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


Sen. William R. Haine

Filed: 5/6/2014





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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), 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



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1    (predatory criminal sexual assault of a child), subsection
2    (a) of Section 11-1.50 (criminal sexual abuse), subsection
3    (a), (c), or (d) of Section 11-1.60 (aggravated criminal
4    sexual abuse), Section 11-6 (indecent solicitation of a
5    child), 11-14.4 (promoting juvenile prostitution except
6    for keeping a place of juvenile prostitution), 11-15.1,
7    11-19.1, 11-19.2, 11-20.1 (child pornography), paragraph
8    (a)(1), (a)(2), (a)(4), (b)(1), (b)(2), (e)(1), (e)(2),
9    (e)(3), (e)(4), (e)(5), (e)(6), or (e)(7) of Section
10    12-3.05 (aggravated battery), 11-20.1B, 11-20.3, 12-4.1,
11    12-4.2, 12-4.2-5, 12-4.3, 12-4.6, 12-7.3 (stalking),
12    12-7.4 (aggravated stalking), 12-13, 12-14, 16-1 (theft if
13    the theft is of precious metal or of scrap metal),
14    subdivision (f)(2) or (f)(3) of Section 16-25 (retail
15    theft), Section 18-2 (armed robbery), 19-1 (burglary),
16    19-2 (possession of burglary tools), 19-3 (residential
17    burglary), 20-1 (arson; residential arson; place of
18    worship arson), 20-2 (possession of explosives or
19    explosive or incendiary devices), subdivision (a)(6) or
20    (a)(7) of Section 24-1 (unlawful use of weapons), Section ,
21    24-1.2 (aggravated discharge of a firearm), 24-1.2-5
22    (aggravated discharge of a machine gun or a firearm
23    equipped with a device designed or used for silencing the
24    report of a firearm), 24-1.5 (reckless discharge of a
25    firearm), 28-1 (gambling), or 29D-15.2 (possession of a
26    deadly substance) of this Code; , subdivision (a)(1),



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



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



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1        intoxicating compound or compounds or any combination
2        thereof and was involved in a motor vehicle accident
3        that resulted in death, great bodily harm, or permanent
4        disability or disfigurement to another, when the
5        violation was a proximate cause of the death or
6        injuries;
7            (C) (3) the person committed a violation of driving
8        under the influence of alcohol or other drug or drugs,
9        intoxicating compound or compounds or any combination
10        thereof under Section 11-501 of the Illinois Vehicle
11        Code or a similar provision for the third or subsequent
12        time;
13            (D) (4) the person committed the violation while he
14        or she did not possess a valid driver's license or
15        permit or a valid restricted driving permit or a valid
16        judicial driving permit or a valid monitoring device
17        driving permit; or
18            (E) (5) the person committed the violation while he
19        or she knew or should have known that the vehicle he or
20        she was driving was not covered by a liability
21        insurance policy;
22        (7) (g) an offense described in subsection (g) of
23    Section 6-303 of the Illinois Vehicle Code; or
24        (8) (h) an offense described in subsection (e) of
25    Section 6-101 of the Illinois Vehicle Code; may be seized
26    and delivered forthwith to the sheriff of the county of



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1    seizure.
2    Within 15 days after such delivery the sheriff shall give
3notice of seizure to each person according to the following
4method: Upon each such person whose right, title or interest is
5of record in the office of the Secretary of State, the
6Secretary of Transportation, the Administrator of the Federal
7Aviation Agency, or any other Department of this State, or any
8other state of the United States if such vessel, vehicle or
9aircraft is required to be so registered, as the case may be,
10by mailing a copy of the notice by certified mail to the
11address as given upon the records of the Secretary of State,
12the Department of Aeronautics, Department of Public Works and
13Buildings or any other Department of this State or the United
14States if such vessel, vehicle or aircraft is required to be so
15registered. Within that 15 day period the sheriff shall also
16notify the State's Attorney of the county of seizure about the
18    (b) In addition, any mobile or portable equipment used in
19the commission of an act which is in violation of Section 7g of
20the Metropolitan Water Reclamation District Act shall be
21subject to seizure and forfeiture under the same procedures
22provided in this Article for the seizure and forfeiture of
23vessels, vehicles, and aircraft, and any such equipment shall
24be deemed a vessel, vehicle, or aircraft for purposes of this
26    (c) In addition, when When a person discharges a firearm at



