State of Illinois
90th General Assembly
Legislation

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[ Introduced ][ Enrolled ][ House Amendment 001 ]

90_HB0472eng

      730 ILCS 5/5-5-3          from Ch. 38, par. 1005-5-3
          Amends the Unified  Code  of  Corrections.  Adds  certain
      child  pornography  offenses  to list of offenses for which a
      period of probation, a  term  of  periodic  imprisonment,  or
      conditional   discharge   may   not   be  imposed.  Effective
      immediately.
                                                     LRB9002449RCks
HB0472 Engrossed                               LRB9002449RCks
 1        AN ACT in relation to child pornography.
 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
 5    changing Section 11-20.1 as follows:
 6        (720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1)
 7        Sec. 11-20.1.  Child pornography.
 8        (a)  A person commits the offense  of  child  pornography
 9    who:
10             (1)  films,  videotapes,  photographs,  or otherwise
11        depicts or portrays by means of any similar visual medium
12        or reproduction or depicts by computer any child whom  he
13        knows or reasonably should know to be under the age of 18
14        or  any institutionalized severely or profoundly mentally
15        retarded person where  such  child  or  institutionalized
16        severely or profoundly mentally retarded person is:
17                  (i)  actually  or  by simulation engaged in any
18             act of sexual intercourse with any person or animal;
19             or
20                  (ii)  actually or by simulation engaged in  any
21             act  of  sexual  contact involving the sex organs of
22             the   child   or   institutionalized   severely   or
23             profoundly mentally retarded person and  the  mouth,
24             anus,  or sex organs of another person or animal; or
25             which involves the mouth, anus or sex organs of  the
26             child  or  institutionalized  severely or profoundly
27             mentally retarded  person  and  the  sex  organs  of
28             another person or animal; or
29                  (iii)  actually or by simulation engaged in any
30             act of masturbation; or
31                  (iv)  actually  or  by  simulation portrayed as
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 1             being the object of, or otherwise  engaged  in,  any
 2             act   of   lewd  fondling,  touching,  or  caressing
 3             involving another person or animal; or
 4                  (v)  actually or by simulation engaged  in  any
 5             act  of  excretion  or  urination  within  a  sexual
 6             context; or
 7                  (vi)  actually  or  by  simulation portrayed or
 8             depicted as bound, fettered, or subject to sadistic,
 9             masochistic, or sadomasochistic abuse in any  sexual
10             context; or
11                  (vii)  depicted   or  portrayed  in  any  pose,
12             posture or setting involving a  lewd  exhibition  of
13             the unclothed genitals, pubic area, buttocks, or, if
14             such   person   is  female,  a  fully  or  partially
15             developed breast of the child or other person; or
16             (2)  with the knowledge of  the  nature  or  content
17        thereof, reproduces, disseminates, offers to disseminate,
18        exhibits  or  possesses  with  intent  to disseminate any
19        film,  videotape,  photograph  or  other  similar  visual
20        reproduction or depiction by computer  of  any  child  or
21        institutionalized   severely   or   profoundly   mentally
22        retarded  person  whom  the  person  knows  or reasonably
23        should know to be under  the  age  of  18  or  to  be  an
24        institutionalized   severely   or   profoundly   mentally
25        retarded  person,  engaged  in  any activity described in
26        subparagraphs (i) through (vii) of paragraph (1) of  this
27        subsection; or
28             (3)  with  knowledge  of the subject matter or theme
29        thereof, produces any stage play, live performance, film,
30        videotape or other similar visual portrayal or  depiction
31        by  computer which includes a child whom the person knows
32        or reasonably should know to be under the age of 18 or an
33        institutionalized   severely   or   profoundly   mentally
34        retarded person engaged  in  any  activity  described  in
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 1        subparagraphs  (i) through (vii) of paragraph (1) of this
 2        subsection; or
 3             (4)  solicits, uses, persuades, induces, entices, or
 4        coerces any child whom he knows or reasonably should know
 5        to be  under  the  age  of  18  or  an  institutionalized
 6        severely or profoundly mentally retarded person to appear
 7        in  any  stage  play, live presentation, film, videotape,
 8        photograph  or  other  similar  visual  reproduction   or
 9        depiction   by   computer   in   which   the   child   or
10        institutionalized   severely   or   profoundly   mentally
11        retarded  person  is  or will be depicted, actually or by
12        simulation, in any act,  pose  or  setting  described  in
13        subparagraphs  (i) through (vii) of paragraph (1) of this
14        subsection; or
15             (5)  is a parent,  step-parent,  legal  guardian  or
16        other  person  having care or custody of a child whom the
17        person knows or reasonably should know to  be  under  the
18        age  of 18 or an institutionalized severely or profoundly
19        mentally  retarded  person  and  who  knowingly  permits,
20        induces,  promotes,  or  arranges  for  such   child   or
21        institutionalized   severely   or   profoundly   mentally
22        retarded  person  to  appear  in  any  stage  play,  live
23        performance, film, videotape, photograph or other similar
24        visual presentation, portrayal or simulation or depiction
25        by   computer   of  any  act  or  activity  described  in
26        subparagraphs (i) through (vii) of paragraph (1) of  this
27        subsection; or
28             (6)  with   knowledge   of  the  nature  or  content
29        thereof, possesses any  film,  videotape,  photograph  or
30        other   similar   visual  reproduction  or  depiction  by
31        computer of any child or  institutionalized  severely  or
32        profoundly mentally retarded person whom the person knows
33        or reasonably should know to be under the age of 18 or to
34        be  an  institutionalized severely or profoundly mentally
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 1        retarded person, engaged in  any  activity  described  in
 2        subparagraphs  (i) through (vii) of paragraph (1) of this
 3        subsection; or
 4             (7)  solicits, uses, persuades, induces, entices, or
 5        coerces a person to provide a child under the age  of  18
 6        or  an  institutionalized severely or profoundly mentally
 7        retarded person to appear in any  videotape,  photograph,
 8        film,  stage  play,  live  presentation, or other similar
 9        visual reproduction or depiction by computer in which the
10        child or  an  institutionalized  severely  or  profoundly
11        mentally retarded person will be depicted, actually or by
12        simulation,  in  any  act,  pose, or setting described in
13        subparagraphs (i) through (vii) of paragraph (1) of  this
14        subsection.
15        (b) (1)  It  shall  be an affirmative defense to a charge
16    of child pornography that the defendant reasonably  believed,
17    under  all  of the circumstances, that the child was 18 years
18    of  age  or  older  or   that   the   person   was   not   an
19    institutionalized  severely  or  profoundly mentally retarded
20    person but only where, prior to the act or acts  giving  rise
21    to a prosecution under this Section, he took some affirmative
22    action  or  made  a  bonafide  inquiry  designed to ascertain
23    whether the child was 18 years of age or older  or  that  the
24    person  was  not  an institutionalized severely or profoundly
25    mentally  retarded  person  and   his   reliance   upon   the
26    information so obtained was clearly reasonable.
27        (2)  It  shall  be  an affirmative defense to a charge of
28    child pornography that the defendant was employed by a public
29    library or any library operated by an institution  accredited
30    by a generally recognized accrediting agency, at the time the
31    act leading to the charge of child pornography took place and
32    such act was committed during the course of employment.
33        (3)  The  charge  of child pornography shall not apply to
34    the performance of official  duties  by  law  enforcement  or
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 1    prosecuting  officers,  court  personnel or attorneys, nor to
 2    bonafide  treatment  or   professional   education   programs
 3    conducted  by  licensed  physicians,  psychologists or social
 4    workers.
