest holder's address
| 5 | | changes prior to the effective date of the notice of | 6 | | pending forfeiture,
the owner or interest holder shall | 7 | | promptly notify the seizing agency of
the change in address | 8 | | or, if the owner or interest holder's address changes
| 9 | | subsequent to the effective date of the notice of pending | 10 | | forfeiture, the
owner or interest holder shall promptly | 11 | | notify the State's Attorney of the
change in address . A | 12 | | good faith effort shall be made to provide notice at their | 13 | | institutional location to any owners or interest holders | 14 | | who are known to be incarcerated at the time when notice is | 15 | | required to be given under this Section ; or
| 16 | | (2) If the property seized is a conveyance, to the | 17 | | address reflected in
the office of the agency or official | 18 | | in which title or interest to the
conveyance is required by | 19 | | law to be recorded, then by mailing a copy of the
notice by | 20 | | certified mail, return receipt requested, to that address; | 21 | | or
| 22 | | (3) If the owner's or interest holder's address is not | 23 | | known, and is not
on record as provided in paragraph (2), | 24 | | then by publication for 3
successive weeks in a newspaper | 25 | | of general circulation in the county in
which the seizure | 26 | | occurred.
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| 1 | | (B) Notice served under this Act is effective upon personal | 2 | | service,
the last date of publication, or the mailing of | 3 | | written notice, whichever
is earlier.
| 4 | | (Source: P.A. 86-1382; 87-614.)
| 5 | | (725 ILCS 150/5.1 new) | 6 | | Sec. 5.1. Notice; Right to a Preliminary Hearing.
Within | 7 | | 72 hours of a seizure of personal property under the Illinois | 8 | | Controlled Substances Act, the Cannabis Control Act, or the | 9 | | Methamphetamine Control and Community Protection Act, the | 10 | | seizing agency shall provide the owner or interest holder of | 11 | | the property notice in accordance with this Section and in the | 12 | | manner provided by Section 4 of this Act. For purposes of this | 13 | | Section and Section 5.2, the owner or interest holder of the | 14 | | personal property shall be referred to as claimant. Such notice | 15 | | shall state that the seized property is subject to forfeiture. | 16 | | The notice shall give a description of the property, the | 17 | | estimated value of the property, the date and place of seizure, | 18 | | the conduct giving rise to forfeiture or the violation of law | 19 | | alleged, and a summary of procedures and procedural rights | 20 | | applicable to the forfeiture action. Such notice shall state | 21 | | that the claimant has a right to a preliminary adversarial | 22 | | hearing to determine whether there is probable cause that such | 23 | | property is subject to forfeiture. The claimant shall be given | 24 | | 15 business days from the receipt of the notice to request a | 25 | | preliminary adversarial hearing by checking a box that is to be |
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| 1 | | provided upon the face of the notice and returning the notice | 2 | | to the State's Attorney for the county in which the seizure has | 3 | | occurred. Upon the timely receipt of notice, the State's | 4 | | Attorney shall provide for an adversarial preliminary hearing | 5 | | in accordance with Section 5.2. If the seizing agency does not | 6 | | provide notice as required under this Section, the property | 7 | | shall be released pending the commencement of the forfeiture | 8 | | hearing under this Act. | 9 | | (725 ILCS 150/5.2 new) | 10 | | Sec. 5.2. Preliminary Forfeiture Review; Remedies. | 11 | | (a) Where a claimant has requested a hearing in accordance | 12 | | with Section 5.1, within 10 business days of the receipt of | 13 | | such request, the State's Attorney shall commence an | 14 | | adversarial hearing in the circuit court of the county in which | 15 | | such personal property has been seized. | 16 | | (b) The court shall review all supporting documentation and | 17 | | take any testimony in order to make a preliminary determination | 18 | | whether there is probable cause to believe that the property at | 19 | | issue is subject to forfeiture. In such hearing, it shall be | 20 | | the burden of the State to show probable cause that the | 21 | | property is subject to forfeiture. | 22 | | (c) A claimant shall have the right and opportunity to | 23 | | cross-examine the State's witnesses and to present evidence in | 24 | | response to the evidence offered by the State in support of | 25 | | probable cause. The claimant shall also have the opportunity to |
