Full Text of SB2342 100th General Assembly
SB2342ham001 100TH GENERAL ASSEMBLY | Rep. Will Guzzardi Filed: 11/21/2018
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| 1 | | AMENDMENT TO SENATE BILL 2342
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2342 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Seizure and Forfeiture Reporting Act is | 5 | | amended by changing Section 20 as follows: | 6 | | (5 ILCS 810/20) | 7 | | Sec. 20. Applicability. This Act and the changes made to | 8 | | this Act by Public Act 100-699 this amendatory Act of the 100th | 9 | | General Assembly only apply to property seized on and after | 10 | | July 1, 2018.
| 11 | | (Source: P.A. 100-699, eff. 8-3-18.) | 12 | | Section 10. The Illinois Food, Drug and Cosmetic Act is | 13 | | amended by changing Section 3.23 as follows: | 14 | | (410 ILCS 620/3.23) |
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| 1 | | Sec. 3.23. Legend drug prohibition. | 2 | | (a) In this Section: | 3 | | "Legend drug" means a drug limited by the Federal Food, | 4 | | Drug and Cosmetic Act to being dispensed by or upon a medical | 5 | | practitioner's prescription because the drug is: | 6 | | (1) habit forming; | 7 | | (2) toxic or having potential for harm; or | 8 | | (3) limited in use by the new drug application for the | 9 | | drug to use only under a medical practitioner's | 10 | | supervision. | 11 | | "Medical practitioner" means any person licensed to | 12 | | practice medicine in all its branches in the State. | 13 | | "Deliver" or "delivery" means the actual, constructive, or | 14 | | attempted transfer of possession of a legend drug, with or | 15 | | without consideration, whether or not there is an agency | 16 | | relationship. | 17 | | "Manufacture" means the production, preparation, | 18 | | propagation, compounding, conversion, or processing of a | 19 | | legend drug, either directly or indirectly, by extraction from | 20 | | substances of natural origin, or independently by means of | 21 | | chemical synthesis, or by a combination of extraction and | 22 | | chemical synthesis, and includes any packaging or repackaging | 23 | | of the substance or labeling of its container. "Manufacture" | 24 | | does not include: | 25 | | (1) by an ultimate user, the preparation or compounding | 26 | | of a legend drug for his or her own use; or |
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| 1 | | (2) by a medical practitioner, or his or her authorized | 2 | | agent under his or her supervision, the preparation, | 3 | | compounding, packaging, or labeling of a legend drug: | 4 | | (A) as an incident to his or her administering or | 5 | | dispensing of a legend drug in the course of his or her | 6 | | professional practice; or | 7 | | (B) as an incident to lawful research, teaching, or | 8 | | chemical analysis and not for sale. | 9 | | "Prescription" has the same meaning ascribed to it in | 10 | | Section 3 of the Pharmacy Practice Act. | 11 | | (b) It is unlawful for any person to knowingly manufacture | 12 | | or deliver or possess with the intent to manufacture or deliver | 13 | | a legend drug of 6 or more pills, tablets, capsules, or caplets | 14 | | or 30 ml or more of a legend drug in liquid form who is not | 15 | | licensed by applicable law to prescribe or dispense legend | 16 | | drugs or is not an employee of the licensee operating in the | 17 | | normal course of business under the supervision of the | 18 | | licensee. Any person who violates this Section is guilty of a | 19 | | Class 3 felony, the fine for which shall not exceed $100,000. A | 20 | | person convicted of a second or subsequent violation of this | 21 | | Section is guilty of a Class 1 felony, the fine for which shall | 22 | | not exceed $250,000. | 23 | | (c) The following are subject to forfeiture: | 24 | | (1) (blank); | 25 | | (2) all raw materials, products, and equipment of any
| 26 | | kind which are used, or intended for use , in manufacturing,
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| 1 | | distributing, dispensing, administering, or possessing any | 2 | | substance in violation of this Section; | 3 | | (3) all conveyances, including aircraft, vehicles, or
| 4 | | vessels, which are used, or intended for use, to transport, | 5 | | or in any manner to facilitate the transportation, sale, | 6 | | receipt, possession, or concealment of any substance | 7 | | manufactured, distributed, dispensed, or possessed in | 8 | | violation of this Section or property described in | 9 | | paragraph (2) of this subsection (c), but: | 10 | | (A) no conveyance used by any person as a common
| 11 | | carrier in the transaction of business as a common | 12 | | carrier is subject to forfeiture under this Section | 13 | | unless it appears that the owner or other person in | 14 | | charge of the conveyance is a consenting party or privy | 15 | | to the violation; | 16 | | (B) no conveyance is subject to forfeiture
under | 17 | | this Section by reason of any act or omission which the | 18 | | owner proves to have been committed or omitted without | 19 | | his or her knowledge or consent; and | 20 | | (C) a forfeiture of a conveyance encumbered by
a | 21 | | bona fide security interest is subject to the interest | 22 | | of the secured party if he or she neither had knowledge | 23 | | of nor consented to the act or omission; | 24 | | (4) all money, things of value, books, records, and
| 25 | | research products and materials including formulas, | 26 | | microfilm, tapes, and data that are used, or intended to be |
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| 1 | | used , in violation of this Section; | 2 | | (5) everything of value furnished, or intended to be
| 3 | | furnished, in exchange for a substance in violation of this | 4 | | Section, all proceeds traceable to such an exchange, and | 5 | | all moneys, negotiable instruments, and securities used, | 6 | | or intended to be used, to commit or in any manner to | 7 | | facilitate any violation of this Section; and | 8 | | (6) all real property, including any right, title,
and | 9 | | interest, including, but not limited to, any leasehold | 10 | | interest or the beneficial interest in a land trust, in the | 11 | | whole of any lot or tract of land and any appurtenances or | 12 | | improvements, which is used or intended to be used, in any | 13 | | manner or part, to commit, or in any manner to facilitate | 14 | | the commission of, any violation or act that constitutes a | 15 | | violation of this Section or that is the proceeds of any | 16 | | violation or act that constitutes a violation of this | 17 | | Section. | 18 | | (d) Property subject to forfeiture under this Act may be | 19 | | seized under the Drug Asset Forfeiture Procedure Act. In the | 20 | | event of seizure, forfeiture proceedings shall be instituted | 21 | | under the Drug Asset Forfeiture Procedure Act. | 22 | | (e) Forfeiture under this Act is subject to an 8th | 23 | | Amendment to the United States Constitution disproportionate | 24 | | penalties analysis as provided under Section 9.5 of the Drug | 25 | | Asset Forfeiture Procedure Act. | 26 | | (f) With regard to possession of legend drug offenses only, |
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| 1 | | a sum of currency with a value of less than $500 shall not be | 2 | | subject to forfeiture under this Act. For all other offenses | 3 | | under this Act, a sum of currency with a value of less than | 4 | | $100 shall not be subject to forfeiture under this Act. In | 5 | | seizures of currency in excess of these amounts, this Section | 6 | | shall not create an exemption for these amounts. | 7 | | (f-5) For felony offenses involving possession of legend | 8 | | drug only, no property shall be subject to forfeiture under | 9 | | this Act because of the possession of less than 2 single unit | 10 | | doses of a legend drug. This exemption shall not apply in | 11 | | instances when the possessor, or another person at the | 12 | | direction of the possessor, is engaged in the destruction of | 13 | | any amount of a legend drug. The amount of a single unit dose | 14 | | shall be the State's burden to prove in its case in chief. | 15 | | (g) If the Department suspends or revokes a registration, | 16 | | all legend drugs owned or possessed by the registrant at the | 17 | | time of suspension or the effective date of the revocation | 18 | | order may be placed under seal. No disposition may be made of | 19 | | substances under seal until the time for taking an appeal has | 20 | | elapsed or until all appeals have been concluded unless a | 21 | | court, upon application therefor, orders the sale of perishable | 22 | | substances and the deposit of the proceeds of the sale with the | 23 | | court. Upon a revocation rule becoming final, all substances | 24 | | are subject to seizure and forfeiture under the Drug Asset | 25 | | Forfeiture Procedure Act. | 26 | | (h) (Blank). |
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| 1 | | (i) (Blank). | 2 | | (j) Contraband, including legend drugs possessed without a | 3 | | prescription or other authorization under State or federal law, | 4 | | is not subject to forfeiture. No property right exists in | 5 | | contraband. Contraband is subject to seizure and shall be | 6 | | disposed of according to State law.
| 7 | | (k) The changes made to this Section by Public Act 100-512 | 8 | | 100-0512 and Public Act 100-699 this amendatory Act of the | 9 | | 100th General Assembly only apply to property seized on and | 10 | | after July 1, 2018. | 11 | | (Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.) | 12 | | Section 15. The Criminal Code of 2012 is amended by | 13 | | changing Sections 29B-0.5, 29B-1, 29B-2, 29B-5, 29B-7, 29B-10, | 14 | | 29B-12, 29B-13, 29B-14, 29B-17, 29B-21, 29B-22, 29B-26, | 15 | | 29B-27, 36-1.3, 36-1.4, 36-1.5, 36-2, 36-2.1, 36-2.5, and 36-10 | 16 | | as follows: | 17 | | (720 ILCS 5/29B-0.5) | 18 | | Sec. 29B-0.5. Definitions. In this Article: | 19 | | "Conduct" or "conducts" includes, in addition to its | 20 | | ordinary
meaning, initiating, concluding, or participating in | 21 | | initiating or concluding
a transaction. | 22 | | "Criminally derived property" means: (1) any property, | 23 | | real or personal, constituting
or
derived from proceeds | 24 | | obtained, directly or indirectly, from activity that |
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| 1 | | constitutes a felony under State, federal, or foreign law; or | 2 | | (2) any property
represented to be property constituting or | 3 | | derived from proceeds obtained,
directly or indirectly, from | 4 | | activity that constitutes a felony under State, federal, or | 5 | | foreign law. | 6 | | "Department" means the Department of State Police of this | 7 | | State or its successor agency. | 8 | | "Director" means the Director of State Police or his or her | 9 | | designated agents. | 10 | | "Financial institution" means any bank; savings saving and | 11 | | loan
association; trust company; agency or branch of a foreign | 12 | | bank in the
United States; currency exchange; credit union; | 13 | | mortgage banking
institution; pawnbroker; loan or finance | 14 | | company; operator of a credit card
system; issuer, redeemer, or | 15 | | cashier of travelers checks, checks, or money
orders; dealer in | 16 | | precious metals, stones, or jewels; broker or dealer in
| 17 | | securities or commodities; investment banker; or investment | 18 | | company. | 19 | | "Financial transaction" means a purchase, sale, loan, | 20 | | pledge, gift,
transfer, delivery, or other disposition | 21 | | utilizing criminally derived property,
and with respect to | 22 | | financial institutions, includes a deposit, withdrawal,
| 23 | | transfer between accounts, exchange of currency, loan, | 24 | | extension of credit,
purchase or sale of any stock, bond, | 25 | | certificate of deposit or other monetary
instrument, use of | 26 | | safe deposit box, or any other payment, transfer or delivery |
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| 1 | | by, through, or to a
financial institution.
"Financial
| 2 | | transaction" also
means a transaction which without regard to | 3 | | whether the funds, monetary
instruments, or real or personal | 4 | | property involved in the transaction are
criminally derived, | 5 | | any transaction which in any way or degree: (1) involves
the | 6 | | movement of funds by wire or any other means; (2) involves one | 7 | | or more
monetary instruments; or (3) the transfer of title to | 8 | | any real or personal
property.
The receipt by an attorney of | 9 | | bona fide fees for the purpose
of legal representation is not a | 10 | | financial transaction for purposes of this
Article. | 11 | | "Form 4-64" means the Illinois State Police | 12 | | Notice/Inventory of Seized Property (Form 4-64). | 13 | | "Knowing that the property involved in a financial | 14 | | transaction represents the proceeds of some form of unlawful | 15 | | activity" means that the person knew the property involved in | 16 | | the transaction represented proceeds from some form, though not | 17 | | necessarily which form, of activity that constitutes a felony | 18 | | under State, federal, or foreign law. | 19 | | "Monetary instrument" means United States coins and | 20 | | currency;
coins and currency of a foreign country; travelers | 21 | | checks; personal checks,
bank checks, and money orders; | 22 | | investment securities; bearer
negotiable instruments; bearer | 23 | | investment securities; or bearer securities
and certificates | 24 | | of stock in a form that title passes upon
delivery. | 25 | | "Specified criminal activity" means any violation of | 26 | | Section 29D-15.1 and any violation of Article 29D of this Code. |
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| 1 | | "Transaction reporting requirement under State law" means | 2 | | any violation as defined under the Currency Reporting Act.
| 3 | | (Source: P.A. 100-699, eff. 8-3-18.)
| 4 | | (720 ILCS 5/29B-1) (from Ch. 38, par. 29B-1)
| 5 | | Sec. 29B-1. Money laundering. | 6 | | (a) A person commits the offense of money laundering:
| 7 | | (1) when, knowing that the property involved in a | 8 | | financial transaction represents the proceeds of some form | 9 | | of unlawful activity, he or she conducts or attempts to | 10 | | conduct the financial transaction which in fact involves | 11 | | criminally derived property: | 12 | | (A) with the intent to promote the carrying on of | 13 | | the unlawful activity from which the criminally | 14 | | derived property was obtained; or | 15 | | (B) where he or she knows or reasonably should know | 16 | | that the financial transaction is designed in whole or | 17 | | in part: | 18 | | (i) to conceal or disguise the nature, the | 19 | | location, the source, the ownership or the control | 20 | | of the criminally derived property; or | 21 | | (ii) to avoid a transaction reporting | 22 | | requirement under State law; or | 23 | | (1.5) when he or she transports, transmits, or | 24 | | transfers, or attempts to transport, transmit, or transfer | 25 | | a monetary instrument: |
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| 1 | | (A) with the intent to promote the carrying on of | 2 | | the unlawful activity from which the criminally | 3 | | derived property was obtained; or | 4 | | (B) knowing, or having reason to know, that the | 5 | | financial transaction is designed in whole or in part: | 6 | | (i) to conceal or disguise the nature, the | 7 | | location, the source, the ownership or the control | 8 | | of the criminally derived property; or | 9 | | (ii) to avoid a transaction reporting | 10 | | requirement under State law;
or
| 11 | | (2) when, with the intent to:
| 12 | | (A) promote the carrying on of a specified criminal | 13 | | activity as defined
in this Article; or
| 14 | | (B) conceal or disguise the nature, location, | 15 | | source, ownership, or
control of property believed to | 16 | | be the proceeds of a specified criminal
activity as | 17 | | defined in this Article; or | 18 | | (C) avoid a transaction reporting requirement | 19 | | under State law,
| 20 | | he or she conducts or attempts to conduct a financial | 21 | | transaction
involving property he or she believes to be the | 22 | | proceeds of specified criminal
activity or property used to | 23 | | conduct or
facilitate specified criminal activity as | 24 | | defined in this Article.
| 25 | | (b) (Blank).
| 26 | | (c) Sentence.
