Full Text of HB5523 98th General Assembly
HB5523enr 98TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning criminal law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Criminal Code of 2012 is amended by changing | 5 | | Sections 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 | 9 | | impounded by the law enforcement agency if the vessel, vehicle, | 10 | | or aircraft is used with the knowledge
and consent of the owner | 11 | | in the commission of, or in the attempt to commit as
defined in | 12 | | Section 8-4 of this Code, an offense prohibited by : | 13 | | (1) (a) Section 9-1 (first degree murder) ,
9-3 | 14 | | (involuntary manslaughter and reckless homicide) ,
10-2 | 15 | | (aggravated kidnaping) , 11-1.20 (criminal sexual assault) , | 16 | | 11-1.30 (aggravated criminal sexual assault) , 11-1.40 | 17 | | (predatory criminal sexual assault of a child), subsection | 18 | | (a) of Section 11-1.50 (criminal sexual abuse), subsection | 19 | | (a), (c), or (d) of Section 11-1.60 (aggravated criminal | 20 | | sexual abuse) , Section 11-6 (indecent solicitation of a | 21 | | child) , 11-14.4 (promoting juvenile prostitution except | 22 | | for keeping a place of juvenile prostitution ) , 11-15.1, | 23 | | 11-19.1, 11-19.2, 11-20.1 (child pornography), paragraph |
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| 1 | | (a)(1), (a)(2), (a)(4), (b)(1), (b)(2), (e)(1), (e)(2), | 2 | | (e)(3), (e)(4), (e)(5), (e)(6), or (e)(7) of Section | 3 | | 12-3.05 (aggravated battery) , 11-20.1B, 11-20.3,
12-4.1, | 4 | | 12-4.2, 12-4.2-5, 12-4.3, 12-4.6,
12-7.3 (stalking) , | 5 | | 12-7.4 (aggravated stalking) , 12-13, 12-14,
16-1 (theft if | 6 | | the theft is of precious metal or of scrap metal ), | 7 | | subdivision (f)(2) or (f)(3) of Section 16-25 (retail | 8 | | theft) , Section 18-2 (armed robbery) , 19-1 (burglary) , | 9 | | 19-2 (possession of burglary tools) , 19-3 (residential | 10 | | burglary) , 20-1 (arson; residential arson; place of | 11 | | worship arson) , 20-2 (possession of explosives or | 12 | | explosive or incendiary devices), subdivision (a)(6) or | 13 | | (a)(7) of Section 24-1 (unlawful use of weapons), Section ,
| 14 | | 24-1.2 (aggravated discharge of a firearm) ,
24-1.2-5 | 15 | | (aggravated discharge of a machine gun or a firearm | 16 | | equipped with a device designed or used for silencing the | 17 | | report of a firearm) ,
24-1.5 (reckless discharge of a | 18 | | firearm) , 28-1 (gambling) , or 29D-15.2 (possession of a | 19 | | deadly substance) of this Code ; , subdivision (a)(1), | 20 | | (a)(2), (a)(4), (b)(1), (e)(1), (e)(2), (e)(3), (e)(4), | 21 | | (e)(5), (e)(6), or (e)(7) of Section 12-3.05,
paragraph (a) | 22 | | of Section 12-4 of this Code, paragraph (a) of Section | 23 | | 11-1.50,
paragraph (a) of Section 12-15, paragraph (a), | 24 | | (c), or (d) of Section 11-1.60, or paragraphs (a), (c) or | 25 | | (d) of Section
12-16 of this Code, or paragraph (a)(6) or | 26 | | (a)(7) of Section
24-1 of this Code; |
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| 1 | | (2) (b) Section 21, 22, 23, 24 or 26 of the Cigarette | 2 | | Tax
Act if the vessel, vehicle , or aircraft contains more | 3 | | than 10 cartons of
such cigarettes; | 4 | | (3) (c) Section 28, 29 , or 30 of the Cigarette Use Tax | 5 | | Act if
the vessel, vehicle , or aircraft contains more than | 6 | | 10 cartons of such
cigarettes; | 7 | | (4) (d) Section 44 of the Environmental Protection Act; | 8 | | (5) (e)
Section 11-204.1
