Full Text of SB2268 97th General Assembly
SB2268sam001 97TH GENERAL ASSEMBLY | Sen. Don Harmon Filed: 4/5/2011
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| 1 | | AMENDMENT TO SENATE BILL 2268
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2268 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Criminal Code of 1961 is amended by adding | 5 | | Section 36-1.5 as follows: | 6 | | (720 ILCS 5/36-1.5 new) | 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 |
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| 1 | | offense of a prosecution is commenced by information or | 2 | | complaint. | 3 | | (d) The court may accept a finding of probable cause at a | 4 | | preliminary hearing following the filing of an information or | 5 | | complaint charging a related criminal offense or following the | 6 | | return of indictment by a grand jury charging the related | 7 | | offense as sufficient evidence of probable cause as required | 8 | | under subsection (a). | 9 | | (e) Upon making a finding of probable cause as required | 10 | | under this Section, the circuit court shall enter a restraining | 11 | | order or injunction, or take other appropriate action, as | 12 | | necessary to ensure that the property is not removed from the | 13 | | court's jurisdiction and is not concealed, destroyed, or | 14 | | otherwise disposed of by the property owner or interest holder | 15 | | before a forfeiture hearing is conducted. | 16 | | Section 10. The Drug Asset Forfeiture Procedure Act is | 17 | | amended by changing Section 6 and by adding Section 3.5 as | 18 | | follows: | 19 | | (725 ILCS 150/3.5 new) | 20 | | Sec. 3.5. Preliminary Review. | 21 | | (a) Within 14 days of the seizure, the State shall seek a | 22 | | preliminary determination from the circuit court as to whether | 23 | | there is probable cause that the property may be subject to | 24 | | forfeiture. |
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| 1 | | (b) The rules of evidence shall not apply to any proceeding | 2 | | conducted under this Section. | 3 | | (c) The court may conduct the review under subsection (a) | 4 | | simultaneously with a proceeding pursuant to Section 109-1 of | 5 | | the Code of Criminal Procedure of 1963 for a related criminal | 6 | | offense of a prosecution is commenced by information or | 7 | | complaint. | 8 | | (d) The court may accept a finding of probable cause at a | 9 | | preliminary hearing following the filing of an information or | 10 | | complaint charging a related criminal offense or following the | 11 | | return of indictment by a grand jury charging the related | 12 | | offense as sufficient evidence of probable cause as required | 13 | | under subsection (a). | 14 | | (e) Upon making a finding of probable cause as required | 15 | | under this Section, the circuit court shall enter a restraining | 16 | | order or injunction, or take other appropriate action, as | 17 | | necessary to ensure that the property is not removed from the | 18 | | court's jurisdiction and is not concealed, destroyed, or | 19 | | otherwise disposed of by the property owner or interest holder | 20 | | before a forfeiture hearing is conducted.
| 21 | | (725 ILCS 150/6) (from Ch. 56 1/2, par. 1676)
| 22 | | Sec. 6. Non-Judicial Forfeiture. If non-real property that | 23 | | exceeds $150,000
$20,000 in value excluding the value of any | 24 | | conveyance, or if real property
is seized under the provisions | 25 | | of the Illinois Controlled Substances Act,
the Cannabis Control |
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| 1 | | Act, or the Methamphetamine Control and Community Protection | 2 | | Act, the State's Attorney shall institute judicial in
rem | 3 | | forfeiture proceedings as described in Section 9 of this Act | 4 | | within 45
days from receipt of notice of seizure from the | 5 | | seizing agency under
Section 5 of this Act. However, if | 6 | | non-real property that does not exceed
$150,000 $20,000 in | 7 | | value excluding the value of any conveyance is seized, the
| 8 | | following procedure shall be used:
| 9 | | (A) If, after review of the facts surrounding the seizure, | 10 | | the State's
Attorney is of the opinion that the seized property | 11 | | is subject to
forfeiture, then within 45 days of the receipt of | 12 | | notice of seizure from the
seizing agency, the State's Attorney | 13 | | shall cause notice of pending
forfeiture to be given to the | 14 | | owner of the property and all known interest
holders of the | 15 | | property in accordance with Section 4 of this Act.