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| 1 | | (1) Laundering of criminally derived property of a | 2 | | value not exceeding
$10,000 is a Class 3 felony;
| 3 | | (2) Laundering of criminally derived property of a | 4 | | value exceeding
$10,000 but not exceeding $100,000 is a | 5 | | Class 2 felony;
| 6 | | (3) Laundering of criminally derived property of a | 7 | | value exceeding
$100,000 but not exceeding $500,000 is a | 8 | | Class 1 felony;
| 9 | | (4) Money laundering in violation of subsection (a)(2) | 10 | | of this Section
is a Class X felony;
| 11 | | (5) Laundering of criminally derived property of a | 12 | | value exceeding
$500,000 is a
Class 1 non-probationable | 13 | | felony;
| 14 | | (6) In a prosecution under clause (a)(1.5)(B)(ii) of | 15 | | this Section, the sentences are as follows: | 16 | | (A) Laundering of property of a value not exceeding | 17 | | $10,000 is a Class 3 felony; | 18 | | (B) Laundering of property of a value exceeding | 19 | | $10,000 but not exceeding $100,000 is a Class 2 felony; | 20 | | (C) Laundering of property of a value exceeding | 21 | | $100,000 but not exceeding $500,000 is a Class 1 | 22 | | felony; | 23 | | (D) Laundering of property of a value exceeding | 24 | | $500,000 is a Class 1 non-probationable felony. | 25 | | Substance Use Disorder Act. | 26 | | (Source: P.A. 99-480, eff. 9-9-15; 100-512, eff. 7-1-18; |
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| 1 | | 100-699, eff. 8-3-18; 100-759, eff. 1-1-19; revised 10-3-18.)
| 2 | | (720 ILCS 5/29B-2) | 3 | | Sec. 29B-2. Evidence in money laundering prosecutions. In a | 4 | | prosecution under this Article, either party may introduce the | 5 | | following evidence pertaining to the issue of whether the | 6 | | property or proceeds were known to be some form of criminally | 7 | | derived property or from some form of unlawful activity: | 8 | | (1) a financial transaction was conducted or | 9 | | structured or attempted in violation of the reporting | 10 | | requirements of any State or federal law; | 11 | | (2) a financial transaction was conducted or attempted | 12 | | with the use of a false or fictitious name or a forged | 13 | | instrument; | 14 | | (3) a falsely altered or completed written instrument | 15 | | or a written instrument that contains any materially false | 16 | | personal identifying information was made, used, offered , | 17 | | or presented, whether accepted or not, in connection with a | 18 | | financial transaction; | 19 | | (4) a financial transaction was structured or | 20 | | attempted to be structured so as to falsely report the | 21 | | actual consideration or value of the transaction; | 22 | | (5) a money transmitter, a person engaged in a trade or | 23 | | business, or any employee of a money transmitter or a | 24 | | person engaged in a trade or business, knows or reasonably | 25 | | should know that false personal identifying information |
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| 1 | | has been presented and incorporates the false personal | 2 | | identifying information into any report or record; | 3 | | (6) the criminally derived property is transported or | 4 | | possessed in a fashion inconsistent with the ordinary or | 5 | | usual means of transportation or possession of the property | 6 | | and where the property is discovered in the absence of any | 7 | | documentation or other indicia of legitimate origin or | 8 | | right to the property; | 9 | | (7) a person pays or receives substantially less than | 10 | | face value for one or more monetary instruments; or | 11 | | (8) a person engages in a transaction involving one or | 12 | | more monetary instruments, where the physical condition or | 13 | | form of the monetary instrument or instruments makes it | 14 | | apparent that they are not the product of bona fide | 15 | | business or financial transactions.
| 16 | | (Source: P.A. 100-699, eff. 8-3-18.) | 17 | | (720 ILCS 5/29B-5) | 18 | | Sec. 29B-5. Property subject to forfeiture. The following | 19 | | are subject to forfeiture: | 20 | | (1) any property, real or personal, constituting, | 21 | | derived from, or traceable to any proceeds the person | 22 | | obtained , directly or indirectly, as a result of a | 23 | | violation of this Article; | 24 | | (2) any of the person's property used, or intended to | 25 | | be used, in any manner or part, to commit, or to facilitate |
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| 1 | | the commission of, a violation of this Article; | 2 | | (3) all conveyances, including aircraft, vehicles, or | 3 | | vessels, which are used, or intended for use, to transport, | 4 | | or in any manner to facilitate the transportation, sale, | 5 | | receipt, possession, or concealment of property described | 6 | | in paragraphs (1) and (2) of this Section, but: | 7 | | (A) no conveyance used by any person as a common | 8 | | carrier in the transaction of business as a common | 9 | | carrier is subject to forfeiture under this Section | 10 | | unless it appears that the owner or other person in | 11 | | charge of the conveyance is a consenting party or privy | 12 | | to a violation of this Article; | 13 | | (B) no conveyance is subject to forfeiture under | 14 | | this Article by reason of any act or omission which the | 15 | | owner proves to have been committed or omitted without | 16 | | his or her knowledge or consent; | 17 | | (C) a forfeiture of a conveyance encumbered by a | 18 | | bona fide security interest is subject to the interest | 19 | | of the secured party if he or she neither had knowledge | 20 | | of nor consented to the act or omission; | 21 | | (4) all real property, including any right, title, and | 22 | | interest, including, but not limited to, any leasehold | 23 | | interest or the beneficial interest in a land trust, in the | 24 | | whole of any lot or tract of land and any appurtenances or | 25 | | improvements, which is used or intended to be used, in any | 26 | | manner or part, to commit, or in any manner to facilitate |
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| 1 | | the commission of, any violation of this Article or that is | 2 | | the proceeds of any violation or act that constitutes a | 3 | | violation of this Article.
| 4 | | (Source: P.A. 100-699, eff. 8-3-18.) | 5 | | (720 ILCS 5/29B-7) | 6 | | Sec. 29B-7. Safekeeping of seized property pending | 7 | | disposition. | 8 | | (a) If property is seized under this Article, the seizing | 9 | | agency shall promptly conduct an inventory of the seized | 10 | | property and estimate the property's value and shall forward a | 11 | | copy of the inventory of seized property and the estimate of | 12 | | the property's value to the Director. Upon receiving notice of | 13 | | seizure, the Director may: | 14 | | (1) place the property under seal; | 15 | | (2) remove the property to a place designated by the | 16 | | Director; | 17 | | (3) keep the property in the possession of the seizing | 18 | | agency; | 19 | | (4) remove the property to a storage area for | 20 | | safekeeping or, if the property is a negotiable instrument | 21 | | or money and is not needed for evidentiary purposes, | 22 | | deposit it in an interest bearing account; | 23 | | (5) place the property under constructive seizure by | 24 | | posting notice of pending forfeiture on it, by giving | 25 | | notice of pending forfeiture to its owners and interest |
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| 1 | | holders, or by filing notice of pending forfeiture in any | 2 | | appropriate public record relating to the property; or | 3 | | (6) provide for another agency or custodian, including | 4 | | an owner, secured party, or lienholder, to take custody of | 5 | | the property upon the terms and conditions set by the | 6 | | Director. | 7 | | (b) When property is forfeited under this Article, the | 8 | | Director shall sell all the property unless the property is | 9 | | required by law to be destroyed or is harmful to the public , | 10 | | and shall distribute the proceeds of the sale, together with | 11 | | any moneys forfeited or seized, under Section 29B-26 of this | 12 | | Article.
| 13 | | (Source: P.A. 100-699, eff. 8-3-18.) | 14 | | (720 ILCS 5/29B-10) | 15 | | Sec. 29B-10. Notice to owner or interest holder. | 16 | | (a) The first attempted service of notice shall be | 17 | | commenced within 28 days of the latter of filing of the | 18 | | verified claim or the receipt of the notice from the seizing | 19 | | agency by Form 4-64. A complaint for forfeiture or a notice of | 20 | | pending forfeiture shall be served on a claimant if the owner's | 21 | | or interest holder's name and current address are known, then | 22 | | by either: (1) personal service; or (2) mailing a copy of the | 23 | | notice by certified mail, return receipt requested, and first | 24 | | class mail to that address. | 25 | | (b) If no signed return receipt is received by the State's |
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| 1 | | Attorney within 28 days of mailing or no communication from the | 2 | | owner or interest holder is received by the State's Attorney | 3 | | documenting actual notice by the parties, the State's Attorney | 4 | | shall, within a reasonable period of time, mail a second copy | 5 | | of the notice by certified mail, return receipt requested, and | 6 | | first class mail to that address. If no signed return receipt | 7 | | is received by the State's Attorney within 28 days of the | 8 | | second mailing, or no communication from the owner or interest | 9 | | holder is received by the State's Attorney documenting actual | 10 | | notice by the parties, the State's Attorney shall have 60 days | 11 | | to attempt to serve the notice by personal service, including | 12 | | substitute service by leaving a copy at the usual place of | 13 | | abode with some person of the family or a person residing | 14 | | there, of the age of 13 years or upwards. If, after 3 attempts | 15 | | at service in this manner, no service of the notice is | 16 | | accomplished, the notice shall be posted in a conspicuous | 17 | | manner at the address and service shall be made by the posting. | 18 | | The attempts at service and the posting , if required, shall be | 19 | | documented by the person attempting service which shall be made | 20 | | part of a return of service returned to the State's Attorney. | 21 | | The State's Attorney may utilize any Sheriff or Deputy Sheriff, | 22 | | a peace officer, a private process server or investigator, or | 23 | | an employee, agent, or investigator of the State's Attorney's | 24 | | Office to attempt service without seeking leave of court. | 25 | | (c) After the procedures listed are followed, service shall | 26 | | be effective on the owner or interest holder on the date of |
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| 1 | | receipt by the State's Attorney of a return receipt, or on the | 2 | | date of receipt of a communication from an owner or interest | 3 | | holder documenting actual notice, whichever is first in time, | 4 | | or on the date of the last act performed by the State's | 5 | | Attorney in attempting personal service. For purposes of notice | 6 | | under this Section, if a person has been arrested for the | 7 | | conduct giving rise to the forfeiture, the address provided to | 8 | | the arresting agency at the time of arrest shall be deemed to | 9 | | be that person's known address. Provided, however, if an owner | 10 | | or interest holder's address changes prior to the effective | 11 | | date of the notice of pending forfeiture, the owner or interest | 12 | | holder shall promptly notify the seizing agency of the change | 13 | | in address or, if the owner or interest holder's address | 14 | | changes subsequent to the effective date of the notice of | 15 | | pending forfeiture, the owner or interest holder shall promptly | 16 | | notify the State's Attorney of the change in address. If the | 17 | | property seized is a conveyance, notice shall also be directed | 18 | | to the address reflected in the office of the agency or | 19 | | official in which title to or interest in the conveyance is | 20 | | required by law to be recorded. | 21 | | (d) If the owner's or interest holder's address is not | 22 | | known, and is not on record as provided in this Section, | 23 | | service by publication for 3 successive weeks in a newspaper of | 24 | | general circulation in the county in which the seizure occurred | 25 | | shall suffice for service requirements. | 26 | | (e) Notice to any business entity, corporation, limited |
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| 1 | | liability company, limited liability partnership, or | 2 | | partnership shall be completed by a single mailing of a copy of | 3 | | the notice by certified mail, return receipt requested, and | 4 | | first class mail to that address. This notice is complete | 5 | | regardless of the return of a signed return receipt. | 6 | | (f) Notice to a person whose address is not within the | 7 | | State shall be completed by a single mailing of a copy of the | 8 | | notice by certified mail, return receipt requested, and first | 9 | | class
mail to that address. This notice is complete regardless | 10 | | of the return of a signed return receipt. | 11 | | (g) Notice to a person whose address is not within the | 12 | | United States shall be completed by a single mailing of a copy | 13 | | of the notice by certified mail, return receipt requested, and | 14 | | first class mail to that address. This notice is complete | 15 | | regardless of the return of a signed return receipt. If | 16 | | certified mail is not available in the foreign country where | 17 | | the person has an address, notice shall proceed by publication | 18 | | requirements under subsection (d) of this Section. | 19 | | (h) Notice to a A person whom the State's Attorney | 20 | | reasonably should know is incarcerated within this State , shall | 21 | | also include , mailing a copy of the notice by certified mail, | 22 | | return receipt requested, and first class mail to the address | 23 | | of the detention facility with the inmate's name clearly marked | 24 | | on the envelope. | 25 | | (i) After a claimant files a verified claim with the | 26 | | State's Attorney and provides an address at which the claimant |
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| 1 | | will accept service, the complaint shall be served and notice | 2 | | shall be complete upon the mailing of the complaint to the | 3 | | claimant at the address the claimant provided via certified | 4 | | mail, return receipt requested, and first class mail. No return | 5 | | receipt need be received, or any other attempts at service need | 6 | | be made to comply with service and notice requirements under | 7 | | this Section. This certified mailing, return receipt | 8 | | requested, shall be proof of service of the complaint on the | 9 | | claimant. If notice is to be shown by actual notice from | 10 | | communication with a claimant, then the State's Attorney shall | 11 | | file an affidavit as proof of service, providing details of the | 12 | | communication, which shall be accepted as proof of service by | 13 | | the court. | 14 | | (j) If the property seized is a conveyance, notice shall | 15 | | also be directed to the address reflected in the office of the | 16 | | agency or official in which title to or interest in the | 17 | | conveyance is required by law to be recorded , then by mailing a | 18 | | copy of the notice by certified mail, return receipt requested, | 19 | | to that address. | 20 | | (k) Notice served under this Article is effective upon | 21 | | personal service, the last date of publication, or the mailing | 22 | | of written notice, whichever is earlier.