of the Illinois Vehicle Code | 9 | | (aggravated fleeing or attempting to elude a peace | 10 | | officer) ; | 11 | | (6) Section 11-501 of the Illinois Vehicle Code | 12 | | (driving while under the influence of alcohol or other drug | 13 | | or drugs, intoxicating compound or compounds or any | 14 | | combination thereof) or a similar provision of a local | 15 | | ordinance, and: | 16 | | (f)
(1) driving under the influence of alcohol or other drug or | 17 | | drugs, intoxicating compound or compounds or any
| 18 | | combination thereof under Section 11-501 of the | 19 | | Illinois Vehicle Code during a period in which | 20 | | (A) during a period in which his
or her driving | 21 | | privileges are revoked or suspended if where
the | 22 | | revocation or suspension was for : | 23 | | (i) Section 11-501 ( driving under the | 24 | | influence of alcohol or other drug or drugs, | 25 | | intoxicating compound or compounds or any
| 26 | | combination thereof ) , |
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| 1 | | (ii) Section 11-501.1 (statutory summary | 2 | | suspension or revocation) , | 3 | | (iii) paragraph (b) of Section
11-401 (motor | 4 | | vehicle accidents involving death or personal | 5 | | injuries) , or for | 6 | | (iv) reckless homicide as defined in Section | 7 | | 9-3
of this the Criminal Code of 1961 or the | 8 | | Criminal Code of 2012 ; | 9 | | (B) (2)
driving while under the influence of | 10 | | alcohol, other drug or drugs, intoxicating compound or | 11 | | compounds or any combination thereof and has been | 12 | | previously convicted of reckless homicide or a similar | 13 | | provision of a law of another state relating to | 14 | | reckless homicide in which the person was determined to | 15 | | have been under the influence of alcohol, other drug or | 16 | | drugs, or intoxicating compound or compounds as an | 17 | | element of the offense or the person has previously | 18 | | been convicted of committing a violation of
driving | 19 | | under the influence of alcohol or other drug or drugs, | 20 | | intoxicating compound or compounds or any
combination | 21 | | thereof and was involved in a motor vehicle accident | 22 | | that resulted in death, great bodily harm, or permanent | 23 | | disability or disfigurement to another, when the | 24 | | violation was a proximate cause of the death or | 25 | | injuries; | 26 | | (C) (3) the person committed a violation of driving |
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| 1 | | under the influence of alcohol or other drug or drugs, | 2 | | intoxicating compound or compounds or any
combination | 3 | | thereof under Section 11-501 of the Illinois Vehicle | 4 | | Code or a similar provision for the third or subsequent
| 5 | | time; | 6 | | (D) (4) the person committed the violation while he
| 7 | | or she did not possess a valid driver's license or | 8 | | permit or a valid restricted driving permit or a valid | 9 | | judicial driving permit or a valid monitoring device | 10 | | driving permit; or | 11 | | (E) (5) the person committed the violation while he | 12 | | or she knew or should have known that the vehicle he or | 13 | | she was driving was not covered by a liability | 14 | | insurance policy; | 15 | | (7) (g) an offense described in subsection (g) of | 16 | | Section 6-303 of the
Illinois Vehicle Code; or | 17 | | (8) (h) an offense described in subsection (e) of
| 18 | | Section 6-101 of the Illinois Vehicle Code ;
may be
seized | 19 | | and delivered forthwith to the sheriff of the county of | 20 | | seizure .
