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Public Act 100-0699 | ||||
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois, | ||||
represented in the General Assembly:
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Section 5. The Seizure and Forfeiture Reporting Act is | ||||
amended by changing Sections 10 and 15 and by adding Section 20 | ||||
as follows: | ||||
(5 ILCS 810/10) | ||||
(This Section may contain text from a Public Act with a | ||||
delayed effective date )
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Sec. 10. Reporting by law enforcement agency.
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(a) Each law enforcement agency that seizes property | ||||
subject to reporting under this Act shall report the following | ||||
information about property seized or forfeited under State law:
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(1) the name of the law enforcement agency that seized | ||||
the property;
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(2) the date of the seizure;
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(3) the type of property seized, including a building, | ||||
vehicle, boat, cash, negotiable security, or firearm, | ||||
except reporting is not required for seizures of contraband | ||||
including alcohol, gambling devices, drug paraphernalia, | ||||
and controlled substances;
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(4) a description of the property seized and the | ||||
estimated value of the property and if the property is a |
conveyance, the description shall include the make, model, | ||
year, and vehicle identification number or serial number; | ||
and
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(5) the location where the seizure occurred.
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The filing requirement shall be met upon filing Illinois | ||
State Police Notice/Inventory of Seized Property (Form 4-64) | ||
the form 4-64 with the State's Attorney's Office in the county | ||
where the forfeiture action is being commenced or with the | ||
Attorney General's Office if the forfeiture action is being | ||
commenced by that office, and the forwarding of Form the form | ||
4-64 upon approval of the State's Attorney's Office or the | ||
Attorney General's Office to the Department of State Police | ||
Asset Forfeiture Section. With regard to seizures for which | ||
Form form 4-64 is not required to be filed, the filing | ||
requirement shall be met by the filing of an annual summary | ||
report with the Department of State Police no later than 60 | ||
days after December 31 of that year. | ||
(b) Each law enforcement agency, including a drug task | ||
force or Metropolitan Enforcement Group (MEG) unit, that | ||
receives proceeds from forfeitures subject to reporting under | ||
this Act shall file an annual report with the Department of | ||
State Police no later than 60 days after December 31 of that | ||
year. The format of the report shall be developed by the | ||
Department of State Police and shall be completed by the law | ||
enforcement agency. The report shall include, at a minimum, the | ||
amount of funds and other property distributed to the law |
enforcement agency by the Department of State Police, the | ||
amount of funds expended by the law enforcement agency, and the | ||
category of expenditure, including:
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(1) crime, gang, or abuse prevention or intervention | ||
programs;
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(2) compensation or services for crime victims;
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(3) witness protection, informant fees, and controlled | ||
purchases of contraband;
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(4) salaries, overtime, and benefits, as permitted by | ||
law;
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(5) operating expenses, including but not limited to, | ||
capital expenditures for vehicles, firearms, equipment, | ||
computers, furniture, office supplies, postage, printing, | ||
membership fees paid to trade associations, and fees for | ||
professional services including auditing, court reporting, | ||
expert witnesses, and attorneys;
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(6) travel, meals, entertainment, conferences, | ||
training, and continuing education seminars;
and | ||
(7) other expenditures of forfeiture proceeds.
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(c) The Department of State Police shall establish and | ||
maintain on its official website a public database that | ||
includes annual aggregate data for each law enforcement agency | ||
that reports seizures of property under subsection (a) of this | ||
Section, that receives distributions of forfeiture proceeds | ||
subject to reporting under this Act, or reports expenditures | ||
under subsection (b) of this Section. This aggregate data shall |
include, for each law enforcement agency:
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(1) the total number of asset seizures reported by each | ||
law enforcement agency during the calendar year; | ||
(2) the monetary value of all currency or its | ||
equivalent seized by the law enforcement agency during the | ||
calendar year; | ||
(3) the number of conveyances seized by the law | ||
enforcement agency during the calendar year, and the | ||
aggregate estimated value; | ||
(4) the aggregate estimated value of all other property | ||
seized by the law enforcement agency during the calendar | ||
year; | ||
(5) the monetary value of distributions by the | ||
Department of State Police of forfeited currency or auction | ||
proceeds from forfeited property to the law enforcement | ||
agency during the calendar year; and | ||
(6) the total amount of the law enforcement agency's | ||
expenditures of forfeiture proceeds during the calendar | ||
year, categorized as provided under subsection (b) of this | ||
Section.
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The database shall not provide names, addresses, phone | ||
numbers, or other personally identifying information of owners | ||
or interest holders, persons, business entities, covert office | ||
locations, or business entities involved in the forfeiture | ||
action and shall not disclose the vehicle identification number | ||
or serial number of any conveyance.