| 23 | | (Source: P.A. 100-699, eff. 8-3-18.) | 24 | | (720 ILCS 5/29B-12) | 25 | | Sec. 29B-12. Non-judicial forfeiture. If non-real |
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| 1 | | property that exceeds $20,000 in value excluding the value of | 2 | | any conveyance, or if real property is seized under the | 3 | | provisions of this Article, the State's Attorney shall | 4 | | institute judicial in rem forfeiture proceedings as described | 5 | | in Section 29B-13 of this Article within 28 days from receipt | 6 | | of notice of seizure from the seizing agency under Section | 7 | | 29B-8 of this Article. However, if non-real property that does | 8 | | not exceed $20,000 in value excluding the value of any | 9 | | conveyance is seized, the following procedure shall be used: | 10 | | (1) If, after review of the facts surrounding the | 11 | | seizure, the State's Attorney is of the opinion that the | 12 | | seized property is subject to forfeiture, then , within 28 | 13 | | days after the receipt of notice of seizure from the | 14 | | seizing agency, the State's Attorney shall cause notice of | 15 | | pending forfeiture to be given to the owner of the property | 16 | | and all known interest holders of the property in | 17 | | accordance with Section 29B-10 of this Article. | 18 | | (2) The notice of pending forfeiture shall include a | 19 | | description of the property, the estimated value of the | 20 | | property, the date and place of seizure, the conduct giving | 21 | | rise to forfeiture or the violation of law alleged, and a | 22 | | summary of procedures and procedural rights applicable to | 23 | | the forfeiture action. | 24 | | (3)(A) Any person claiming an interest in property that | 25 | | is the subject of notice under paragraph (1) of this | 26 | | Section, must, in order to preserve any rights or claims to |
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| 1 | | the property, within 45 days after the effective date of | 2 | | notice as described in Section 29B-10 of this Article, file | 3 | | a verified claim with the State's Attorney expressing his | 4 | | or her interest in the property. The claim shall set forth: | 5 | | (i) the caption of the proceedings as set forth on | 6 | | the notice of pending forfeiture and the name of the | 7 | | claimant; | 8 | | (ii) the address at which the claimant will accept | 9 | | mail; | 10 | | (iii) the nature and extent of the claimant's | 11 | | interest in the property; | 12 | | (iv) the date, identity of the transferor, and | 13 | | circumstances of the claimant's acquisition of the | 14 | | interest in the property; | 15 | | (v) the names and addresses of all other persons | 16 | | known to have an interest in the property; | 17 | | (vi) the specific provision of law relied on in | 18 | | asserting the property is not subject to forfeiture; | 19 | | (vii) all essential facts supporting each | 20 | | assertion; and | 21 | | (viii) the relief sought. | 22 | | (B) If a claimant files the claim, then the State's | 23 | | Attorney shall institute judicial in rem forfeiture | 24 | | proceedings with the clerk of the court as described in | 25 | | Section 29B-13 of this Article within 28 days after receipt | 26 | | of the claim. |
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| 1 | | (4) If no claim is filed within the 28-day period as | 2 | | described in paragraph (3) of this Section, the State's | 3 | | Attorney shall declare the property forfeited and shall | 4 | | promptly notify the owner and all known interest holders of | 5 | | the property and the Director of State Police of the | 6 | | declaration of forfeiture and the Director shall dispose of | 7 | | the property in accordance with law.
| 8 | | (Source: P.A. 100-699, eff. 8-3-18.) | 9 | | (720 ILCS 5/29B-13) | 10 | | Sec. 29B-13. Judicial in rem procedures. If property seized | 11 | | under this Article is non-real property that exceeds $20,000 in | 12 | | value excluding the value of any conveyance, or is real | 13 | | property, or a claimant has filed a claim under paragraph (3) | 14 | | of Section 29B-12 of this Article, the following judicial in | 15 | | rem procedures shall apply: | 16 | | (1) If, after a review of the facts surrounding the | 17 | | seizure, the State's Attorney is of the opinion that the | 18 | | seized property is subject to forfeiture, then , within 28 | 19 | | days of the receipt of notice of seizure by the seizing | 20 | | agency or the filing of the claim, whichever is later, the | 21 | | State's Attorney shall institute judicial forfeiture | 22 | | proceedings by filing a verified complaint for forfeiture. | 23 | | If authorized by law, a forfeiture shall be ordered by a | 24 | | court on an action in rem brought by a State's Attorney | 25 | | under a verified complaint for forfeiture. |
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| 1 | | (2) A complaint of forfeiture shall include: | 2 | | (A) a description of the property seized; | 3 | | (B) the date and place of seizure of the property; | 4 | | (C) the name and address of the law enforcement | 5 | | agency making the seizure; and | 6 | | (D) the specific statutory and factual grounds for | 7 | | the seizure. | 8 | | (3) The complaint shall be served upon the person from | 9 | | whom the property was seized and all persons known or | 10 | | reasonably believed by the State to claim an interest in | 11 | | the property, as provided in Section 29B-10 of this | 12 | | Article. The complaint shall be accompanied by the | 13 | | following written notice: | 14 | | "This is a civil court proceeding subject to the Code | 15 | | of Civil Procedure. You received this Complaint of | 16 | | Forfeiture because the State's Attorney's office has | 17 | | brought a legal action seeking forfeiture of your seized | 18 | | property. This complaint starts the court process where the | 19 | | State seeks to prove that your property should be forfeited | 20 | | and not returned to you. This process is also your | 21 | | opportunity to try to prove to a judge that you should get | 22 | | your property back. The complaint lists the date, time, and | 23 | | location of your first court date. You must appear in court | 24 | | on that day, or you may lose the case automatically. You | 25 | | must also file an appearance and answer. If you are unable | 26 | | to pay the appearance fee, you may qualify to have the fee |
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| 1 | | waived. If there is a criminal case related to the seizure | 2 | | of your property, your case may be set for trial after the | 3 | | criminal case has been resolved. Before trial, the judge | 4 | | may allow discovery, where the State can ask you to respond | 5 | | in writing to questions and give them certain documents, | 6 | | and you can make similar requests of the State. The trial | 7 | | is your opportunity to explain what happened when your | 8 | | property was seized and why you should get the property | 9 | | back." | 10 | | (4) Forfeiture proceedings under this Article shall be | 11 | | subject to the Code of Civil Procedure and the rules of | 12 | | evidence relating to civil actions shall apply to | 13 | | proceedings under this Article with the following | 14 | | exception. The parties shall be allowed to use, and the | 15 | | court shall receive and consider, all relevant hearsay | 16 | | evidence that relates to evidentiary foundation, chain of | 17 | | custody, business records, recordings, laboratory | 18 | | analysis, laboratory reports, and relevant hearsay related | 19 | | to the use of technology in the investigation that resulted | 20 | | in the seizure of property that is subject to the | 21 | | forfeiture action. | 22 | | (5) Only an owner of or interest holder in the property | 23 | | may file an answer asserting a claim against the property | 24 | | in the action in rem. For purposes of this Section, the | 25 | | owner or interest holder shall be referred to as claimant. | 26 | | Upon motion of the State, the court shall first hold a |
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| 1 | | hearing, in which a claimant shall establish by a | 2 | | preponderance of the evidence, that he or she has a lawful, | 3 | | legitimate ownership interest in the property and that it | 4 | | was obtained through a lawful source. | 5 | | (6) The answer must be signed by the owner or interest | 6 | | holder under penalty of perjury and shall set forth: | 7 | | (A) the caption of the proceedings as set forth on | 8 | | the notice of pending forfeiture and the name of the | 9 | | claimant; | 10 | | (B) the address at which the claimant will accept | 11 | | mail; | 12 | | (C) the nature and extent of the claimant's | 13 | | interest in the property; | 14 | | (D) the date, identity of transferor, and | 15 | | circumstances of the claimant's acquisition of the | 16 | | interest in the property; | 17 | | (E) the names and addresses of all other persons | 18 | | known to have an interest in the property; | 19 | | (F) all essential facts supporting each assertion; | 20 | | (G) the precise relief sought; and | 21 | | (H) in a forfeiture action involving currency or | 22 | | its equivalent, a claimant shall provide the State with | 23 | | notice of his or her intent to allege that the currency | 24 | | or its equivalent is not related to the alleged factual | 25 | | basis for the forfeiture, and why . ; and | 26 | | The (I) the answer shall follow the rules under the |
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| 1 | | Code of Civil Procedure. | 2 | | (7) The answer shall be filed with the court within 45 | 3 | | days after service of the civil in rem complaint. | 4 | | (8) The hearing shall be held within 60 days after | 5 | | filing of the answer unless continued for good cause. | 6 | | (9) At the judicial in rem proceeding, in the State's | 7 | | case in chief, the State shall show by a preponderance of | 8 | | the evidence that the property is subject to forfeiture. If | 9 | | the State makes such a showing, the claimant shall have the | 10 | | burden of production to set forth evidence that the | 11 | | property is not related to the alleged factual basis of the | 12 | | forfeiture. After this production of evidence, the State | 13 | | shall maintain the burden of proof to overcome this | 14 | | assertion. A claimant shall provide the State notice of its | 15 | | intent to allege that the currency or its equivalent is not | 16 | | related to the alleged factual basis of the forfeiture and | 17 | | why.
As to conveyances, at the judicial in rem proceeding, | 18 | | in its case in chief, the State shall show by a | 19 | | preponderance of the evidence : , that | 20 | | (A) that the property is subject to forfeiture; and | 21 | | (B) at least one of the following: | 22 | | (i) that the claimant was legally accountable | 23 | | for the conduct giving rise to the forfeiture; | 24 | | (ii) that the claimant knew or reasonably | 25 | | should have known of the conduct giving rise to the | 26 | | forfeiture; |
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| 1 | | (iii) that the claimant knew or reasonably | 2 | | should have known that the conduct giving rise to | 3 | | the forfeiture was likely to occur; | 4 | | (iv) that the claimant held the property for | 5 | | the benefit of, or as nominee for, any person whose | 6 | | conduct gave rise to its forfeiture; | 7 | | (v) that if the claimant acquired the interest | 8 | | through any person engaging in any of the conduct | 9 | | described above or conduct giving rise to the | 10 | | forfeiture: | 11 | | (a) the claimant did not acquire it as a | 12 | | bona fide purchaser for value; or | 13 | | (b) the claimant acquired the interest | 14 | | under the circumstances that the claimant | 15 | | reasonably should have known the property was | 16 | | derived from, or used in, the conduct giving | 17 | | rise to the forfeiture; or | 18 | | (vi) that the claimant is not the true owner of | 19 | | the property that is subject to forfeiture. | 20 | | (10) If the State does not meet its burden to show that | 21 | | the property is subject to forfeiture, the court shall | 22 | | order the interest in the property returned or conveyed to | 23 | | the claimant and shall order all other property forfeited | 24 | | to the State. If the State does meet its burden to show | 25 | | that the property is subject to forfeiture, the court shall | 26 | | order all property forfeited to the State. |
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| 1 | | (11) A defendant convicted in any criminal proceeding | 2 | | is precluded from later denying the essential allegations | 3 | | of the criminal offense of which the defendant was | 4 | | convicted in any proceeding under this Article regardless | 5 | | of the pendency of an appeal from that conviction. However, | 6 | | evidence of the pendency of an appeal is admissible. | 7 | | (12) On a motion by the parties, the court may stay | 8 | | civil forfeiture proceedings during the criminal trial for | 9 | | a related criminal indictment or information alleging a | 10 | | money laundering violation. Such a stay shall not be | 11 | | available pending an appeal. Property subject to | 12 | | forfeiture under this Article shall not be subject to | 13 | | return or release by a court exercising jurisdiction over a | 14 | | criminal case involving the seizure of the property unless | 15 | | the return or release is consented to by the State's | 16 | | Attorney.
| 17 | | (Source: P.A. 100-699, eff. 8-3-18.) | 18 | | (720 ILCS 5/29B-14) | 19 | | Sec. 29B-14. Innocent owner hearing. | 20 | | (a) After a complaint for forfeiture has been filed and all | 21 | | claimants have appeared and answered, a claimant may file a | 22 | | motion with the court for an innocent owner hearing prior to | 23 | | trial. This motion shall be made and supported by sworn | 24 | | affidavit and shall assert the following along with specific | 25 | | facts that support each assertion: |
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| 1 | | (1) that the claimant filing the motion is the true | 2 | | owner of the conveyance as interpreted by case law; | 3 | | (2) that the claimant was not legally accountable for | 4 | | the conduct giving rise to the forfeiture or acquiesced in | 5 | | the conduct; | 6 | | (3) that the claimant did not solicit, conspire, or | 7 | | attempt to commit the conduct giving rise to the | 8 | | forfeiture; | 9 | | (4) that the claimant did not know or did not have | 10 | | reason to know that the conduct giving rise to the | 11 | | forfeiture was likely to occur; and | 12 | | (5) that the claimant did not hold the property for the | 13 | | benefit of, or as nominee for , any person whose conduct | 14 | | gave rise to its forfeiture , or if the claimant owner or | 15 | | interest holder acquired the interest through any person, | 16 | | the claimant acquired owner or interest holder did not | 17 | | acquire it as a bona fide purchaser for value or acquired | 18 | | the interest without knowledge of the seizure of the | 19 | | property for forfeiture. | 20 | | (b) The claimant's motion shall include specific facts | 21 | | supporting these assertions. | 22 | | (c) Upon this filing, a hearing may only be conducted after | 23 | | the parties have been given the opportunity to conduct limited | 24 | | discovery as to the ownership and control of the property, the | 25 | | claimant's knowledge, or any matter relevant to the issues | 26 | | raised or facts alleged in the claimant's motion. Discovery |
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| 1 | | shall be limited to the People's requests in these areas but | 2 | | may proceed by any means allowed in the Code of Civil | 3 | | Procedure. | 4 | | (1) After discovery is complete and the court has | 5 | | allowed for sufficient time to review and investigate the | 6 | | discovery responses, the court shall conduct a hearing. At | 7 | | the hearing, the fact that the conveyance is subject to | 8 | | forfeiture shall not be at issue. The court shall only hear | 9 | | evidence relating to the issue of innocent ownership. | 10 | | (2) At the hearing on the motion, it shall be the | 11 | | burden of the claimant to prove each of the assertions | 12 | | listed in subsection (a) of this Section by a preponderance | 13 | | of the evidence. | 14 | | (3) If a claimant meets his or her burden of proof, the | 15 | | court shall grant the motion and order the property | 16 | | returned to the claimant. If the claimant fails to meet his | 17 | | or her burden of proof, then the court shall deny the | 18 | | motion and the forfeiture case shall proceed according to | 19 | | the Code of Civil Procedure.
