Illinois General Assembly - Full Text of HB5523
Illinois General Assembly

Previous General Assemblies

Full Text of HB5523  98th General Assembly


Rep. Carol A. Sente

Filed: 3/14/2014





09800HB5523ham001LRB098 17373 RLC 56971 a


2    AMENDMENT NO. ______. Amend House Bill 5523 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Criminal Code of 2012 is amended by
5changing 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
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



09800HB5523ham001- 2 -LRB098 17373 RLC 56971 a

1    5/11-1.20), 11-1.30 (aggravated criminal sexual assault,
2    720 ILCS 5/11-1.30), 11-1.40 (predatory criminal sexual
3    assault of a child, 720 ILCS 5/11-1.40), subsection (a) of
4    Section 11-1.50 (criminal sexual abuse, 720 ILCS 5/11-1.50
5    (a)), subsection (a), (c), or (d) of Section 11-1.60
6    (aggravated criminal sexual abuse, 720 ILCS 5/11-1.60 (a),
7    (c), or (d)), Section 11-6 (indecent solicitation of a
8    child, 720 ILCS 5/11-6), 11-14.4 (promoting juvenile
9    prostitution, 720 ILCS 5/11-14.4) except for keeping a
10    place of juvenile prostitution, 11-18 (patronizing a
11    prostitute, 720 ILCS 5/11-18) 11-15.1, 11-19.1, 11-19.2,
12    11-20.1 (child pornography, 720 ILCS 5/11-20.1), 12-3.3.
13    (aggravated domestic battery, 720 ILCS 5/12-3.3),
14    paragraph (a)(1), (a)(2), (a)(4), (b)(1), (e)(1), (e)(2),
15    (e)(3), (e)(4), (e)(5), (e)(6), or (e)(7) of Section
16    12-3.05 (aggravated battery, 12-3.05(a)(1), (a)(2),
17    (a)(4), (b)(1), (e)(1), (e)(2), (e)(3), (e)(4), (e)(5),
18    (e)(6), or (e)(7)), 12-6.4 (criminal street gang
19    recruitment on school grounds or public property adjacent
20    to school grounds and criminal street gang recruitment of a
21    minor, 720 ILCS 5/12-6.4), 11-20.1B, 11-20.3, 12-4.1,
22    12-4.2, 12-4.2-5, 12-4.3, 12-4.6, 12-7.3 (stalking, 720
23    ILCS 5/12-7.3), 12-7.4 (aggravated stalking, 720 ILCS
24    5/12-7.4), 12-9 (threatening a public official, 720 ILCS
25    5/12-9), 12-13, 12-14, 16-1 (theft, 720 ILCS 5/16-1) if the
26    theft is of precious metal or of scrap metal, subdivisions



09800HB5523ham001- 3 -LRB098 17373 RLC 56971 a

1    (f)(2) or (f)(3) of Section 16-25 (retail theft, 720 ILCS
2    5/16-25 (f)(2) or (f)(3), Section 18-2 (armed robbery, 720
3    ILCS 5/18-2), 19-1 (burglary, 720 ILCS 5/19-1), 19-2
4    (possession of burglary tools, 720 ILCS 5/19-2), 19-3
5    (residential burglary, 720 ILCS 5/19-3), 19-6 (home
6    invasion, 720 ILCS 5/19-6), 20-1 (arson; residential
7    arson; place of worship arson, 720 ILCS 5/20-1), 20-1.1
8    (aggravated arson, 720 ILCS 5/20-1.1), 20-2 (possession of
9    explosives or explosive or incendiary devices, 720 ILCS
10    5/20-2), subdivision (a)(6) or (a)(7) of Section 24-1
11    (unlawful use of weapons, 720 ILCS 5/24-1(a)(6) or (a)(7)),
12    Section , 24-1.2 (aggravated discharge of a firearm, 720
13    ILCS 5/24-1.2), 24-1.2-5 (aggravated discharge of a
14    machine gun or a firearm equipped with a device designed or
15    used for silencing the report of a firearm, 720 ILCS
16    5/24-1.2-5), 24-1.5 (reckless discharge of a firearm, 720
17    ILCS 5/24-1.5), 24-1.6 (aggravated unlawful use of a
18    weapon, 720 ILCS 5/24-1.6), 24-1.8 (unlawful possession of
19    a firearm by a street gang member, 720 ILCS 5/24-1.8), 24-3
20    (unlawful sale or delivery of firearms, 720 ILCS 5/24-3),
21    24-3A (gunrunning, 720 ILCS 5/24-3A), 24-3.2 (unlawful
22    discharge of firearm projectiles, 720 ILCS 5/24-3.2),
23    24-3.3 (unlawful sale or delivery of firearms on the
24    premises of any school, 720 ILCS 5/24-3.3), 28-1 (gambling,
25    720 ILCS 5/28-1), 29D-15.1 (causing a catastrophe, 720 ILCS
26    5/29D-15.1), or 29D-15.2 (possession of a deadly



