Full Text of SB1402 100th General Assembly
SB1402eng 100TH 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 Code of Criminal Procedure of 1963 is | 5 | | amended by adding the heading of Article 112B and Sections | 6 | | 112B-1, 112B-2, 112B-3, 112B-4, 112B-5, 112B-5.5, 112B-6, | 7 | | 112B-7, and 112B-8 as follows: | 8 | | (725 ILCS 5/Art. 112B heading new) | 9 | | ARTICLE 112B. ASSET-FREEZING ORDERS | 10 | | (725 ILCS 5/112B-1 new) | 11 | | Sec. 112B-1. Definitions. In this Article: | 12 | | "Asset" means anything that may be the subject of | 13 | | ownership, whether real or
personal, tangible or intangible, or | 14 | | legal or equitable, or any interest in it, which is not exempt
| 15 | | from execution under applicable law. | 16 | | "Asset-freezing order" means an in personam order | 17 | | restraining or enjoining a person
from dissipating an asset | 18 | | directly or indirectly. | 19 | | "Defendant" means a person charged with a criminal offense | 20 | | against whom an asset-freezing order is brought. | 21 | | "Dissipate" means to take an action with regard to an asset | 22 | | of a defendant to defeat
satisfaction of an existing or future |
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| 1 | | judgment for a fine, restitution, assessment, or court costs | 2 | | after conviction, including: | 3 | | (1) selling, removing, alienating, transferring, | 4 | | assigning, encumbering, or
similarly dealing with the | 5 | | asset; | 6 | | (2) instructing, requesting, counseling, demanding, or | 7 | | encouraging any other
person to take an action described in | 8 | | paragraph (1) of this definition; and | 9 | | (3) facilitating, assisting in, aiding, abetting, or | 10 | | participating in an action
described in paragraph (1) or | 11 | | (2) of this definition. | 12 | | "Lien" means a charge against or an interest in property to | 13 | | secure payment of a debt or performance of an obligation, and | 14 | | includes a security interest created by agreement, a judicial | 15 | | lien obtained by legal or equitable process or proceedings, a | 16 | | common-law lien, or a statutory lien. | 17 | | "Nonparty" means a person that is not a defendant and has | 18 | | custody or control of an asset
of a defendant who is subject to | 19 | | an asset-freezing order. The term includes a person that holds | 20 | | a
joint ownership interest in an asset with a defendant against | 21 | | which an asset-freezing order has been
entered. | 22 | | "Person" means an individual, estate, business or | 23 | | nonprofit entity, public corporation,
government or | 24 | | governmental subdivision, agency, or instrumentality, or other | 25 | | legal entity. | 26 | | "Record" means information that is inscribed on a tangible |
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| 1 | | medium or that is stored in
an electronic or other medium and | 2 | | is retrievable in perceivable form. | 3 | | "State" means the prosecutor who filed the charge against | 4 | | the defendant and brings an action for an asset-freezing order. | 5 | | "Transfer" means every mode, direct or indirect, absolute | 6 | | or conditional, voluntary or involuntary, of disposing of or | 7 | | parting with an asset or an interest in an asset, and includes | 8 | | payment of money, release, lease, and creation of a lien or | 9 | | other encumbrance. | 10 | | (725 ILCS 5/112B-2 new) | 11 | | Sec. 112B-2. Scope. | 12 | | (a) This Article applies to a right accruing to a nonparty | 13 | | after the entry of an asset-freezing
order if: | 14 | | (1) the nonparty has been served with the order under | 15 | | subsection (a) of Section 112B-5 of this Article; or | 16 | | (2) the State obtaining the order has filed, recorded, | 17 | | or docketed the order in the
appropriate jurisdiction and | 18 | | office in which the State would be required under | 19 | | applicable law to
file, record, or docket the order to give | 20 | | notice of, establish, or perfect a lien, security interest,
| 21 | | mortgage, or comparable interest, and the order as filed, | 22 | | recorded, or docketed, if it were a
judicial lien in favor | 23 | | of the State, would give priority to the interest of the | 24 | | State over the interest of
the nonparty under applicable | 25 | | law. |
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| 1 | | (b) This Article does not apply to or limit a right or | 2 | | remedy available to the State, defendant, or nonparty
to the | 3 | | extent that a federal law or regulation preempts this Article. | 4 | | (c) This Article does not affect a right or remedy | 5 | | including a right or remedy arising from