| 20 | | (Source: P.A. 100-699, eff. 8-3-18.) | 21 | | (720 ILCS 5/29B-17) | 22 | | Sec. 29B-17. Exception for bona fide purchasers. No | 23 | | property shall be forfeited under this Article from a person | 24 | | who, without actual or constructive notice that the property | 25 | | was the subject of forfeiture proceedings, obtained possession |
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| 1 | | of the property as a bona fide purchaser for value. A person | 2 | | who purports to effect affect transfer of property after | 3 | | receiving actual or constructive notice that the property is | 4 | | subject to seizure or forfeiture is guilty of contempt of | 5 | | court , and shall be liable to the State for a penalty in the | 6 | | amount of the fair market value of the property.
| 7 | | (Source: P.A. 100-699, eff. 8-3-18.) | 8 | | (720 ILCS 5/29B-21) | 9 | | Sec. 29B-21. Attorney's fees. Nothing in this Article | 10 | | applies to property that constitutes reasonable bona fide | 11 | | attorney's fees paid to an attorney for services rendered or to | 12 | | be rendered in the forfeiture proceeding or criminal proceeding | 13 | | relating directly thereto if the property was paid before its | 14 | | seizure and , before the issuance of any seizure warrant or | 15 | | court order prohibiting transfer of the property and if the | 16 | | attorney, at the time he or she received the property did not | 17 | | know that it was property subject to forfeiture under this | 18 | | Article.
| 19 | | (Source: P.A. 100-699, eff. 8-3-18.) | 20 | | (720 ILCS 5/29B-22) | 21 | | Sec. 29B-22. Construction. | 22 | | (a) It is the intent of the General Assembly that the | 23 | | forfeiture provisions of this Article be liberally construed so | 24 | | as to effect their remedial purpose. The forfeiture of property |
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| 1 | | and other remedies under this Article shall be considered to be | 2 | | in addition to, and not exclusive of, any sentence or other | 3 | | remedy provided by law. | 4 | | (b) The changes made to this Article by Public Act 100-512 | 5 | | 100-0512 and Public Act 100-699 this amendatory Act of the | 6 | | 100th General Assembly are subject to Section 2 of the Statute | 7 | | on Statutes.
| 8 | | (Source: P.A. 100-699, eff. 8-3-18.) | 9 | | (720 ILCS 5/29B-26) | 10 | | Sec. 29B-26. Distribution of proceeds. All moneys monies | 11 | | and the sale proceeds of all other property forfeited and | 12 | | seized under this Article shall be distributed as follows: | 13 | | (1) 65% shall be distributed to the metropolitan | 14 | | enforcement group, local, municipal, county, or State law | 15 | | enforcement agency or agencies that conducted or | 16 | | participated in the investigation resulting in the | 17 | | forfeiture. The distribution shall bear a reasonable | 18 | | relationship to the degree of direct participation of the | 19 | | law enforcement agency in the effort resulting in the | 20 | | forfeiture, taking into account the total value of the | 21 | | property forfeited and the total law enforcement effort | 22 | | with respect to the violation of the law upon which the | 23 | | forfeiture is based. Amounts distributed to the agency or | 24 | | agencies shall be used for the enforcement of laws. | 25 | | (2)(i) 12.5% shall be distributed to the Office of the |
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| 1 | | State's Attorney of the county in which the prosecution | 2 | | resulting in the forfeiture was instituted, deposited in a | 3 | | special fund in the county treasury and appropriated to the | 4 | | State's Attorney for use in the enforcement of laws. In | 5 | | counties over 3,000,000 population, 25% shall be | 6 | | distributed to the Office of the State's Attorney for use | 7 | | in the enforcement of laws. If the prosecution is | 8 | | undertaken solely by the Attorney General, the portion | 9 | | provided under this subparagraph (i) shall be distributed | 10 | | to the Attorney General for use in the enforcement of laws. | 11 | | (ii) 12.5% shall be distributed to the Office of the | 12 | | State's Attorneys Appellate Prosecutor and deposited in | 13 | | the Narcotics Profit Forfeiture Fund of that office to be | 14 | | used for additional expenses incurred in the | 15 | | investigation, prosecution, and appeal of cases arising | 16 | | under laws. The Office of the State's Attorneys Appellate | 17 | | Prosecutor shall not receive distribution from cases | 18 | | brought in counties with over 3,000,000 population. | 19 | | (3) 10% shall be retained by the Department of State | 20 | | Police for expenses related to the administration and sale | 21 | | of seized and forfeited property. | 22 | | Moneys and the sale proceeds distributed to the Department | 23 | | of State Police under this Article shall be deposited in the | 24 | | Money Laundering Asset Recovery Fund created in the State | 25 | | treasury and shall be used by the Department of State Police | 26 | | for State law enforcement purposes. All moneys and sale |
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| 1 | | proceeds of property forfeited and seized under this Article | 2 | | and distributed according to this Section may also be used to | 3 | | purchase opioid antagonists as defined in Section 5-23 of the | 4 | | Substance Use Disorder Alcoholism and Other Drug Abuse and | 5 | | Dependency Act.
| 6 | | (Source: P.A. 100-699, eff. 8-3-18.) | 7 | | (720 ILCS 5/29B-27) | 8 | | Sec. 29B-27. Applicability; savings clause. | 9 | | (a) The changes made to this Article by Public Act 100-512 | 10 | | 100-0512 and Public Act 100-699 this amendatory Act of the | 11 | | 100th General Assembly only apply to property seized on and | 12 | | after July 1, 2018. | 13 | | (b) The changes made to this Article by Public Act 100-699 | 14 | | this amendatory Act of the 100th General Assembly are subject | 15 | | to Section 4 of the Statute on Statutes.
| 16 | | (Source: P.A. 100-699, eff. 8-3-18.) | 17 | | (720 ILCS 5/36-1.3) | 18 | | Sec. 36-1.3. Safekeeping of seized property pending | 19 | | disposition. | 20 | | (a) Property seized under this Article is deemed to be in | 21 | | the custody of the Director of State Police, subject only to | 22 | | the order and judgments of the circuit court having | 23 | | jurisdiction over the forfeiture proceedings and the decisions | 24 | | of the State's Attorney under this Article. |
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| 1 | | (b) If property is seized under this Article, the seizing | 2 | | agency shall promptly conduct an inventory of the seized | 3 | | property and estimate the property's value , and shall forward a | 4 | | copy of the inventory of seized property and the estimate of | 5 | | the property's value to the Director of State Police. Upon | 6 | | receiving notice of seizure, the Director of State Police may: | 7 | | (1) place the property under seal; | 8 | | (2) remove the property to a place designated by the | 9 | | Director of State Police; | 10 | | (3) keep the property in the possession of the seizing | 11 | | agency; | 12 | | (4) remove the property to a storage area for | 13 | | safekeeping; | 14 | | (5) place the property under constructive seizure by | 15 | | posting notice of pending forfeiture on it, by giving | 16 | | notice of pending forfeiture to its owners and interest | 17 | | holders, or by filing notice of pending forfeiture in any | 18 | | appropriate public record relating to the property; or | 19 | | (6) provide for another agency or custodian, including | 20 | | an owner, secured party, or lienholder, to take custody of | 21 | | the property upon the terms and conditions set by the | 22 | | seizing agency. | 23 | | (c) The seizing agency shall exercise ordinary care to | 24 | | protect the subject of the forfeiture from negligent loss, | 25 | | damage, or destruction. | 26 | | (d) Property seized or forfeited under this Article is |
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| 1 | | subject to reporting under the Seizure and Forfeiture Reporting | 2 | | Act.
| 3 | | (Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.) | 4 | | (720 ILCS 5/36-1.4) | 5 | | Sec. 36-1.4. Notice to State's Attorney. The law | 6 | | enforcement agency seizing property for forfeiture under this | 7 | | Article shall, as soon as practicable but not later than 28 | 8 | | days after the seizure, notify the State's Attorney for the | 9 | | county in which an act or omission giving rise to the seizure | 10 | | occurred or in which the property was seized and the facts and | 11 | | circumstances giving rise to the seizure , and shall provide the | 12 | | State's Attorney with the inventory of the property and its | 13 | | estimated value. The notice shall be by the delivery of | 14 | | Illinois State Police Notice/Inventory of Seized Property | 15 | | (Form 4-64). If the property seized for forfeiture is a | 16 | | vehicle, the law enforcement agency seizing the property shall | 17 | | immediately notify the Secretary of State that forfeiture | 18 | | proceedings are pending regarding the vehicle.
| 19 | | (Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.) | 20 | | (720 ILCS 5/36-1.5) | 21 | | Sec. 36-1.5. Preliminary review. | 22 | | (a) Within 14 days of the seizure, the State's Attorney of | 23 | | the county in which the seizure occurred shall seek a | 24 | | preliminary determination from the circuit court as to whether |
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| 1 | | there is probable cause that the property may be subject to | 2 | | forfeiture. | 3 | | (b) The rules of evidence shall not apply to any proceeding | 4 | | conducted under this Section. | 5 | | (c) The court may conduct the review under subsection (a) | 6 | | of this Section simultaneously with a proceeding under Section | 7 | | 109-1 of the Code of Criminal Procedure of 1963 for a related | 8 | | criminal offense if a prosecution is commenced by information | 9 | | or complaint. | 10 | | (d) The court may accept a finding of probable cause at a | 11 | | preliminary hearing following the filing of an information or | 12 | | complaint charging a related criminal offense or following the | 13 | | return of indictment by a grand jury charging the related | 14 | | offense as sufficient evidence of probable cause as required | 15 | | under subsection (a) of this ths Section. | 16 | | (e) Upon making a finding of probable cause as required | 17 | | under this Section, the circuit court shall order the property | 18 | | subject to the provisions of the applicable forfeiture Act held | 19 | | until the conclusion of any forfeiture proceeding. | 20 | | For seizures of conveyances, within 28 days of a finding of | 21 | | probable cause under subsection (a) of this Section, the | 22 | | registered owner or other claimant may file a motion in writing | 23 | | supported by sworn affidavits claiming that denial of the use | 24 | | of the conveyance during the pendency of the forfeiture | 25 | | proceedings creates a substantial hardship and alleges facts | 26 | | showing that the hardship was not due to his or her culpable |
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| 1 | | negligence. The court shall consider the following factors in | 2 | | determining whether a substantial hardship has been proven: | 3 | | (1) the nature of the claimed hardship; | 4 | | (2) the availability of public transportation or other | 5 | | available means of transportation; and | 6 | | (3) any available alternatives to alleviate the | 7 | | hardship other than the return of the seized conveyance. | 8 | | If the court determines that a substantial hardship has | 9 | | been proven, the court shall then balance the nature of the | 10 | | hardship against the State's interest in safeguarding the | 11 | | conveyance. If the court determines that the hardship outweighs | 12 | | the State's interest in safeguarding the conveyance, the court | 13 | | may temporarily release the conveyance to the registered owner | 14 | | or the registered owner's authorized designee, or both, until | 15 | | the conclusion of the forfeiture proceedings or for such | 16 | | shorter period as ordered by the court provided that the person | 17 | | to whom the conveyance is released provides proof of insurance | 18 | | and a valid driver's license and all State and local | 19 | | registrations for operation of the conveyance are current. The | 20 | | court shall place conditions on the conveyance limiting its use | 21 | | to the stated hardship and providing transportation for | 22 | | employment, religious purposes, medical needs, child care, and | 23 | | restricting the conveyance's use to only those individuals | 24 | | authorized to use the conveyance by the registered owner. The | 25 | | use of the vehicle shall be further restricted to exclude all | 26 | | recreational and entertainment purposes. The court may order |
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| 1 | | additional restrictions it deems reasonable and just on its own | 2 | | motion or on motion of the People. The court shall revoke the | 3 | | order releasing the conveyance and order that the conveyance be | 4 | | reseized by law enforcement if the conditions of release are | 5 | | violated or if the conveyance is used in the commission of any | 6 | | offense identified in subsection (a) of Section 6-205 of the | 7 | | Illinois Vehicle Code. | 8 | | If the court orders the release of the conveyance during | 9 | | the pendency of the forfeiture proceedings, the court may order | 10 | | the registered owner or his or her authorized designee to post | 11 | | a cash security with the clerk of the court as ordered by the | 12 | | court. If cash security is ordered, the court shall consider | 13 | | the following factors in determining the amount of the cash | 14 | | security: | 15 | | (A) the full market value of the conveyance; | 16 | | (B) the nature of the hardship; | 17 | | (C) the extent and length of the usage of the | 18 | | conveyance; | 19 | | (D) the ability of the owner or designee to pay; and | 20 | | (E) other conditions as the court deems necessary to | 21 | | safeguard the conveyance. | 22 | | If the conveyance is released, the court shall order that | 23 | | the registered owner or his or her designee safeguard the | 24 | | conveyance, not remove the conveyance from the jurisdiction, | 25 | | not conceal, destroy, or otherwise dispose of the conveyance, | 26 | | not encumber the conveyance, and not diminish the value of the |
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| 1 | | conveyance in any way. The court shall also make a | 2 | | determination of the full market value of the conveyance prior | 3 | | to it being released based on a source or sources defined in 50 | 4 | | Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). | 5 | | If the conveyance subject to forfeiture is released under | 6 | | this Section and is subsequently forfeited, the person to whom | 7 | | the conveyance was released shall return the conveyance to the | 8 | | law enforcement agency that seized the conveyance within 7 days | 9 | | from the date of the declaration of forfeiture or order of | 10 | | forfeiture. If the conveyance is not returned within 7 days, | 11 | | the cash security shall be forfeited in the same manner as the | 12 | | conveyance subject to forfeiture. If the cash security was less | 13 | | than the full market value, a judgment shall be entered against | 14 | | the parties to whom the conveyance was released and the | 15 | | registered owner, jointly and severally, for the difference | 16 | | between the full market value and the amount of the cash | 17 | | security. If the conveyance is returned in a condition other | 18 | | than the condition in which it was released, the cash security | 19 | | shall be returned to the surety who posted the security minus | 20 | | the amount of the diminished value, and that amount shall be | 21 | | forfeited in the same manner as the conveyance subject to | 22 | | forfeiture. Additionally, the court may enter an order allowing | 23 | | any law enforcement agency in the State of Illinois to seize | 24 | | the conveyance wherever it may be found in the State to satisfy | 25 | | the judgment if the cash security was less than the full market | 26 | | value of the conveyance.