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| 1 | | present evidence that he or she is not legally accountable for | 2 | | the conduct giving rise to the forfeiture, did not acquiesce in | 3 | | it, or did not know and could not reasonably have known of the | 4 | | conduct or that the conduct was likely to occur. | 5 | | (d) If the court finds that the State has not met its | 6 | | burden under subsection (b) of this Section, the property shall | 7 | | be released and all fees and costs associated with the storage | 8 | | and seizure of the property shall be vacated. | 9 | | (e) If the court finds that the State has met its burden | 10 | | under subsection (b), the State must show by a preponderance of | 11 | | evidence that its need for the retention of the property | 12 | | outweighs the hardship to the claimant that would result from | 13 | | denying him or her access to or use of the property pending the | 14 | | forfeiture hearing. | 15 | | (f) A claimant shall have the right and opportunity to | 16 | | cross-examine the State's witnesses and to present evidence | 17 | | concerning whether the burden of State's retaining the property | 18 | | pending a forfeiture hearing outweighs the claimant's interest | 19 | | in retaining the property pending the forfeiture hearing. | 20 | | (g) If the court finds the State did not show under | 21 | | subsection (e) that its need to retain the property is greater | 22 | | than the claimant's need to keep the property, the court shall | 23 | | grant the claimant reasonable access to and use of the property | 24 | | pending the commencement of a forfeiture hearing. In such case, | 25 | | the court shall order the property to be restrained by the | 26 | | least restrictive means to protect against disposal, waste, or |
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| 1 | | continued illegal use of such property pending disposition of | 2 | | the forfeiture proceeding. The court may order the owner or | 3 | | interest holder to post a bond or other adequate security. | 4 | | (h) The rules of evidence shall not apply to hearings | 5 | | conducted under this Section.
| 6 | | (725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)
| 7 | | Sec. 9. Judicial in rem procedures. If property seized | 8 | | under the
provisions of the Illinois Controlled Substances Act, | 9 | | the Cannabis Control
Act, or the Methamphetamine Control and | 10 | | Community Protection Act is non-real property that exceeds | 11 | | $20,000 in value excluding the value
of any conveyance, or is | 12 | | real property, or a claimant has filed a claim and
a cost bond | 13 | | under subsection (C) of Section 6 of this Act, the following
| 14 | | judicial in rem procedures shall apply:
| 15 | | (A) If, after a review of the facts surrounding the | 16 | | seizure, the State's
Attorney is of the opinion that the seized | 17 | | property is subject to
forfeiture, then within 45 days of the | 18 | | receipt of notice of seizure by the
seizing agency or the | 19 | | filing of the claim and cost bond, whichever is
later, the | 20 | | State's Attorney shall institute judicial forfeiture | 21 | | proceedings
by filing a verified complaint for forfeiture and, | 22 | | if the claimant has
filed a claim and cost bond, by depositing | 23 | | the cost bond with the clerk of
the court. When authorized by | 24 | | law, a forfeiture must be ordered by a court
on an action in | 25 | | rem brought by a State's Attorney under a verified
complaint |
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| 1 | | for forfeiture.
| 2 | | (B) During the probable cause portion of the judicial in | 3 | | rem
proceeding wherein the State presents its case-in-chief, | 4 | | the court must
receive and consider, among other things, all | 5 | | relevant hearsay evidence and
information. The laws of evidence | 6 | | relating to civil actions shall apply to
all other portions of | 7 | | the judicial in rem proceeding.
| 8 | | (C) Only an owner of or interest holder in the property may | 9 | | file an
answer asserting a claim against the property in the | 10 | | action in rem. For
purposes of this Section, the owner or | 11 | | interest holder shall be referred
to as claimant.
| 12 | | (D) The answer must be signed by the owner or interest | 13 | | holder under
penalty of perjury and must set forth:
| 14 | | (i) the caption of the proceedings as set forth on the | 15 | | notice of pending
forfeiture and the name of the claimant;
| 16 | | (ii) the address at which the claimant will accept | 17 | | mail;
| 18 | | (iii) the nature and extent of the claimant's interest | 19 | | in the property;
| 20 | | (iv) the date, identity of transferor, and | 21 | | circumstances of the
claimant's acquisition of the | 22 | | interest in the property;
| 23 | | (v) the name and address of all other persons known to | 24 | | have an interest
in the property;
| 25 | | (vi) the specific provisions of Section 8 of this Act
| 26 | | relied on in asserting it
is not subject to forfeiture;
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| 1 | | (vii) all essential facts supporting each assertion; | 2 | | and
| 3 | | (viii) the precise relief sought.