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(d) The Department of State Police shall adopt rules to | ||
administer the asset forfeiture program, including the | ||
categories of authorized expenditures consistent with the | ||
statutory guidelines for each of the included forfeiture | ||
statutes, the use of forfeited funds, other expenditure | ||
requirements, and the reporting of seizure and forfeiture | ||
information. The Department may adopt rules necessary to | ||
implement this Act through the use of emergency rulemaking | ||
under Section 5-45 of the Illinois Administrative Procedure Act | ||
for a period not to exceed 180 days after the effective date of | ||
this Act.
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(e) The Department of State Police shall have authority and | ||
oversight over all law enforcement agencies receiving | ||
forfeited funds from the Department. This authority shall | ||
include enforcement of rules and regulations adopted by the | ||
Department and sanctions for violations of any rules and | ||
regulations, including the withholding of distributions of | ||
forfeiture proceeds from the law enforcement agency in | ||
violation.
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(f) Upon application by a law enforcement agency to the | ||
Department of State Police, the reporting of a particular asset | ||
forfeited under this Section may be delayed if the asset in | ||
question was seized from a person who has become a confidential | ||
informant under the agency's confidential informant policy, or | ||
if the asset was seized as part of an ongoing investigation. | ||
This delayed reporting shall be granted by the Department of |
State Police for a maximum period of 6 months if the | ||
confidential informant is still providing cooperation to law | ||
enforcement or the investigation is still ongoing, after which | ||
and at that time the asset shall be reported as required under | ||
this Act. | ||
(g) The Department of State Police shall , on or before | ||
January 1, 2019, establish and implement the requirements of | ||
this Act.
In order to implement the reporting and public | ||
database requirements under this Act, the Department of State | ||
Police Asset Forfeiture Section requires a one-time upgrade of | ||
its information technology software and hardware. This | ||
one-time upgrade shall be funded by a temporary allocation of | ||
5% of all forfeited currency and 5% of the auction proceeds | ||
from each forfeited asset, which are to be distributed after | ||
the effective date of this Act. The Department of State Police | ||
shall transfer these funds at the time of distribution to a | ||
separate fund established by the Department of State Police. | ||
Moneys Monies deposited in this fund shall be accounted for and | ||
shall be used only to pay for the actual one-time cost of | ||
purchasing and installing the hardware and software required to | ||
comply with this new reporting and public database requirement. | ||
Moneys Monies deposited in the fund shall not be subject to | ||
reappropriation re-appropriation , reallocation, or | ||
redistribution for any other purpose. After sufficient funds | ||
are transferred to the fund to cover the actual one-time cost | ||
of purchasing and installing the hardware and software required |
to comply with this new reporting and public database | ||
requirement, no additional funds shall be transferred to the | ||
fund for any purpose. At the completion of the one-time upgrade | ||
of the information technology hardware and software to comply | ||
with this new reporting and public database requirement, any | ||
remaining funds in the fund shall be returned to the | ||
participating agencies under the distribution requirements of | ||
the statutes from which the funds were transferred, and the | ||
fund shall no longer exist.
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(h)(1) The Department of State Police, in consultation with | ||
and subject to the approval of the Chief Procurement Officer, | ||
may procure a single contract or multiple contracts to | ||
implement the provisions of this Act. | ||
(2) A contract or contracts under this subsection (h) are | ||
not subject to the Illinois Procurement Code, except for | ||
Sections 20-60, 20-65, 20-70, and 20-160 and Article 50 of that | ||
Code, provided that the Chief Procurement Officer may, in | ||
writing with justification, waive any certification required | ||
under Article 50 of the Illinois Procurement Code. The | ||
provisions of this paragraph (2), other than this sentence, are | ||
inoperative on and after July 1, 2019.
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(Source: P.A. 100-512, eff. 7-1-18.) | ||
(5 ILCS 810/15) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date )
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Sec. 15. Fund audits.
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(a) The Auditor General shall conduct , as a part of its | ||
2-year 2 year compliance audit, an audit of the State Asset | ||
Forfeiture Fund for compliance with the requirements of this | ||
Act. The audit shall include, but not be limited to, the | ||
following determinations:
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(1) if detailed records of all receipts and | ||
disbursements from the State Asset Forfeiture Fund are | ||
being maintained;
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(2) if administrative costs charged to the fund are | ||
adequately documented and are reasonable; and | ||
(3) if the procedures for making disbursements under | ||
the Act are adequate.
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(b) The Department of State Police, and any other entity or | ||
person that may have information relevant to the audit, shall | ||
cooperate fully and promptly with the Office of the Auditor | ||
General in conducting the audit. The Auditor General shall | ||
begin the audit during the next regular 2-year two year | ||
compliance audit of the Department of State Police and | ||
distribute the report upon completion under Section 3-14 of the | ||
Illinois State Auditing Act.