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| 1 | | (Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
| 2 | | (720 ILCS 5/36-2) (from Ch. 38, par. 36-2)
| 3 | | Sec. 36-2. Complaint for forfeiture. | 4 | | (a) If the State's Attorney of the county in which such | 5 | | seizure occurs
finds that the alleged violation of law giving | 6 | | rise to the seizure was incurred without willful negligence
or | 7 | | without any intention on the part of the owner of the vessel or | 8 | | watercraft, vehicle ,
or aircraft or any person whose right, | 9 | | title , or interest is of record as
described in Section 36-1 of | 10 | | this Article, to violate the law, or finds the existence of
| 11 | | such mitigating circumstances as to justify remission of the | 12 | | forfeiture, he or she
may cause the law enforcement agency | 13 | | having custody of the property to return the property to the | 14 | | owner within a reasonable time not to exceed 7 days. The | 15 | | State's Attorney
shall exercise his or her discretion under | 16 | | this subsection (a) prior to or promptly after the preliminary | 17 | | review under Section 36-1.5. | 18 | | (b) If, after review of the facts surrounding the seizure, | 19 | | the State's Attorney is of the opinion that the seized property | 20 | | is subject to forfeiture and the State's Attorney does not | 21 | | cause the forfeiture to
be remitted under subsection (a) of | 22 | | this Section, he or she shall bring an action for forfeiture in | 23 | | the
circuit court within whose jurisdiction the seizure and | 24 | | confiscation has
taken place by filing a verified complaint for | 25 | | forfeiture in the circuit court within whose jurisdiction the |
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| 1 | | seizure occurred, or within whose jurisdiction an act or | 2 | | omission giving rise to the seizure occurred, subject to | 3 | | Supreme Court Rule 187. The complaint shall be filed as soon as | 4 | | practicable but not later than 28 days after the State's | 5 | | Attorney receives notice from the seizing agency as provided | 6 | | under Section 36-1.4 of this Article. A complaint of forfeiture | 7 | | shall include: | 8 | | (1) a description of the property seized; | 9 | | (2) the date and place of seizure of the property; | 10 | | (3) the name and address of the law enforcement agency | 11 | | making the seizure; and | 12 | | (4) the specific statutory and factual grounds for the | 13 | | seizure. | 14 | | The complaint shall be served upon each person whose right, | 15 | | title, or interest is of record in the office of the Secretary | 16 | | of State, the Secretary of Transportation, the Administrator of | 17 | | the Federal Aviation Agency, or any other department of this | 18 | | State, or any other state of the United States if the vessel or | 19 | | watercraft, vehicle, or aircraft is required to be so | 20 | | registered, as the case may be, the person from whom the | 21 | | property was seized, and all persons known or reasonably | 22 | | believed by the State to claim an interest in the property, as | 23 | | provided in this Article. The complaint shall be accompanied by | 24 | | the following written notice: | 25 | | "This is a civil court proceeding subject to the Code of | 26 | | Civil Procedure. You received this Complaint of Forfeiture |
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| 1 | | because the State's Attorney's office has brought a legal | 2 | | action seeking forfeiture of your seized property. This | 3 | | complaint starts the court process where the State seeks to | 4 | | prove that your property should be forfeited and not returned | 5 | | to you. This process is also your opportunity to try to prove | 6 | | to a judge that you should get your property back. The | 7 | | complaint lists the date, time, and location of your first | 8 | | court date. You must appear in court on that day, or you may | 9 | | lose the case automatically. You must also file an appearance | 10 | | and answer. If you are unable to pay the appearance fee, you | 11 | | may qualify to have the fee waived. If there is a criminal case | 12 | | related to the seizure of your property, your case may be set | 13 | | for trial after the criminal case has been resolved. Before | 14 | | trial, the judge may allow discovery, where the State can ask | 15 | | you to respond in writing to questions and give them certain | 16 | | documents, and you can make similar requests of the State. The | 17 | | trial is your opportunity to explain what happened when your | 18 | | property was seized and why you should get the property back." | 19 | | (c) (Blank). | 20 | | (d) (Blank). | 21 | | (e) (Blank). | 22 | | (f) (Blank).
| 23 | | (g) (Blank).
| 24 | | (h) (Blank).
| 25 | | (Source: P.A. 99-78, eff. 7-20-15; 100-512, eff. 7-1-18; | 26 | | 100-699, eff. 8-3-18.)
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| 1 | | (720 ILCS 5/36-2.1) | 2 | | Sec. 36-2.1. Notice to owner or interest holder.
The first | 3 | | attempted service of notice shall be commenced within 28 days | 4 | | of the receipt of the notice from the seizing agency by Form | 5 | | 4-64. If the property seized is a conveyance, notice shall also | 6 | | be directed to the address reflected in the office of the | 7 | | agency or official in which title to or interest in the | 8 | | conveyance is required by law to be recorded. A complaint for | 9 | | forfeiture shall be served upon the property owner or interest | 10 | | holder in the following manner: | 11 | | (1) If the owner's or interest holder's name and | 12 | | current address are known, then by either: | 13 | | (A) personal service; or | 14 | | (B) mailing a copy of the notice by certified mail, | 15 | | return receipt requested, and first class mail to that | 16 | | address. | 17 | | (i) If notice is sent by certified mail and no | 18 | | signed return receipt is received by the State's | 19 | | Attorney within 28 days of mailing, and no | 20 | | communication from the owner or interest holder is | 21 | | received by the State's Attorney documenting | 22 | | actual notice by said parties, the State's | 23 | | Attorney shall, within a reasonable period of | 24 | | time, mail a second copy of the notice by certified | 25 | | mail, return receipt requested, and first class |
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| 1 | | mail to that address. | 2 | | (ii) If no signed return receipt is received by | 3 | | the State's Attorney within 28 days of the second | 4 | | attempt at service by certified mail, and no | 5 | | communication from the owner or interest holder is | 6 | | received by the State's Attorney documenting | 7 | | actual notice by said parties, the State's | 8 | | Attorney shall have 60 days to attempt to serve the | 9 | | notice by personal service, which also includes | 10 | | substitute service by leaving a copy at the usual | 11 | | place of abode , with some person of the family or a | 12 | | person residing there, of the age of 13 years or | 13 | | upwards. If, after 3 attempts at service in this | 14 | | manner, no service of the notice is accomplished, | 15 | | then the notice shall be posted in a conspicuous | 16 | | manner at this address and service shall be made by | 17 | | the posting. | 18 | | The attempts at service and the posting , if | 19 | | required, shall be documented by the person attempting | 20 | | service and said documentation shall be made part of a | 21 | | return of service returned to the State's Attorney. | 22 | | The State's Attorney may utilize a Sheriff or | 23 | | Deputy Sheriff, any peace officer, a private process | 24 | | server or investigator, or any employee, agent, or | 25 | | investigator of the State's Attorney's office to | 26 | | attempt service without seeking leave of court. |
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| 1 | | After the procedures are followed, service shall | 2 | | be effective on an owner or interest holder on the date | 3 | | of receipt by the State's Attorney of a return receipt, | 4 | | or on the date of receipt of a communication from an | 5 | | owner or interest holder documenting actual notice, | 6 | | whichever is first in time, or on the date of the last | 7 | | act performed by the State's Attorney in attempting | 8 | | personal service under item (ii) of this paragraph (1). | 9 | | If notice is to be shown by actual notice from | 10 | | communication with a claimant, then the State's | 11 | | Attorney shall file an affidavit providing details of | 12 | | the communication, which shall be accepted as | 13 | | sufficient proof of service by the court. | 14 | | For purposes of notice under this Section, if a | 15 | | person has been arrested for the conduct giving rise to | 16 | | the forfeiture, the address provided to the arresting | 17 | | agency at the time of arrest shall be deemed to be that | 18 | | person's known address. Provided, however, if an owner | 19 | | or interest holder's address changes prior to the | 20 | | effective date of the complaint for forfeiture, the | 21 | | owner or interest holder shall promptly notify the | 22 | | seizing agency of the change in address or, if the | 23 | | owner or interest holder's address changes subsequent | 24 | | to the effective date of the notice of pending | 25 | | forfeiture, the owner or interest holder shall | 26 | | promptly notify the State's Attorney of the change in |
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| 1 | | address; or if the property seized is a conveyance, to | 2 | | the address reflected in the office of the agency or | 3 | | official in which title to or interest in the | 4 | | conveyance is required by law to be recorded. | 5 | | (2) If the owner's or interest holder's address is not | 6 | | known, and is not on record, then notice shall be served by | 7 | | publication for 3 successive weeks in a newspaper of | 8 | | general circulation in the county in which the seizure | 9 | | occurred. | 10 | | (3) Notice to any business entity, corporation, | 11 | | limited liability company, limited liability partnership, | 12 | | or partnership shall be completed by a single mailing of a | 13 | | copy of the notice by certified mail, return receipt | 14 | | requested, and first class mail to that address. This | 15 | | notice is complete regardless of the return of a signed | 16 | | return receipt. | 17 | | (4) Notice to a person whose address is not within the | 18 | | State shall be completed by a single mailing of a copy of | 19 | | the notice by certified mail, return receipt requested, and | 20 | | first class mail to that address. This notice is complete | 21 | | regardless of the return of a signed return receipt. | 22 | | (5) Notice to a person whose address is not within the | 23 | | United States shall be completed by a single mailing of a | 24 | | copy of the notice by certified mail, return receipt | 25 | | requested, and first class mail to that address. This | 26 | | notice shall be complete regardless of the return of a |
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| 1 | | signed return receipt. If certified mail is not available | 2 | | in the foreign country where the person has an address, | 3 | | then notice shall proceed by publication under paragraph | 4 | | (2) of this Section. | 5 | | (6) Notice to any person whom the State's Attorney | 6 | | reasonably should know is incarcerated within the State | 7 | | shall also include the mailing a copy of the notice by | 8 | | certified mail, return receipt requested, and first class | 9 | | mail to the address of the detention facility with the | 10 | | inmate's name clearly marked on the envelope.
| 11 | | (Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.) | 12 | | (720 ILCS 5/36-2.5) | 13 | | Sec. 36-2.5. Judicial in rem procedures. | 14 | | (a) The laws of evidence relating to civil actions shall | 15 | | apply to judicial in rem proceedings under this Article. | 16 | | (b) Only an owner of or interest holder in the property may | 17 | | file an answer asserting a claim against the property in the | 18 | | action in rem. For purposes of this Section, the owner or | 19 | | interest holder shall be referred to as claimant. A person not | 20 | | named in the forfeiture complaint who claims to have an | 21 | | interest in the property may petition to intervene as a | 22 | | claimant under Section 2-408 of the Code of Civil Procedure. | 23 | | (c) The answer shall be filed with the court within 45 days | 24 | | after service of the civil in rem complaint. | 25 | | (d) The trial shall be held within 60 days after filing of |
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| 1 | | the answer unless continued for good cause. | 2 | | (e) In its case in chief, the State shall show by a | 3 | | preponderance of the evidence that: | 4 | | (1) the property is subject to forfeiture; and | 5 | | (2) at least one of the following: | 6 | | (i) the claimant knew or should have known that the | 7 | | conduct was likely to occur; or | 8 | | (ii) the claimant is not the true owner of the | 9 | | property that is subject to forfeiture. | 10 | | In any forfeiture case under this Article, a claimant may | 11 | | present evidence to overcome evidence presented by the State | 12 | | that the property is subject to forfeiture. | 13 | | (f) Notwithstanding any other provision of this Section, | 14 | | the State's burden of proof at the trial of the forfeiture | 15 | | action shall be by clear and convincing evidence if: | 16 | | (1) a finding of not guilty is entered as to all counts | 17 | | and all defendants in a criminal proceeding relating to the | 18 | | conduct giving rise to the forfeiture action; or | 19 | | (2) the State receives an adverse finding at a | 20 | | preliminary hearing and fails to secure an indictment in a | 21 | | criminal proceeding related to the factual allegations of | 22 | | the forfeiture action. | 23 | | (g) If the State does not meet its burden of proof, the | 24 | | court shall order the interest in the property returned or | 25 | | conveyed to the claimant and shall order all other property in | 26 | | which the State does meet its burden of proof forfeited to the |
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| 1 | | State. If the State does meet its burden of proof, the court | 2 | | shall order all property forfeited to the State. | 3 | | (h) A defendant convicted in any criminal proceeding is | 4 | | precluded from later denying the essential allegations of the | 5 | | criminal offense of which the defendant was convicted in any | 6 | | proceeding under this Article regardless of the pendency of an | 7 | | appeal from that conviction. However, evidence of the pendency | 8 | | of an appeal is admissible. | 9 | | (i) An acquittal or dismissal in a criminal proceeding | 10 | | shall not preclude civil proceedings under this Act; however, | 11 | | for good cause shown, on a motion by either party, the court | 12 | | may stay civil forfeiture proceedings during the criminal trial | 13 | | for a related criminal indictment or information alleging a | 14 | | violation of law authorizing forfeiture under Section 36-1 of | 15 | | this Article. | 16 | | (j) Title to all property declared forfeited under this Act | 17 | | vests in this State on the commission of the conduct giving | 18 | | rise to forfeiture together with the proceeds of the property | 19 | | after that time. Except as otherwise provided in this Article, | 20 | | any property or proceeds subsequently transferred to any person | 21 | | remain subject to forfeiture unless a person to whom the | 22 | | property was transferred makes an appropriate claim under or | 23 | | has the claim adjudicated at the judicial in rem hearing. | 24 | | (k) No property shall be forfeited under this Article from | 25 | | a person who, without actual or constructive notice that the | 26 | | property was the subject of forfeiture proceedings, obtained |
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| 1 | | possession of the property as a bona fide purchaser for value. | 2 | | A person who purports to transfer property after receiving | 3 | | actual or constructive notice that the property is subject to | 4 | | seizure or forfeiture is guilty of contempt of court , and shall | 5 | | be liable to the State for a penalty in the amount of the fair | 6 | | market value of the property. | 7 | | (l) A civil action under this Article shall be commenced | 8 | | within 5 years after the last conduct giving rise to forfeiture | 9 | | became known or should have become known or 5 years after the | 10 | | forfeitable property is discovered, whichever is later, | 11 | | excluding any time during which either the property or claimant | 12 | | is out of the State or in confinement or during which criminal | 13 | | proceedings relating to the same conduct are in progress. | 14 | | (m) If property is ordered forfeited under this Article | 15 | | from a claimant who held title to the property in joint tenancy | 16 | | or tenancy in common with another claimant, the court shall | 17 | | determine the amount of each owner's interest in the property | 18 | | according to principles of property law.
