SB1906 97TH GENERAL ASSEMBLY

  
  

 


 
97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1906

 

Introduced 2/10/2011, by Sen. Kwame Raoul

 

SYNOPSIS AS INTRODUCED:
 
725 ILCS 5/103-1  from Ch. 38, par. 103-1
725 ILCS 5/109-1  from Ch. 38, par. 109-1

    Amends the Code of Criminal Procedure of 1963. Provides that when foreign nationals are arrested or detained, they must be advised of their right to have their consular officials notified, and if an individual chooses to exercise that right, a law enforcement official is required to notify the consulate. Provides that neither the fact that a foreign national is identified as such, nor that he or she invokes the right to consular notification shall provide any law enforcement official with reason to believe that the person is unlawfully present in the United States or reason to otherwise inquire about that person's immigrant status in the United States. Provides that at the initial appearance of a defendant in any criminal proceeding, the court must advise the defendant in open court that any foreign national who is arrested or detained has the right to have notice of the arrest or detention given to his or her country's consular representatives and the right to communicate with those consular representatives if such notice has not already been provided. Provides that the court must make a written record of so advising the defendant. Provides that if consular notification is not provided to a defendant before his or her first appearance in court, the court shall grant any reasonable request for a continuance of the proceedings to allow contact with the defendant's consulate. Provides that if consular notice is not provided before conviction and sentencing, the Appellate Court shall remand the case to the trial court if the defendant can show that he or she suffered prejudice as a result of the lack of consular notice.


LRB097 05688 RLC 46029 b

 

 

A BILL FOR

 

SB1906LRB097 05688 RLC 46029 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 Code of Criminal Procedure of 1963 is
5amended by changing Sections 103-1 and 109-1 as follows:
 
6    (725 ILCS 5/103-1)  (from Ch. 38, par. 103-1)
7    Sec. 103-1. Rights on arrest. (a) After an arrest on a
8warrant the person making the arrest shall inform the person
9arrested that a warrant has been issued for his arrest and the
10nature of the offense specified in the warrant.
11    (b) After an arrest without a warrant the person making the
12arrest shall inform the person arrested of the nature of the
13offense on which the arrest is based.
14    (b-5) This subsection is intended to implement and be
15interpreted consistently with the Vienna Convention on
16Consular Relations, to which the United States is a party.
17Article 36 of that Convention guarantees that when foreign
18nationals are arrested or detained, they must be advised of
19their right to have their consular officials notified, and if
20an individual chooses to exercise that right, a law enforcement
21official is required to notify the consulate. Neither the fact
22that a foreign national is identified as such, nor that he or
23she invokes the right to consular notification shall provide

 

 

SB1906- 2 -LRB097 05688 RLC 46029 b

1any law enforcement official with reason to believe that the
2person is unlawfully present in the United States or reason to
3otherwise inquire about that person's immigrant status in the
4United States.
5        (1) In accordance with federal law and the provisions
6    of this Section, the law enforcement official in charge of
7    a custodial facility shall ensure that any individual
8    booked and detained at such facility, within 48 hours of
9    booking or detention, shall be advised that if that
10    individual is a foreign national, he or she has a right to
11    communicate with an official from the consulate of his or
12    her country.
13        (2) If the foreign national requests consular
14    notification or such notification is mandatory by law, the
15    law enforcement official in charge of the custodial
16    facility shall ensure such notice is given to the
17    appropriate officer at the consulate of the foreign
18    national in accordance with the U.S. Department of State
19    Instructions for Consular Notification and Access.
20        (3) The law enforcement official in charge of the
21    custodial facility where a foreign national is located
22    shall ensure that the foreign national is allowed to
23    communicate with, correspond with, and be visited by, a
24    consular officer of his or her country.
25    (c) No person arrested for a traffic, regulatory or
26misdemeanor offense, except in cases involving weapons or a

 

 

