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

HB5523 98TH GENERAL ASSEMBLY

  
  

 


 
98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB5523

 

Introduced , by Rep. Carol A. Sente

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/36-1  from Ch. 38, par. 36-1
720 ILCS 5/36-1.5
720 ILCS 5/36-2  from Ch. 38, par. 36-2
720 ILCS 5/36-5

    Amends the Criminal Code of 2012. Adds various offenses to the list for which a vessel, vehicle, or aircraft used with the knowledge and consent of the owner in the commission of, or in the attempt to commit, the offense may be seized and forfeited. Provides that the vessel, vehicle, or aircraft may be seized and impounded by law enforcement agency (rather than delivered forthwith to the sheriff at the Courts of Seizure). Effective immediately.


LRB098 17373 RLC 52471 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB5523LRB098 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, 720 ILCS
14    5/9-1), 9-3 (involuntary manslaughter and reckless
15    homicide, 720 ILCS 5/9-3), 10-2 (aggravated kidnaping, 720
16    ILCS 5/10-2), 11-1.20 (criminal sexual assault, 720 ILCS
17    5/11-1.20), 11-1.30 (aggravated criminal sexual assault,
18    720 ILCS 5/11-1.30), 11-1.40 (predatory criminal sexual
19    assault of a child, 720 ILCS 5/11-1.40), subsection (a) of
20    Section 11-1.50 (criminal sexual abuse, 720 ILCS 5/11-1.50
21    (a)), subsection (a), (c), or (d) of Section 11-1.60
22    (aggravated criminal sexual abuse, 720 ILCS 5/11-1.60 (a),
23    (c), or (d)), Section 11-6 (indecent solicitation of a

 

 

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1    child, 720 ILCS 5/11-6), 11-14.4 (promoting juvenile
2    prostitution, 720 ILCS 5/11-14.4) except for keeping a
3    place of juvenile prostitution, 11-18 (patronizing a
4    prostitute, 720 ILCS 5/11-18) 11-15.1, 11-19.1, 11-19.2,
5    11-20.1 (child pornography, 720 ILCS 5/11-20.1), 12-3.3.
6    (aggravated domestic battery, 720 ILCS 5/12-3.3),
7    paragraph (a)(1), (a)(2), (a)(4), (b)(1), (e)(1), (e)(2),
8    (e)(3), (e)(4), (e)(5), (e)(6), or (e)(7) of Section
9    12-3.05 (aggravated battery, 12-3.05(a)(1), (a)(2),
10    (a)(4), (b)(1), (e)(1), (e)(2), (e)(3), (e)(4), (e)(5),
11    (e)(6), or (e)(7)), 12-6.4 (criminal street gang
12    recruitment on school grounds or public property adjacent
13    to school grounds and criminal street gang recruitment of a
14    minor, 720 ILCS 5/12-6.4), 11-20.1B, 11-20.3, 12-4.1,
15    12-4.2, 12-4.2-5, 12-4.3, 12-4.6, 12-7.3 (stalking, 720
16    ILCS 5/12-7.3), 12-7.4 (aggravated stalking, 720 ILCS
17    5/12-7.4), 12-9 (threatening a public official, 720 ILCS
18    5/12-9), 12-13, 12-14, 16-1 (theft, 720 ILCS 5/16-1) if the
19    theft is of precious metal or of scrap metal, subdivisions
20    (f)(2) and (f)(3) of Section 16-25 (retail theft, 720 ILCS
21    5/16-25 (f)(2) or (f)(3), Section 18-2 (armed robbery, 720
22    ILCS 5/18-2), 19-1 (burglary, 720 ILCS 5/19-1), 19-2
23    (possession of burglary tools, 720 ILCS 5/19-2), 19-3
24    (residential burglary, 720 ILCS 5/19-3), 19-6 (home
25    invasion, 720 ILCS 5/19-6), 20-1 (arson; residential
26    arson; place of worship arson, 720 ILCS 5/20-1), 20-1.1

 

 