 5        (4)  Possession by the defendant of more than one of  the
 6    same  film,  videotape or visual reproduction or depiction by
 7    computer in which child pornography is depicted shall raise a
 8    rebuttable presumption  that  the  defendant  possessed  such
 9    materials with the intent to disseminate them.
10        (c)  Violation  of  paragraph  (1),  (4),  (5), or (7) of
11    subsection (a) is a Class 1 felony with a  mandatory  minimum
12    fine  of $2,000 and a maximum fine of $100,000.  Violation of
13    paragraph (3) of subsection (a) is a Class 1 2 felony with  a
14    mandatory  minimum  fine  of  $1500  and  a  maximum  fine of
15    $100,000. Violation of paragraph (2) of subsection (a)  is  a
16    Class 1 3 felony with a mandatory minimum fine of $1000 and a
17    maximum  fine  of  $100,000.  Violation  of  paragraph (6) of
18    subsection (a) is a Class 3 4 felony with a mandatory minimum
19    fine of $1000 and a maximum fine of $100,000.
20        (d)  If a person is convicted of a second  or  subsequent
21    violation  of  this  Section  within  10  years  of  a  prior
22    conviction,  the  court shall order a presentence psychiatric
23    examination of the person.  The examiner shall report to  the
24    court whether treatment of the person is necessary.
25        (e)  Any  film,  videotape,  photograph  or other similar
26    visual reproduction or depiction by computer which includes a
27    child under the age of 18 or an institutionalized severely or
28    profoundly mentally retarded person engaged in  any  activity
29    described  in  subparagraphs (i) through (vii) or paragraph 1
30    of subsection (a), and any  material  or  equipment  used  or
31    intended   for   use  in  photographing,  filming,  printing,
32    producing,    reproducing,     manufacturing,     projecting,
33    exhibiting,  depiction  by  computer,  or  disseminating such
34    material shall be seized and forfeited in the manner,  method
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 1    and  procedure  provided by Section 36-1 of this Code for the
 2    seizure and forfeiture of vessels, vehicles and aircraft.
 3        (f)  Definitions.  For the purposes of this Section:
 4             (1)  "Disseminate" means (i)  to  sell,  distribute,
 5        exchange  or transfer possession, whether with or without
 6        consideration or (ii) to make  a  depiction  by  computer
 7        available  for  distribution  or  downloading through the
 8        facilities of any telecommunications network  or  through
 9        any other means of transferring computer programs or data
10        to a computer;
11             (2)  "Produce"  means to direct, promote, advertise,
12        publish, manufacture, issue, present or show;
13             (3)  "Reproduce" means  to  make  a  duplication  or
14        copy;
15             (4)  "Depict  by  computer"  means  to  generate  or
16        create,  or  cause to be created or generated, a computer
17        program or data that, after being processed by a computer
18        either alone or in conjunction with one or more  computer
19        programs,  results  in  a  visual depiction on a computer
20        monitor, screen, or display.
21             (5)  "Depiction  by  computer"  means   a   computer
22        program or data that, after being processed by a computer
23        either  alone or in conjunction with one or more computer
24        programs, results in a visual  depiction  on  a  computer
25        monitor, screen, or display.
26             (6)  "Computer", "computer program", and "data" have
27        the  meanings  ascribed  to them in Section 16D-2 of this
28        Code.
29    (Source: P.A. 87-1069; 87-1070; 88-45; 88-680, eff. 1-1-95.)
30        Section 5. The Unified Code of Corrections is amended  by
31    changing Section 5-5-3 as follows:
32        (730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)
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 1        (Text  of  Section  before  amendment  by P.A. 89-507 and
 2    89-688)
 3        Sec. 5-5-3.  Disposition.
 4        (a)  Every  person  convicted  of  an  offense  shall  be
 5    sentenced as provided in this Section.
 6        (b)  The   following   options   shall   be   appropriate
 7    dispositions, alone or in combination, for all  felonies  and
 8    misdemeanors other than those identified in subsection (c) of
 9    this Section:
10             (1)  A period of probation.
11             (2)  A term of periodic imprisonment.
12             (3)  A term of conditional discharge.
13             (4)  A term of imprisonment.
14             (5)  An order directing the offender to clean up and
15        repair  the  damage,  if the offender was convicted under
16        paragraph (h) of Section 21-1 of  the  Criminal  Code  of
17        1961.
18             (6)  A fine.
19             (7)  An   order   directing  the  offender  to  make
20        restitution to the victim under  Section  5-5-6  of  this
21        Code.
22             (8)  A  sentence of participation in a county impact
23        incarceration program under Section 5-8-1.2 of this Code.
24        Whenever an individual is sentenced for an offense  based
25    upon  an  arrest  for  a  violation  of Section 11-501 of the
26    Illinois Vehicle Code, or a  similar  provision  of  a  local
27    ordinance,   and   the   professional  evaluation  recommends
28    remedial or rehabilitative treatment  or  education,  neither
29    the treatment nor the education shall be the sole disposition
30    and  either  or  both may be imposed only in conjunction with
31    another disposition. The court shall monitor compliance  with
32    any remedial education or treatment recommendations contained
33    in  the professional evaluation.  Programs conducting alcohol
34    or other  drug  evaluation  or  remedial  education  must  be
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 1    licensed by the Department of Alcoholism and Substance Abuse.
 2    However, if the individual is not a resident of Illinois, the
 3    court  may  accept  an  alcohol  or  other drug evaluation or
 4    remedial education program in the state of such  individual's
 5    residence.   Programs  providing  treatment  must be licensed
 6    under  existing  applicable  alcoholism  and  drug  treatment
 7    licensure standards.
 8        In addition to any other fine or penalty required by law,
 9    any individual convicted of a violation of Section 11-501  of
10    the  Illinois  Vehicle  Code  or a similar provision of local
11    ordinance, whose  operation  of  a  motor  vehicle  while  in
12    violation  of  Section  11-501  or such ordinance proximately
13    caused an incident  resulting  in  an  appropriate  emergency
14    response,  shall  be required to make restitution to a public
15    agency for  the  costs  of  that  emergency  response.   Such
16    restitution  shall not exceed $500 per public agency for each
17    such emergency response.  For the purpose of this  paragraph,
18    emergency  response  shall  mean  any  incident  requiring  a
19    response  by: a police officer as defined under Section 1-162
20    of the Illinois Vehicle Code; a fireman carried on the  rolls
21    of  a regularly constituted fire department; and an ambulance
22    as defined  under  Section  4.05  of  the  Emergency  Medical
23    Services (EMS) Systems Act.
24        Neither   a  fine  nor  restitution  shall  be  the  sole
25    disposition for a felony and either or both  may  be  imposed
26    only in conjunction with another disposition.
27        (c) (1)  When a defendant is found guilty of first degree
28        murder   the   State   may  either  seek  a  sentence  of
29        imprisonment under Section 5-8-1 of this Code,  or  where
30        appropriate seek a sentence of death under Section 9-1 of
31        the Criminal Code of 1961.
32             (2)  A  period  of  probation,  a  term  of periodic
33        imprisonment  or  conditional  discharge  shall  not   be
34        imposed  for  the  following  offenses.  The  court shall
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 1        sentence the offender to not less than the  minimum  term
 2        of  imprisonment set forth in this Code for the following
 3        offenses, and may order a fine or restitution or both  in
 4        conjunction with such term of imprisonment:
 5                  (A)  First   degree   murder  where  the  death
 6             penalty is not imposed.
 7                  (B)  Attempted first degree murder.
 8                  (C)  A Class X felony.