09800HB5523ham001- 4 -LRB098 17373 RLC 56971 a

1    substance, 720 ILCS 5/29D-15.2), or 33A-2 (armed violence,
2    720 ILCS 5/33A-2) of this Code; , subdivision (a)(1),
3    (a)(2), (a)(4), (b)(1), (e)(1), (e)(2), (e)(3), (e)(4),
4    (e)(5), (e)(6), or (e)(7) of Section 12-3.05, paragraph (a)
5    of Section 12-4 of this Code, paragraph (a) of Section
6    11-1.50, paragraph (a) of Section 12-15, paragraph (a),
7    (c), or (d) of Section 11-1.60, or paragraphs (a), (c) or
8    (d) of Section 12-16 of this Code, or paragraph (a)(6) or
9    (a)(7) of Section 24-1 of this Code;
10        (2) (b) Section 18c, 21, 22, 23, 24 or 26 of the
11    Cigarette Tax Act (35 ILCS 130/18c, 21, 22, 23, 24 or 26)
12    if the vessel, vehicle, or aircraft contains more than 10
13    cartons of such cigarettes;
14        (3) (c) Section 28, 29, or 30 of the Cigarette Use Tax
15    Act (35 ILCS 135/28, 29, or 30) if the vessel, vehicle, or
16    aircraft contains more than 10 cartons of such cigarettes;
17        (4) (d) Section 44 of the Environmental Protection Act
18    (415 ILCS 5/44);
19        (5) (e) Section 11-204.1 of the Illinois Vehicle Code
20    (aggravated fleeing or attempting to elude a peace officer,
21    625 ILCS 5/11-204.1);
22        (6) Section 11-501 of the Illinois Vehicle Code
23    (driving while under the influence of alcohol or other drug
24    or drugs, intoxicating compound or compounds or any
25    combination thereof) or a similar provision of a local
26    ordinance , and:



09800HB5523ham001- 5 -LRB098 17373 RLC 56971 a

1        (f) (1) driving under the influence of alcohol or other drug or
2        drugs, intoxicating compound or compounds or any
3        combination thereof under Section 11-501 of the
4        Illinois Vehicle Code during a period in which
5            (A) during a period in which his or her driving
6        privileges are revoked or suspended if where the
7        revocation or suspension was for:
8                (i) driving under the influence of alcohol or
9            other drug or drugs, intoxicating compound or
10            compounds or any combination thereof (625 ILCS
11            5/11-501),
12                (ii) Section 11-501.1 (625 ILCS 5/11-501.1),
13                (iii) paragraph (b) of Section 11-401 (625
14            ILCS 5/11-401(b)), or for
15                (iv) reckless homicide as defined in Section
16            9-3 of the Criminal Code of 1961 or the Criminal
17            Code of 2012 (720 ILCS 5/9-3);
18            (B) (2) driving while under the influence of
19        alcohol, other drug or drugs, intoxicating compound or
20        compounds or any combination thereof and has been
21        previously convicted of reckless homicide or a similar
22        provision of a law of another state relating to
23        reckless homicide in which the person was determined to
24        have been under the influence of alcohol, other drug or
25        drugs, or intoxicating compound or compounds as an
26        element of the offense or the person has previously