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1    (aggravated arson, 720 ILCS 5/20-1.1), 20-2 (possession of
2    explosives or explosive or incendiary devices, 720 ILCS
3    5/20-2), 24-1 (unlawful use of weapons paragraph (a)(6) or
4    (a)(7), 720 ILCS 5/24-1(a)(6) or (a)(7)), 24-1.2
5    (aggravated discharge of a firearm, 720 ILCS 5/24-1.2),
6    24-1.2-5 (aggravated discharge of a machine gun or a
7    firearm equipped with a device designed or used for
8    silencing the report of a firearm, 720 ILCS 5/24-1.2),
9    24-1.5 (reckless discharge of a firearm, 720 ILCS
10    5/24-1.5), 24-1.6 (aggravated unlawful use of a weapon, 720
11    ILCS 5/24-1.6), 24-1.8 (unlawful possession of a firearm by
12    a street gang member, 720 ILCS 5/24-1.8), 24-3 (unlawful
13    sale or delivery of firearms, 720 ILCS 5/24-3), 24-3A
14    (gunrunning, 720 ILCS 5/24-3A), 24-3.2 (unlawful discharge
15    of firearm projectiles, 720 ILCS 5/24-3.2), 24-3.3
16    (unlawful sale or delivery of firearms on the premises of
17    any school, 720 ILCS 5/24-3.3), 28-1 (gambling, 720 ILCS
18    5/28-1), 29D-15.1 (causing a catastrophe, 720 ILCS
19    5/29D-15.1), or 29D-15.2 (possession of a deadly
20    substance, 720 ILCS 5/29D-15.2), or 33A-2 (armed violence,
21    720 ILCS 5/33A-2) of this Code; , subdivision (a)(1),
22    (a)(2), (a)(4), (b)(1), (e)(1), (e)(2), (e)(3), (e)(4),
23    (e)(5), (e)(6), or (e)(7) of Section 12-3.05, paragraph (a)
24    of Section 12-4 of this Code, paragraph (a) of Section
25    11-1.50, paragraph (a) of Section 12-15, paragraph (a),
26    (c), or (d) of Section 11-1.60, or paragraphs (a), (c) or

 

 

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1    (d) of Section 12-16 of this Code, or paragraph (a)(6) or
2    (a)(7) of Section 24-1 of this Code;
3        (2) (b) Section 18c, 21, 22, 23, 24 or 26 of the
4    Cigarette Tax Act (35 ILCS 130/18c, 21, 22, 23, 24 or 26)
5    if the vessel, vehicle, or aircraft contains more than 10
6    cartons of such cigarettes;
7        (3) (c) Section 28, 29, or 30 of the Cigarette Use Tax
8    Act (35 ILCS 135/28, 29, or 30) if the vessel, vehicle, or
9    aircraft contains more than 10 cartons of such cigarettes;
10        (4) (d) Section 44 of the Environmental Protection Act
11    (415 ILCS 5/44);
12        (5) (e) Section 11-204.1 of the Illinois Vehicle Code
13    (aggravated fleeing or attempting to elude a peace officer,
14    625 ILCS 5/11-204.1);
15        (6) Section 11-501 of the Illinois Vehicle Code
16    (driving while under the influence of alcohol or other drug
17    or drugs, intoxicating compound or compounds or any
18    combination thereof) or a similar provision of a local
19    ordinance during a period in which:
20            (i) he or she did not possess a valid driver's
21        license or permit or a restricted driving permit or a
22        judicial driving permit or a monitoring device driving
23        permit (625 ILCS 5/11-501); (f) (1) driving under the
24        influence of alcohol or other drug or drugs,
25        intoxicating compound or compounds or any combination
26        thereof under Section 11-501 of the Illinois Vehicle

 

 