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(Source: P.A. 100-512, eff. 7-1-18.) | ||
(5 ILCS 810/20 new) | ||
Sec. 20. Applicability. This Act and the changes made to | ||
this Act by this amendatory Act of the 100th General Assembly |
only apply to property seized on and after July 1, 2018. | ||
Section 10. The Department of State Police Law of the
Civil | ||
Administrative Code of Illinois is amended by changing Section | ||
2605-585 as follows: | ||
(20 ILCS 2605/2605-585) | ||
Sec. 2605-585. Money Laundering Asset Recovery Fund. | ||
Moneys and the sale proceeds distributed to the Department of | ||
State Police under paragraph (3) of Section 29B-26 pursuant to | ||
clause (h)(6)(C) of Section 29B-1 of the Criminal Code of 1961 | ||
or the Criminal Code of 2012 shall be deposited in a special | ||
fund in the State treasury to be known as the Money Laundering | ||
Asset Recovery Fund. The moneys deposited in the Money | ||
Laundering Asset Recovery Fund shall be appropriated to and | ||
administered by the Department of State Police for State law | ||
enforcement purposes.
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(Source: P.A. 96-1234, eff. 7-23-10; 97-1150, eff. 1-25-13.) | ||
Section 15. The Illinois Food, Drug and Cosmetic Act is | ||
amended by changing Section 3.23 as follows: | ||
(410 ILCS 620/3.23) | ||
(Text of Section before amendment by P.A. 100-512 )
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Sec. 3.23. Legend drug prohibition. | ||
(a) In this Section: |
"Legend drug" means a drug limited by the Federal Food, | ||
Drug and Cosmetic Act to being dispensed by or upon a medical | ||
practitioner's prescription because the drug is: | ||
(1) habit forming; | ||
(2) toxic or having potential for harm; or | ||
(3) limited in use by the new drug application for the | ||
drug to use only under a medical practitioner's | ||
supervision. | ||
"Medical practitioner" means any person licensed to | ||
practice medicine in all its branches in the State. | ||
"Deliver" or "delivery" means the actual, constructive, or | ||
attempted transfer of possession of a legend drug, with or | ||
without consideration, whether or not there is an agency | ||
relationship. | ||
"Manufacture" means the production, preparation, | ||
propagation, compounding, conversion, or processing of a | ||
legend drug, either directly or indirectly, by extraction from | ||
substances of natural origin, or independently by means of | ||
chemical synthesis, or by a combination of extraction and | ||
chemical synthesis, and includes any packaging or repackaging | ||
of the substance or labeling of its container. "Manufacture" | ||
does not include: | ||
(1) by an ultimate user, the preparation or compounding | ||
of a legend drug for his own use; or | ||
(2) by a medical practitioner, or his authorized agent | ||
under his supervision, the preparation, compounding, |
packaging, or labeling of a legend drug: | ||
(A) as an incident to his administering or | ||
dispensing of a legend drug in the course of his | ||
professional practice; or | ||
(B) as an incident to lawful research, teaching, or | ||
chemical analysis and not for sale. | ||
"Prescription" has the same meaning ascribed to it in | ||
Section 3 of the Pharmacy Practice Act. | ||
(b) It is unlawful for any person to knowingly manufacture | ||
or deliver or possess with the intent to manufacture or deliver | ||
a legend drug of 6 or more pills, tablets, capsules, or caplets | ||
or 30 ml or more of a legend drug in liquid form who is not | ||
licensed by applicable law to prescribe or dispense legend | ||
drugs or is not an employee of the licensee operating in the | ||
normal course of business under the supervision of the | ||
licensee. Any person who violates this Section is guilty of a | ||
Class 3 felony, the fine for which shall not exceed $100,000. A | ||
person convicted of a second or subsequent violation of this | ||
Section is guilty of a Class 1 felony, the fine for which shall | ||
not exceed $250,000. | ||
(c) The following are subject to forfeiture: | ||
(1) all substances that have been manufactured, | ||
distributed, dispensed, or possessed in violation of this | ||
Act; | ||
(2) all raw materials, products, and equipment of any
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kind which are used, or intended for use in manufacturing,
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distributing, dispensing, administering, or possessing any | ||
substance in violation of this Act; | ||
(3) all conveyances, including aircraft, vehicles, or
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vessels, which are used, or intended for use, to transport, | ||
or in any manner to facilitate the transportation, sale, | ||
receipt, possession, or concealment of property described | ||
in items (1) and (2) of this subsection (c), but: | ||
(A) no conveyance used by any person as a common
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carrier in the transaction of business as a common | ||
carrier is subject to forfeiture under this Section | ||
unless it appears that the owner or other person in | ||
charge of the conveyance is a consenting party or privy | ||
to a violation of this Act; | ||
(B) no conveyance is subject to forfeiture
under | ||
this Section by reason of any act or omission which the | ||
owner proves to have been committed or omitted without | ||
his knowledge or consent; and | ||
(C) a forfeiture of a conveyance encumbered by
a | ||
bona fide security interest is subject to the interest | ||