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1another individual from a vehicle with the knowledge and
2consent of the owner of the vehicle and with the intent to
3cause death or great bodily harm to that individual and as a
4result causes death or great bodily harm to that individual,
5the vehicle shall be subject to seizure and forfeiture under
6the same procedures provided in this Article for the seizure
7and forfeiture of vehicles used in violations of clauses (1),
8(2), (3), or (4) of subsection (a) (a), (b), (c), or (d) of
9this Section.
10    (d) If the spouse of the owner of a vehicle seized for an
11offense described in subsection (g) of Section 6-303 of the
12Illinois Vehicle Code, a violation of subdivision (d)(1)(A),
13(d)(1)(D), (d)(1)(G), (d)(1)(H), or (d)(1)(I) of Section
1411-501 of the Illinois Vehicle Code, or Section 9-3 of this
15Code makes a showing that the seized vehicle is the only source
16of transportation and it is determined that the financial
17hardship to the family as a result of the seizure outweighs the
18benefit to the State from the seizure, the vehicle may be
19forfeited to the spouse or family member and the title to the
20vehicle shall be transferred to the spouse or family member who
21is properly licensed and who requires the use of the vehicle
22for employment or family transportation purposes. A written
23declaration of forfeiture of a vehicle under this Section shall
24be sufficient cause for the title to be transferred to the
25spouse or family member. The provisions of this paragraph shall
26apply only to one forfeiture per vehicle. If the vehicle is the



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1subject of a subsequent forfeiture proceeding by virtue of a
2subsequent conviction of either spouse or the family member,
3the spouse or family member to whom the vehicle was forfeited
4under the first forfeiture proceeding may not utilize the
5provisions of this paragraph in another forfeiture proceeding.
6If the owner of the vehicle seized owns more than one vehicle,
7the procedure set out in this paragraph may be used for only
8one vehicle.
9    (e) In addition, property Property declared contraband
10under Section 40 of the Illinois Streetgang Terrorism Omnibus
11Prevention Act may be seized and forfeited under this Article.
12(Source: P.A. 96-313, eff. 1-1-10; 96-710, eff. 1-1-10;
1396-1000, eff. 7-2-10; 96-1267, eff. 7-26-10; 96-1289, eff.
141-1-11; 96-1551, Article 1, Section 960, eff. 7-1-11; 96-1551,
15Article 2, Section 1035, eff. 7-1-11; 97-333, eff. 8-12-11;
1697-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)
17    (720 ILCS 5/36-1.5)
18    Sec. 36-1.5. Preliminary Review.
19    (a) Within 14 days of the seizure, the State's Attorney in
20the county in which the seizure occurred State shall seek a
21preliminary determination from the circuit court as to whether
22there is probable cause that the property may be subject to
24    (b) The rules of evidence shall not apply to any proceeding
25conducted under this Section.



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1    (c) The court may conduct the review under subsection (a)
2simultaneously with a proceeding pursuant to Section 109-1 of
3the Code of Criminal Procedure of 1963 for a related criminal
4offense if a prosecution is commenced by information or
6    (d) The court may accept a finding of probable cause at a
7preliminary hearing following the filing of an information or
8complaint charging a related criminal offense or following the
9return of indictment by a grand jury charging the related
10offense as sufficient evidence of probable cause as required
11under subsection (a).
12    (e) Upon making a finding of probable cause as required
13under this Section, the circuit court shall order the property
14subject to the provisions of the applicable forfeiture Act held
15until the conclusion of any forfeiture proceeding.
16    For seizures of conveyances, within 7 days of a finding of
17probable cause under subsection (a), the registered owner or
18other claimant may file a motion in writing supported by sworn
19affidavits claiming that denial of the use of the conveyance
20during the pendency of the forfeiture proceedings creates a
21substantial hardship. The court shall consider the following
22factors in determining whether a substantial hardship has been
24        (1) the nature of the claimed hardship;
25        (2) the availability of public transportation or other
26    available means of transportation; and



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1        (3) any available alternatives to alleviate the
2    hardship other than the return of the seized conveyance.
3    If the court determines that a substantial hardship has
4been proven, the court shall then balance the nature of the
5hardship against the State's interest in safeguarding the
6conveyance. If the court determines that the hardship outweighs
7the State's interest in safeguarding the conveyance, the court
8may temporarily release the conveyance to the registered owner
9or the registered owner's authorized designee, or both, until
10the conclusion of the forfeiture proceedings or for such
11shorter period as ordered by the court provided that the person
12to whom the conveyance is released provides proof of insurance
13and a valid driver's license and all State and local
14registrations for operation of the conveyance are current. The
15court shall place conditions on the conveyance limiting its use
16to the stated hardship and restricting the conveyance's use to
17only those individuals authorized to use the conveyance by the
18registered owner. The court shall revoke the order releasing
19the conveyance and order that the conveyance be reseized by law
20enforcement if the conditions of release are violated or if the
21conveyance is used in the commission of any offense identified
22in subsection (a) of Section 6-205 of the Illinois Vehicle
24    If the court orders the release of the conveyance during
25the pendency of the forfeiture proceedings, the registered
26owner or his or her authorized designee shall post a cash