the creation, | 6 | | perfection, priority, or enforcement of a security interest or | 7 | | other interests that
existed before an order takes effect. | 8 | | (d) This Article does not prevent the exercise of other | 9 | | remedies not inconsistent with this
Article. | 10 | | (725 ILCS 5/112B-3 new) | 11 | | Sec. 112B-3. Asset-freezing order issued with notice. | 12 | | (a) The State may, by motion, bring an action under this | 13 | | Article regarding assets of a person charged with or convicted | 14 | | of a criminal offense under the laws of this State if a fine, | 15 | | restitution, assessment, or costs may be sought or has been | 16 | | imposed as the result of a conviction. A court may issue an | 17 | | asset-freezing order on motion of the State with notice to the | 18 | | defendant against whom the order is sought and with an
| 19 | | expedited opportunity to be heard if the court finds that: | 20 | | (1) there is a substantial likelihood that the State | 21 | | will prevail on
the merits of the action; | 22 | | (2) if the order is not granted, there is a substantial | 23 | | likelihood the assets of the
defendant against whom the | 24 | | order is sought will be dissipated so that the State will | 25 | | be unable
to receive satisfaction of a judgment after |
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| 1 | | conviction because of the dissipation; | 2 | | (3) any harm the defendant against whom the order is | 3 | | sought may suffer by complying
with the order is clearly | 4 | | outweighed by the risk of harm to the State if the order is | 5 | | not
issued; and | 6 | | (4) the order, if issued, would not be adverse to the | 7 | | public interest. | 8 | | (b) An asset-freezing order issued with notice must be | 9 | | served in compliance with
State law. | 10 | | (c) A defendant against whom an asset-freezing order is | 11 | | issued may apply for relief from the
order by posting a bond or | 12 | | other security in an amount
determined by the court. | 13 | | (d) On at least 24 hours' notice to the State, a defendant
| 14 | | against whom the order is issued may apply for an order | 15 | | permitting him or her to pay his or her ordinary living
| 16 | | expenses or business expenses. | 17 | | (e) The court must limit an asset-freezing order to provide | 18 | | a sufficient amount to provide the legal representation needs | 19 | | of the defendant for any pending criminal charge against him or | 20 | | her, including responding and contesting motions and orders | 21 | | under this Article. | 22 | | (f) The court may limit an asset-freezing order to a | 23 | | certain amount or type of assets and
may order appropriate | 24 | | accounting requirements. | 25 | | (g) An asset-freezing order remains in effect until it is | 26 | | vacated by the court, or the criminal charge
is resolved by |
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| 1 | | agreement of the State and defendant, operation of law, or | 2 | | satisfaction of a judgment entered
against the defendant | 3 | | against whom the order was issued. | 4 | | (725 ILCS 5/112B-4 new) | 5 | | Sec. 112B-4. Asset-freezing order issued without notice. | 6 | | (a) The court may issue an asset-freezing order on motion | 7 | | of the State without the notice required by
subsection (a) of | 8 | | Section 112B-3 of this Article if the court finds that facts in | 9 | | an affidavit or verified pleading offered in support of
the | 10 | | motion establish that the State is entitled to the order under | 11 | | that Section. | 12 | | (b) The State moving for an asset-freezing order under | 13 | | subsection (a) of this Section shall: | 14 | | (1) conduct a reasonable inquiry and disclose in the | 15 | | affidavit or verified pleading
all material facts that | 16 | | weigh against the issuance of the order; and | 17 | | (2) disclose in the affidavit or verified pleading all | 18 | | efforts to give notice or the
reasons why notice should not | 19 | | be required. | 20 | | (c) An asset-freezing order issued without notice expires | 21 | | on a date set by the court, not
later than 14 days after the | 22 | | court issues the order, unless before that time: | 23 | | (1) the court, for good cause, extends the order and | 24 | | states in the order of extension
the reason for the | 25 | | extension; or |
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| 1 | | (2) the defendant consents in a record to an extension. | 2 | | (d) If an asset-freezing order is issued without notice, | 3 | | the defendant against whom the order is
issued may move to | 4 | | dissolve or modify the order after notice to the State that | 5 | | obtained the order