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1        Code during a period in which
2            (ii) his or her driving privileges are revoked or
3        suspended where the revocation or suspension was for:
4                (aa) driving under the influence of alcohol or
5            other drug or drugs, intoxicating compound or
6            compounds or any combination thereof (625 ILCS
7            5/11-501),
8                (bb) Section 11-501.1 (625 ILCS 5/11-501.1),
9                (cc) paragraph (b) of Section 11-401 (625 ILCS
10            5/11-401(b)), or for
11                (dd) reckless homicide as defined in Section
12            9-3 of the Criminal Code of 1961 or the Criminal
13            Code of 2012 (720 ILCS 5/9-3);
14        (7) paragraph (b) of Section 11-401 of the Illinois
15    Vehicle Code or a similar provision, having left the scene
16    of a motor vehicle crash involving death or personal
17    injuries (625 ILCS 5/11-401(b));
18        (8) reckless homicide as defined in Section 9-3 of this
19    Code (720 ILCS 5/9-3);
20        (9) paragraph (d) of Section 11-501 aggravated driving
21    under the influence of alcohol or other drug or drugs,
22    intoxicating compound or compounds or any combination
23    thereof (625 ILCS 5/11-501(d));
24        (10) Section 11-204 of the Illinois Vehicle Code,
25    fleeing or attempting to elude a police officer (625 ILCS
26    5/11-204); (2) driving while under the influence of

 

 

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1    alcohol, other drug or drugs, intoxicating compound or
2    compounds or any combination thereof and has been
3    previously convicted of reckless homicide or a similar
4    provision of a law of another state relating to reckless
5    homicide in which the person was determined to have been
6    under the influence of alcohol, other drug or drugs, or
7    intoxicating compound or compounds as an element of the
8    offense or the person has previously been convicted of
9    committing a violation of driving under the influence of
10    alcohol or other drug or drugs, intoxicating compound or
11    compounds or any combination thereof and was involved in a
12    motor vehicle accident that resulted in death, great bodily
13    harm, or permanent disability or disfigurement to another,
14    when the violation was a proximate cause of the death or
15    injuries; (3) the person committed a violation of driving
16    under the influence of alcohol or other drug or drugs,
17    intoxicating compound or compounds or any combination
18    thereof under Section 11-501 of the Illinois Vehicle Code
19    or a similar provision for the third or subsequent time;
20    (4) the person committed the violation while he or she did
21    not possess a driver's license or permit or a restricted
22    driving permit or a judicial driving permit or a monitoring
23    device driving permit; or (5) the person committed the
24    violation while he or she knew or should have known that
25    the vehicle he or she was driving was not covered by a
26    liability insurance policy;

 

 

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1        (11) (g) an offense described in subsection (g) of
2    Section 6-303 of the Illinois Vehicle Code (625 ILCS 5/
3    6-303(g); or
4        (12) (h) an offense described in subsection (e) of
5    Section 6-101 of the Illinois Vehicle Code (625 ILCS
6    5/6-101);
7        (13) home repair fraud, as defined in Section 3 of the
8    Home Repair Fraud Act (815 ILCS 515/3); or
9        (14) a violation of Section 4.01 of the Humane Care for
10    Animals Act (510 ILCS 70/4.01) ; may be seized and delivered
11    forthwith to the sheriff of the county of seizure.
12    Within 15 days after such delivery the sheriff shall give
13notice of seizure to each person according to the following
14method: Upon each such person whose right, title or interest is
15of record in the office of the Secretary of State, the
16Secretary of Transportation, the Administrator of the Federal
17Aviation Agency, or any other Department of this State, or any
18other state of the United States if such vessel, vehicle or
19aircraft is required to be so registered, as the case may be,
20by mailing a copy of the notice by certified mail to the
21address as given upon the records of the Secretary of State,
22the Department of Aeronautics, Department of Public Works and
23Buildings or any other Department of this State or the United
24States if such vessel, vehicle or aircraft is required to be so
25registered. Within that 15 day period the sheriff shall also
26notify the State's Attorney of the county of seizure about the

 

 