| 19 | | (Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.) | 20 | | (720 ILCS 5/36-10) | 21 | | Sec. 36-10. Applicability; savings clause. | 22 | | (a) The changes made to this Article by Public Act 100-512 | 23 | | 100-0512 and Public Act 100-699 this amendatory Act of the | 24 | | 100th General Assembly only apply to property seized on and | 25 | | after July 1, 2018. |
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| 1 | | (b) The changes made to this Article by Public Act 100-699 | 2 | | this amendatory Act of the 100th General Assembly are subject | 3 | | to Section 4 of the Statute on Statutes.
| 4 | | (Source: P.A. 100-699, eff. 8-3-18.) | 5 | | Section 20. The Cannabis Control Act is amended by changing | 6 | | Section 12 as follows:
| 7 | | (720 ILCS 550/12) (from Ch. 56 1/2, par. 712)
| 8 | | Sec. 12. Forfeiture. | 9 | | (a) The following are subject to forfeiture:
| 10 | | (1) (blank);
| 11 | | (2) all raw materials, products, and equipment of any | 12 | | kind which are
produced, delivered, or possessed in | 13 | | connection with any substance
containing cannabis in a | 14 | | felony violation of this Act;
| 15 | | (3) all conveyances, including aircraft, vehicles, or | 16 | | vessels, which
are used, or intended for use, to transport, | 17 | | or in any manner to
facilitate the transportation, sale, | 18 | | receipt, possession, or
concealment of any substance | 19 | | containing cannabis or property described in paragraph (2) | 20 | | of this subsection (a) that constitutes
a felony violation | 21 | | of the Act, but:
| 22 | | (i) no conveyance used by any person as a common | 23 | | carrier in the
transaction of business as a common | 24 | | carrier is subject to forfeiture
under this Section |
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| 1 | | unless it appears that the owner or other person in
| 2 | | charge of the conveyance is a consenting party or privy | 3 | | to the violation;
| 4 | | (ii) no conveyance is subject to forfeiture under | 5 | | this Section by
reason of any act or omission which the | 6 | | owner proves to have been
committed or omitted without | 7 | | his or her knowledge or consent;
| 8 | | (iii) a forfeiture of a conveyance encumbered by a | 9 | | bona fide
security interest is subject to the interest | 10 | | of the secured party if he
or she neither had knowledge | 11 | | of nor consented to the act or omission;
| 12 | | (4) all money, things of value, books, records, and | 13 | | research
products and materials including formulas, | 14 | | microfilm, tapes, and data
which are used, or intended for | 15 | | use , in a felony violation of this Act;
| 16 | | (5) everything of value furnished or intended to be | 17 | | furnished by any
person in exchange for a substance in | 18 | | violation of this Act, all proceeds
traceable to such an | 19 | | exchange, and all moneys, negotiable instruments, and
| 20 | | securities used, or intended to be used, to commit or in | 21 | | any manner to
facilitate any felony violation of this Act;
| 22 | | (6) all real property, including any right, title, and | 23 | | interest including, but not limited to, any leasehold | 24 | | interest or the beneficial interest in a land trust, in the | 25 | | whole of any lot or tract of land and any appurtenances or | 26 | | improvements, that is used or intended to be used to |
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| 1 | | facilitate the manufacture, distribution, sale, receipt, | 2 | | or concealment of a substance containing cannabis or | 3 | | property described in paragraph (2) of this subsection (a) | 4 | | that constitutes a felony violation of this Act involving | 5 | | more than 2,000 grams of a substance containing cannabis or | 6 | | that is the proceeds of any felony violation of this Act. | 7 | | (b) Property subject to forfeiture under this Act may be | 8 | | seized under the Drug Asset Forfeiture Procedure Act. In the | 9 | | event of seizure, forfeiture proceedings shall be instituted | 10 | | under the Drug Asset Forfeiture Procedure Act.
| 11 | | (c) Forfeiture under this Act is subject to an 8th | 12 | | Amendment to the United States Constitution disproportionate | 13 | | penalties analysis as provided under Section 9.5 of the Drug | 14 | | Asset Forfeiture Procedure Act.
| 15 | | (c-1) With regard to possession of cannabis offenses only, | 16 | | a sum of currency with a value of less than $500 shall not be | 17 | | subject to forfeiture under this Act. For all other offenses | 18 | | under this Act, a sum of currency with a value of less than | 19 | | $100 shall not be subject to forfeiture under this Act. In | 20 | | seizures of currency in excess of these amounts, this Section | 21 | | shall not create an exemption for these amounts. | 22 | | (d) (Blank).
| 23 | | (e) (Blank).
| 24 | | (f) (Blank).
| 25 | | (g) (Blank).
| 26 | | (h) Contraband, including cannabis possessed without |
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| 1 | | authorization under State or federal law, is not subject to | 2 | | forfeiture. No property right exists in contraband. Contraband | 3 | | is subject to seizure and shall be disposed of according to | 4 | | State law. | 5 | | (i) The changes made to this Section by Public Act 100-512 | 6 | | 100-0512 and Public Act 100-699 this amendatory Act of the | 7 | | 100th General Assembly only apply to property seized on and | 8 | | after July 1, 2018. | 9 | | (j) The changes made to this Section by Public Act 100-699 | 10 | | this amendatory Act of the 100th General Assembly are subject | 11 | | to Section 4 of the Statute on Statutes. | 12 | | (Source: P.A. 99-686, eff. 7-29-16; 100-512, eff. 7-1-18; | 13 | | 100-699, eff. 8-3-18.)
| 14 | | Section 25. The Illinois Controlled Substances Act is | 15 | | amended by changing Section 505 as follows:
| 16 | | (720 ILCS 570/505) (from Ch. 56 1/2, par. 1505)
| 17 | | Sec. 505. (a) The following are subject to forfeiture:
| 18 | | (1) (blank);
| 19 | | (2) all raw materials, products, and equipment of any | 20 | | kind which are
used, or intended for use , in manufacturing, | 21 | | distributing, dispensing,
administering or possessing any | 22 | | substance in violation of this Act;
| 23 | | (3) all conveyances, including aircraft, vehicles, or | 24 | | vessels, which are
used, or intended for use, to transport, |
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| 1 | | or in any manner to facilitate
the transportation, sale, | 2 | | receipt, possession, or concealment of substances | 3 | | manufactured, distributed, dispensed, or possessed in | 4 | | violation of this Act, or property
described in paragraph | 5 | | (2) of this subsection (a), but:
| 6 | | (i) no conveyance used by any person as a common | 7 | | carrier in the
transaction of business as a common | 8 | | carrier is subject to forfeiture under
this Section | 9 | | unless it appears that the owner or other person in | 10 | | charge of
the conveyance is a consenting party or privy | 11 | | to a violation of this Act;
| 12 | | (ii) no conveyance is subject to forfeiture under | 13 | | this Section by reason
of any act or omission which the | 14 | | owner proves to have been committed or
omitted without | 15 | | his or her knowledge or consent;
| 16 | | (iii) a forfeiture of a conveyance encumbered by a | 17 | | bona fide security
interest is subject to the interest | 18 | | of the secured party if he or she neither had
knowledge | 19 | | of nor consented to the act or omission;
| 20 | | (4) all money, things of value, books, records, and | 21 | | research
products and materials including formulas, | 22 | | microfilm, tapes, and data which
are used, or intended to | 23 | | be used , in violation of this Act;
| 24 | | (5) everything of value furnished, or intended to be | 25 | | furnished, in
exchange for a substance in violation of this | 26 | | Act, all proceeds traceable
to such an exchange, and all |
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| 1 | | moneys, negotiable instruments, and securities
used, or | 2 | | intended to be used, to commit or in any manner to | 3 | | facilitate
any violation of this Act;
| 4 | | (6) all real property, including any right, title, and | 5 | | interest
(including, but not limited to, any leasehold | 6 | | interest or the beneficial
interest in a land trust) in the | 7 | | whole of any lot or tract of land and any
appurtenances or | 8 | | improvements, which is used or intended to be used, in any
| 9 | | manner or part, to commit, or in any manner to facilitate | 10 | | the commission
of, any violation or act that constitutes a | 11 | | violation of Section 401 or 405
of this Act or that is the | 12 | | proceeds of any violation or act that
constitutes a | 13 | | violation of Section 401 or 405 of this Act.
| 14 | | (b) Property subject to forfeiture under this Act may be | 15 | | seized under the Drug Asset Forfeiture Procedure Act. In the | 16 | | event of seizure, forfeiture proceedings shall be instituted | 17 | | under the Drug Asset Forfeiture Procedure Act.
| 18 | | (c) Forfeiture under this Act is subject to an 8th | 19 | | Amendment to the United States Constitution disproportionate | 20 | | penalties analysis as provided under Section 9.5 of the Drug | 21 | | Asset Forfeiture Procedure Act.
| 22 | | (d) With regard to possession of controlled substances | 23 | | offenses only, a sum of currency with a value of less than $500 | 24 | | shall not be subject to forfeiture under this Act. For all | 25 | | other offenses under this Act, a sum of currency with a value | 26 | | of less than $100 shall not be subject to forfeiture under this |
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| 1 | | Act. In seizures of currency in excess of these amounts, this | 2 | | Section shall not create an exemption for these amounts.
| 3 | | (d-5) For felony offenses involving possession of | 4 | | controlled substances only, no property shall be subject to | 5 | | forfeiture under this Act because of the possession of less | 6 | | than 2 single unit doses of a controlled substance. This | 7 | | exemption shall not apply in instances when the possessor, or | 8 | | another person at the direction of the possessor, engaged in | 9 | | the destruction of any amount of a controlled substance. The | 10 | | amount of a single unit dose shall be the State's burden to | 11 | | prove in its case in chief. | 12 | | (e) If the Department of Financial and Professional | 13 | | Regulation suspends or revokes
a registration, all controlled | 14 | | substances owned or possessed by the
registrant at the time of | 15 | | suspension or the effective date of the
revocation order may be | 16 | | placed under seal by the Director. No disposition may be made | 17 | | of
substances under seal until the time for taking an appeal | 18 | | has elapsed or
until all appeals have been concluded unless a | 19 | | court, upon application
therefor, orders the sale of perishable | 20 | | substances and the deposit of the
proceeds of the sale with the | 21 | | court. Upon a suspension or revocation order becoming final,
| 22 | | all substances are subject to seizure and forfeiture under the | 23 | | Drug Asset Forfeiture Procedure Act.
| 24 | | (f) (Blank).
| 25 | | (g) (Blank).
| 26 | | (h) (Blank).
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| 1 | | (i) Contraband, including controlled substances possessed | 2 | | without authorization under State or federal law, is not | 3 | | subject to forfeiture. No property right exists in contraband. | 4 | | Contraband is subject to seizure and shall be disposed of | 5 | | according to State law. | 6 | | (j) The changes made to this Section by Public Act 100-512 | 7 | | 100-0512 and Public Act 100-699 this amendatory Act of the | 8 | | 100th General Assembly only apply to property seized on and | 9 | | after July 1, 2018. | 10 | | (k) The changes made to this Section by Public Act 100-699 | 11 | | this amendatory Act of the 100th General Assembly are subject | 12 | | to Section 4 of the Statute on Statutes. | 13 | | (Source: P.A. 99-686, eff. 7-29-16; 100-512, eff. 7-1-18; | 14 | | 100-699, eff. 8-3-18.)
| 15 | | Section 30. The Drug Asset Forfeiture Procedure Act is | 16 | | amended by changing Sections 3.3, 4, 6, 9, and 13.4 as follows: | 17 | | (725 ILCS 150/3.3) | 18 | | Sec. 3.3. Safekeeping of seized property pending | 19 | | disposition. | 20 | | (a) Property seized under this Act is deemed to be in the | 21 | | custody of the Director of State Police, subject only to the | 22 | | order and judgments of the circuit court having jurisdiction | 23 | | over the forfeiture proceedings and the decisions of the | 24 | | State's Attorney under this Act. |
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| 1 | | (b) If property is seized under this Act, the seizing | 2 | | agency shall promptly conduct an inventory of the seized | 3 | | property and estimate the property's value , and shall forward a | 4 | | copy of the inventory of seized property and the estimate of | 5 | | the property's value to the Director of State Police. Upon | 6 | | receiving notice of seizure, the Director of State Police may: | 7 | | (1) place the property under seal; | 8 | | (2) remove the property to a place designated by the | 9 | | seizing agency; | 10 | | (3) keep the property in the possession of the Director | 11 | | of State Police; | 12 | | (4) remove the property to a storage area for | 13 | | safekeeping; | 14 | | (5) place the property under constructive seizure by | 15 | | posting notice of pending forfeiture on it, by giving | 16 | | notice of pending forfeiture to its owners and interest | 17 | | holders, or by filing notice of pending forfeiture in any | 18 | | appropriate public record relating to the property; or | 19 | | (6) provide for another agency or custodian, including | 20 | | an owner, secured party, or lienholder, to take custody of | 21 | | the property upon the terms and conditions set by the | 22 | | seizing agency. | 23 | | (c) The seizing agency is required to exercise ordinary | 24 | | care to protect the seized property from negligent loss, | 25 | | damage, or destruction.