of the secured party if he neither had knowledge of nor | ||
consented to the act or omission; | ||
(4) all money, things of value, books, records, and
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research products and materials including formulas, | ||
microfilm, tapes, and data that are used, or intended to be | ||
used in violation of this Act; | ||
(5) everything of value furnished, or intended to be
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furnished, in exchange for a substance in violation of this | ||
Act, all proceeds traceable to such an exchange, and all | ||
moneys, negotiable instruments, and securities used, or | ||
intended to be used, to commit or in any manner to | ||
facilitate any violation of this Act; and | ||
(6) all real property, including any right, title,
and | ||
interest, including, but not limited to, any leasehold | ||
interest or the beneficial interest in a land trust, in the | ||
whole of any lot or tract of land and any appurtenances or | ||
improvements, which is used or intended to be used, in any | ||
manner or part, to commit, or in any manner to facilitate | ||
the commission of, any violation or act that constitutes a | ||
violation of Section 33.1 of this Act or that is the | ||
proceeds of any violation or act that constitutes a | ||
violation of Section 33.1 of this Act. | ||
(d) Property subject to forfeiture under this Act may be | ||
seized by the Director of the Department of State Police or any | ||
peace officer upon process or seizure warrant issued by any | ||
court having jurisdiction over the property. Seizure by the | ||
Director of the Department of State Police or any peace officer | ||
without process may be made: | ||
(1) if the seizure is incident to inspection under
an | ||
administrative inspection warrant; | ||
(2) if the property subject to seizure has been the
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subject of a prior judgment in favor of the State in a | ||
criminal proceeding, or in an injunction or forfeiture |
proceeding based upon this Act or the Drug Asset Forfeiture | ||
Procedure Act; | ||
(3) if there is probable cause to believe that the
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property is directly or indirectly dangerous to health or | ||
safety; | ||
(4) if there is probable cause to believe that the
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property is subject to forfeiture under this Act and the | ||
property is seized under circumstances in which a | ||
warrantless seizure or arrest would be reasonable; or | ||
(5) in accordance with the Code of Criminal
Procedure | ||
of 1963. | ||
(e) In the event of seizure pursuant to subsection (c) of | ||
this Section, forfeiture proceedings shall be instituted in | ||
accordance with the Drug Asset Forfeiture Procedure Act. | ||
(f) Property taken or detained under this Section shall not | ||
be subject to replevin, but is deemed to be in the custody of | ||
the Director of the Department of State Police subject only to | ||
the order and judgments of the circuit court having | ||
jurisdiction over the forfeiture proceedings and the decisions | ||
of the State's Attorney under the Drug Asset Forfeiture | ||
Procedure Act. If property is seized under this Act, then the | ||
seizing agency shall promptly conduct an inventory of the | ||
seized property and estimate the property's value, and shall | ||
forward a copy of the inventory of seized property and the | ||
estimate of the property's value to the Director of the | ||
Department of State Police. Upon receiving notice of seizure, |
the Secretary may: | ||
(1) place the property under seal; | ||
(2) remove the property to a place designated by the
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Secretary; | ||
(3) keep the property in the possession of the
seizing | ||
agency; | ||
(4) remove the property to a storage area for
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safekeeping or, if the property is a negotiable instrument | ||
or money and is not needed for evidentiary purposes, | ||
deposit it in an interest bearing account; | ||
(5) place the property under constructive seizure by
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posting notice of pending forfeiture on it, by giving | ||
notice of pending forfeiture to its owners and interest | ||
holders, or by filing notice of pending forfeiture in any | ||
appropriate public record relating to the property; or | ||
(6) provide for another agency or custodian,
including | ||
an owner, secured party, or lienholder, to take custody of | ||
the property upon the terms and conditions set by the | ||
Director of the Department of State Police. | ||
(g) If the Department suspends or revokes a registration, | ||
all legend drugs owned or possessed by the registrant at the | ||
time of suspension or the effective date of the revocation | ||
order may be placed under seal. No disposition may be made of | ||
substances under seal until the time for taking an appeal has | ||
elapsed or until all appeals have been concluded unless a | ||
court, upon application therefor, orders the sale of perishable |
substances and the deposit of the proceeds of the sale with the | ||
court. Upon a revocation rule becoming final, all substances | ||
may be forfeited to the Department. | ||
(h) If property is forfeited under this Act, then the | ||
Director of the Department of State Police must sell all such | ||
property unless such property is required by law to be | ||
destroyed or is harmful to the public, and shall distribute the | ||