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



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1than the full market value, a judgment shall be entered against
2the parties to whom the conveyance was released and the
3registered owner, jointly and severally, for the difference
4between the full market value and the amount of the cash
5security. If the conveyance is returned in a condition other
6than the condition in which it was released, the cash security
7shall be returned to the surety who posted the security minus
8the amount of the diminished value, and that amount shall be
9forfeited in the same manner as the conveyance subject to
10forfeiture. Additionally, the court may enter an order allowing
11any law enforcement agency in the State of Illinois to seize
12the conveyance wherever it may be found in the State to satisfy
13the judgment if the cash security was less than the full market
14value of the conveyance.
15(Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12.)
16    (720 ILCS 5/36-2)  (from Ch. 38, par. 36-2)
17    Sec. 36-2. Action for forfeiture.
18    (a) The State's Attorney in the county in which such
19seizure occurs if he or she finds that the such forfeiture was
20incurred without willful negligence or without any intention on
21the part of the owner of the vessel, vehicle or aircraft or any
22person whose right, title or interest is of record as described
23in Section 36-1, to violate the law, or finds the existence of
24such mitigating circumstances as to justify remission of the
25forfeiture, may cause the law enforcement agency sheriff to



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1remit the same upon such terms and conditions as the State's
2Attorney deems reasonable and just. The State's Attorney shall
3exercise his or her discretion under the foregoing provision of
4this Section 36-2(a) prior to or promptly after the preliminary
5review under Section 36-1.5 notice is given in accordance with
6Section 36-1.
7    (b) If the State's Attorney does not cause the forfeiture
8to be remitted he or she shall forthwith bring an action for
9forfeiture in the Circuit Court within whose jurisdiction the
10seizure and confiscation has taken place. The State's Attorney
11shall give notice of seizure and the forfeiture proceeding to
12each person according to the following method: Upon each person
13whose right, title, or interest is of record in the office of
14the Secretary of State, the Secretary of Transportation, the
15Administrator of the Federal Aviation Agency, or any other
16Department of this State, or any other state of the United
17States if the vessel, vehicle, or aircraft is required to be so
18registered, as the case may be, by delivering the notice and
19complaint in open court or by certified mail to the address as
20given upon the records of the Secretary of State, the Division
21of Aeronautics of the Department of Transportation, the Capital
22Development Board, or any other Department of this State or the
23United States if the vessel, vehicle, or aircraft is required
24to be so registered the forfeiture proceeding by mailing a copy
25of the Complaint in the forfeiture proceeding to the persons,
26and upon the manner, set forth in Section 36-1.



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1    (c) The owner of the seized vessel, vehicle, or aircraft or
2any person whose right, title, or interest is of record as
3described in Section 36-1, may within 20 days after delivery in
4open court or the mailing of such notice file a verified answer
5to the Complaint and may appear at the hearing on the action
6for forfeiture.
7    (d) The State shall show at such hearing by a preponderance
8of the evidence, that such vessel, vehicle, or aircraft was
9used in the commission of an offense described in Section 36-1.
10    (e) The owner of such vessel, vehicle, or aircraft or any
11person whose right, title, or interest is of record as
12described in Section 36-1, may show by a preponderance of the
13evidence that he did not know, and did not have reason to know,
14that the vessel, vehicle, or aircraft was to be used in the
15commission of such an offense or that any of the exceptions set
16forth in Section 36-3 are applicable.
17    (f) Unless the State shall make such showing, the Court
18shall order such vessel, vehicle, or aircraft released to the
19owner. Where the State has made such showing, the Court may
20order the vessel, vehicle, or aircraft destroyed or ; may order
21it forfeited delivered to any local, municipal or county law
22enforcement agency, or the Department of State Police or the
23Department of Revenue of the State of Illinois; or may order it
24sold at public auction.
25    (g) (b) A copy of the order shall be filed with the law
26enforcement agency, sheriff of the county in which the seizure



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1occurs and with each Federal or State office or agency with
2which such vessel, vehicle, or aircraft is required to be
3registered. Such order, when filed, constitutes authority for
4the issuance of clear title to such vessel, vehicle, or
5aircraft, or boat to the department or agency to whom it is
6delivered or any purchaser thereof. The law enforcement agency
7sheriff shall comply promptly with instructions to remit
8received from the State's Attorney or Attorney General in
9accordance with Sections 36-2(a) or 36-3.
10    (h) (c) The proceeds of any sale at public auction pursuant
11to Section 36-2 of this Act, after payment of all liens and
12deduction of the reasonable charges and expenses incurred by
13the State's Attorney's Office sheriff in storing and selling
14such vehicle, shall be paid to into the law enforcement agency
15having seized the vehicle for forfeiture general fund of the
16county of seizure.
17(Source: P.A. 84-25.)
18    (720 ILCS 5/36-5)
19    Sec. 36-5. The law enforcement agency, County or sheriff
20not liable for stored forfeited vehicle. A law enforcement
21agency, county, sheriff, law enforcement officer or employee of
22the law enforcement agency or deputy sheriff, or employee of
23the county sheriff shall not be civilly or criminally liable
24for any damage to a forfeited vehicle stored with a commercial
25vehicle safety relocator.



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1(Source: P.A. 96-1274, eff. 7-26-10.)
2    Section 99. Effective date. This Act takes effect upon
3becoming law.".