| 26 | | (Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
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| 1 | | (725 ILCS 150/4) (from Ch. 56 1/2, par. 1674)
| 2 | | Sec. 4. Notice to owner or interest holder. The first | 3 | | attempted service of notice shall be commenced within 28 days | 4 | | of the filing of the verified claim or the receipt of the | 5 | | notice from the seizing agency by Illinois State Police | 6 | | Notice/Inventory of Seized Property (Form 4-64), whichever | 7 | | occurs sooner. A complaint for forfeiture or a notice of | 8 | | pending forfeiture shall be served upon the property owner or | 9 | | interest holder in the following manner: | 10 | | (1) If the owner's or interest holder's name and | 11 | | current address are known, then by either: | 12 | | (A) personal service; or | 13 | | (B) mailing a copy of the notice by certified mail, | 14 | | return receipt requested, and first class mail to that | 15 | | address. | 16 | | (i) If notice is sent by certified mail and no | 17 | | signed return receipt is received by the State's | 18 | | Attorney within 28 days of mailing, and no | 19 | | communication from the owner or interest holder is | 20 | | received by the State's Attorney documenting | 21 | | actual notice by said parties, then the State's | 22 | | Attorney shall, within a reasonable period of | 23 | | time, mail a second copy of the notice by certified | 24 | | mail, return receipt requested, and first class | 25 | | mail to that address. |
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| 1 | | (ii) If no signed return receipt is received by | 2 | | the State's Attorney within 28 days of the second | 3 | | attempt at service by certified mail, and no | 4 | | communication from the owner or interest holder is | 5 | | received by the State's Attorney documenting | 6 | | actual notice by said parties, then the State's | 7 | | Attorney shall have 60 days to attempt to serve the | 8 | | notice by personal service, which also includes | 9 | | substitute service by leaving a copy at the usual | 10 | | place of abode, with some person of the family or a | 11 | | person residing there, of the age of 13 years or | 12 | | upwards. If, after 3 attempts at service in this | 13 | | manner, no service of the notice is accomplished, | 14 | | then the notice shall be posted in a conspicuous | 15 | | manner at this address and service shall be made by | 16 | | posting. | 17 | | The attempts at service and the posting , if | 18 | | required, shall be documented by the person | 19 | | attempting service and said documentation shall be | 20 | | made part of a return of service returned to the | 21 | | State's Attorney. | 22 | | The State's Attorney may utilize any Sheriff | 23 | | or Deputy Sheriff, any peace officer, a private | 24 | | process server or investigator, or any employee, | 25 | | agent, or investigator of the State's Attorney's | 26 | | Office to attempt service without seeking leave of |
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| 1 | | court. | 2 | | After the procedures set forth are followed, | 3 | | service shall be effective on an owner or interest | 4 | | holder on the date of receipt by the State's | 5 | | Attorney of a return receipt, or on the date of | 6 | | receipt of a communication from an owner or | 7 | | interest holder documenting actual notice, | 8 | | whichever is first in time, or on the date of the | 9 | | last act performed by the State's Attorney in | 10 | | attempting personal service under subparagraph | 11 | | (ii) above. If notice is to be shown by actual | 12 | | notice from communication with a claimant, then | 13 | | the State's Attorney shall file an affidavit | 14 | | providing details of the communication, which may | 15 | | be accepted as sufficient proof of service by the | 16 | | court. | 17 | | After a claimant files a verified claim with | 18 | | the State's Attorney and provides an address at | 19 | | which the claimant will accept service, the | 20 | | complaint shall be served and notice shall be | 21 | | perfected upon mailing of the complaint to the | 22 | | claimant at the address the claimant provided via | 23 | | certified mail, return receipt requested, and | 24 | | first class mail. No return receipt need be | 25 | | received, or any other attempts at service need be | 26 | | made to comply with service and notice |
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| 1 | | requirements under this Act. This certified | 2 | | mailing, return receipt requested, shall be proof | 3 | | of service of the complaint on the claimant. | 4 | | For purposes of notice under this Section, if a | 5 | | person has been arrested for the conduct giving | 6 | | rise to the forfeiture, then the address provided | 7 | | to the arresting agency at the time of arrest shall | 8 | | be deemed to be that person's known address. | 9 | | Provided, however, if an owner or interest | 10 | | holder's address changes prior to the effective | 11 | | date of the notice of pending forfeiture, the owner | 12 | | or interest holder shall promptly notify the | 13 | | seizing agency of the change in address or, if the | 14 | | owner or interest holder's address changes | 15 | | subsequent to the effective date of the notice of | 16 | | pending forfeiture, the owner or interest holder | 17 | | shall promptly notify the State's Attorney of the | 18 | | change in address; or if the property seized is a | 19 | | conveyance, to the address reflected in the office | 20 | | of the agency or official in which title to or | 21 | | interest in the conveyance is required by law to be | 22 | | recorded. | 23 | | (2) If the owner's or interest holder's address is not | 24 | | known, and is not on record, then notice shall be served by | 25 | | publication for 3 successive weeks in a newspaper of | 26 | | general circulation in the county in which the seizure |
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| 1 | | occurred. | 2 | | (3) After a claimant files a verified claim with the | 3 | | State's Attorney and provides an address at which the | 4 | | claimant will accept service, the complaint shall be served | 5 | | and notice shall be perfected upon mailing of the complaint | 6 | | to the claimant at the address the claimant provided via | 7 | | certified mail, return receipt requested, and first class | 8 | | mail. No return receipt need be received or any other | 9 | | attempts at service need be made to comply with service and | 10 | | notice requirements under this Act. This certified | 11 | | mailing, return receipt requested, shall be proof of | 12 | | service of the complaint on the claimant. | 13 | | (4) Notice to any business entity, corporation, | 14 | | limited liability company, limited liability partnership, | 15 | | or partnership shall be completed by a single mailing of a | 16 | | copy of the notice by certified mail, return receipt | 17 | | requested, and first class mail to that address. This | 18 | | notice is complete regardless of the return of a signed | 19 | | return receipt. | 20 | | (5) Notice to a person whose address is not within the | 21 | | State shall be completed by a single mailing of a copy of | 22 | | the notice by certified mail, return receipt requested, and | 23 | | first class mail to that address. This notice is complete | 24 | | regardless of the return of a signed return receipt. | 25 | | (6) Notice to a person whose address is not within the | 26 | | United States shall be completed by a single mailing of a |
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| 1 | | copy of the notice by certified mail, return receipt | 2 | | requested, and first class mail to that address. This | 3 | | notice shall be complete regardless of the return of a | 4 | | signed return receipt. If certified mail is not available | 5 | | in the foreign country where the person has an address, | 6 | | then notice shall proceed by publication under paragraph | 7 | | (2) of this Section. | 8 | | (7) Notice to any person whom the State's Attorney | 9 | | reasonably should know is incarcerated within the State | 10 | | shall also include the mailing a copy of the notice by | 11 | | certified mail, return receipt requested, and first class | 12 | | mail to the address of the detention facility with the | 13 | | inmate's name clearly marked on the envelope.
| 14 | | (Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
| 15 | | (725 ILCS 150/6) (from Ch. 56 1/2, par. 1676)
| 16 | | Sec. 6. Non-judicial forfeiture. If non-real property that | 17 | | exceeds $150,000
in value excluding the value of any | 18 | | conveyance, or if real property
is seized under the provisions | 19 | | of the Illinois Controlled Substances Act,
the Cannabis Control | 20 | | Act, or the Methamphetamine Control and Community Protection | 21 | | Act, the State's Attorney shall institute judicial in
rem | 22 | | forfeiture proceedings as described in Section 9 of this Act | 23 | | within 28
days from receipt of notice of seizure from the | 24 | | seizing agency under
Section 5 of this Act. However, if | 25 | | non-real property that does not exceed
$150,000 in value |
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| 1 | | excluding the value of any conveyance is seized, the
following | 2 | | procedure shall be used:
| 3 | | (A) If, after review of the facts surrounding the | 4 | | seizure, the State's
Attorney is of the opinion that the | 5 | | seized property is subject to
forfeiture, then , within 28 | 6 | | days of the receipt of notice of seizure from the
seizing | 7 | | agency, the State's Attorney shall cause notice of pending
| 8 | | forfeiture to be given to the owner of the property and all | 9 | | known interest
holders of the property in accordance with | 10 | | Section 4 of this Act.
| 11 | | (B) The notice of pending forfeiture must include a | 12 | | description of the
property, the estimated value of the | 13 | | property, the date and place of
seizure, the conduct giving | 14 | | rise to forfeiture or the violation of law
alleged, and a | 15 | | summary of procedures and procedural rights applicable to
| 16 | | the forfeiture action.
| 17 | |
(C)(1) Any person claiming an interest in property | 18 | | which is the
subject of notice under subsection (A) of this | 19 | | Section may,
within 45 days after the effective date of | 20 | | notice as described in Section 4
of this Act, file a | 21 | | verified claim with the State's Attorney expressing his
or | 22 | | her interest in the property. The claim must set forth:
| 23 | | (i) the caption of the proceedings as set forth on | 24 | | the notice of
pending forfeiture and the name of the | 25 | | claimant;
| 26 | | (ii) the address at which the claimant will accept |
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| 1 | | mail;
| 2 | | (iii) the nature and extent of the claimant's | 3 | | interest in the property;
| 4 | | (iv) the date, identity of the transferor, and | 5 | | circumstances of the
claimant's acquisition of the | 6 | | interest in the property;
| 7 | | (v) the names and addresses of all other persons | 8 | | known to have an
interest in the property;
| 9 | | (vi) the specific provision of law relied on in | 10 | | asserting the property
is not subject to forfeiture;
| 11 | | (vii) all essential facts supporting each | 12 | | assertion; and
| 13 | | (viii) the relief sought.
| 14 | | (2) If a claimant files the claim then the State's | 15 | | Attorney
shall institute judicial in rem forfeiture | 16 | | proceedings
within 28 days after receipt of the claim.
| 17 | | (D) If no claim is filed within the 45-day 45 day | 18 | | period as
described in subsection (C) of this Section, the | 19 | | State's Attorney
shall declare the property forfeited and | 20 | | shall promptly notify the
owner and all known interest | 21 | | holders of the property and the Director of the
Illinois | 22 | | Department of State Police of the declaration of forfeiture | 23 | | and
the Director shall dispose of the property in | 24 | | accordance with law.
| 25 | | (Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
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| 1 | | (725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)
| 2 | | Sec. 9. Judicial in rem procedures. If property seized | 3 | | under the
provisions of the Illinois Controlled Substances Act, | 4 | | the Cannabis Control
Act, or the Methamphetamine Control and | 5 | | Community Protection Act is non-real property that exceeds | 6 | | $150,000 in value excluding the value
of any conveyance, or is | 7 | | real property, or a claimant has filed a claim under subsection | 8 | | (C) of Section 6 of this Act, the following
judicial in rem | 9 | | procedures shall apply:
| 10 | | (A) If, after a review of the facts surrounding the | 11 | | seizure, the State's
Attorney is of the opinion that the | 12 | | seized property is subject to
forfeiture, the State's | 13 | | Attorney shall institute judicial forfeiture proceedings
| 14 | | by filing a verified complaint for forfeiture in the | 15 | | circuit court within whose jurisdiction the seizure | 16 | | occurred, or within whose jurisdiction an act or omission | 17 | | giving rise to the seizure occurred, subject to Supreme | 18 | | Court Rule 187. The complaint for forfeiture shall be filed | 19 | | as soon as practicable, but not later than 28 days after | 20 | | the filing of a verified claim by a claimant if the | 21 | | property was acted upon under a non-judicial forfeiture | 22 | | action, or 28 days after the State's Attorney receives | 23 | | notice from the seizing agency as provided under Section 5 | 24 | | of this Act, whichever occurs later. When authorized by | 25 | | law, a forfeiture must be ordered by a court
on an action | 26 | | in rem brought by a State's Attorney under a verified
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| 1 | | complaint for forfeiture.
| 2 | | (A-5) If the State's Attorney finds that the alleged | 3 | | violation of law giving rise to the seizure was incurred | 4 | | without willful negligence or without any intention on the | 5 | | part of the owner of the property to violate the law or | 6 | | finds the existence of mitigating circumstances to justify | 7 | | remission of the forfeiture, the State's Attorney may cause | 8 | | the law enforcement agency having custody of the property | 9 | | to return the property to the owner within a reasonable | 10 | | time not to exceed 7 days. The State's Attorney shall | 11 | | exercise his or her discretion prior to or promptly after | 12 | | the preliminary review under Section 3.5 of this Act. | 13 | | Judicial in rem forfeiture proceedings under this Act shall | 14 | | be subject to the Code of Civil Procedure and the rules of | 15 | | evidence relating to civil actions. | 16 | | (A-10) A complaint of forfeiture shall include: | 17 | | (1) a description of the property seized; | 18 | | (2) the date and place of seizure of the property; | 19 | | (3) the name and address of the law enforcement | 20 | | agency making the seizure; and | 21 | | (4) the specific statutory and factual grounds for | 22 | | the seizure. | 23 | | The complaint shall be served upon the person from whom | 24 | | the property was seized and all persons known or reasonably | 25 | | believed by the State to claim an interest in the property, | 26 | | as provided in Section 4 of this Act. The complaint shall |
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| 1 | | be accompanied by the following written notice: | 2 | | "This is a civil court proceeding subject to the Code | 3 | | of Civil Procedure. You received this Complaint of | 4 | | Forfeiture because the State's Attorney's office has | 5 | | brought a legal action seeking forfeiture of your | 6 | | seized property. This complaint starts the court | 7 | | process where the state seeks to prove that your | 8 | | property should be forfeited and not returned to you. | 9 | | This process is also your opportunity to try to prove | 10 | | to a judge that you should get your property back. The | 11 | | complaint lists the date, time, and location of your | 12 | | first court date. You must appear in court on that day, | 13 | | or you may lose the case automatically. You must also | 14 | | file an appearance and answer. If you are unable to pay | 15 | | the appearance fee, you may qualify to have the fee | 16 | | waived. If there is a criminal case related to the | 17 | | seizure of your property, your case may be set for | 18 | | trial after the criminal case has been resolved. Before | 19 | | trial, the judge may allow discovery, where the State | 20 | | can ask you to respond in writing to questions and give | 21 | | them certain documents, and you can make similar | 22 | | requests of the State. The trial is your opportunity to | 23 | | explain what happened when your property was seized and | 24 | | why you should get the property back.". | 25 | | (B) The laws of evidence relating to civil actions | 26 | | shall apply to
all other proceedings under this Act except |
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| 1 | | that the parties shall be allowed to use, and the court | 2 | | must receive and consider, all relevant hearsay evidence | 3 | | that relates to evidentiary foundation, chain of custody, | 4 | | business records, recordings, laboratory analysis, | 5 | | laboratory reports, and the use of technology in the | 6 | | investigation that resulted in the seizure of the property | 7 | | that is subject to the forfeiture action.