| 4 | | (E) The answer must be filed with the court within 45 days | 5 | | after service
of the civil in rem complaint.
| 6 | | (F) The hearing must be held within 60 days after filing of | 7 | | the answer
unless continued for good cause.
| 8 | | (G) The State shall show the property is subject to | 9 | | forfeiture by a preponderance of the evidence existence of | 10 | | probable cause for forfeiture
of the property . If the State | 11 | | shows the property is subject to forfeiture by a preponderance | 12 | | of the evidence probable cause , the claimant has the
burden of | 13 | | showing by a preponderance of the evidence that the claimant's
| 14 | | interest in the property is not subject to forfeiture.
| 15 | | (H) If the State does not show the property is subject to | 16 | | forfeiture by a preponderance of the evidence existence of | 17 | | probable cause or a claimant
has established by a preponderance | 18 | | of evidence that the claimant has an
interest that is exempt | 19 | | under Section 8 of this Act, the court shall order
the interest | 20 | | in the property returned or conveyed to the claimant and shall
| 21 | | order all other property forfeited to the State. If the State | 22 | | does show
the property is subject to forfeiture by a | 23 | | preponderance of the evidence existence of probable cause and | 24 | | the claimant does not establish by a
preponderance of evidence | 25 | | that the claimant has an interest that is exempt
under Section | 26 | | 8 of this Act, the court shall order all property forfeited
to |
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| 1 | | the State.
| 2 | | (I) A defendant convicted in any criminal proceeding is | 3 | | precluded from
later denying the essential allegations of the | 4 | | criminal offense of which
the defendant was convicted in any | 5 | | proceeding under this Act
regardless of the pendency of an | 6 | | appeal from that conviction. However,
evidence of the pendency | 7 | | of an appeal is admissible.
| 8 | | (J) An acquittal or dismissal in a criminal proceeding | 9 | | shall not
preclude civil proceedings under this Act; however, | 10 | | for good cause shown,
on a motion by the State's Attorney, the | 11 | | court may stay civil forfeiture
proceedings during the criminal | 12 | | trial for a related criminal indictment or
information alleging | 13 | | a violation of the Illinois Controlled Substances Act,
the | 14 | | Cannabis Control Act, or the Methamphetamine Control and | 15 | | Community Protection Act. Such a stay shall not be available | 16 | | pending an
appeal. Property subject to forfeiture under the | 17 | | Illinois Controlled
Substances Act, the Cannabis Control Act, | 18 | | or the Methamphetamine Control and Community Protection Act | 19 | | shall not be subject to return
or release by a court exercising | 20 | | jurisdiction over a criminal case
involving the seizure of such | 21 | | property unless such return or release is
consented to by the | 22 | | State's Attorney.
| 23 | | (K) All property declared forfeited under this Act vests in | 24 | | this State
on the commission of the conduct giving rise to | 25 | | forfeiture together with
the proceeds of the property after | 26 | | that time. Any such property or
proceeds subsequently |
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| 1 | | transferred to any person remain subject to
forfeiture and | 2 | | thereafter shall be ordered forfeited unless the transferee
| 3 | | claims and establishes in a hearing under the provisions of | 4 | | this Act that
the transferee's interest is exempt under Section | 5 | | 8 of this Act.
| 6 | | (L) A civil action under this Act must be commenced within | 7 | | 5 years
after the last conduct giving rise to forfeiture became | 8 | | known or should
have become known or 5 years after the | 9 | | forfeitable property is
discovered, whichever is later, | 10 | | excluding any time during which either the
property or claimant | 11 | | is out of the State or in confinement or during which
criminal | 12 | | proceedings relating to the same conduct are in progress.
| 13 | | (Source: P.A. 94-556, eff. 9-11-05.)".
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