proceeds of the sale, together with any moneys forfeited or | ||
seized, in accordance with subsection (i) of this Section. Upon | ||
the application of the seizing agency or prosecutor who was | ||
responsible for the investigation, arrest or arrests, and | ||
prosecution that led to the forfeiture, the Director of the | ||
Department of State Police may return any item of forfeited | ||
property to the seizing agency or prosecutor for official use | ||
in the enforcement of laws if the agency or prosecutor can | ||
demonstrate that the item requested would be useful to the | ||
agency or prosecutor in their enforcement efforts. If any | ||
forfeited conveyance, including an aircraft, vehicle, or | ||
vessel, is returned to the seizing agency or prosecutor, then | ||
the conveyance may be used immediately in the enforcement of | ||
the criminal laws of the State. Upon disposal, all proceeds | ||
from the sale of the conveyance must be used for drug | ||
enforcement purposes. If any real property returned to the | ||
seizing agency is sold by the agency or its unit of government, | ||
then the proceeds of the sale shall be delivered to the | ||
Director of the Department of State Police and distributed in |
accordance with subsection (i) of this Section. | ||
(i) All moneys and the sale proceeds of all other property | ||
forfeited and seized under this Act shall be distributed as | ||
follows: | ||
(1) 65% shall be distributed to the metropolitan
| ||
enforcement group, local, municipal, county, or State law | ||
enforcement agency or agencies which conducted or | ||
participated in the investigation resulting in the | ||
forfeiture. The distribution shall bear a reasonable | ||
relationship to the degree of direct participation of the | ||
law enforcement agency in the effort resulting in the | ||
forfeiture, taking into account the total value of the | ||
property forfeited and the total law enforcement effort | ||
with respect to the violation of the law upon which the | ||
forfeiture is based. Amounts distributed to the agency or | ||
agencies shall be used for the enforcement of laws. | ||
(2) 12.5% shall be distributed to the Office of
the | ||
State's Attorney of the county in which the prosecution | ||
resulting in the forfeiture was instituted, deposited in a | ||
special fund in the county treasury and appropriated to the | ||
State's Attorney for use in the enforcement of laws. In | ||
counties over 3,000,000 population, 25% will be | ||
distributed to the Office of the State's Attorney for use | ||
in the enforcement of laws governing cannabis and | ||
controlled substances. If the prosecution is undertaken | ||
solely by the Attorney General, the portion provided |
hereunder shall be distributed to the Attorney General for | ||
use in the enforcement of laws. | ||
(3) 12.5% shall be distributed to the Office of the
| ||
State's Attorneys Appellate Prosecutor and deposited in a | ||
separate fund of that office to be used for additional | ||
expenses incurred in the investigation, prosecution and | ||
appeal of cases. The Office of the State's Attorneys | ||
Appellate Prosecutor shall not receive distribution from | ||
cases brought in counties with over 3,000,000 population. | ||
(4) 10% shall be retained by the Department of State
| ||
Police for expenses related to the administration and sale | ||
of seized and forfeited property.
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(Source: P.A. 96-573, eff. 8-18-09.) | ||
(Text of Section after amendment by P.A. 100-512 ) | ||
Sec. 3.23. Legend drug prohibition. | ||
(a) In this Section: | ||
"Legend drug" means a drug limited by the Federal Food, | ||
Drug and Cosmetic Act to being dispensed by or upon a medical | ||
practitioner's prescription because the drug is: | ||
(1) habit forming; | ||
(2) toxic or having potential for harm; or | ||
(3) limited in use by the new drug application for the | ||
drug to use only under a medical practitioner's | ||
supervision. | ||
"Medical practitioner" means any person licensed to |
practice medicine in all its branches in the State. | ||
"Deliver" or "delivery" means the actual, constructive, or | ||
attempted transfer of possession of a legend drug, with or | ||
without consideration, whether or not there is an agency | ||
relationship. | ||
"Manufacture" means the production, preparation, | ||
propagation, compounding, conversion, or processing of a | ||
legend drug, either directly or indirectly, by extraction from | ||
substances of natural origin, or independently by means of | ||
chemical synthesis, or by a combination of extraction and | ||
chemical synthesis, and includes any packaging or repackaging | ||
of the substance or labeling of its container. "Manufacture" | ||
does not include: | ||
(1) by an ultimate user, the preparation or compounding | ||
of a legend drug for his own use; or | ||
(2) by a medical practitioner, or his authorized agent | ||
under his supervision, the preparation, compounding, | ||
packaging, or labeling of a legend drug: | ||
(A) as an incident to his administering or | ||
dispensing of a legend drug in the course of his | ||
professional practice; or | ||
(B) as an incident to lawful research, teaching, or | ||
chemical analysis and not for sale. | ||
"Prescription" has the same meaning ascribed to it in | ||
Section 3 of the Pharmacy Practice Act. | ||
(b) It is unlawful for any person to knowingly manufacture |
or deliver or possess with the intent to manufacture or deliver | ||
a legend drug of 6 or more pills, tablets, capsules, or caplets | ||
or 30 ml or more of a legend drug in liquid form who is not | ||
