Full Text of SB3778 97th General Assembly
SB3778eng 97TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning criminal law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 2. The Criminal Code of 1961 is amended by changing | 5 | | Section 36-1.5 as follows: | 6 | | (720 ILCS 5/36-1.5) | 7 | | Sec. 36-1.5. Preliminary Review. | 8 | | (a) Within 21 14 days of the seizure, the State shall seek | 9 | | a preliminary determination from the circuit court as to | 10 | | whether there is probable cause that the property may be | 11 | | subject to forfeiture. | 12 | | (b) The rules of evidence shall not apply to any proceeding | 13 | | conducted under this Section. | 14 | | (c) The court may conduct the review under subsection (a) | 15 | | simultaneously with a proceeding pursuant to Section 109-1 of | 16 | | the Code of Criminal Procedure of 1963 for a related criminal | 17 | | offense if a prosecution is commenced by information or | 18 | | complaint , however if the review is not conducted | 19 | | simultaneously, the court's findings shall not constitute a | 20 | | collateral estoppel to the filing of criminal charges . | 21 | | (d) The court may accept a finding of probable cause at a | 22 | | preliminary hearing following the filing of an information or | 23 | | complaint charging a related criminal offense or following the |
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| 1 | | return of indictment by a grand jury charging the related | 2 | | offense as sufficient evidence of probable cause as required | 3 | | under subsection (a). | 4 | | (e) (Blank). Upon making a finding of probable cause as | 5 | | required under this Section, and after taking into account the | 6 | | respective interests of all known claimants to the property | 7 | | including the State, the circuit court shall enter a | 8 | | restraining order or injunction, or take other appropriate | 9 | | action, as necessary to ensure that the property is not removed | 10 | | from the court's jurisdiction and is not concealed, destroyed, | 11 | | or otherwise disposed of by the property owner or interest | 12 | | holder before a forfeiture hearing is conducted.
| 13 | | (Source: P.A. 97-544, eff. 1-1-12.)
| 14 | | Section 5. The Drug Asset Forfeiture Procedure Act is | 15 | | amended by changing Sections 3.5, 5, and 9 as follows: | 16 | | (725 ILCS 150/3.5) | 17 | | Sec. 3.5. Preliminary Review. | 18 | | (a) Within 21 14 days of the seizure, the State shall seek | 19 | | a preliminary determination from the circuit court as to | 20 | | whether there is probable cause that the property may be | 21 | | subject to forfeiture. | 22 | | (b) The rules of evidence shall not apply to any proceeding | 23 | | conducted under this Section. | 24 | | (c) The court may conduct the review under subsection (a) |
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| 1 | | simultaneously with a proceeding pursuant to Section 109-1 of | 2 | | the Code of Criminal Procedure of 1963 for a related criminal | 3 | | offense if a prosecution is commenced by information or | 4 | | complaint , however if the review is not conducted | 5 | | simultaneously, the court's findings shall not constitute a | 6 | | collateral estoppel to the filing of criminal charges . | 7 | | (d) The court may accept a finding of probable cause at a | 8 | | preliminary hearing following the filing of an information or | 9 | | complaint charging a related criminal offense or following the | 10 | | return of indictment by a grand jury charging the related | 11 | | offense as sufficient evidence of probable cause as required | 12 | | under subsection (a). | 13 | | (e) (Blank) Upon making a finding of probable cause as | 14 | | required under this Section, and after taking into account the | 15 | | respective interests of all known claimants to the property | 16 | | including the State, the circuit court shall enter a | 17 | | restraining order or injunction, or take other appropriate | 18 | | action, as necessary to ensure that the property is not removed | 19 | | from the court's jurisdiction and is not concealed, destroyed, | 20 | | or otherwise disposed of by the property owner or interest | 21 | | holder before a forfeiture hearing is conducted .
| 22 | | (Source: P.A. 97-544, eff. 1-1-12.)
| 23 | | (725 ILCS 150/5) (from Ch. 56 1/2, par. 1675)
| 24 | | Sec. 5. Notice to State's Attorney. The law enforcement | 25 | | agency
seizing property for forfeiture under the Illinois |
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| 1 | | Controlled
Substances Act, the Cannabis Control Act, or the | 2 | | Methamphetamine Control and Community Protection Act shall,
| 3 | | within 52 days of seizure, notify the State's Attorney for the | 4 | | county in
which an act or omission giving rise to the | 5 | | forfeiture occurred or in which
the property was seized of the | 6 | | seizure of the property and the facts and
circumstances giving | 7 | | rise to the seizure and shall provide the State's
Attorney with | 8 | | the inventory of the property and its estimated value. For | 9 | | purposes of forfeiture proceedings pursuant to Sections 6 and 9 | 10 | | of this Act, the notification to the State's Attorney shall | 11 | | only be perfected by the delivery of the Illinois State Police | 12 | | approved form 4-64. When
the property seized for forfeiture is | 13 | | a vehicle, the law enforcement agency
seizing the property | 14 | | shall immediately notify the Secretary of State that
forfeiture | 15 | | proceedings are pending regarding such vehicle.
| 16 | | (Source: P.A. 94-556, eff. 9-11-05.)