| 8 | | (C) Only an owner of or interest holder in the property | 9 | | may file an
answer asserting a claim against the property | 10 | | in the action in rem. For
purposes of this Section, the | 11 | | owner or interest holder shall be referred
to as claimant. | 12 | | A person not named in the forfeiture complaint who claims | 13 | | to have an interest in the property may petition to | 14 | | intervene as a claimant under Section 2-408 of the Code of | 15 | | Civil Procedure.
| 16 | | (D) The answer must be signed by the owner or interest | 17 | | holder under
penalty of perjury and must set forth:
| 18 | | (i) the caption of the proceedings as set forth on | 19 | | the notice of pending
forfeiture and the name of the | 20 | | claimant;
| 21 | | (ii) the address at which the claimant will accept | 22 | | mail;
| 23 | | (iii) the nature and extent of the claimant's | 24 | | interest in the property;
| 25 | | (iv) the date, identity of transferor, and | 26 | | circumstances of the
claimant's acquisition of the |
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| 1 | | interest in the property;
| 2 | | (v) the names and addresses of all other persons | 3 | | known to have an interest
in the property;
| 4 | | (vi) the specific provisions of Section 8 of this | 5 | | Act
relied on in asserting it
is exempt from | 6 | | forfeiture, if applicable;
| 7 | | (vii) all essential facts supporting each | 8 | | assertion;
| 9 | | (viii) the precise relief sought; and | 10 | | (ix) in a forfeiture action involving currency or | 11 | | its equivalent, a claimant shall provide the State with | 12 | | notice of the claimant's intent to allege that the | 13 | | currency or its equivalent is not related to the | 14 | | alleged factual basis for the forfeiture, and why.
| 15 | | (E) The answer must be filed with the court within 45 | 16 | | days after service
of the civil in rem complaint.
| 17 | | (F) The trial shall be held within 60 days after filing | 18 | | of the answer
unless continued for good cause.
| 19 | | (G) The State, in its case in chief, shall show by a | 20 | | preponderance of the evidence that the property is subject | 21 | | to forfeiture; and at least one of the following:
| 22 | | (i) In the case of personal property, including | 23 | | conveyances: | 24 | | (a) that the claimant was legally accountable | 25 | | for the conduct giving rise to the forfeiture; | 26 | | (b) that the claimant knew or reasonably |
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| 1 | | should have known of the conduct giving rise to the | 2 | | forfeiture; | 3 | | (c) that the claimant knew or reasonably | 4 | | should have known that the conduct giving rise to | 5 | | the forfeiture was likely to occur; | 6 | | (d) that the claimant held the property for the | 7 | | benefit of, or as nominee for, any person whose | 8 | | conduct gave rise to its forfeiture; | 9 | | (e) that if the claimant acquired the interest | 10 | | through any person engaging in any of the conduct | 11 | | described above or conduct giving rise to the | 12 | | forfeiture: | 13 | | (1) the claimant did not acquire it as a | 14 | | bona fide purchaser for value, or | 15 | | (2) the claimant acquired the interest | 16 | | under such circumstances that the claimant | 17 | | reasonably should have known the property was | 18 | | derived from, or used in, the conduct giving | 19 | | rise to the forfeiture; | 20 | | (f) that the claimant is not the true owner of | 21 | | the property; | 22 | | (g) that the claimant acquired the interest: | 23 | | (1) before the commencement of the conduct | 24 | | giving rise to the forfeiture and the person | 25 | | whose conduct gave rise to the forfeiture did | 26 | | not have authority to convey the interest to a |
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| 1 | | bona fide purchaser for value at the time of | 2 | | the conduct; or | 3 | | (2) after the commencement of the conduct | 4 | | giving rise to the forfeiture and the owner or | 5 | | interest holder acquired the interest as a | 6 | | mortgagee, secured creditor, lienholder, or | 7 | | bona fide purchaser for value without | 8 | | knowledge of the conduct that gave rise to the | 9 | | forfeiture, and without the knowledge of the | 10 | | seizure of the property for forfeiture. | 11 | | (ii) In the case of real property: | 12 | | (a) that the claimant was legally accountable | 13 | | for the conduct giving rise to the forfeiture; | 14 | | (b) that the claimant solicited, conspired, or | 15 | | attempted to commit the conduct giving rise to the | 16 | | forfeiture; or | 17 | | (c) that the claimant had acquired or stood to | 18 | | acquire substantial proceeds from the conduct | 19 | | giving rise to its forfeiture other than as an | 20 | | interest holder in an arm's length transaction; | 21 | | (d) that the claimant is not the true owner of | 22 | | the property; | 23 | | (e) that the claimant acquired the interest: | 24 | | (1) before the commencement of the conduct | 25 | | giving rise to the forfeiture and the person | 26 | | whose conduct gave rise to the forfeiture did |
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| 1 | | not have authority to convey the interest to a | 2 | | bona fide purchaser for value at the time of | 3 | | the conduct; or | 4 | | (2) after the commencement of the conduct | 5 | | giving rise to the forfeiture and the owner or | 6 | | interest holder acquired the interest as a | 7 | | mortgagee, secured creditor, lienholder, or | 8 | | bona fide purchaser for value without | 9 | | knowledge of the conduct that gave rise to the | 10 | | forfeiture, and before the filing in the office | 11 | | of the recorder of deeds of the county in which | 12 | | the real estate is located a notice of seizure | 13 | | for forfeiture or a lis pendens notice. | 14 | | (G-5) If the property that is the subject of the | 15 | | forfeiture proceeding is currency or its equivalent, the | 16 | | State, in its case in chief, shall show by a preponderance | 17 | | of the evidence that the property is subject to forfeiture. | 18 | | If the State makes that showing, the claimant shall have | 19 | | the burden of production to set forth evidence that the | 20 | | currency or its equivalent is not related to the alleged | 21 | | factual basis of the forfeiture. After the production of | 22 | | evidence, the State shall maintain the burden of proof to | 23 | | overcome this assertion. | 24 | | (G-10) Notwithstanding any other provision of this | 25 | | Section, the State's burden of proof at the trial of the | 26 | | forfeiture action shall be by clear and convincing evidence |
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| 1 | | if: | 2 | | (1) a finding of not guilty is entered as to all | 3 | | counts and all defendants in a criminal proceeding | 4 | | relating to the conduct giving rise to the forfeiture | 5 | | action; or | 6 | | (2) the State receives an adverse finding at a | 7 | | preliminary hearing and fails to secure an indictment | 8 | | in a criminal proceeding related to the factual | 9 | | allegations of the forfeiture action. | 10 | | (H) If the State does not meet its burden of proof, the | 11 | | court shall order
the interest in the property returned or | 12 | | conveyed to the claimant and shall
order all other property | 13 | | as to which the State does meet its burden of proof | 14 | | forfeited to the State. If the State does meet its burden | 15 | | of proof, the court shall order all property forfeited
to | 16 | | the State.
| 17 | | (I) A defendant convicted in any criminal proceeding is | 18 | | precluded from
later denying the essential allegations of | 19 | | the criminal offense of which
the defendant was convicted | 20 | | in any proceeding under this Act
regardless of the pendency | 21 | | of an appeal from that conviction. However,
evidence of the | 22 | | pendency of an appeal is admissible.
| 23 | | (J) An acquittal or dismissal in a criminal proceeding | 24 | | shall not
preclude civil proceedings under this Act; | 25 | | however, for good cause shown,
on a motion by the State's | 26 | | Attorney, the court may stay civil forfeiture
proceedings |
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| 1 | | during the criminal trial for a related criminal indictment | 2 | | or
information alleging a violation of the Illinois | 3 | | Controlled Substances Act,
the Cannabis Control Act, or the | 4 | | Methamphetamine Control and Community Protection Act. Such | 5 | | a stay shall not be available pending an
appeal. Property | 6 | | subject to forfeiture under the Illinois Controlled
| 7 | | Substances Act, the Cannabis Control Act, or the | 8 | | Methamphetamine Control and Community Protection Act shall | 9 | | not be subject to return
or release by a court exercising | 10 | | jurisdiction over a criminal case
involving the seizure of | 11 | | such property unless such return or release is
consented to | 12 | | by the State's Attorney.
| 13 | | (K) Title to all property declared forfeited under this | 14 | | Act vests in the State
on the commission of the conduct | 15 | | giving rise to forfeiture together with
the proceeds of the | 16 | | property after that time. Except as otherwise provided in | 17 | | this Act, any such property or
proceeds subsequently | 18 | | transferred to any person remain subject to
forfeiture | 19 | | unless a person to whom the property was transferred makes | 20 | | an appropriate claim under this Act and has the claim | 21 | | adjudicated in the judicial in rem proceeding.
| 22 | | (L) A civil action under this Act must be commenced | 23 | | within 5 years
after the last conduct giving rise to | 24 | | forfeiture became known or should
have become known or 5 | 25 | | years after the forfeitable property is
discovered, | 26 | | whichever is later, excluding any time during which either |
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| 1 | | the
property or claimant is out of the State or in | 2 | | confinement or during which
criminal proceedings relating | 3 | | to the same conduct are in progress. | 4 | | (M) No property shall be forfeited under this Act from | 5 | | a person who, without actual or constructive notice that | 6 | | the property was the subject of forfeiture proceedings, | 7 | | obtained possession of the property as a bona fide | 8 | | purchaser for value. A person who purports to transfer | 9 | | property after receiving actual or constructive notice | 10 | | that the property is subject to seizure or forfeiture is | 11 | | guilty of contempt of court and shall be liable to the | 12 | | State for a penalty in the amount of the fair market value | 13 | | of the property. | 14 | | (N) If property is ordered forfeited under this Act | 15 | | from a claimant who held title to the property in joint | 16 | | tenancy or tenancy in common with another claimant, the | 17 | | court shall determine the amount of each owner's interest | 18 | | in the property according to principles of property law.
| 19 | | (Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
| 20 | | (725 ILCS 150/13.4) | 21 | | Sec. 13.4. Applicability; savings clause. | 22 | | (a) The changes made to this Act by Public Act 100-512 | 23 | | 100-0512 and Public Act 100-699 this amendatory Act of the | 24 | | 100th General Assembly only apply to property seized on and | 25 | | after July 1, 2018. |
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| 1 | | (b) The changes made to this Act by Public Act 100-699 this | 2 | | amendatory Act of the 100th General Assembly are subject to | 3 | | Section 4 of the Statute on Statutes.
| 4 | | (Source: P.A. 100-699, eff. 8-3-18.) | 5 | | Section 35. The Illinois Streetgang Terrorism Omnibus | 6 | | Prevention Act is amended by changing Section 40 as follows:
| 7 | | (740 ILCS 147/40)
| 8 | | Sec. 40. Forfeiture.
| 9 | | (a) The following are subject to seizure and forfeiture:
| 10 | | (1) any property that is directly or indirectly used or | 11 | | intended
for use in any manner to facilitate streetgang | 12 | | related activity;
and
| 13 | | (2) any property constituting or derived from gross | 14 | | profits or other
proceeds obtained from streetgang related | 15 | | activity.
| 16 | | (b) Property subject to forfeiture under this Section may | 17 | | be seized under the procedures set forth in under Section | 18 | | 36-2.1 of the Criminal Code of 2012, except that actual | 19 | | physical seizure of real property subject to forfeiture under | 20 | | this Act requires the issuance of a seizure warrant. Nothing in | 21 | | this Section prohibits the constructive seizure of real | 22 | | property through the filing of a complaint for forfeiture in | 23 | | circuit court and the recording of a lis pendens against the | 24 | | real property without a hearing, warrant application, or |
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| 1 | | judicial approval. | 2 | | (c) The State's Attorney may initiate forfeiture | 3 | | proceedings under the procedures in Article 36 of the Criminal | 4 | | Code of 2012. The State shall bear the burden of proving by a | 5 | | preponderance of the evidence that the property was acquired | 6 | | through a pattern of streetgang related activity. | 7 | | (d) Property forfeited under this Section shall be disposed | 8 | | of in accordance with Section 36-7 of Article 36 of the | 9 | | Criminal Code of 2012 for the forfeiture of vehicles, vessels, | 10 | | and aircraft. | 11 | | (e) Within 60 days of the date of the seizure of contraband | 12 | | under this
Section, the State's Attorney shall initiate | 13 | | forfeiture proceedings as
provided
in Article 36 of the | 14 | | Criminal Code of 2012. An owner or person who has a lien
on the | 15 | | property may
establish as a defense to the forfeiture of | 16 | | property
that is subject to forfeiture under this Section that | 17 | | the owner or lienholder
had no knowledge that the property was | 18 | | acquired through a pattern of
streetgang related activity. | 19 | | Property that is forfeited under this Section
shall be disposed | 20 | | of as provided in Article 36 of the Criminal Code of 2012
for | 21 | | the forfeiture of vehicles, vessels, and aircraft. The
proceeds | 22 | | of the disposition shall be paid to the Gang Violence Victims
| 23 | | and Witnesses Fund to be used to assist in the prosecution of | 24 | | gang crimes. | 25 | | (f) Property seized or forfeited under this Section is | 26 | | subject to reporting under the Seizure and Forfeiture Reporting |
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| 1 | | Act.
| 2 | | (g) The changes made to this Section by Public Act 100-512 | 3 | | 100-0512 only apply to property seized on and after July 1, | 4 | | 2018. | 5 | | (Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
| 6 | | Section 99. Effective date. This Act takes effect upon | 7 | | becoming law.".
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