licensed by applicable law to prescribe or dispense legend | ||
drugs or is not an employee of the licensee operating in the | ||
normal course of business under the supervision of the | ||
licensee. Any person who violates this Section is guilty of a | ||
Class 3 felony, the fine for which shall not exceed $100,000. A | ||
person convicted of a second or subsequent violation of this | ||
Section is guilty of a Class 1 felony, the fine for which shall | ||
not exceed $250,000. | ||
(c) The following are subject to forfeiture: | ||
(1) (blank); | ||
(2) all raw materials, products, and equipment of any
| ||
kind which are used, or intended for use in manufacturing,
| ||
distributing, dispensing, administering, or possessing any | ||
substance in violation of this Section; | ||
(3) all conveyances, including aircraft, vehicles, or
| ||
vessels, which are used, or intended for use, to transport, | ||
or in any manner to facilitate the transportation, sale, | ||
receipt, possession, or concealment of any substance | ||
manufactured, distributed, dispensed, or possessed in | ||
violation of this Section or property described in | ||
paragraph (2) of this subsection (c), but: | ||
(A) no conveyance used by any person as a common
| ||
carrier in the transaction of business as a common |
carrier is subject to forfeiture under this Section | ||
unless it appears that the owner or other person in | ||
charge of the conveyance is a consenting party or privy | ||
to the violation; | ||
(B) no conveyance is subject to forfeiture
under | ||
this Section by reason of any act or omission which the | ||
owner proves to have been committed or omitted without | ||
his knowledge or consent; and | ||
(C) a forfeiture of a conveyance encumbered by
a | ||
bona fide security interest is subject to the interest | ||
of the secured party if he neither had knowledge of nor | ||
consented to the act or omission; | ||
(4) all money, things of value, books, records, and
| ||
research products and materials including formulas, | ||
microfilm, tapes, and data that are used, or intended to be | ||
used in violation of this Section; | ||
(5) everything of value furnished, or intended to be
| ||
furnished, in exchange for a substance in violation of this | ||
Section, all proceeds traceable to such an exchange, and | ||
all moneys, negotiable instruments, and securities used, | ||
or intended to be used, to commit or in any manner to | ||
facilitate any violation of this Section; and | ||
(6) all real property, including any right, title,
and | ||
interest, including, but not limited to, any leasehold | ||
interest or the beneficial interest in a land trust, in the | ||
whole of any lot or tract of land and any appurtenances or |
improvements, which is used or intended to be used, in any | ||
manner or part, to commit, or in any manner to facilitate | ||
the commission of, any violation or act that constitutes a | ||
violation of this Section or that is the proceeds of any | ||
violation or act that constitutes a violation of this | ||
Section. | ||
(d) Property subject to forfeiture under this Act may be | ||
seized under the Drug Asset Forfeiture Procedure Act. In the | ||
event of seizure, forfeiture proceedings shall be instituted | ||
under the Drug Asset Forfeiture Procedure Act. | ||
(e) Forfeiture under this Act is subject to an 8th | ||
Amendment amendment to the United States Constitution | ||
disproportionate penalties analysis as provided under Section | ||
9.5 of the Drug Asset Forfeiture Procedure Act. | ||
(f) With regard to possession of legend drug offenses only, | ||
a sum of currency with a value of less than $500 shall not be | ||
subject to forfeiture under this Act. For all other offenses | ||
under this Act, a sum of currency with a value of less than | ||
currency with a value of under $100 shall not be subject to | ||
forfeiture under this Act. In seizures of currency in excess of | ||
these amounts, this Section shall not create an exemption for | ||
these amounts. | ||
(f-5) For felony offenses involving possession of legend | ||
drug only, no property shall be subject to forfeiture under | ||
this Act because of the possession of less than 2 single unit | ||
doses of a legend drug controlled substance . This exemption |
shall not apply in instances when the possessor, or another | ||
person at the direction of the possessor, is engaged in the | ||
destruction of any amount of a legend drug. The amount of a | ||
single unit dose shall be the State's burden to prove in its | ||
their case in chief. | ||
(g) If the Department suspends or revokes a registration, | ||
all legend drugs owned or possessed by the registrant at the | ||
time of suspension or the effective date of the revocation | ||
order may be placed under seal. No disposition may be made of | ||
substances under seal until the time for taking an appeal has | ||
elapsed or until all appeals have been concluded unless a | ||
court, upon application therefor, orders the sale of perishable | ||
substances and the deposit of the proceeds of the sale with the | ||
court. Upon a revocation rule becoming final, all substances | ||
are subject to seizure and forfeiture under the Drug Asset | ||
Forfeiture Procedure Act. | ||
(h) (Blank). | ||
(i) (Blank). | ||
(j) Contraband, including legend drugs possessed without a | ||
prescription or other authorization under State or federal law, | ||
is not subject to forfeiture. No property right exists in | ||
contraband. Contraband is subject to seizure and shall be | ||
disposed of according to State law.