 9                  (D)  A violation of Section 401.1 or 407 of the
10             Illinois Controlled Substances Act, or  a  violation
11             of  subdivision  (c)(2)  of  Section 401 of that Act
12             which relates to more than 5 grams  of  a  substance
13             containing cocaine or an analog thereof.
14                  (E)  A  violation  of  Section  5.1 or 9 of the
15             Cannabis Control Act.
16                  (F)  A  Class  2  or  greater  felony  if   the
17             offender  had been convicted of a Class 2 or greater
18             felony within 10 years  of  the  date  on  which  he
19             committed   the   offense  for  which  he  is  being
20             sentenced.
21                  (G)  Residential burglary.
22                  (H)  Criminal   sexual   assault,   except   as
23             otherwise  provided  in  subsection  (e)   of   this
24             Section.
25                  (I)  Aggravated battery of a senior citizen.
26                  (J)  A  forcible  felony  if  the  offense  was
27             related to the activities of an organized gang.
28                  Before  July  1, 1994, for the purposes of this
29             paragraph, "organized gang" means an association  of
30             5  or  more  persons, with an established hierarchy,
31             that  encourages  members  of  the  association   to
32             perpetrate crimes or provides support to the members
33             of the association who do commit crimes.
34                  Beginning  July  1,  1994,  for the purposes of
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 1             this paragraph, "organized  gang"  has  the  meaning
 2             ascribed  to  it  in  Section  10  of  the  Illinois
 3             Streetgang Terrorism Omnibus Prevention Act.
 4                  (K)  Vehicular hijacking.
 5                  (L)  A  second or subsequent conviction for the
 6             offense of hate crime when  the  underlying  offense
 7             upon  which  the  hate  crime  is  based  is  felony
 8             aggravated assault or felony mob action.
 9                  (M)  A  second or subsequent conviction for the
10             offense of institutional vandalism if the damage  to
11             the property exceeds $300.
12                  (N)  A  Class  3  felony violation of paragraph
13             (1) of subsection (a) of Section 2  of  the  Firearm
14             Owners Identification Card Act.
15                  (O)  A  violation  of  Section  12-6.1  of  the
16             Criminal Code of 1961.
17                  (P)  A  violation  of  paragraph (1), (2), (3),
18             (4), (5),  or  (7)  of  subsection  (a)  of  Section
19             11-20.1 of the Criminal Code of 1961.
20             (3)  A minimum term of imprisonment of not less than
21        48 consecutive hours or 100 hours of community service as
22        may  be  determined  by  the court shall be imposed for a
23        second or subsequent violation committed within  5  years
24        of a previous violation of Section 11-501 of the Illinois
25        Vehicle Code or a similar provision of a local ordinance.
26             (4)  A minimum term of imprisonment of not less than
27        7  consecutive days or 30 days of community service shall
28        be imposed for a violation of paragraph  (c)  of  Section
29        6-303 of the Illinois Vehicle Code.
30             (4.1)  A  minimum  term  of  30  consecutive days of
31        imprisonment, 40 days of 24 hour periodic imprisonment or
32        720 hours of community service, as may be  determined  by
33        the  court,  shall  be imposed for a violation of Section
34        11-501 of the Illinois Vehicle Code during  a  period  in
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 1        which  the  defendant's driving privileges are revoked or
 2        suspended, where the revocation or suspension was  for  a
 3        violation  of  Section 11-501 or Section 11-501.1 of that
 4        Code.
 5             (5)  The court may sentence an offender convicted of
 6        a business offense or a petty offense or a corporation or
 7        unincorporated association convicted of any offense to:
 8                  (A)  a period of conditional discharge;
 9                  (B)  a fine;
10                  (C)  make  restitution  to  the  victim   under
11             Section 5-5-6 of this Code.
12             (6)  In  no case shall an offender be eligible for a
13        disposition of probation or conditional discharge  for  a
14        Class  1  felony committed while he was serving a term of
15        probation or conditional discharge for a felony.
16             (7)  When  a  defendant  is  adjudged   a   habitual
17        criminal  under Article 33B of the Criminal Code of 1961,
18        the court shall sentence  the  defendant  to  a  term  of
19        natural life imprisonment.
20             (8)  When  a defendant, over the age of 21 years, is
21        convicted of a Class 1 or Class 2  felony,  after  having
22        twice  been  convicted  of  any  Class 2 or greater Class
23        felonies in Illinois, and  such  charges  are  separately
24        brought  and  tried  and arise out of different series of
25        acts, such defendant shall be  sentenced  as  a  Class  X
26        offender.  This  paragraph shall not apply unless (1) the
27        first felony was committed after the  effective  date  of
28        this  amendatory  Act  of 1977; and (2) the second felony
29        was committed after conviction on the first; and (3)  the
30        third  felony  was  committed  after  conviction  on  the
31        second.
32             (9)  A defendant convicted of a second or subsequent
33        offense  of  ritualized abuse of a child may be sentenced
34        to a term of natural life imprisonment.
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 1             (10)  Beginning  July  1,  1994,  unless  sentencing
 2        under Section 33B-1 is applicable, a term of imprisonment
 3        of not less than 15 years nor more than 50 years shall be
 4        imposed on a defendant who violates Section 33A-2 of  the
 5        Criminal  Code  of  1961 with a firearm, when that person
 6        has been convicted in any state or federal court of 3  or
 7        more  of  the  following  offenses: treason, first degree
 8        murder, second degree murder, aggravated criminal  sexual
 9        assault,  criminal  sexual  assault,  robbery,  burglary,
10        arson,  kidnaping,  aggravated battery resulting in great
11        bodily harm or permanent disability or disfigurement,  or
12        a  violation of Section 401(a) of the Illinois Controlled
13        Substances Act, when  the  third  offense  was  committed
14        after  conviction  on  the second, the second offense was
15        committed  after  conviction  on  the  first,   and   the
16        violation  of  Section 33A-2 of the Criminal Code of 1961
17        was committed after conviction on the third.
18             (11)  Beginning July 1, 1994, a term of imprisonment
19        of not less than 10 years and  not  more  than  30  years
20        shall  be  imposed  on  a  defendant who violates Section
21        33A-2 with a Category I  weapon  where  the  offense  was
22        committed in any school, or any conveyance owned, leased,
23        or  contracted  by  a  school to transport students to or
24        from school or a school related  activity,  on  the  real
25        property  comprising any school or public park, and where
26        the offense was related to the activities of an organized
27        gang.   For  the  purposes  of   this   paragraph   (11),
28        "organized  gang"  has  the  meaning  ascribed  to  it in
29        Section 10 of the Illinois Streetgang  Terrorism  Omnibus
30        Prevention Act.
31        (d)  In  any  case in which a sentence originally imposed
32    is vacated, the case shall be remanded to  the  trial  court.