| 21 | | Within 15 days after such delivery the sheriff shall give | 22 | | notice of seizure
to each person according to the following | 23 | | method: Upon each such person
whose right, title or interest is | 24 | | of record in the office of the Secretary
of State, the | 25 | | Secretary of Transportation, the Administrator of the Federal
| 26 | | Aviation Agency, or any other Department of this State, or any |
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| 1 | | other state
of the United States if such vessel, vehicle or | 2 | | aircraft is required to be
so registered, as the case may be, | 3 | | by mailing a copy of the notice by
certified mail to the | 4 | | address as given upon the records of the Secretary of
State, | 5 | | the Department of Aeronautics, Department of Public Works and
| 6 | | Buildings or any other Department of this State or the United | 7 | | States if
such vessel, vehicle or aircraft is required to be so | 8 | | registered. Within
that 15 day period the sheriff shall also | 9 | | notify the State's Attorney of
the county of seizure about the | 10 | | seizure.
| 11 | | (b) In addition, any mobile or portable equipment used in | 12 | | the commission of an
act which is in violation of Section 7g of | 13 | | the Metropolitan Water Reclamation
District Act shall be | 14 | | subject to seizure and forfeiture under the same
procedures | 15 | | provided in this Article for the seizure and forfeiture of | 16 | | vessels,
vehicles , and aircraft, and any such equipment shall | 17 | | be deemed a vessel, vehicle ,
or aircraft for purposes of this | 18 | | Article.
| 19 | | (c) In addition, when When a person discharges a firearm at | 20 | | another individual from a vehicle with
the knowledge and | 21 | | consent of the owner of the vehicle and with the intent to
| 22 | | cause death or great bodily harm to that individual and as a | 23 | | result causes
death or great bodily harm to that individual, | 24 | | the vehicle shall be subject to
seizure and forfeiture under | 25 | | the same procedures provided in this Article for
the seizure | 26 | | and forfeiture of vehicles used in violations of clauses (1), |
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| 1 | | (2), (3), or (4) of subsection (a) (a), (b),
(c), or (d) of | 2 | | this Section.
| 3 | | (d) If the spouse of the owner of a vehicle seized for
an | 4 | | offense described in subsection (g) of Section 6-303 of the
| 5 | | Illinois Vehicle Code,
a violation of
subdivision (d)(1)(A), | 6 | | (d)(1)(D), (d)(1)(G), (d)(1)(H), or (d)(1)(I)
of Section | 7 | | 11-501 of the Illinois Vehicle
Code, or Section 9-3 of this
| 8 | | Code makes a showing
that the seized vehicle is the only source | 9 | | of transportation and it is
determined that the financial | 10 | | hardship to the family as a result of the seizure
outweighs the | 11 | | benefit to the State from the seizure, the vehicle may be
| 12 | | forfeited to the spouse or family member and the title to the | 13 | | vehicle shall be
transferred to the spouse or family member who | 14 | | is properly licensed and who
requires the use of the vehicle | 15 | | for employment or family transportation
purposes. A written | 16 | | declaration of forfeiture of a vehicle under this
Section shall | 17 | | be sufficient cause for the title to be transferred to the | 18 | | spouse
or family member. The provisions of this paragraph shall | 19 | | apply only to one
forfeiture per vehicle. If the vehicle is the | 20 | | subject of a subsequent
forfeiture proceeding by virtue of a | 21 | | subsequent conviction of either spouse or
the family member, | 22 | | the spouse or family member to whom the vehicle was
forfeited | 23 | | under the first forfeiture proceeding may not utilize the
| 24 | | provisions of this paragraph in another forfeiture proceeding. | 25 | | If the owner of
the vehicle seized owns more than one vehicle,
| 26 | | the procedure set out in this paragraph may be used for only |
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| 1 | | one vehicle.
| 2 | | (e) In addition, property Property declared contraband | 3 | | under Section 40 of the Illinois Streetgang
Terrorism Omnibus | 4 | | Prevention Act may be seized and forfeited under this
Article.