| ||
(k) The changes made to this Section by Public Act 100-0512 | ||
and this amendatory Act of the 100th General Assembly only | ||
apply to property seized on and after July 1, 2018. |
(Source: P.A. 100-512, eff. 7-1-18.) | ||
Section 20. The Criminal Code of 2012 is amended by | ||
changing Sections 17-10.6, 29B-1, 33G-6, 36-1.1, 36-1.3, | ||
36-1.4, 36-1.5, 36-2, 36-2.1, 36-2.2, 36-2.5, 36-2.7, and 36-7 | ||
and by adding Sections 29B-0.5, 29B-2, 29B-3, 29B-4, 29B-5, | ||
29B-6, 29B-7, 29B-8, 29B-9, 29B-10, 29B-11, 29B-12, 29B-13, | ||
29B-14, 29B-15, 29B-16, 29B-17, 29B-18, 29B-19, 29B-20, | ||
29B-21, 29B-22, 29B-23, 29B-24, 29B-25, 29B-26, 29B-27, and | ||
36-10 as follows: | ||
(720 ILCS 5/17-10.6) | ||
(Text of Section before amendment by P.A. 100-512 ) | ||
Sec. 17-10.6. Financial institution fraud. | ||
(a) Misappropriation of financial institution property. A | ||
person commits misappropriation of a financial institution's | ||
property whenever he or she knowingly obtains or exerts | ||
unauthorized control over any of the moneys, funds, credits, | ||
assets, securities, or other property owned by or under the | ||
custody or control of a financial institution, or under the | ||
custody or care of any agent, officer, director, or employee of | ||
such financial institution. | ||
(b) Commercial bribery of a financial institution. | ||
(1) A person commits commercial bribery of a financial | ||
institution when he or she knowingly confers or offers or | ||
agrees to confer any benefit upon any employee, agent, or |
fiduciary without the consent of the latter's employer or | ||
principal, with the intent to influence his or her conduct | ||
in relation to his or her employer's or principal's | ||
affairs. | ||
(2) An employee, agent, or fiduciary of a financial | ||
institution commits commercial bribery of a financial | ||
institution when, without the consent of his or her | ||
employer or principal, he or she knowingly solicits, | ||
accepts, or agrees to accept any benefit from another | ||
person upon an agreement or understanding that such benefit | ||
will influence his or her conduct in relation to his or her | ||
employer's or principal's affairs. | ||
(c) Financial institution fraud. A person commits | ||
financial institution fraud when he or she knowingly executes | ||
or attempts to execute a scheme or artifice: | ||
(1) to defraud a financial institution; or | ||
(2) to obtain any of the moneys, funds, credits, | ||
assets, securities, or other property owned by or under the | ||
custody or control of a financial institution, by means of | ||
pretenses, representations, or promises he or she knows to | ||
be false. | ||
(d) Loan fraud. A person commits loan fraud when he or she | ||
knowingly, with intent to defraud, makes any false statement or | ||
report, or overvalues any land, property, or security, with the | ||
intent to influence in any way the action of a financial | ||
institution to act upon any application, advance, discount, |
purchase, purchase agreement, repurchase agreement, | ||
commitment, or loan, or any change or extension of any of the | ||
same, by renewal, deferment of action, or otherwise, or the | ||
acceptance, release, or substitution of security. | ||
(e) Concealment of collateral. A person commits | ||
concealment of collateral when he or she, with intent to | ||
defraud, knowingly conceals, removes, disposes of, or converts | ||
to the person's own use or to that of another any property | ||
mortgaged or pledged to or held by a financial institution. | ||
(f) Financial institution robbery. A person commits | ||
robbery when he or she knowingly, by force or threat of force, | ||
or by intimidation, takes, or attempts to take, from the person | ||
or presence of another, or obtains or attempts to obtain by | ||
extortion, any property or money or any other thing of value | ||
belonging to, or in the care, custody, control, management, or | ||
possession of, a financial institution. | ||
(g) Conspiracy to commit a financial crime. | ||
(1) A person commits conspiracy to commit a financial | ||
crime when, with the intent that any violation of this | ||
Section be committed, he or she agrees with another person | ||
to the commission of that offense. | ||
(2) No person may be convicted of conspiracy to commit | ||
a financial crime unless an overt act or acts in | ||
furtherance of the agreement is alleged and proved to have | ||
been committed by that person or by a co-conspirator and | ||
the accused is a part of a common scheme or plan to engage |
in the unlawful activity. | ||
(3) It shall not be a defense to conspiracy to commit a | ||
financial crime that the person or persons with whom the | ||
accused is alleged to have conspired: | ||