and may apply for relief under subsections | 6 | | (c) and (d) of Section 112B-3 of this Article. The court shall | 7 | | hear and decide the motion
or application on an expedited | 8 | | basis. | 9 | | (725 ILCS 5/112B-5 new) | 10 | | Sec. 112B-5. Obligation of nonparty served with | 11 | | asset-freezing order. | 12 | | (a) An asset-freezing order may be served on a nonparty. If | 13 | | the State who obtained the
order serves a nonparty with the | 14 | | order, the State shall give notice to the defendant of the
name | 15 | | and address of the nonparty not later than one day after | 16 | | service. | 17 | | (b) Subject to subsection (e) of this Section, a nonparty | 18 | | served with an asset-freezing order shall freeze
the assets of | 19 | | the defendant against whom the order is issued until further | 20 | | order of the court. The
nonparty shall comply promptly with | 21 | | this subsection (b), taking into account the manner, time, and
| 22 | | place of service and other factors that reasonably affect the | 23 | | nonparty's ability to comply. If the
nonparty believes, in good | 24 | | faith, that complying with the asset-freezing order would | 25 | | violate
a law, create liability under a law, or violate an |
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| 1 | | order issued by another jurisdiction, the nonparty immediately | 2 | | may move the court that issued the asset freezing
order to | 3 | | dissolve or modify the order. If the court finds that the | 4 | | nonparty acted in good
faith, it may not find the nonparty in | 5 | | contempt of court for failing to comply with the order
during | 6 | | the pendency of the petition. The court shall hear and decide | 7 | | the motion on an expedited
basis. | 8 | | (c) If an asset-freezing order is vacated or modified, the | 9 | | State obtaining the order shall give
notice promptly to a | 10 | | nonparty that was served with the order in the same manner as | 11 | | the nonparty
was originally given notice. | 12 | | (d) Except as otherwise provided for in subsection (b) of | 13 | | this Section, a nonparty served with an asset-freezing
order | 14 | | may not knowingly assist in or permit a violation of the order. | 15 | | (e) A nonparty served with an asset-freezing order may move | 16 | | to dissolve or modify the
order. The court shall hear and | 17 | | decide the motion on an expedited basis. | 18 | | (725 ILCS 5/112B-5.5 new) | 19 | | Sec. 112B-5.5. Asset dissipation relief. | 20 | | (a) The State may seek asset dissipation relief against a | 21 | | transfer or obligation of an asset knowingly made to dissipate | 22 | | the asset and may obtain: | 23 | | (1) avoidance of the transfer or obligation to the | 24 | | extent necessary to satisfy an existing or future judgment | 25 | | for a fine, restitution, assessment, or court costs; |
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| 1 | | (2) an attachment or other provisional remedy against | 2 | | the asset transferred or other property of the transferee | 3 | | in accordance with the procedure prescribed by the Code of | 4 | | Civil Procedure; or | 5 | | (3) subject to applicable principles of equity and in | 6 | | accordance with applicable rules of civil procedure: | 7 | | (A) an injunction against further disposition by | 8 | | the defendant or a transferee, or both, of the asset | 9 | | transferred or of other property; | 10 | | (B) appointment of a receiver to take charge of the | 11 | | asset transferred or of other property of the | 12 | | transferee; or | 13 | | (C) any other relief the circumstances may | 14 | | require. | 15 | | (b) Notwithstanding voidability of a transfer or an | 16 | | obligation under this Section, a good-faith transferee or | 17 | | obligee is entitled, to the extent of the value given the | 18 | | defendant for the transfer or obligation, to: | 19 | | (1) a lien on or a right to retain any interest in the | 20 | | asset transferred; or | 21 | | (2) enforcement of any obligation incurred. | 22 | | (725 ILCS 5/112B-6 new) | 23 | | Sec. 112B-6. Indemnity. | 24 | | The court may indemnify a nonparty
for the reasonable costs | 25 | | of compliance with the order and compensate for any loss caused |
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| 1 | | by the
order from the assets of the defendant. | 2 | | (725 ILCS 5/112B-7 new) | 3 | | Sec. 112B-7. Appeal. The State, defendant, or nonparty may | 4 | | appeal an order issued, including an interlocutory appeal, | 5 | | under this Article granting, continuing, modifying, refusing, | 6 | | or dissolving an asset-freezing order or asset dissipation | 7 | | relief order.
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