Full Text of HB5130 103rd General Assembly
HB5130 103RD GENERAL ASSEMBLY | | | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024 HB5130 Introduced 2/8/2024, by Rep. Dan Ugaste - Dennis Tipsword, Jr. - David Friess and Dave Severin SYNOPSIS AS INTRODUCED: | | 725 ILCS 5/109-1 | from Ch. 38, par. 109-1 |
| Amends the Code of Criminal Procedure of 1963. Provides that law enforcement shall issue a citation in lieu of custodial arrest, upon proper identification, for those accused of any offense that is not a felony or Class A or B misdemeanor (rather than any offense that is not a felony or Class A misdemeanor) unless (i) a law enforcement officer reasonably believes the accused poses a threat to the community or any person, (ii) a custodial arrest is necessary because the criminal activity persists after the issuance of a citation, or (iii) the accused has an obvious medical or mental health issue that poses a risk to the accused's own safety. Provides that nothing in this provision requires arrest in the case of Class A or B (rather than a Class A) misdemeanor and felony offenses, or otherwise limits existing law enforcement discretion to decline to effect a custodial arrest. |
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| | A BILL FOR |
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| 1 | | AN ACT concerning criminal law. | 2 | | Be it enacted by the People of the State of Illinois, | 3 | | represented in the General Assembly: | 4 | | Section 5. The Code of Criminal Procedure of 1963 is | 5 | | amended by changing Section 109-1 as follows: | 6 | | (725 ILCS 5/109-1) (from Ch. 38, par. 109-1) | 7 | | Sec. 109-1. Person arrested; release from law enforcement | 8 | | custody and court appearance; geographic constraints prevent | 9 | | in-person appearances. | 10 | | (a) A person arrested with or without a warrant for an | 11 | | offense for which pretrial release may be denied under | 12 | | paragraphs (1) through (6) of Section 110-6.1 shall be taken | 13 | | without unnecessary delay before the nearest and most | 14 | | accessible judge in that county, except when such county is a | 15 | | participant in a regional jail authority, in which event such | 16 | | person may be taken to the nearest and most accessible judge, | 17 | | irrespective of the county where such judge presides, within | 18 | | 48 hours, and a charge shall be filed. Whenever a person | 19 | | arrested either with or without a warrant is required to be | 20 | | taken before a judge, a charge may be filed against such person | 21 | | by way of a two-way audio-visual communication system, except | 22 | | that a hearing to deny pretrial release to the defendant may | 23 | | not be conducted by two-way audio-visual communication system |
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| 1 | | unless the accused waives the right to be present physically | 2 | | in court, the court determines that the physical health and | 3 | | safety of any person necessary to the proceedings would be | 4 | | endangered by appearing in court, or the chief judge of the | 5 | | circuit orders use of that system due to operational | 6 | | challenges in conducting the hearing in person. Such | 7 | | operational challenges must be documented and approved by the | 8 | | chief judge of the circuit, and a plan to address the | 9 | | challenges through reasonable efforts must be presented and | 10 | | approved by the Administrative Office of the Illinois Courts | 11 | | every 6 months. | 12 | | (a-1) Law enforcement shall issue a citation in lieu of | 13 | | custodial arrest, upon proper identification, for those | 14 | | accused of any offense that is not a felony or Class A or B | 15 | | misdemeanor unless (i) a law enforcement officer reasonably | 16 | | believes the accused poses a threat to the community or any | 17 | | person, (ii) a custodial arrest is necessary because the | 18 | | criminal activity persists after the issuance of a citation, | 19 | | or (iii) the accused has an obvious medical or mental health | 20 | | issue that poses a risk to the accused's own safety. Nothing in | 21 | | this Section requires arrest in the case of Class A or B | 22 | | misdemeanor and felony offenses, or otherwise limits existing | 23 | | law enforcement discretion to decline to effect a custodial | 24 | | arrest. | 25 | | (a-3) A person arrested with or without a warrant for an | 26 | | offense for which pretrial release may not be denied may, |