| 17 | | (725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)
| 18 | | Sec. 9. Judicial in rem procedures. If property seized | 19 | | under the
provisions of the Illinois Controlled Substances Act, | 20 | | the Cannabis Control
Act, or the Methamphetamine Control and | 21 | | Community Protection Act is non-real property that exceeds | 22 | | $150,000 $20,000 in value excluding the value
of any | 23 | | conveyance, or is real property, or a claimant has filed a | 24 | | claim and
a cost bond under subsection (C) of Section 6 of this | 25 | | Act, the following
judicial in rem procedures shall apply:
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| 1 | | (A) If, after a review of the facts surrounding the | 2 | | seizure, the State's
Attorney is of the opinion that the seized | 3 | | property is subject to
forfeiture, then within 45 days of the | 4 | | receipt of notice of seizure by the
seizing agency or the | 5 | | filing of the claim and cost bond, whichever is
later, the | 6 | | State's Attorney shall institute judicial forfeiture | 7 | | proceedings
by filing a verified complaint for forfeiture and, | 8 | | if the claimant has
filed a claim and cost bond, by depositing | 9 | | the cost bond with the clerk of
the court. When authorized by | 10 | | law, a forfeiture must be ordered by a court
on an action in | 11 | | rem brought by a State's Attorney under a verified
complaint | 12 | | for forfeiture.
| 13 | | (B) During the probable cause portion of the judicial in | 14 | | rem
proceeding wherein the State presents its case-in-chief, | 15 | | the court must
receive and consider, among other things, all | 16 | | relevant hearsay evidence and
information. The laws of evidence | 17 | | relating to civil actions shall apply to
all other portions of | 18 | | the judicial in rem proceeding.
| 19 | | (C) Only an owner of or interest holder in the property may | 20 | | file an
answer asserting a claim against the property in the | 21 | | action in rem. For
purposes of this Section, the owner or | 22 | | interest holder shall be referred
to as claimant.
| 23 | | (D) The answer must be signed by the owner or interest | 24 | | holder under
penalty of perjury and must set forth:
| 25 | | (i) the caption of the proceedings as set forth on the | 26 | | notice of pending
forfeiture and the name of the claimant;
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| 1 | | (ii) the address at which the claimant will accept | 2 | | mail;
| 3 | | (iii) the nature and extent of the claimant's interest | 4 | | in the property;
| 5 | | (iv) the date, identity of transferor, and | 6 | | circumstances of the
claimant's acquisition of the | 7 | | interest in the property;
| 8 | | (v) the name and address of all other persons known to | 9 | | have an interest
in the property;
| 10 | | (vi) the specific provisions of Section 8 of this Act
| 11 | | relied on in asserting it
is not subject to forfeiture;
| 12 | | (vii) all essential facts supporting each assertion; | 13 | | and
| 14 | | (viii) the precise relief sought.
| 15 | | (E) The answer must be filed with the court within 45 days | 16 | | after service
of the civil in rem complaint.
| 17 | | (F) The hearing must be held within 60 days after filing of | 18 | | the answer
unless continued for good cause.
| 19 | | (G) The State shall show the existence of probable cause | 20 | | for forfeiture
of the property. If the State shows probable | 21 | | cause, the claimant has the
burden of showing by a | 22 | | preponderance of the evidence that the claimant's
interest in | 23 | | the property is not subject to forfeiture.
| 24 | | (H) If the State does not show existence of probable cause | 25 | | or a claimant
has established by a preponderance of evidence | 26 | | that the claimant has an
interest that is exempt under Section |
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| 1 | | 8 of this Act, the court shall order
the interest in the | 2 | | property returned or conveyed to the claimant and shall
order | 3 | | all other property forfeited to the State. If the State does | 4 | | show
existence of probable cause and the claimant does not | 5 | | establish by a
preponderance of evidence that the claimant has | 6 | | an interest that is exempt
under Section 8 of this Act, the | 7 | | court shall order all property forfeited
to the State.
| 8 | | (I) A defendant convicted in any criminal proceeding is | 9 | | precluded from
later denying the essential allegations of the | 10 | | criminal offense of which
the defendant was convicted in any | 11 | | proceeding under this Act
regardless of the pendency of an | 12 | | appeal from that conviction. However,
evidence of the pendency | 13 | | of an appeal is admissible.
| 14 | | (J) An acquittal or dismissal in a criminal proceeding | 15 | | shall not
preclude civil proceedings under this Act; however, | 16 | | for good cause shown,
on a motion by the State's Attorney, the | 17 | | court may stay civil forfeiture
proceedings during the criminal | 18 | | trial for a related criminal indictment or
information alleging | 19 | | a violation of the Illinois Controlled Substances Act,
the | 20 | | Cannabis Control Act, or the Methamphetamine Control and | 21 | | Community Protection Act. Such a stay shall not be available | 22 | | pending an
appeal. Property subject to forfeiture under the | 23 | | Illinois Controlled
Substances Act, the Cannabis Control Act, | 24 | | or the Methamphetamine Control and Community Protection Act | 25 | | shall not be subject to return
or release by a court exercising | 26 | | jurisdiction over a criminal case
involving the seizure of such |
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| 1 | | property unless such return or release is
consented to by the | 2 | | State's Attorney.
| 3 | | (K) All property declared forfeited under this Act vests in | 4 | | this State
on the commission of the conduct giving rise to | 5 | | forfeiture together with
the proceeds of the property after | 6 | | that time. Any such property or
proceeds subsequently | 7 | | transferred to any person remain subject to
forfeiture and | 8 | | thereafter shall be ordered forfeited unless the transferee
| 9 | | claims and establishes in a hearing under the provisions of | 10 | | this Act that
the transferee's interest is exempt under Section | 11 | | 8 of this Act.
| 12 | | (L) A civil action under this Act must be commenced within | 13 | | 5 years
after the last conduct giving rise to forfeiture became | 14 | | known or should
have become known or 5 years after the | 15 | | forfeitable property is
discovered, whichever is later, | 16 | | excluding any time during which either the
property or claimant | 17 | | is out of the State or in confinement or during which
criminal | 18 | | proceedings relating to the same conduct are in progress.
| 19 | | (Source: P.A. 94-556, eff. 9-11-05.)
| 20 | | Section 99. Effective date. This Act takes effect upon | 21 | | becoming law. |
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