SB1906- 3 -LRB097 05688 RLC 46029 b

1controlled substance, shall be strip searched unless there is
2reasonable belief that the individual is concealing a weapon or
3controlled substance.
4    (d) "Strip search" means having an arrested person remove
5or arrange some or all of his or her clothing so as to permit a
6visual inspection of the genitals, buttocks, anus, female
7breasts or undergarments of such person.
8    (e) All strip searches conducted under this Section shall
9be performed by persons of the same sex as the arrested person
10and on premises where the search cannot be observed by persons
11not physically conducting the search.
12    (f) Every peace officer or employee of a police department
13conducting a strip search shall:
14    (1) Obtain the written permission of the police commander
15or an agent thereof designated for the purposes of authorizing
16a strip search in accordance with this Section.
17    (2) Prepare a report of the strip search. The report shall
18include the written authorization required by paragraph (1) of
19this subsection (f), the name of the person subjected to the
20search, the names of the persons conducting the search, and the
21time, date and place of the search. A copy of the report shall
22be provided to the person subject to the search.
23    (g) No search of any body cavity other than the mouth shall
24be conducted without a duly executed search warrant; any
25warrant authorizing a body cavity search shall specify that the
26search must be performed under sanitary conditions and

 

 

SB1906- 4 -LRB097 05688 RLC 46029 b

1conducted either by or under the supervision of a physician
2licensed to practice medicine in all of its branches in this
3State.
4    (h) Any peace officer or employee who knowingly or
5intentionally fails to comply with any provision of this
6Section is guilty of official misconduct as provided in Section
7103-8; provided however, that nothing contained in this Section
8shall preclude prosecution of a peace officer or employee under
9another section of this Code.
10    (i) Nothing in this Section shall be construed as limiting
11any statutory or common law rights of any person for purposes
12of any civil action or injunctive relief.
13    (j) The provisions of subsections (c) through (h) of this
14Section shall not apply when the person is taken into custody
15by or remanded to the sheriff or correctional institution
16pursuant to a court order.
17(Source: P.A. 81-1509.)
 
18    (725 ILCS 5/109-1)  (from Ch. 38, par. 109-1)
19    Sec. 109-1. Person arrested.
20    (a) A person arrested with or without a warrant shall be
21taken without unnecessary delay before the nearest and most
22accessible judge in that county, except when such county is a
23participant in a regional jail authority, in which event such
24person may be taken to the nearest and most accessible judge,
25irrespective of the county where such judge presides, and a

 

 

SB1906- 5 -LRB097 05688 RLC 46029 b

1charge shall be filed. Whenever a person arrested either with
2or without a warrant is required to be taken before a judge, a
3charge may be filed against such person by way of a two-way
4closed circuit television system, except that a hearing to deny
5bail to the defendant may not be conducted by way of closed
6circuit television.
7    (b) The judge shall:
8        (1) Inform the defendant of the charge against him and
9    shall provide him with a copy of the charge.
10        (2) Advise the defendant of his right to counsel and if
11    indigent shall appoint a public defender or licensed
12    attorney at law of this State to represent him in
13    accordance with the provisions of Section 113-3 of this
14    Code.
15        (3) Schedule a preliminary hearing in appropriate
16    cases; and
17        (4) Admit the defendant to bail in accordance with the
18    provisions of Article 110 of this Code.
19    (c) The court may issue an order of protection in
20accordance with the provisions of Article 112A of this Code.
21    (d) At the initial appearance of a defendant in any
22criminal proceeding, the court must advise the defendant in
23open court that any foreign national who is arrested or
24detained has the right to have notice of the arrest or
25detention given to his or her country's consular
26representatives and the right to communicate with those

 

 

SB1906- 6 -LRB097 05688 RLC 46029 b

1consular representatives if such notice has not already been
2provided. The court must make a written record of so advising
3the defendant.
4    (e) If consular notification is not provided to a defendant
5before his or her first appearance in court, the court shall
6grant any reasonable request for a continuance of the
7proceedings to allow contact with the defendant's consulate. If
8consular notice is not provided before conviction and
9sentencing, the Appellate Court shall remand the case to the
10trial court if the defendant can show that he or she suffered
11prejudice as a result of the lack of consular notice.
12(Source: P.A. 90-140, eff. 1-1-98.)