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| 1 | | except as otherwise provided in this Code, be released by a law | 2 | | enforcement officer without appearing before a judge. A | 3 | | presumption in favor of pretrial release shall be applied by | 4 | | an arresting officer in the exercise of his or her discretion | 5 | | under this Section. | 6 | | (a-5) A person charged with an offense shall be allowed | 7 | | counsel at the hearing at which pretrial release is determined | 8 | | under Article 110 of this Code. If the defendant desires | 9 | | counsel for his or her initial appearance but is unable to | 10 | | obtain counsel, the court shall appoint a public defender or | 11 | | licensed attorney at law of this State to represent him or her. | 12 | | (b) Upon initial appearance of a person before the court, | 13 | | the judge shall: | 14 | | (1) inform the defendant of the charge against him and | 15 | | shall provide him with a copy of the charge; | 16 | | (2) advise the defendant of his right to counsel and | 17 | | if indigent shall appoint a public defender or licensed | 18 | | attorney at law of this State to represent him in | 19 | | accordance with the provisions of Section 113-3 of this | 20 | | Code; | 21 | | (3) schedule a preliminary hearing in appropriate | 22 | | cases; | 23 | | (4) admit the defendant to pretrial release in | 24 | | accordance with the provisions of Article 110 of this | 25 | | Code, or upon verified petition of the State, proceed with | 26 | | the setting of a detention hearing as provided in Section |
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| 1 | | 110-6.1; and | 2 | | (5) order the confiscation of the person's passport or | 3 | | impose travel restrictions on a defendant arrested for | 4 | | first degree murder or other violent crime as defined in | 5 | | Section 3 of the Rights of Crime Victims and Witnesses | 6 | | Act, if the judge determines, based on the factors in | 7 | | Section 110-5 of this Code, that this will reasonably | 8 | | ensure the appearance of the defendant and compliance by | 9 | | the defendant with all conditions of release. | 10 | | (c) The court may issue an order of protection in | 11 | | accordance with the provisions of Article 112A of this Code. | 12 | | Crime victims shall be given notice by the State's Attorney's | 13 | | office of this hearing as required in paragraph (2) of | 14 | | subsection (b) of Section 4.5 of the Rights of Crime Victims | 15 | | and Witnesses Act and shall be informed of their opportunity | 16 | | at this hearing to obtain an order of protection under Article | 17 | | 112A of this Code. | 18 | | (d) At the initial appearance of a defendant in any | 19 | | criminal proceeding, the court must advise the defendant in | 20 | | open court that any foreign national who is arrested or | 21 | | detained has the right to have notice of the arrest or | 22 | | detention given to his or her country's consular | 23 | | representatives and the right to communicate with those | 24 | | consular representatives if the notice has not already been | 25 | | provided. The court must make a written record of so advising | 26 | | the defendant. |
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| 1 | | (e) If consular notification is not provided to a | 2 | | defendant before his or her first appearance in court, the | 3 | | court shall grant any reasonable request for a continuance of | 4 | | the proceedings to allow contact with the defendant's | 5 | | consulate. Any delay caused by the granting of the request by a | 6 | | defendant shall temporarily suspend for the time of the delay | 7 | | the period within which a person shall be tried as prescribed | 8 | | by subsection (a), (b), or (e) of Section 103-5 of this Code | 9 | | and on the day of the expiration of delay the period shall | 10 | | continue at the point at which it was suspended. | 11 | | (f) At the hearing at which conditions of pretrial release | 12 | | are determined, the person charged shall be present in person | 13 | | rather than by two-way audio-video communication system unless | 14 | | the accused waives the right to be present physically in | 15 | | court, the court determines that the physical health and | 16 | | safety of any person necessary to the proceedings would be | 17 | | endangered by appearing in court, or the chief judge of the | 18 | | circuit orders use of that system due to operational | 19 | | challenges in conducting the hearing in person. Such | 20 | | operational challenges must be documented and approved by the | 21 | | chief judge of the circuit, and a plan to address the | 22 | | challenges through reasonable efforts must be presented and | 23 | | approved by the Administrative Office of the Illinois Courts | 24 | | every 6 months. | 25 | | (g) Defense counsel shall be given adequate opportunity to | 26 | | confer with the defendant prior to any hearing in which |
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| 1 | | conditions of release or the detention of the defendant is to | 2 | | be considered, with a physical accommodation made to | 3 | | facilitate attorney/client consultation. If defense counsel | 4 | | needs to confer or consult with the defendant during any | 5 | | hearing conducted via a two-way audio-visual communication | 6 | | system, such consultation shall not be recorded and shall be | 7 | | undertaken consistent with constitutional protections. | 8 | | (Source: P.A. 101-652, eff. 1-1-23; 102-813, eff. 5-13-22; | 9 | | 102-1104, eff. 1-1-23.) |
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