33    The  trial  court shall hold a hearing under Section 5-4-1 of
34    the Unified Code of Corrections which may include evidence of
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 1    the defendant's life, moral character and  occupation  during
 2    the  time  since the original sentence was passed.  The trial
 3    court shall then impose sentence  upon  the  defendant.   The
 4    trial  court  may  impose  any sentence which could have been
 5    imposed at the original trial subject to Section 5-5-4 of the
 6    Unified Code of Corrections.
 7        (e)  In  cases  where  prosecution  for  criminal  sexual
 8    assault or aggravated criminal  sexual  abuse  under  Section
 9    12-13  or  12-16  of  the  Criminal  Code  of 1961 results in
10    conviction of a defendant who was  a  family  member  of  the
11    victim  at  the  time  of  the commission of the offense, the
12    court shall consider the safety and welfare of the victim and
13    may impose a sentence of probation only where:
14             (1)  the  court  finds  (A)  or  (B)  or  both   are
15        appropriate:
16                  (A)  the  defendant  is  willing  to  undergo a
17             court approved  counseling  program  for  a  minimum
18             duration of 2 years; or
19                  (B)  the defendant is willing to participate in
20             a  court  approved plan including but not limited to
21             the defendant's:
22                       (i)  removal from the household;
23                       (ii)  restricted contact with the victim;
24                       (iii)  continued financial support of  the
25                  family;
26                       (iv)  restitution  for  harm  done  to the
27                  victim; and
28                       (v)  compliance with  any  other  measures
29                  that the court may deem appropriate; and
30             (2)  the  court  orders the defendant to pay for the
31        victim's counseling services,  to  the  extent  that  the
32        court finds, after considering the defendant's income and
33        assets,  that  the  defendant  is  financially capable of
34        paying for such services, if  the  victim  was  under  18
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 1        years  of  age  at the time the offense was committed and
 2        requires counseling as a result of the offense.
 3        Probation may be revoked or modified pursuant to  Section
 4    5-6-4;  except where the court determines at the hearing that
 5    the defendant violated a condition of his  or  her  probation
 6    restricting  contact  with the victim or other family members
 7    or commits another offense with the victim  or  other  family
 8    members, the court shall revoke the defendant's probation and
 9    impose a term of imprisonment.
10        For  the  purposes  of  this Section, "family member" and
11    "victim" shall have the meanings ascribed to them in  Section
12    12-12 of the Criminal Code of 1961.
13        (f)  This  Article  shall  not  deprive  a court in other
14    proceedings to order a forfeiture of property, to suspend  or
15    cancel  a  license,  to  remove  a  person from office, or to
16    impose any other civil penalty.
17        (g)  Whenever a defendant  is  convicted  of  an  offense
18    under  Sections  11-14,  11-15, 11-15.1, 11-16, 11-17, 11-18,
19    11-18.1, 11-19,  11-19.1,  11-19.2,  12-13,  12-14,  12-14.1,
20    12-15  or  12-16  of the Criminal Code of 1961, the defendant
21    shall  undergo  medical  testing  to  determine  whether  the
22    defendant has any sexually transmissible disease, including a
23    test for infection with human immunodeficiency virus (HIV) or
24    any   other   identified   causative   agent   of    acquired
25    immunodeficiency  syndrome  (AIDS).   Any  such  medical test
26    shall be performed only  by  appropriately  licensed  medical
27    practitioners  and  may  include  an  analysis  of any bodily
28    fluids as well as an examination of the  defendant's  person.
29    Except as otherwise provided by law, the results of such test
30    shall  be kept strictly confidential by all medical personnel
31    involved in the testing and must be personally delivered in a
32    sealed envelope to the  judge  of  the  court  in  which  the
33    conviction  was entered for the judge's inspection in camera.
34    Acting in accordance with the best interests  of  the  victim
HB0472 Engrossed            -15-               LRB9002449RCks
 1    and  the  public,  the  judge  shall  have  the discretion to
 2    determine to whom, if anyone, the results of the testing  may
 3    be revealed. The court shall notify the defendant of the test
 4    results.  The court shall also notify the victim if requested
 5    by  the  victim, and if the victim is under the age of 15 and
 6    if requested by the victim's parents or legal  guardian,  the
 7    court  shall notify the victim's parents or legal guardian of
 8    the test results.  The court shall provide information on the
 9    availability of HIV testing and counseling at  Department  of
10    Public  Health  facilities to all parties to whom the results
11    of the testing are revealed  and  shall  direct  the  State's
12    Attorney  to  provide  the  information  to  the  victim when
13    possible. A State's Attorney may petition the court to obtain
14    the results of any HIV test administered under this  Section,
15    and  the  court  shall  grant  the  disclosure if the State's
16    Attorney shows it is relevant in order to prosecute a  charge
17    of  criminal transmission of HIV under Section 12-16.2 of the
18    Criminal Code of 1961 against the defendant.  The court shall
19    order that the cost of any such test shall  be  paid  by  the
20    county  and  may  be  taxed  as  costs  against the convicted
21    defendant.
22        (g-5)  When  an  inmate  is  tested   for   an   airborne
23    communicable   disease,   as   determined   by  the  Illinois
24    Department of Public Health  including  but  not  limited  to
25    tuberculosis,  the  results  of  the test shall be personally
26    delivered by the warden or his or her designee  in  a  sealed
27    envelope  to  the judge of the court in which the inmate must
28    appear for the judge's inspection in camera if  requested  by
29    the  judge.   Acting in accordance with the best interests of
30    those in the courtroom, the judge shall have  the  discretion
31    to  determine  what  if  any  precautions need to be taken to
32    prevent transmission of the disease in the courtroom.
33        (h)  Whenever a defendant  is  convicted  of  an  offense
34    under  Section  1 or 2 of the Hypodermic Syringes and Needles
HB0472 Engrossed            -16-               LRB9002449RCks
 1    Act, the defendant shall undergo medical testing to determine
 2    whether   the   defendant   has   been   exposed   to   human
 3    immunodeficiency  virus  (HIV)  or   any   other   identified
 4    causative agent of acquired immunodeficiency syndrome (AIDS).
 5    Except as otherwise provided by law, the results of such test
 6    shall  be kept strictly confidential by all medical personnel
 7    involved in the testing and must be personally delivered in a
 8    sealed envelope to the  judge  of  the  court  in  which  the
 9    conviction  was entered for the judge's inspection in camera.
10    Acting in accordance with the best interests of  the  public,
11    the  judge shall have the discretion to determine to whom, if
12    anyone, the results of the testing may be revealed. The court
13    shall notify the defendant of  a  positive  test  showing  an
14    infection  with  the  human immunodeficiency virus (HIV). The
15    court shall provide information on the  availability  of  HIV
16    testing   and  counseling  at  Department  of  Public  Health
17    facilities to all parties to whom the results of the  testing
18    are revealed and shall direct the State's Attorney to provide
19    the  information  to  the  victim  when  possible.  A State's
20    Attorney may petition the court to obtain the results of  any
21    HIV  test  administered  under  this   Section, and the court
22    shall grant the disclosure if the State's Attorney  shows  it
23    is  relevant  in  order  to  prosecute  a  charge of criminal
24    transmission of HIV under Section  12-16.2  of  the  Criminal
25    Code  of  1961  against  the defendant. The court shall order
26    that the cost of any such test shall be paid  by  the  county
27    and may be taxed as costs against the convicted defendant.
28        (i)  All  fines  and penalties imposed under this Section
29    for any violation of Chapters 3, 4, 6, and 11 of the Illinois
30    Vehicle Code, or a similar provision of  a  local  ordinance,
31    and any violation of the Child Passenger Protection Act, or a
32    similar  provision  of  a local ordinance, shall be collected
33    and disbursed by the circuit clerk as provided under  Section
34    27.5 of the Clerks of Courts Act.