09800HB5523ham001- 6 -LRB098 17373 RLC 56971 a

1        been convicted of committing a violation of driving
2        under the influence of alcohol or other drug or drugs,
3        intoxicating compound or compounds or any combination
4        thereof and was involved in a motor vehicle accident
5        that resulted in death, great bodily harm, or permanent
6        disability or disfigurement to another, when the
7        violation was a proximate cause of the death or
8        injuries;
9            (C) (3) the person committed a violation of driving
10        under the influence of alcohol or other drug or drugs,
11        intoxicating compound or compounds or any combination
12        thereof under Section 11-501 of the Illinois Vehicle
13        Code or a similar provision for the third or subsequent
14        time;
15            (D) (4) the person committed the violation while he
16        or she did not possess a valid driver's license or
17        permit or a valid restricted driving permit or a valid
18        judicial driving permit or a valid monitoring device
19        driving permit; or
20            (E) (5) the person committed the violation while he
21        or she knew or should have known that the vehicle he or
22        she was driving was not covered by a liability
23        insurance policy;
24            (F) paragraph (b) of Section 11-401 of the Illinois
25        Vehicle Code or a similar provision, having left the
26        scene of a motor vehicle crash involving death or



09800HB5523ham001- 7 -LRB098 17373 RLC 56971 a

1        personal injury (625 ILCS 5/11-401(b));
2            (G) paragraph (d) of Section 11-501 aggravated
3        driving under the influence of alcohol or other drug or
4        drugs, intoxicating compound or compounds or any
5        combination thereof (625 ILCS 5/11-501(d));
6            (H) Section 11-204 of the Illinois Vehicle Code,
7        fleeing or attempting to elude a police officer (625
8        ILCS 5/11-204);
9        (7) (g) an offense described in subsection (g) of
10    Section 6-303 of the Illinois Vehicle Code (625 ILCS 5/
11    6-303(g); or
12        (8) (h) an offense described in subsection (e) of
13    Section 6-101 of the Illinois Vehicle Code (625 ILCS
14    5/6-101);
15        (9) home repair fraud, as defined in Section 3 of the
16    Home Repair Fraud Act (815 ILCS 515/3); or
17        (10) a violation of Section 4.01 of the Humane Care for
18    Animals Act (510 ILCS 70/4.01). ; may be seized and
19    delivered forthwith to the sheriff of the county of
20    seizure.
21    Within 15 days after such delivery the sheriff shall give
22notice of seizure to each person according to the following
23method: Upon each such person whose right, title or interest is
24of record in the office of the Secretary of State, the
25Secretary of Transportation, the Administrator of the Federal
26Aviation Agency, or any other Department of this State, or any



09800HB5523ham001- 8 -LRB098 17373 RLC 56971 a

1other state of the United States if such vessel, vehicle or
2aircraft is required to be so registered, as the case may be,
3by mailing a copy of the notice by certified mail to the
4address as given upon the records of the Secretary of State,
5the Department of Aeronautics, Department of Public Works and
6Buildings or any other Department of this State or the United
7States if such vessel, vehicle or aircraft is required to be so
8registered. Within that 15 day period the sheriff shall also
9notify the State's Attorney of the county of seizure about the
11    (b) In addition, any mobile or portable equipment used in
12the commission of an act which is in violation of Section 7g of
13the Metropolitan Water Reclamation District Act (70 ILCS
142605/7g) shall be subject to seizure and forfeiture under the
15same procedures provided in this Article for the seizure and
16forfeiture of vessels, vehicles, and aircraft, and any such
17equipment shall be deemed a vessel, vehicle, or aircraft for
18purposes of this Article.
19    (c) In addition, when When a person discharges a firearm at
20another individual from a vehicle with the knowledge and
21consent of the owner of the vehicle and with the intent to
22cause death or great bodily harm to that individual and as a
23result causes death or great bodily harm to that individual,
24the vehicle shall be subject to seizure and forfeiture under
25the same procedures provided in this Article for the seizure
26and forfeiture of vehicles used in violations of clauses (1),