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1seizure.
2    (b) In addition, any mobile or portable equipment used in
3the commission of an act which is in violation of Section 7g of
4the Metropolitan Water Reclamation District Act (70 ILCS
52605/7g) shall be subject to seizure and forfeiture under the
6same procedures provided in this Article for the seizure and
7forfeiture of vessels, vehicles, and aircraft, and any such
8equipment shall be deemed a vessel, vehicle, or aircraft for
9purposes of this Article.
10    (c) In addition, when When a person discharges a firearm at
11another individual from a vehicle with the knowledge and
12consent of the owner of the vehicle and with the intent to
13cause death or great bodily harm to that individual and as a
14result causes death or great bodily harm to that individual,
15the vehicle shall be subject to seizure and forfeiture under
16the same procedures provided in this Article for the seizure
17and forfeiture of vehicles used in violations of clauses (1),
18(2), (3), or (4) of subsection (a) (a), (b), (c), or (d) of
19this Section.
20    (d) If the spouse of the owner of a vehicle seized for an
21offense described in subsection (g) of Section 6-303 of the
22Illinois Vehicle Code, a violation of subdivision (d)(1)(A),
23(d)(1)(D), (d)(1)(G), (d)(1)(H), or (d)(1)(I) of Section
2411-501 of the Illinois Vehicle Code, or Section 9-3 of this
25Code makes a showing that the seized vehicle is the only source
26of transportation and it is determined that the financial

 

 

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1hardship to the family as a result of the seizure outweighs the
2benefit to the State from the seizure, the vehicle may be
3forfeited to the spouse or family member and the title to the
4vehicle shall be transferred to the spouse or family member who
5is properly licensed and who requires the use of the vehicle
6for employment or family transportation purposes. A written
7declaration of forfeiture of a vehicle under this Section shall
8be sufficient cause for the title to be transferred to the
9spouse or family member. The provisions of this paragraph shall
10apply only to one forfeiture per vehicle. If the vehicle is the
11subject of a subsequent forfeiture proceeding by virtue of a
12subsequent conviction of either spouse or the family member,
13the spouse or family member to whom the vehicle was forfeited
14under the first forfeiture proceeding may not utilize the
15provisions of this paragraph in another forfeiture proceeding.
16If the owner of the vehicle seized owns more than one vehicle,
17the procedure set out in this paragraph may be used for only
18one vehicle.
19    (e) In addition, property Property declared contraband
20under Section 40 of the Illinois Streetgang Terrorism Omnibus
21Prevention Act (740 ILCS 147/40) may be seized and forfeited
22under this Article.
23(Source: P.A. 96-313, eff. 1-1-10; 96-710, eff. 1-1-10;
2496-1000, eff. 7-2-10; 96-1267, eff. 7-26-10; 96-1289, eff.
251-1-11; 96-1551, Article 1, Section 960, eff. 7-1-11; 96-1551,
26Article 2, Section 1035, eff. 7-1-11; 97-333, eff. 8-12-11;

 

 

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197-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)
 
2    (720 ILCS 5/36-1.5)
3    Sec. 36-1.5. Preliminary Review.
4    (a) Within 14 days of the seizure, the State's Attorney in
5the county in which the seizure occurred State shall seek a
6preliminary determination from the circuit court as to whether
7there is probable cause that the property may be subject to
8forfeiture.
9    (b) The rules of evidence shall not apply to any proceeding
10conducted under this Section.
11    (c) The court may conduct the review under subsection (a)
12simultaneously with a proceeding pursuant to Section 109-1 of
13the Code of Criminal Procedure of 1963 for a related criminal
14offense if a prosecution is commenced by information or
15complaint.
16    (d) The court may accept a finding of probable cause at a
17preliminary hearing following the filing of an information or
18complaint charging a related criminal offense or following the
19return of indictment by a grand jury charging the related
20offense as sufficient evidence of probable cause as required
21under subsection (a).
22    (e) Upon making a finding of probable cause as required
23under this Section, the circuit court shall order the property
24subject to the provisions of the applicable forfeiture Act held
25until the conclusion of any forfeiture proceeding.