HB0472 Engrossed            -17-               LRB9002449RCks
 1        (j)  In  cases  when  prosecution  for  any  violation of
 2    Section 11-6,  11-8,  11-9,  11-11,  11-14,  11-15,  11-15.1,
 3    11-16,   11-17,  11-17.1,  11-18,  11-18.1,  11-19,  11-19.1,
 4    11-19.2, 11-20.1, 11-21, 12-13,  12-14,  12-14.1,  12-15,  or
 5    12-16  of  the  Criminal  Code  of 1961, any violation of the
 6    Illinois Controlled Substances Act, or any violation  of  the
 7    Cannabis  Control Act results in conviction, a disposition of
 8    court supervision, or an order  of  probation  granted  under
 9    Section  10 of the Cannabis Control Act or Section 410 of the
10    Illinois Controlled Substance Act of a defendant,  the  court
11    shall  determine  whether  the  defendant  is  employed  by a
12    facility or center as defined under the  Child  Care  Act  of
13    1969,  a public or private elementary or secondary school, or
14    otherwise works with children under 18  years  of  age  on  a
15    daily  basis.   When  a  defendant  is so employed, the court
16    shall order the Clerk of the Court to  send  a  copy  of  the
17    judgment  of  conviction or order of supervision or probation
18    to  the  defendant's  employer  by  certified  mail.  If  the
19    employer of the defendant is a school, the Clerk of the Court
20    shall direct the  mailing  of  a  copy  of  the  judgment  of
21    conviction  or  order  of  supervision  or  probation  to the
22    appropriate regional superintendent of schools.  The regional
23    superintendent of schools shall notify  the  State  Board  of
24    Education of any notification under this subsection.
25        (k)  A court may not impose a sentence or disposition for
26    a  felony  or  misdemeanor  that requires the defendant to be
27    implanted or injected with  or  to  use  any  form  of  birth
28    control.
29        (l)(A)  Except as provided in paragraph (C) of subsection
30    (l),  whenever a defendant, who is an alien as defined by the
31    Immigration and Nationality Act, is convicted of  any  felony
32    or  misdemeanor  offense,  the  court  after  sentencing  the
33    defendant  may,  upon  motion  of  the State's Attorney, hold
34    sentence in abeyance and remand the defendant to the  custody
HB0472 Engrossed            -18-               LRB9002449RCks
 1    of  the  Attorney  General of the United States or his or her
 2    designated agent to be deported when:
 3             (1)  a final order of deportation  has  been  issued
 4        against  the  defendant pursuant to proceedings under the
 5        Immigration and Nationality Act, and
 6             (2)  the deportation  of  the  defendant  would  not
 7        deprecate  the seriousness of the defendant's conduct and
 8        would not be inconsistent with the ends of justice.
 9        Otherwise, the defendant shall be sentenced  as  provided
10    in this Chapter V.
11        (B)  If  the  defendant  has already been sentenced for a
12    felony  or  misdemeanor  offense,  or  has  been  placed   on
13    probation  under  Section  10  of the Cannabis Control Act or
14    Section 410 of the Illinois Controlled  Substances  Act,  the
15    court may, upon motion of the State's Attorney to suspend the
16    sentence  imposed, commit the defendant to the custody of the
17    Attorney  General  of  the  United  States  or  his  or   her
18    designated agent when:
19             (1)  a  final  order  of deportation has been issued
20        against the defendant pursuant to proceedings  under  the
21        Immigration and Nationality Act, and
22             (2)  the  deportation  of  the  defendant  would not
23        deprecate the seriousness of the defendant's conduct  and
24        would not be inconsistent with the ends of justice.
25        (C)  This  subsection (l) does not apply to offenders who
26    are subject to the provisions of paragraph (2) of  subsection
27    (a) of Section 3-6-3.
28        (D)  Upon  motion of the State's Attorney, if a defendant
29    sentenced under this Section returns to the  jurisdiction  of
30    the  United States, the defendant shall be recommitted to the
31    custody of the county from which he  or  she  was  sentenced.
32    Thereafter,   the  defendant  shall  be  brought  before  the
33    sentencing court, which may  impose  any  sentence  that  was
34    available   under  Section  5-5-3  at  the  time  of  initial
HB0472 Engrossed            -19-               LRB9002449RCks
 1    sentencing.  In addition, the defendant shall not be eligible
 2    for additional good conduct credit for meritorious service as
 3    provided under Section 3-6-6.
 4    (Source: P.A. 88-45; 88-336; 88-351; 88-460; 88-467;  88-510;
 5    88-659; 88-670, eff. 12-2-94; 88-680, eff. 1-1-95; 89-8, eff.
 6    3-21-95;  89-314, eff. 1-1-96; 89-428, eff. 12-13-95; 89-462,
 7    eff. 5-29-96; 89-477, eff.  6-18-96;  89-545,  eff.  7-25-96;
 8    89-587, eff. 7-31-96; 89-627, eff. 1-1-97; revised 1-7-97.)
 9        (Text  of  Section  after  amendment  by  P.A. 89-507 and
10    89-688)
11        Sec. 5-5-3.  Disposition.
12        (a)  Every  person  convicted  of  an  offense  shall  be
13    sentenced as provided in this Section.
14        (b)  The   following   options   shall   be   appropriate
15    dispositions, alone or in combination, for all  felonies  and
16    misdemeanors other than those identified in subsection (c) of
17    this Section:
18             (1)  A period of probation.
19             (2)  A term of periodic imprisonment.
20             (3)  A term of conditional discharge.
21             (4)  A term of imprisonment.
22             (5)  An order directing the offender to clean up and
23        repair  the  damage,  if the offender was convicted under
24        paragraph (h) of Section 21-1 of  the  Criminal  Code  of
25        1961.
26             (6)  A fine.
27             (7)  An   order   directing  the  offender  to  make
28        restitution to the victim under  Section  5-5-6  of  this
29        Code.
30             (8)  A  sentence of participation in a county impact
31        incarceration program under Section 5-8-1.2 of this Code.
32        Whenever an individual is sentenced for an offense  based
33    upon  an  arrest  for  a  violation  of Section 11-501 of the
34    Illinois Vehicle Code, or a  similar  provision  of  a  local
HB0472 Engrossed            -20-               LRB9002449RCks
 1    ordinance,   and   the   professional  evaluation  recommends
 2    remedial or rehabilitative treatment  or  education,  neither
 3    the treatment nor the education shall be the sole disposition
 4    and  either  or  both may be imposed only in conjunction with
 5    another disposition. The court shall monitor compliance  with
 6    any remedial education or treatment recommendations contained
 7    in  the professional evaluation.  Programs conducting alcohol
 8    or other  drug  evaluation  or  remedial  education  must  be
 9    licensed  by  the  Department of Human Services.  However, if
10    the individual is not a resident of Illinois, the  court  may
11    accept  an  alcohol  or  other  drug  evaluation  or remedial
12    education  program  in  the  state   of   such   individual's
13    residence.   Programs  providing  treatment  must be licensed
14    under  existing  applicable  alcoholism  and  drug  treatment
15    licensure standards.
16        In addition to any other fine or penalty required by law,
17    any individual convicted of a violation of Section 11-501  of
18    the  Illinois  Vehicle  Code  or a similar provision of local
19    ordinance, whose  operation  of  a  motor  vehicle  while  in
20    violation  of  Section  11-501  or such ordinance proximately
21    caused an incident  resulting  in  an  appropriate  emergency
22    response,  shall  be required to make restitution to a public
23    agency for  the  costs  of  that  emergency  response.   Such
24    restitution  shall not exceed $500 per public agency for each
25    such emergency response.  For the purpose of this  paragraph,
26    emergency  response  shall  mean  any  incident  requiring  a
27    response  by: a police officer as defined under Section 1-162
28    of the Illinois Vehicle Code; a fireman carried on the  rolls
29    of  a regularly constituted fire department; and an ambulance
30    as defined  under  Section  4.05  of  the  Emergency  Medical
31    Services (EMS) Systems Act.
32        Neither   a  fine  nor  restitution  shall  be  the  sole
33    disposition for a felony and either or both  may  be  imposed
34    only in conjunction with another disposition.