09800HB5523ham001- 9 -LRB098 17373 RLC 56971 a

1(2), (3), or (4) of subsection (a) (a), (b), (c), or (d) of
2this Section.
3    (d) If the spouse of the owner of a vehicle seized for an
4offense described in subsection (g) of Section 6-303 of the
5Illinois 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
711-501 of the Illinois Vehicle Code, or Section 9-3 of this
8Code makes a showing that the seized vehicle is the only source
9of transportation and it is determined that the financial
10hardship to the family as a result of the seizure outweighs the
11benefit to the State from the seizure, the vehicle may be
12forfeited to the spouse or family member and the title to the
13vehicle shall be transferred to the spouse or family member who
14is properly licensed and who requires the use of the vehicle
15for employment or family transportation purposes. A written
16declaration of forfeiture of a vehicle under this Section shall
17be sufficient cause for the title to be transferred to the
18spouse or family member. The provisions of this paragraph shall
19apply only to one forfeiture per vehicle. If the vehicle is the
20subject of a subsequent forfeiture proceeding by virtue of a
21subsequent conviction of either spouse or the family member,
22the spouse or family member to whom the vehicle was forfeited
23under the first forfeiture proceeding may not utilize the
24provisions of this paragraph in another forfeiture proceeding.
25If the owner of the vehicle seized owns more than one vehicle,
26the procedure set out in this paragraph may be used for only



09800HB5523ham001- 10 -LRB098 17373 RLC 56971 a

1one vehicle.
2    (e) In addition, property Property declared contraband
3under Section 40 of the Illinois Streetgang Terrorism Omnibus
4Prevention Act (740 ILCS 147/40) may be seized and forfeited
5under this Article.
6(Source: P.A. 96-313, eff. 1-1-10; 96-710, eff. 1-1-10;
796-1000, eff. 7-2-10; 96-1267, eff. 7-26-10; 96-1289, eff.
81-1-11; 96-1551, Article 1, Section 960, eff. 7-1-11; 96-1551,
9Article 2, Section 1035, eff. 7-1-11; 97-333, eff. 8-12-11;
1097-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)
11    (720 ILCS 5/36-1.5)
12    Sec. 36-1.5. Preliminary Review.
13    (a) Within 14 days of the seizure, the State's Attorney in
14the county in which the seizure occurred State shall seek a
15preliminary determination from the circuit court as to whether
16there is probable cause that the property may be subject to
18    (b) The rules of evidence shall not apply to any proceeding
19conducted under this Section.
20    (c) The court may conduct the review under subsection (a)
21simultaneously with a proceeding pursuant to Section 109-1 of
22the Code of Criminal Procedure of 1963 for a related criminal
23offense if a prosecution is commenced by information or
25    (d) The court may accept a finding of probable cause at a



09800HB5523ham001- 11 -LRB098 17373 RLC 56971 a

1preliminary hearing following the filing of an information or
2complaint charging a related criminal offense or following the
3return of indictment by a grand jury charging the related
4offense as sufficient evidence of probable cause as required
5under subsection (a).
6    (e) Upon making a finding of probable cause as required
7under this Section, the circuit court shall order the property
8subject to the provisions of the applicable forfeiture Act held
9until the conclusion of any forfeiture proceeding.
10    For seizures of conveyances, within 7 days of a finding of
11probable cause under subsection (a), the registered owner or
12other claimant may file a motion in writing supported by sworn
13affidavits claiming that denial of the use of the conveyance
14during the pendency of the forfeiture proceedings creates a
15substantial hardship. The court shall consider the following
16factors in determining whether a substantial hardship has been
18        (1) the nature of the claimed hardship;
19        (2) the availability of public transportation or other
20    available means of transportation; and
21        (3) any available alternatives to alleviate the
22    hardship other than the return of the seized conveyance.
23    If the court determines that a substantial hardship has
24been proven, the court shall then balance the nature of the
25hardship against the State's interest in safeguarding the
26conveyance. If the court determines that the hardship outweighs