 

 

HB5523- 11 -LRB098 17373 RLC 52471 b

1    For seizures of conveyances, within 7 days of a finding of
2probable cause under subsection (a), the registered owner or
3other claimant may file a motion in writing supported by sworn
4affidavits claiming that denial of the use of the conveyance
5during the pendency of the forfeiture proceedings creates a
6substantial hardship. The court shall consider the following
7factors in determining whether a substantial hardship has been
8proven:
9        (1) the nature of the claimed hardship;
10        (2) the availability of public transportation or other
11    available means of transportation; and
12        (3) any available alternatives to alleviate the
13    hardship other than the return of the seized conveyance.
14    If the court determines that a substantial hardship has
15been proven, the court shall then balance the nature of the
16hardship against the State's interest in safeguarding the
17conveyance. If the court determines that the hardship outweighs
18the State's interest in safeguarding the conveyance, the court
19may temporarily release the conveyance to the registered owner
20or the registered owner's authorized designee, or both, until
21the conclusion of the forfeiture proceedings or for such
22shorter period as ordered by the court provided that the person
23to whom the conveyance is released provides proof of insurance
24and a valid driver's license and all State and local
25registrations for operation of the conveyance are current. The
26court shall place conditions on the conveyance limiting its use

 

 

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1to the stated hardship and restricting the conveyance's use to
2only those individuals authorized to use the conveyance by the
3registered owner. The court shall revoke the order releasing
4the conveyance and order that the conveyance be reseized by law
5enforcement if the conditions of release are violated or if the
6conveyance is used in the commission of any offense identified
7in subsection (a) of Section 6-205 of the Illinois Vehicle
8Code.
9    If the court orders the release of the conveyance during
10the pendency of the forfeiture proceedings, the registered
11owner or his or her authorized designee shall post a cash
12security with the Clerk of the Court as ordered by the court.
13The court shall consider the following factors in determining
14the amount of the cash security:
15        (A) the full market value of the conveyance;
16        (B) the nature of the hardship;
17        (C) the extent and length of the usage of the
18    conveyance; and
19        (D) such other conditions as the court deems necessary
20    to safeguard the conveyance.
21    If the conveyance is released, the court shall order that
22the registered owner or his or her designee safeguard the
23conveyance, not remove the conveyance from the jurisdiction,
24not conceal, destroy, or otherwise dispose of the conveyance,
25not encumber the conveyance, and not diminish the value of the
26conveyance in any way. The court shall also make a

 

 

HB5523- 13 -LRB098 17373 RLC 52471 b

1determination of the full market value of the conveyance prior
2to it being released based on a source or sources defined in 50
3Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
4    If the conveyance subject to forfeiture is released under
5this Section and is subsequently forfeited, the person to whom
6the conveyance was released shall return the conveyance to the
7law enforcement agency that seized the conveyance within 7 days
8from the date of the declaration of forfeiture or order of
9forfeiture. If the conveyance is not returned within 7 days,
10the cash security shall be forfeited in the same manner as the
11conveyance subject to forfeiture. If the cash security was less
12than the full market value, a judgment shall be entered against
13the parties to whom the conveyance was released and the
14registered owner, jointly and severally, for the difference
15between the full market value and the amount of the cash
16security. If the conveyance is returned in a condition other
17than the condition in which it was released, the cash security
18shall be returned to the surety who posted the security minus
19the amount of the diminished value, and that amount shall be
20forfeited in the same manner as the conveyance subject to
21forfeiture. Additionally, the court may enter an order allowing
22any law enforcement agency in the State of Illinois to seize
23the conveyance wherever it may be found in the State to satisfy
24the judgment if the cash security was less than the full market
25value of the conveyance.
26(Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12.)
 

 

 

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1    (720 ILCS 5/36-2)  (from Ch. 38, par. 36-2)
2    Sec. 36-2. Action for forfeiture.
3    (a) The State's Attorney in the county in which such
4seizure occurs if he finds that such forfeiture was incurred
5without willful negligence or without any intention on the part
6of the owner of the vessel, vehicle or aircraft or any person
7whose right, title or interest is of record as described in
8Section 36-1, to violate the law, or finds the existence of
9such mitigating circumstances as to justify remission of the
10forfeiture, may cause the law enforcement agency sheriff to
11remit the same upon such terms and conditions as the State's
12Attorney deems reasonable and just. The State's Attorney shall
13exercise his or her discretion under the foregoing provision of
14this Section 36-2(a) prior to or promptly after the preliminary
15review under Section 36-1.5 notice is given in accordance with
16Section 36-1.
17    (b) If the State's Attorney does not cause the forfeiture
18to be remitted he shall forthwith bring an action for
19forfeiture in the Circuit Court within whose jurisdiction the
20seizure and confiscation has taken place. The State's Attorney
21shall give notice of seizure and the forfeiture proceeding to
22each person according to the following method: Upon each person
23whose right, title or interest is of record in the office of
24the Secretary of State, the Secretary of Transportation, the
25Administrator of the Federal Aviation Agency, or any other

