Full Text of SB0194 99th General Assembly
SB0194sam001 99TH GENERAL ASSEMBLY | Sen. Patricia Van Pelt Filed: 4/14/2016
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| 1 | | AMENDMENT TO SENATE BILL 194
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 194 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Drug Asset Forfeiture Procedure Act is | 5 | | amended by changing Section 9 as follows:
| 6 | | (725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)
| 7 | | Sec. 9. Judicial in rem procedures. If property seized | 8 | | under the
provisions of the Illinois Controlled Substances Act, | 9 | | the Cannabis Control
Act, or the Methamphetamine Control and | 10 | | Community Protection Act is non-real property that exceeds | 11 | | $20,000 in value excluding the value
of any conveyance, or is | 12 | | real property, or a claimant has filed a claim and
a cost bond | 13 | | under subsection (C) of Section 6 of this Act, the following
| 14 | | judicial in rem procedures shall apply:
| 15 | | (A) If, after a review of the facts surrounding the | 16 | | seizure, the State's
Attorney is of the opinion that the seized |
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| 1 | | property is subject to
forfeiture, then within 45 days of the | 2 | | receipt of notice of seizure by the
seizing agency or the | 3 | | filing of the claim and cost bond, whichever is
later, the | 4 | | State's Attorney shall institute judicial forfeiture | 5 | | proceedings
by filing a verified complaint for forfeiture and, | 6 | | if the claimant has
filed a claim and cost bond, by depositing | 7 | | the cost bond with the clerk of
the court. When authorized by | 8 | | law, a forfeiture must be ordered by a court
on an action in | 9 | | rem brought by a State's Attorney under a verified
complaint | 10 | | for forfeiture.
| 11 | | (B) During the probable cause portion of the judicial in | 12 | | rem
proceeding wherein the State presents its case-in-chief, | 13 | | the court must
receive and consider, among other things, all | 14 | | relevant hearsay evidence and
information. The laws of evidence | 15 | | relating to civil actions shall apply to
all other portions of | 16 | | the judicial in rem proceeding.
| 17 | | (C) Only an owner of or interest holder in the property may | 18 | | file an
answer asserting a claim against the property in the | 19 | | action in rem. For
purposes of this Section, the owner or | 20 | | interest holder shall be referred
to as claimant.
| 21 | | (D) The answer must be signed by the owner or interest | 22 | | holder under
penalty of perjury and must set forth:
| 23 | | (i) the caption of the proceedings as set forth on the | 24 | | notice of pending
forfeiture and the name of the claimant;
| 25 | | (ii) the address at which the claimant will accept | 26 | | mail;
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| 1 | | (iii) the nature and extent of the claimant's interest | 2 | | in the property;
| 3 | | (iv) the date, identity of transferor, and | 4 | | circumstances of the
claimant's acquisition of the | 5 | | interest in the property;
| 6 | | (v) the name and address of all other persons known to | 7 | | have an interest
in the property;
| 8 | | (vi) the specific provisions of Section 8 of this Act
| 9 | | relied on in asserting it
is not subject to forfeiture;
| 10 | | (vii) all essential facts supporting each assertion; | 11 | | and
| 12 | | (viii) the precise relief sought.
| 13 | | (E) The answer must be filed with the court within 45 days | 14 | | after service
of the civil in rem complaint.
| 15 | | (F) The hearing must be held within 60 days after filing of | 16 | | the answer
unless continued for good cause.
| 17 | | (G) The State shall show the existence of clear and | 18 | | convincing evidence probable cause for forfeiture
of the | 19 | | property. If the State shows clear and convincing evidence | 20 | | probable cause , the claimant has the
burden of showing by a | 21 | | preponderance of the evidence that the claimant's
interest in | 22 | | the property is not subject to forfeiture.
| 23 | | (H) If the State does not show existence of clear and | 24 | | convincing evidence probable cause or a claimant
has | 25 | | established by a preponderance of evidence that the claimant | 26 | | has an
interest that is exempt under Section 8 of this Act, the |
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| 1 | | court shall order
the interest in the property returned or | 2 | | conveyed to the claimant and shall
order all other property | 3 | | forfeited to the State. If the State does show
existence of | 4 | | clear and convincing evidence probable cause and the claimant | 5 | | does not establish by a
preponderance of evidence that the | 6 | | claimant has an interest that is exempt
under Section 8 of this | 7 | | Act, the court shall order all property forfeited
to the State.
| 8 | | (I) A defendant convicted in any criminal proceeding is | 9 | | precluded from
later denying the essential allegations of the | 10 | | criminal offense of which
the defendant was convicted in any | 11 | | proceeding under this Act
regardless of the pendency of an | 12 | | appeal from that conviction. However,
evidence of the pendency | 13 | | of an appeal is admissible.
| 14 | | (J) An acquittal or dismissal in a criminal proceeding | 15 | | shall not
preclude civil proceedings under this Act; however, | 16 | | for good cause shown,
on a motion by the State's Attorney, the | 17 | | court may stay civil forfeiture
proceedings during the criminal | 18 | | trial for a related criminal indictment or
information alleging | 19 | | a violation of the Illinois Controlled Substances Act,
the | 20 | | Cannabis Control Act, or the Methamphetamine Control and | 21 | | Community Protection Act. Such a stay shall not be available | 22 | | pending an
appeal. Property subject to forfeiture under the | 23 | | Illinois Controlled
Substances Act, the Cannabis Control Act, | 24 | | or the Methamphetamine Control and Community Protection Act | 25 | | shall not be subject to return
or release by a court exercising | 26 | | jurisdiction over a criminal case
involving the seizure of such |
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| 1 | | property unless such return or release is
consented to by the | 2 | | State's Attorney.
| 3 | | (K) All property declared forfeited under this Act vests in | 4 | | this State
on the commission of the conduct giving rise to | 5 | | forfeiture together with
the proceeds of the property after | 6 | | that time. Any such property or
proceeds subsequently | 7 | | transferred to any person remain subject to
forfeiture and | 8 | | thereafter shall be ordered forfeited unless the transferee
| 9 | | claims and establishes in a hearing under the provisions of | 10 | | this Act that
the transferee's interest is exempt under Section | 11 | | 8 of this Act.
| 12 | | (L) A civil action under this Act must be commenced within | 13 | | 5 years
after the last conduct giving rise to forfeiture became | 14 | | known or should
have become known or 5 years after the | 15 | | forfeitable property is
discovered, whichever is later, | 16 | | excluding any time during which either the
property or claimant | 17 | | is out of the State or in confinement or during which
criminal | 18 | | proceedings relating to the same conduct are in progress.
| 19 | | (Source: P.A. 94-556, eff. 9-11-05.)".
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