HB0472 Engrossed            -21-               LRB9002449RCks
 1        (c) (1)  When a defendant is found guilty of first degree
 2        murder   the   State   may  either  seek  a  sentence  of
 3        imprisonment under Section 5-8-1 of this Code,  or  where
 4        appropriate seek a sentence of death under Section 9-1 of
 5        the Criminal Code of 1961.
 6             (2)  A  period  of  probation,  a  term  of periodic
 7        imprisonment  or  conditional  discharge  shall  not   be
 8        imposed  for  the  following  offenses.  The  court shall
 9        sentence the offender to not less than the  minimum  term
10        of  imprisonment set forth in this Code for the following
11        offenses, and may order a fine or restitution or both  in
12        conjunction with such term of imprisonment:
13                  (A)  First   degree   murder  where  the  death
14             penalty is not imposed.
15                  (B)  Attempted first degree murder.
16                  (C)  A Class X felony.
17                  (D)  A violation of Section 401.1 or 407 of the
18             Illinois Controlled Substances Act, or  a  violation
19             of  subdivision  (c)(2)  of  Section 401 of that Act
20             which relates to more than 5 grams  of  a  substance
21             containing cocaine or an analog thereof.
22                  (E)  A  violation  of  Section  5.1 or 9 of the
23             Cannabis Control Act.
24                  (F)  A  Class  2  or  greater  felony  if   the
25             offender  had been convicted of a Class 2 or greater
26             felony within 10 years  of  the  date  on  which  he
27             committed   the   offense  for  which  he  is  being
28             sentenced.
29                  (G)  Residential burglary.
30                  (H)  Criminal   sexual   assault,   except   as
31             otherwise  provided  in  subsection  (e)   of   this
32             Section.
33                  (I)  Aggravated battery of a senior citizen.
34                  (J)  A  forcible  felony  if  the  offense  was
HB0472 Engrossed            -22-               LRB9002449RCks
 1             related to the activities of an organized gang.
 2                  Before  July  1, 1994, for the purposes of this
 3             paragraph, "organized gang" means an association  of
 4             5  or  more  persons, with an established hierarchy,
 5             that  encourages  members  of  the  association   to
 6             perpetrate crimes or provides support to the members
 7             of the association who do commit crimes.
 8                  Beginning  July  1,  1994,  for the purposes of
 9             this paragraph, "organized  gang"  has  the  meaning
10             ascribed  to  it  in  Section  10  of  the  Illinois
11             Streetgang Terrorism Omnibus Prevention Act.
12                  (K)  Vehicular hijacking.
13                  (L)  A  second or subsequent conviction for the
14             offense of hate crime when  the  underlying  offense
15             upon  which  the  hate  crime  is  based  is  felony
16             aggravated assault or felony mob action.
17                  (M)  A  second or subsequent conviction for the
18             offense of institutional vandalism if the damage  to
19             the property exceeds $300.
20                  (N)  A  Class  3  felony violation of paragraph
21             (1) of subsection (a) of Section 2  of  the  Firearm
22             Owners Identification Card Act.
23                  (O)  A  violation  of  Section  12-6.1  of  the
24             Criminal Code of 1961.
25                  (P)  A  violation  of  paragraph (1), (2), (3),
26             (4), (5),  or  (7)  of  subsection  (a)  of  Section
27             11-20.1 of the Criminal Code of 1961.
28             (3)  A minimum term of imprisonment of not less than
29        48 consecutive hours or 100 hours of community service as
30        may  be  determined  by  the court shall be imposed for a
31        second or subsequent violation committed within  5  years
32        of a previous violation of Section 11-501 of the Illinois
33        Vehicle Code or a similar provision of a local ordinance.
34             (4)  A minimum term of imprisonment of not less than
HB0472 Engrossed            -23-               LRB9002449RCks
 1        7  consecutive days or 30 days of community service shall
 2        be imposed for a violation of paragraph  (c)  of  Section
 3        6-303 of the Illinois Vehicle Code.
 4             (4.1)  A  minimum  term  of  30  consecutive days of
 5        imprisonment, 40 days of 24 hour periodic imprisonment or
 6        720 hours of community service, as may be  determined  by
 7        the  court,  shall  be imposed for a violation of Section
 8        11-501 of the Illinois Vehicle Code during  a  period  in
 9        which  the  defendant's driving privileges are revoked or
10        suspended, where the revocation or suspension was  for  a
11        violation  of  Section 11-501 or Section 11-501.1 of that
12        Code.
13             (5)  The court may sentence an offender convicted of
14        a business offense or a petty offense or a corporation or
15        unincorporated association convicted of any offense to:
16                  (A)  a period of conditional discharge;
17                  (B)  a fine;
18                  (C)  make  restitution  to  the  victim   under
19             Section 5-5-6 of this Code.
20             (6)  In  no case shall an offender be eligible for a
21        disposition of probation or conditional discharge  for  a
22        Class  1  felony committed while he was serving a term of
23        probation or conditional discharge for a felony.
24             (7)  When  a  defendant  is  adjudged   a   habitual
25        criminal  under Article 33B of the Criminal Code of 1961,
26        the court shall sentence  the  defendant  to  a  term  of
27        natural life imprisonment.
28             (8)  When  a defendant, over the age of 21 years, is
29        convicted of a Class 1 or Class 2  felony,  after  having
30        twice  been  convicted  of  any  Class 2 or greater Class
31        felonies in Illinois, and  such  charges  are  separately
32        brought  and  tried  and arise out of different series of
33        acts, such defendant shall be  sentenced  as  a  Class  X
34        offender.  This  paragraph shall not apply unless (1) the
HB0472 Engrossed            -24-               LRB9002449RCks
 1        first felony was committed after the  effective  date  of
 2        this  amendatory  Act  of 1977; and (2) the second felony
 3        was committed after conviction on the first; and (3)  the
 4        third  felony  was  committed  after  conviction  on  the
 5        second.
 6             (9)  A defendant convicted of a second or subsequent
 7        offense  of  ritualized abuse of a child may be sentenced
 8        to a term of natural life imprisonment.
 9             (10)  Beginning  July  1,  1994,  unless  sentencing
10        under Section 33B-1 is applicable, a term of imprisonment
11        of not less than 15 years nor more than 50 years shall be
12        imposed on a defendant who violates Section 33A-2 of  the
13        Criminal  Code  of  1961 with a firearm, when that person
14        has been convicted in any state or federal court of 3  or
15        more  of  the  following  offenses: treason, first degree
16        murder, second degree murder, aggravated criminal  sexual
17        assault,  criminal  sexual  assault,  robbery,  burglary,
18        arson,  kidnaping,  aggravated battery resulting in great
19        bodily harm or permanent disability or disfigurement,  or
20        a  violation of Section 401(a) of the Illinois Controlled
21        Substances Act, when  the  third  offense  was  committed
22        after  conviction  on  the second, the second offense was
23        committed  after  conviction  on  the  first,   and   the
24        violation  of  Section 33A-2 of the Criminal Code of 1961
25        was committed after conviction on the third.
26             (11)  Beginning July 1, 1994, a term of imprisonment
27        of not less than 10 years and  not  more  than  30  years
28        shall  be  imposed  on  a  defendant who violates Section
29        33A-2 with a Category I  weapon  where  the  offense  was
30        committed in any school, or any conveyance owned, leased,
31        or  contracted  by  a  school to transport students to or
32        from school or a school related  activity,  on  the  real
33        property  comprising any school or public park, and where
34        the offense was related to the activities of an organized
HB0472 Engrossed            -25-               LRB9002449RCks
 1        gang.   For  the  purposes  of   this   paragraph   (11),
 2        "organized  gang"  has  the  meaning  ascribed  to  it in
 3        Section 10 of the Illinois Streetgang  Terrorism  Omnibus
 4        Prevention Act.
 5        (d)  In  any  case in which a sentence originally imposed
 6    is vacated, the case shall be remanded to  the  trial  court.