 

 

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1Department of this State, or any other state of the United
2States if the vessel, vehicle, or aircraft is required to be so
3registered, as the case may be, by delivering the notice and
4complaint in open court or by certified mail to the address as
5given upon the records of the Secretary of State, the Division
6of Aeronautics of the Department of Transportation, the Capital
7Development Board, or any other Department of this State or the
8United States if the vessel, vehicle or aircraft is required to
9be so registered the forfeiture proceeding by mailing a copy of
10the Complaint in the forfeiture proceeding to the persons, and
11upon the manner, set forth in Section 36-1.
12    (c) The owner of the seized vessel, vehicle, or aircraft or
13any person whose right, title, or interest is of record as
14described in Section 36-1, may within 20 days after the mailing
15of such notice file a verified answer to the Complaint and may
16appear at the hearing on the action for forfeiture.
17    (d) The State shall show at such hearing by a preponderance
18of the evidence, that such vessel, vehicle, or aircraft was
19used in the commission of an offense described in Section 36-1.
20    (e) The owner of such vessel, vehicle, or aircraft or any
21person whose right, title, or interest is of record as
22described in Section 36-1, may show by a preponderance of the
23evidence that he did not know, and did not have reason to know,
24that the vessel, vehicle, or aircraft was to be used in the
25commission of such an offense or that any of the exceptions set
26forth in Section 36-3 are applicable.

 

 

HB5523- 16 -LRB098 17373 RLC 52471 b

1    (f) Unless the State shall make such showing, the Court
2shall order such vessel, vehicle, or aircraft released to the
3owner. Where the State has made such showing, the Court may
4order the vessel, vehicle, or aircraft destroyed or ; may order
5it forfeited delivered to any local, municipal or county law
6enforcement agency, or the Department of State Police or the
7Department of Revenue of the State of Illinois; or may order it
8sold at public auction.
9    (g) (b) A copy of the order shall be filed with the law
10enforcement agency, sheriff of the county in which the seizure
11occurs and with each Federal or State office or agency with
12which such vessel, vehicle, or aircraft is required to be
13registered. Such order, when filed, constitutes authority for
14the issuance of clear title to such vessel, vehicle, or
15aircraft, or boat to the department or agency to whom it is
16delivered or any purchaser thereof. The law enforcement agency
17sheriff shall comply promptly with instructions to remit
18received from the State's Attorney or Attorney General in
19accordance with Sections 36-2(a) or 36-3.
20    (h) (c) The proceeds of any sale at public auction pursuant
21to Section 36-2 of this Act, after payment of all liens and
22deduction of the reasonable charges and expenses incurred by
23the State's Attorney's Office sheriff in storing and selling
24such vehicle, shall be paid into the Law Enforcement Agency
25having seized the vehicle for forfeiture general fund of the
26county of seizure.

 

 

HB5523- 17 -LRB098 17373 RLC 52471 b

1(Source: P.A. 84-25.)
 
2    (720 ILCS 5/36-5)
3    Sec. 36-5. The law enforcement agency, County or sheriff
4not liable for stored forfeited vehicle. A law enforcement
5agency, county, sheriff, law enforcement officer or employee of
6the law enforcement agency or deputy sheriff, or employee of
7the county sheriff shall not be civilly or criminally liable
8for any damage to a forfeited vehicle stored with a commercial
9vehicle safety relocator.
10(Source: P.A. 96-1274, eff. 7-26-10.)
 
11    Section 99. Effective date. This Act takes effect upon
12becoming law.