| 5 | | (Source: P.A. 96-313, eff. 1-1-10; 96-710, eff. 1-1-10; | 6 | | 96-1000, eff. 7-2-10; 96-1267, eff. 7-26-10; 96-1289, eff. | 7 | | 1-1-11; 96-1551, Article 1, Section 960, eff. 7-1-11; 96-1551, | 8 | | Article 2, Section 1035, eff. 7-1-11; 97-333, eff. 8-12-11; | 9 | | 97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.) | 10 | | (720 ILCS 5/36-1.5) | 11 | | Sec. 36-1.5. Preliminary Review. | 12 | | (a) Within 14 days of the seizure, the State's Attorney in | 13 | | the county in which the seizure occurred State shall seek a | 14 | | preliminary determination from the circuit court as to whether | 15 | | there is probable cause that the property may be subject to | 16 | | forfeiture. | 17 | | (b) The rules of evidence shall not apply to any proceeding | 18 | | conducted under this Section. | 19 | | (c) The court may conduct the review under subsection (a) | 20 | | simultaneously with a proceeding pursuant to Section 109-1 of | 21 | | the Code of Criminal Procedure of 1963 for a related criminal | 22 | | offense if a prosecution is commenced by information or | 23 | | complaint. | 24 | | (d) The court may accept a finding of probable cause at a | 25 | | preliminary hearing following the filing of an information or |
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| 1 | | complaint charging a related criminal offense or following the | 2 | | return of indictment by a grand jury charging the related | 3 | | offense as sufficient evidence of probable cause as required | 4 | | under subsection (a). | 5 | | (e) Upon making a finding of probable cause as required | 6 | | under this Section, the circuit court shall order the property | 7 | | subject to the provisions of the applicable forfeiture Act held | 8 | | until the conclusion of any forfeiture proceeding. | 9 | | For seizures of conveyances, within 7 days of a finding of | 10 | | probable cause under subsection (a), the registered owner or | 11 | | other claimant may file a motion in writing supported by sworn | 12 | | affidavits claiming that denial of the use of the conveyance | 13 | | during the pendency of the forfeiture proceedings creates a | 14 | | substantial hardship. The court shall consider the following | 15 | | factors in determining whether a substantial hardship has been | 16 | | proven: | 17 | | (1) the nature of the claimed hardship; | 18 | | (2) the availability of public transportation or other | 19 | | available means of transportation; and | 20 | | (3) any available alternatives to alleviate the | 21 | | hardship other than the return of the seized conveyance. | 22 | | If the court determines that a substantial hardship has | 23 | | been proven, the court shall then balance the nature of the | 24 | | hardship against the State's interest in safeguarding the | 25 | | conveyance. If the court determines that the hardship outweighs | 26 | | the State's interest in safeguarding the conveyance, the court |
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| 1 | | may temporarily release the conveyance to the registered owner | 2 | | or the registered owner's authorized designee, or both, until | 3 | | the conclusion of the forfeiture proceedings or for such | 4 | | shorter period as ordered by the court provided that the person | 5 | | to whom the conveyance is released provides proof of insurance | 6 | | and a valid driver's license and all State and local | 7 | | registrations for operation of the conveyance are current. The | 8 | | court shall place conditions on the conveyance limiting its use | 9 | | to the stated hardship and restricting the conveyance's use to | 10 | | only those individuals authorized to use the conveyance by the | 11 | | registered owner. The court shall revoke the order releasing | 12 | | the conveyance and order that the conveyance be reseized by law | 13 | | enforcement if the conditions of release are violated or if the | 14 | | conveyance is used in the commission of any offense identified | 15 | | in subsection (a) of Section 6-205 of the Illinois Vehicle | 16 | | Code. | 17 | | If the court orders the release of the conveyance during | 18 | | the pendency of the forfeiture proceedings, the registered | 19 | | owner or his or her authorized designee shall post a cash | 20 | | security with the Clerk of the Court as ordered by the court. | 21 | | The court shall consider the following factors in determining | 22 | | the amount of the cash security: | 23 | | (A) the full market value of the conveyance; | 24 | | (B) the nature of the hardship; | 25 | | (C) the extent and length of the usage of the | 26 | | conveyance; and |