| 16 | | (B) The notice of pending forfeiture must include a | 17 | | description of the
property, the estimated value of the | 18 | | property, the date and place of
seizure, the conduct giving | 19 | | rise to forfeiture or the violation of law
alleged, and a | 20 | | summary of procedures and procedural rights applicable to
the | 21 | | forfeiture action.
| 22 | | (C) (1) Any person claiming an interest in property which | 23 | | is the
subject of notice under subsection (A) of Section 6 | 24 | | of this Act, may,
within 45 days after the effective date | 25 | | of notice as described in Section 4
of this Act, file a | 26 | | verified claim with the State's Attorney expressing his
or |
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| 1 | | her interest in the property. The claim must set forth:
| 2 | | (i) the caption of the proceedings as set forth on | 3 | | the notice of
pending forfeiture and the name of the | 4 | | claimant;
| 5 | | (ii) the address at which the claimant will accept | 6 | | mail;
| 7 | | (iii) the nature and extent of the claimant's | 8 | | interest in the property;
| 9 | | (iv) the date, identity of the transferor, and | 10 | | circumstances of the
claimant's acquisition of the | 11 | | interest in the property;
| 12 | | (v) the name and address of all other persons known | 13 | | to have an
interest in the property;
| 14 | | (vi) the specific provision of law relied on in | 15 | | asserting the property
is not subject to forfeiture;
| 16 | | (vii) all essential facts supporting each | 17 | | assertion; and
| 18 | | (viii) the relief sought.
| 19 | | (2) If a claimant files the claim and deposits with the | 20 | | State's Attorney
a cost bond, in the form of a cashier's | 21 | | check payable to the clerk of the
court, in the sum of 10 | 22 | | percent of the reasonable value of the property as
alleged | 23 | | by the State's Attorney or the sum of $100, whichever is | 24 | | greater,
upon condition that, in the case of forfeiture, | 25 | | the claimant must pay all
costs and expenses of forfeiture | 26 | | proceedings, then the State's Attorney
shall institute |
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| 1 | | judicial in rem forfeiture proceedings and deposit the cost
| 2 | | bond with the clerk of the court as described in Section 9 | 3 | | of this Act
within 45 days after receipt of the claim and | 4 | | cost bond. In lieu of a cost
bond, a person claiming | 5 | | interest in the seized property may file, under
penalty of | 6 | | perjury, an indigency affidavit.
| 7 | | (3) If none of the seized property is forfeited in the | 8 | | judicial in rem
proceeding, the clerk of the court shall | 9 | | return to the claimant, unless the
court orders otherwise, | 10 | | 90% of the sum which has been deposited and shall
retain as | 11 | | costs 10% of the money deposited. If any of the seized | 12 | | property
is forfeited under the judicial forfeiture | 13 | | proceeding, the clerk of
the court shall transfer 90% of | 14 | | the sum which has been deposited to the
State's Attorney | 15 | | prosecuting the civil forfeiture to be applied to the
costs | 16 | | of prosecution and the clerk shall retain as costs 10% of | 17 | | the sum
deposited.
| 18 | | (D) If no claim is filed or bond given within the 45 day | 19 | | period as
described in subsection (C) of Section 6 of this Act, | 20 | | the State's Attorney
shall declare the property forfeited and | 21 | | shall promptly notify the
owner and all known interest holders | 22 | | of the property and the Director of the
Illinois Department of | 23 | | State Police of the declaration of forfeiture and
the Director | 24 | | shall dispose of the property in accordance with law.
| 25 | | (Source: P.A. 94-556, eff. 9-11-05.)".
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