09800HB5523ham001- 12 -LRB098 17373 RLC 56971 a

1the State's interest in safeguarding the conveyance, the court
2may temporarily release the conveyance to the registered owner
3or the registered owner's authorized designee, or both, until
4the conclusion of the forfeiture proceedings or for such
5shorter period as ordered by the court provided that the person
6to whom the conveyance is released provides proof of insurance
7and a valid driver's license and all State and local
8registrations for operation of the conveyance are current. The
9court shall place conditions on the conveyance limiting its use
10to the stated hardship and restricting the conveyance's use to
11only those individuals authorized to use the conveyance by the
12registered owner. The court shall revoke the order releasing
13the conveyance and order that the conveyance be reseized by law
14enforcement if the conditions of release are violated or if the
15conveyance is used in the commission of any offense identified
16in subsection (a) of Section 6-205 of the Illinois Vehicle
18    If the court orders the release of the conveyance during
19the pendency of the forfeiture proceedings, the registered
20owner or his or her authorized designee shall post a cash
21security with the Clerk of the Court as ordered by the court.
22The court shall consider the following factors in determining
23the amount of the cash security:
24        (A) the full market value of the conveyance;
25        (B) the nature of the hardship;
26        (C) the extent and length of the usage of the



09800HB5523ham001- 13 -LRB098 17373 RLC 56971 a

1    conveyance; and
2        (D) such other conditions as the court deems necessary
3    to safeguard the conveyance.
4    If the conveyance is released, the court shall order that
5the registered owner or his or her designee safeguard the
6conveyance, not remove the conveyance from the jurisdiction,
7not conceal, destroy, or otherwise dispose of the conveyance,
8not encumber the conveyance, and not diminish the value of the
9conveyance in any way. The court shall also make a
10determination of the full market value of the conveyance prior
11to it being released based on a source or sources defined in 50
12Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
13    If the conveyance subject to forfeiture is released under
14this Section and is subsequently forfeited, the person to whom
15the conveyance was released shall return the conveyance to the
16law enforcement agency that seized the conveyance within 7 days
17from the date of the declaration of forfeiture or order of
18forfeiture. If the conveyance is not returned within 7 days,
19the cash security shall be forfeited in the same manner as the
20conveyance subject to forfeiture. If the cash security was less
21than the full market value, a judgment shall be entered against
22the parties to whom the conveyance was released and the
23registered owner, jointly and severally, for the difference
24between the full market value and the amount of the cash
25security. If the conveyance is returned in a condition other
26than the condition in which it was released, the cash security



09800HB5523ham001- 14 -LRB098 17373 RLC 56971 a

1shall be returned to the surety who posted the security minus
2the amount of the diminished value, and that amount shall be
3forfeited in the same manner as the conveyance subject to
4forfeiture. Additionally, the court may enter an order allowing
5any law enforcement agency in the State of Illinois to seize
6the conveyance wherever it may be found in the State to satisfy
7the judgment if the cash security was less than the full market
8value of the conveyance.
9(Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12.)
10    (720 ILCS 5/36-2)  (from Ch. 38, par. 36-2)
11    Sec. 36-2. Action for forfeiture.
12    (a) The State's Attorney in the county in which such
13seizure occurs if he or she finds that the such forfeiture was
14incurred without willful negligence or without any intention on
15the part of the owner of the vessel, vehicle or aircraft or any
16person whose right, title or interest is of record as described
17in Section 36-1, to violate the law, or finds the existence of
18such mitigating circumstances as to justify remission of the
19forfeiture, may cause the law enforcement agency sheriff to
20remit the same upon such terms and conditions as the State's
21Attorney deems reasonable and just. The State's Attorney shall
22exercise his or her discretion under the foregoing provision of
23this Section 36-2(a) prior to or promptly after the preliminary
24review under Section 36-1.5 notice is given in accordance with
25Section 36-1.