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| 1 | | (D) such other conditions as the court deems necessary | 2 | | to safeguard the conveyance. | 3 | | If the conveyance is released, the court shall order that | 4 | | the registered owner or his or her designee safeguard the | 5 | | conveyance, not remove the conveyance from the jurisdiction, | 6 | | not conceal, destroy, or otherwise dispose of the conveyance, | 7 | | not encumber the conveyance, and not diminish the value of the | 8 | | conveyance in any way. The court shall also make a | 9 | | determination of the full market value of the conveyance prior | 10 | | to it being released based on a source or sources defined in 50 | 11 | | Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). | 12 | | If the conveyance subject to forfeiture is released under | 13 | | this Section and is subsequently forfeited, the person to whom | 14 | | the conveyance was released shall return the conveyance to the | 15 | | law enforcement agency that seized the conveyance within 7 days | 16 | | from the date of the declaration of forfeiture or order of | 17 | | forfeiture. If the conveyance is not returned within 7 days, | 18 | | the cash security shall be forfeited in the same manner as the | 19 | | conveyance subject to forfeiture. If the cash security was less | 20 | | than the full market value, a judgment shall be entered against | 21 | | the parties to whom the conveyance was released and the | 22 | | registered owner, jointly and severally, for the difference | 23 | | between the full market value and the amount of the cash | 24 | | security. If the conveyance is returned in a condition other | 25 | | than the condition in which it was released, the cash security | 26 | | shall be returned to the surety who posted the security minus |
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| 1 | | the amount of the diminished value, and that amount shall be | 2 | | forfeited in the same manner as the conveyance subject to | 3 | | forfeiture. Additionally, the court may enter an order allowing | 4 | | any law enforcement agency in the State of Illinois to seize | 5 | | the conveyance wherever it may be found in the State to satisfy | 6 | | the judgment if the cash security was less than the full market | 7 | | value of the conveyance.
| 8 | | (Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12.)
| 9 | | (720 ILCS 5/36-2) (from Ch. 38, par. 36-2)
| 10 | | Sec. 36-2. Action for forfeiture. | 11 | | (a) The State's Attorney in the county in which such | 12 | | seizure occurs
if he or she finds that the such forfeiture was | 13 | | incurred without willful negligence
or without any intention on | 14 | | the part of the owner of the vessel, vehicle
or aircraft or any | 15 | | person whose right, title or interest is of record as
described | 16 | | in Section 36-1, to violate the law, or finds the existence of
| 17 | | such mitigating circumstances as to justify remission of the | 18 | | forfeiture,
may cause the law enforcement agency sheriff to | 19 | | remit the same upon such terms and conditions
as the State's | 20 | | Attorney deems reasonable and just. The State's Attorney
shall | 21 | | exercise his or her discretion under the foregoing provision of | 22 | | this
Section 36-2(a) prior to or promptly after the preliminary | 23 | | review under Section 36-1.5 notice is given in accordance with
| 24 | | Section 36-1 . | 25 | | (b) If the State's Attorney does not cause the forfeiture |
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| 1 | | to
be remitted he or she shall forthwith bring an action for | 2 | | forfeiture in the
Circuit Court within whose jurisdiction the | 3 | | seizure and confiscation has