 7    The  trial  court shall hold a hearing under Section 5-4-1 of
 8    the Unified Code of Corrections which may include evidence of
 9    the defendant's life, moral character and  occupation  during
10    the  time  since the original sentence was passed.  The trial
11    court shall then impose sentence  upon  the  defendant.   The
12    trial  court  may  impose  any sentence which could have been
13    imposed at the original trial subject to Section 5-5-4 of the
14    Unified Code of Corrections.
15        (e)  In  cases  where  prosecution  for  criminal  sexual
16    assault or aggravated criminal  sexual  abuse  under  Section
17    12-13  or  12-16  of  the  Criminal  Code  of 1961 results in
18    conviction of a defendant who was  a  family  member  of  the
19    victim  at  the  time  of  the commission of the offense, the
20    court shall consider the safety and welfare of the victim and
21    may impose a sentence of probation only where:
22             (1)  the  court  finds  (A)  or  (B)  or  both   are
23        appropriate:
24                  (A)  the  defendant  is  willing  to  undergo a
25             court approved  counseling  program  for  a  minimum
26             duration of 2 years; or
27                  (B)  the defendant is willing to participate in
28             a  court  approved plan including but not limited to
29             the defendant's:
30                       (i)  removal from the household;
31                       (ii)  restricted contact with the victim;
32                       (iii)  continued financial support of  the
33                  family;
34                       (iv)  restitution  for  harm  done  to the
HB0472 Engrossed            -26-               LRB9002449RCks
 1                  victim; and
 2                       (v)  compliance with  any  other  measures
 3                  that the court may deem appropriate; and
 4             (2)  the  court  orders the defendant to pay for the
 5        victim's counseling services,  to  the  extent  that  the
 6        court finds, after considering the defendant's income and
 7        assets,  that  the  defendant  is  financially capable of
 8        paying for such services, if  the  victim  was  under  18
 9        years  of  age  at the time the offense was committed and
10        requires counseling as a result of the offense.
11        Probation may be revoked or modified pursuant to  Section
12    5-6-4;  except where the court determines at the hearing that
13    the defendant violated a condition of his  or  her  probation
14    restricting  contact  with the victim or other family members
15    or commits another offense with the victim  or  other  family
16    members, the court shall revoke the defendant's probation and
17    impose a term of imprisonment.
18        For  the  purposes  of  this Section, "family member" and
19    "victim" shall have the meanings ascribed to them in  Section
20    12-12 of the Criminal Code of 1961.
21        (f)  This  Article  shall  not  deprive  a court in other
22    proceedings to order a forfeiture of property, to suspend  or
23    cancel  a  license,  to  remove  a  person from office, or to
24    impose any other civil penalty.
25        (g)  Whenever a defendant  is  convicted  of  an  offense
26    under  Sections  11-14,  11-15, 11-15.1, 11-16, 11-17, 11-18,
27    11-18.1, 11-19,  11-19.1,  11-19.2,  12-13,  12-14,  12-14.1,
28    12-15  or  12-16  of the Criminal Code of 1961, the defendant
29    shall  undergo  medical  testing  to  determine  whether  the
30    defendant has any sexually transmissible disease, including a
31    test for infection with human immunodeficiency virus (HIV) or
32    any   other   identified   causative   agent   of    acquired
33    immunodeficiency  syndrome  (AIDS).   Any  such  medical test
34    shall be performed only  by  appropriately  licensed  medical
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 1    practitioners  and  may  include  an  analysis  of any bodily
 2    fluids as well as an examination of the  defendant's  person.
 3    Except as otherwise provided by law, the results of such test
 4    shall  be kept strictly confidential by all medical personnel
 5    involved in the testing and must be personally delivered in a
 6    sealed envelope to the  judge  of  the  court  in  which  the
 7    conviction  was entered for the judge's inspection in camera.
 8    Acting in accordance with the best interests  of  the  victim
 9    and  the  public,  the  judge  shall  have  the discretion to
10    determine to whom, if anyone, the results of the testing  may
11    be revealed. The court shall notify the defendant of the test
12    results.  The court shall also notify the victim if requested
13    by  the  victim, and if the victim is under the age of 15 and
14    if requested by the victim's parents or legal  guardian,  the
15    court  shall notify the victim's parents or legal guardian of
16    the test results.  The court shall provide information on the
17    availability of HIV testing and counseling at  Department  of
18    Public  Health  facilities to all parties to whom the results
19    of the testing are revealed  and  shall  direct  the  State's
20    Attorney  to  provide  the  information  to  the  victim when
21    possible. A State's Attorney may petition the court to obtain
22    the results of any HIV test administered under this  Section,
23    and  the  court  shall  grant  the  disclosure if the State's
24    Attorney shows it is relevant in order to prosecute a  charge
25    of  criminal transmission of HIV under Section 12-16.2 of the
26    Criminal Code of 1961 against the defendant.  The court shall
27    order that the cost of any such test shall  be  paid  by  the
28    county  and  may  be  taxed  as  costs  against the convicted
29    defendant.
30        (g-5)  When  an  inmate  is  tested   for   an   airborne
31    communicable   disease,   as   determined   by  the  Illinois
32    Department of Public Health  including  but  not  limited  to
33    tuberculosis,  the  results  of  the test shall be personally
34    delivered by the warden or his or her designee  in  a  sealed
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 1    envelope  to  the judge of the court in which the inmate must
 2    appear for the judge's inspection in camera if  requested  by
 3    the  judge.   Acting in accordance with the best interests of
 4    those in the courtroom, the judge shall have  the  discretion
 5    to  determine  what  if  any  precautions need to be taken to
 6    prevent transmission of the disease in the courtroom.
 7        (h)  Whenever a defendant  is  convicted  of  an  offense
 8    under  Section  1 or 2 of the Hypodermic Syringes and Needles
 9    Act, the defendant shall undergo medical testing to determine
10    whether   the   defendant   has   been   exposed   to   human
11    immunodeficiency  virus  (HIV)  or   any   other   identified
12    causative agent of acquired immunodeficiency syndrome (AIDS).
13    Except as otherwise provided by law, the results of such test
14    shall  be kept strictly confidential by all medical personnel
15    involved in the testing and must be personally delivered in a
16    sealed envelope to the  judge  of  the  court  in  which  the
17    conviction  was entered for the judge's inspection in camera.
18    Acting in accordance with the best interests of  the  public,
19    the  judge shall have the discretion to determine to whom, if
20    anyone, the results of the testing may be revealed. The court
21    shall notify the defendant of  a  positive  test  showing  an
22    infection  with  the  human immunodeficiency virus (HIV). The
23    court shall provide information on the  availability  of  HIV
24    testing   and  counseling  at  Department  of  Public  Health
25    facilities to all parties to whom the results of the  testing
26    are revealed and shall direct the State's Attorney to provide
27    the  information  to  the  victim  when  possible.  A State's
28    Attorney may petition the court to obtain the results of  any
29    HIV  test  administered  under  this   Section, and the court
30    shall grant the disclosure if the State's Attorney  shows  it
31    is  relevant  in  order  to  prosecute  a  charge of criminal
32    transmission of HIV under Section  12-16.2  of  the  Criminal
33    Code  of  1961  against  the defendant. The court shall order
34    that the cost of any such test shall be paid  by  the  county
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 1    and may be taxed as costs against the convicted defendant.