09800HB5523ham001- 15 -LRB098 17373 RLC 56971 a

1    (b) If the State's Attorney does not cause the forfeiture
2to be remitted he or she shall forthwith bring an action for
3forfeiture in the Circuit Court within whose jurisdiction the
4seizure and confiscation has taken place. The State's Attorney
5shall give notice of seizure and the forfeiture proceeding to
6each person according to the following method: Upon each person
7whose right, title, or interest is of record in the office of
8the Secretary of State, the Secretary of Transportation, the
9Administrator of the Federal Aviation Agency, or any other
10Department of this State, or any other state of the United
11States if the vessel, vehicle, or aircraft is required to be so
12registered, as the case may be, by delivering the notice and
13complaint in open court or by certified mail to the address as
14given upon the records of the Secretary of State, the Division
15of Aeronautics of the Department of Transportation, the Capital
16Development Board, or any other Department of this State or the
17United States if the vessel, vehicle, or aircraft is required
18to be so registered the forfeiture proceeding by mailing a copy
19of the Complaint in the forfeiture proceeding to the persons,
20and upon the manner, set forth in Section 36-1.
21    (c) The owner of the seized vessel, vehicle, or aircraft or
22any person whose right, title, or interest is of record as
23described in Section 36-1, may within 20 days after delivery in
24open court or the mailing of such notice file a verified answer
25to the Complaint and may appear at the hearing on the action
26for forfeiture.



09800HB5523ham001- 16 -LRB098 17373 RLC 56971 a

1    (d) The State shall show at such hearing by a preponderance
2of the evidence, that such vessel, vehicle, or aircraft was
3used in the commission of an offense described in Section 36-1.
4    (e) The owner of such vessel, vehicle, or aircraft or any
5person whose right, title, or interest is of record as
6described in Section 36-1, may show by a preponderance of the
7evidence that he did not know, and did not have reason to know,
8that the vessel, vehicle, or aircraft was to be used in the
9commission of such an offense or that any of the exceptions set
10forth in Section 36-3 are applicable.
11    (f) Unless the State shall make such showing, the Court
12shall order such vessel, vehicle, or aircraft released to the
13owner. Where the State has made such showing, the Court may
14order the vessel, vehicle, or aircraft destroyed or ; may order
15it forfeited delivered to any local, municipal or county law
16enforcement agency, or the Department of State Police or the
17Department of Revenue of the State of Illinois; or may order it
18sold at public auction.
19    (g) (b) A copy of the order shall be filed with the law
20enforcement agency, sheriff of the county in which the seizure
21occurs and with each Federal or State office or agency with
22which such vessel, vehicle, or aircraft is required to be
23registered. Such order, when filed, constitutes authority for
24the issuance of clear title to such vessel, vehicle, or
25aircraft, or boat to the department or agency to whom it is
26delivered or any purchaser thereof. The law enforcement agency



09800HB5523ham001- 17 -LRB098 17373 RLC 56971 a

1sheriff shall comply promptly with instructions to remit
2received from the State's Attorney or Attorney General in
3accordance with Sections 36-2(a) or 36-3.
4    (h) (c) The proceeds of any sale at public auction pursuant
5to Section 36-2 of this Act, after payment of all liens and
6deduction of the reasonable charges and expenses incurred by
7the State's Attorney's Office sheriff in storing and selling
8such vehicle, shall be paid to into the law enforcement agency
9having seized the vehicle for forfeiture general fund of the
10county of seizure.
11(Source: P.A. 84-25.)
12    (720 ILCS 5/36-5)
13    Sec. 36-5. The law enforcement agency, County or sheriff
14not liable for stored forfeited vehicle. A law enforcement
15agency, county, sheriff, law enforcement officer or employee of
16the law enforcement agency or deputy sheriff, or employee of
17the county sheriff shall not be civilly or criminally liable
18for any damage to a forfeited vehicle stored with a commercial
19vehicle safety relocator.
20(Source: P.A. 96-1274, eff. 7-26-10.)
21    Section 99. Effective date. This Act takes effect upon
22becoming law.".