taken place. The State's Attorney | 4 | | shall give notice of seizure and the forfeiture proceeding to | 5 | | each person according to the following method: Upon each person | 6 | | whose right, title, or interest is of record in the office of | 7 | | the Secretary of State, the Secretary of Transportation, the | 8 | | Administrator of the Federal Aviation Agency, or any other | 9 | | Department of this State, or any other state of the United | 10 | | States if the vessel, vehicle, or aircraft is required to be so | 11 | | registered, as the case may be, by delivering the notice and | 12 | | complaint in open court or by certified mail to the address as | 13 | | given upon the records of the Secretary of State, the Division | 14 | | of Aeronautics of the Department of Transportation, the Capital | 15 | | Development Board, or any other Department of this State or the | 16 | | United States if the vessel, vehicle, or aircraft is required | 17 | | to be so registered the forfeiture
proceeding by mailing a copy | 18 | | of the Complaint in the forfeiture
proceeding to the persons, | 19 | | and upon the manner, set forth in Section
36-1 . | 20 | | (c) The owner of the seized vessel, vehicle , or aircraft or | 21 | | any person
whose right, title, or interest is of record as | 22 | | described in Section
36-1, may within 20 days after delivery in | 23 | | open court or the mailing of such notice file a
verified answer | 24 | | to the Complaint and may appear at the hearing on the
action | 25 | | for forfeiture. | 26 | | (d) The State shall show at such hearing by a
preponderance |
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| 1 | | of the evidence, that such vessel, vehicle , or aircraft was
| 2 | | used in the commission of an offense described in Section 36-1. | 3 | | (e) The
owner of such vessel, vehicle , or aircraft or any | 4 | | person whose right,
title, or interest is of record as | 5 | | described in Section 36-1, may show
by a preponderance of the | 6 | | evidence that he did not know, and did not
have reason to know, | 7 | | that the vessel, vehicle , or aircraft was to be used
in the | 8 | | commission of such an offense or that any of the exceptions set
| 9 | | forth in Section 36-3 are applicable. | 10 | | (f) Unless the State shall make such
showing, the Court | 11 | | shall order such vessel, vehicle , or aircraft released
to the | 12 | | owner. Where the State has made such showing, the Court may | 13 | | order
the vessel, vehicle , or aircraft destroyed or ; may order | 14 | | it forfeited delivered to
any local, municipal or county law | 15 | | enforcement agency, or the Department
of State Police or the | 16 | | Department of Revenue of
the State of Illinois ;
or may order it | 17 | | sold at
public auction .
| 18 | | (g) (b) A copy of the order shall be filed with the law | 19 | | enforcement agency, sheriff of the
county in which the seizure | 20 | | occurs and with each Federal or State office
or agency with | 21 | | which such vessel, vehicle , or aircraft is required to be
| 22 | | registered. Such order, when filed, constitutes authority for | 23 | | the
issuance of clear title to such vessel, vehicle, or | 24 | | aircraft, or boat to the
department or agency to whom it is | 25 | | delivered or any purchaser thereof.
The law enforcement agency | 26 | | sheriff shall comply promptly with instructions to remit |
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| 1 | | received
from the State's Attorney or Attorney General in | 2 | | accordance with
Sections 36-2(a) or 36-3.
| 3 | | (h) (c) The proceeds of any sale at public auction pursuant | 4 | | to Section
36-2 of this Act, after payment of all liens and | 5 | | deduction of the
reasonable charges and expenses incurred by | 6 | | the State's Attorney's Office sheriff in storing and
selling | 7 | | such vehicle, shall be paid to into the law enforcement agency | 8 | | having seized the vehicle for forfeiture general fund of the | 9 | | county
of seizure .
| 10 | | (Source: P.A. 84-25.)
| 11 | | (720 ILCS 5/36-5) | 12 | | Sec. 36-5. The law enforcement agency, county or sheriff | 13 | | not liable for stored forfeited vehicle. A law enforcement | 14 | | agency, county, sheriff, law enforcement officer or employee of | 15 | | the law enforcement agency or deputy sheriff, or employee of | 16 | | the county sheriff shall not be civilly or criminally liable | 17 | | for any damage to a forfeited vehicle stored with a commercial | 18 | | vehicle safety relocator.
| 19 | | (Source: P.A. 96-1274, eff. 7-26-10.)
| 20 | | Section 99. Effective date. This Act takes effect upon | 21 | | becoming law.
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