 2        (i)  All  fines  and penalties imposed under this Section
 3    for any violation of Chapters 3, 4, 6, and 11 of the Illinois
 4    Vehicle Code, or a similar provision of  a  local  ordinance,
 5    and any violation of the Child Passenger Protection Act, or a
 6    similar  provision  of  a local ordinance, shall be collected
 7    and disbursed by the circuit clerk as provided under  Section
 8    27.5 of the Clerks of Courts Act.
 9        (j)  In  cases  when  prosecution  for  any  violation of
10    Section 11-6,  11-8,  11-9,  11-11,  11-14,  11-15,  11-15.1,
11    11-16,   11-17,  11-17.1,  11-18,  11-18.1,  11-19,  11-19.1,
12    11-19.2, 11-20.1, 11-21, 12-13,  12-14,  12-14.1,  12-15,  or
13    12-16  of  the  Criminal  Code  of 1961, any violation of the
14    Illinois Controlled Substances Act, or any violation  of  the
15    Cannabis  Control Act results in conviction, a disposition of
16    court supervision, or an order  of  probation  granted  under
17    Section  10 of the Cannabis Control Act or Section 410 of the
18    Illinois Controlled Substance Act of a defendant,  the  court
19    shall  determine  whether  the  defendant  is  employed  by a
20    facility or center as defined under the  Child  Care  Act  of
21    1969,  a public or private elementary or secondary school, or
22    otherwise works with children under 18  years  of  age  on  a
23    daily  basis.   When  a  defendant  is so employed, the court
24    shall order the Clerk of the Court to  send  a  copy  of  the
25    judgment  of  conviction or order of supervision or probation
26    to  the  defendant's  employer  by  certified  mail.  If  the
27    employer of the defendant is a school, the Clerk of the Court
28    shall direct the  mailing  of  a  copy  of  the  judgment  of
29    conviction  or  order  of  supervision  or  probation  to the
30    appropriate regional superintendent of schools.  The regional
31    superintendent of schools shall notify  the  State  Board  of
32    Education of any notification under this subsection.
33        (j-5)  A  defendant  at  least  17  years  of  age who is
34    convicted of  a  felony  and  who  has  not  been  previously
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 1    convicted  of a misdemeanor or felony and who is sentenced to
 2    a  term  of  imprisonment  in  the  Illinois  Department   of
 3    Corrections  shall  as  a condition of his or her sentence be
 4    required by the court to attend educational courses  designed
 5    to  prepare  the  defendant  for a high school diploma and to
 6    work toward a high school diploma or to work  toward  passing
 7    the high school level Test of General Educational Development
 8    (GED)  or  to  work  toward  completing a vocational training
 9    program offered by  the  Department  of  Corrections.   If  a
10    defendant fails to complete the educational training required
11    by  his or her sentence during the term of incarceration, the
12    Prisoner Review Board shall,  as  a  condition  of  mandatory
13    supervised  release, require the defendant, at his or her own
14    expense, to pursue a course of study  toward  a  high  school
15    diploma  or  passage  of  the  GED test.  The Prisoner Review
16    Board shall revoke the  mandatory  supervised  release  of  a
17    defendant  who  wilfully fails to comply with this subsection
18    (j-5) upon his or her release from  confinement  in  a  penal
19    institution  while  serving  a  mandatory  supervised release
20    term; however, the inability of the defendant after making  a
21    good  faith  effort  to  obtain  financial aid or pay for the
22    educational training shall not be deemed a wilful failure  to
23    comply.    The  Prisoner  Review  Board  shall  recommit  the
24    defendant whose mandatory supervised release  term  has  been
25    revoked  under  this  subsection (j-5) as provided in Section
26    3-3-9.  This subsection (j-5) does not apply to  a  defendant
27    who  has a high school diploma or has successfully passed the
28    GED test. This subsection (j-5) does not apply to a defendant
29    who is determined by the court to be developmentally disabled
30    or otherwise mentally incapable of completing the educational
31    or vocational program.
32        (k)  A court may not impose a sentence or disposition for
33    a felony or misdemeanor that requires  the  defendant  to  be
34    implanted  or  injected  with  or  to  use  any form of birth
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 1    control.
 2        (l)(A)  Except as provided in paragraph (C) of subsection
 3    (l), whenever a defendant, who is an alien as defined by  the
 4    Immigration  and  Nationality Act, is convicted of any felony
 5    or  misdemeanor  offense,  the  court  after  sentencing  the
 6    defendant may, upon motion  of  the  State's  Attorney,  hold
 7    sentence  in abeyance and remand the defendant to the custody
 8    of the Attorney General of the United States or  his  or  her
 9    designated agent to be deported when:
10             (1)  a  final  order  of deportation has been issued
11        against the defendant pursuant to proceedings  under  the
12        Immigration and Nationality Act, and
13             (2)  the  deportation  of  the  defendant  would not
14        deprecate the seriousness of the defendant's conduct  and
15        would not be inconsistent with the ends of justice.
16        Otherwise,  the  defendant shall be sentenced as provided
17    in this Chapter V.
18        (B)  If the defendant has already been  sentenced  for  a
19    felony   or  misdemeanor  offense,  or  has  been  placed  on
20    probation under Section 10 of the  Cannabis  Control  Act  or
21    Section  410  of  the Illinois Controlled Substances Act, the
22    court may, upon motion of the State's Attorney to suspend the
23    sentence imposed, commit the defendant to the custody of  the
24    Attorney   General  of  the  United  States  or  his  or  her
25    designated agent when:
26             (1)  a final order of deportation  has  been  issued
27        against  the  defendant pursuant to proceedings under the
28        Immigration and Nationality Act, and
29             (2)  the deportation  of  the  defendant  would  not
30        deprecate  the seriousness of the defendant's conduct and
31        would not be inconsistent with the ends of justice.
32        (C)  This subsection (l) does not apply to offenders  who
33    are  subject to the provisions of paragraph (2) of subsection
34    (a) of Section 3-6-3.
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 1        (D)  Upon motion of the State's Attorney, if a  defendant
 2    sentenced  under  this Section returns to the jurisdiction of
 3    the United States, the defendant shall be recommitted to  the
 4    custody  of  the  county  from which he or she was sentenced.
 5    Thereafter,  the  defendant  shall  be  brought  before   the
 6    sentencing  court,  which  may  impose  any sentence that was
 7    available  under  Section  5-5-3  at  the  time  of   initial
 8    sentencing.  In addition, the defendant shall not be eligible
 9    for additional good conduct credit for meritorious service as
10    provided under Section 3-6-6.
11    (Source: P.A.  88-45; 88-336; 88-351; 88-460; 88-467; 88-510;
12    88-659; 88-670, eff. 12-2-94; 88-680, eff. 1-1-95; 89-8, eff.
13    3-21-95; 89-314, eff. 1-1-96; 89-428, eff. 12-13-95;  89-462,
14    eff.  5-29-96;  89-477,  eff.  6-18-96;  89-507, eff. 7-1-97;
15    89-545, eff. 7-25-96;  89-587,  eff.  7-31-96;  89-627,  eff.
16    1-1-97; 89-688, eff. 6-1-97; revised 1-7-97.)
17        Section  95.   No  acceleration or delay.  Where this Act
18    makes changes in a statute that is represented in this Act by
19    text that is not yet or no longer in effect (for  example,  a
20    Section  represented  by  multiple versions), the use of that
21    text does not accelerate or delay the taking  effect  of  (i)
22    the  changes made by this Act or (ii) provisions derived from
23    any other Public Act.
24        Section 99. Effective date. This Act  takes  effect  upon
25    becoming law.

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