(A) has not been prosecuted or convicted; | ||
(B) has been convicted of a different offense; | ||
(C) is not amenable to justice; | ||
(D) has been acquitted; or | ||
(E) lacked the capacity to commit the offense. | ||
(h) Continuing financial crimes enterprise. A person | ||
commits a continuing financial crimes enterprise when he or she | ||
knowingly, within an 18-month period, commits 3 or more | ||
separate offenses constituting any combination of the | ||
following: | ||
(1) an offense under this Section; | ||
(2) a felony offense in violation of Section 16A-3 or | ||
subsection (a) of Section 16-25 or paragraph (4) or (5) of | ||
subsection (a) of Section 16-1 of this Code for the purpose | ||
of reselling or otherwise re-entering the merchandise in | ||
commerce, including conveying the merchandise to a | ||
merchant in exchange for anything of value; or | ||
(3) if involving a financial institution, any other | ||
felony offense under this Code. | ||
(i) Organizer of a continuing financial crimes enterprise. | ||
(1) A person commits being an organizer of a continuing | ||
financial crimes enterprise when he or she: |
(A) with the intent to commit any offense, agrees | ||
with another person to the commission of any | ||
combination of the following offenses on 3 or
more | ||
separate occasions within an 18-month period: | ||
(i) an offense under this Section; | ||
(ii) a felony offense in violation of Section | ||
16A-3 or subsection (a) of Section 16-25 or | ||
paragraph (4) or (5) of subsection (a) of Section | ||
16-1 of this Code for the purpose of reselling or | ||
otherwise re-entering the merchandise in commerce, | ||
including conveying the merchandise to a merchant | ||
in exchange for anything of value; or | ||
(iii) if involving a financial institution, | ||
any other felony offense under this Code; and | ||
(B) with respect to the other persons within the | ||
conspiracy, occupies a position of organizer, | ||
supervisor, or financier or other position of | ||
management. | ||
(2) The person with whom the accused agreed to commit | ||
the 3 or more offenses under this Section, or, if involving | ||
a financial institution, any other felony offenses under | ||
this Code, need not be the same person or persons for each | ||
offense, as long as the accused was a part of the common | ||
scheme or plan to engage in each of the 3 or more alleged | ||
offenses. | ||
(j) Sentence. |
(1) Except as otherwise provided in this subsection, a | ||
violation of this Section, the full value of which: | ||
(A) does not exceed $500, is a Class A misdemeanor; | ||
(B) does not exceed $500, and the person has been | ||
previously convicted of a financial crime or any type | ||
of theft, robbery, armed robbery, burglary, | ||
residential burglary, possession of burglary tools, or | ||
home invasion, is guilty of a Class 4 felony; | ||
(C) exceeds $500 but does not exceed $10,000, is a | ||
Class 3 felony; | ||
(D) exceeds $10,000 but does not exceed $100,000, | ||
is a Class 2 felony; | ||
(E) exceeds $100,000 but does not exceed $500,000, | ||
is a Class 1 felony; | ||
(F) exceeds $500,000 but does not exceed | ||
$1,000,000, is a Class 1 non-probationable felony; | ||
when a charge of financial crime, the full value of | ||
which exceeds $500,000 but does not exceed $1,000,000, | ||
is brought, the value of the financial crime involved | ||
is an element of the offense to be resolved by the | ||
trier of fact as either exceeding or not exceeding | ||
$500,000; | ||
(G) exceeds $1,000,000, is a Class X felony; when a | ||
charge of financial crime, the full value of which | ||
exceeds $1,000,000, is brought, the value of the | ||
financial crime involved is an element of the offense |
to be resolved by the trier of fact as either exceeding | ||
or not exceeding $1,000,000. | ||
(2) A violation of subsection (f) is a Class 1 felony. | ||
(3) A violation of subsection (h) is a Class 1 felony. | ||
(4) A violation for subsection (i) is a Class X felony. | ||
(k) A "financial crime" means an offense described in this | ||
Section. | ||
(l) Period of limitations. The period of limitations for | ||
prosecution of any offense defined in this Section begins at | ||
the time when the last act in furtherance of the offense is | ||
committed.
| ||
(m) Forfeiture. Any violation of subdivision (2) of | ||
subsection (h) or subdivision (i)(1)(A)(ii) shall be subject to | ||
the remedies, procedures, and forfeiture as set forth in | ||
subsections (f) through (s) of Section 29B-1 of this Code. | ||
(Source: P.A. 96-1551, eff. 7-1-11; incorporates P.A. 96-1532, | ||
eff. 1-1-12, and 97-147, eff. 1-1-12; 97-1109, eff. 1-1-13.) | ||
(Text of Section after amendment by P.A. 100-512 ) | ||
Sec. 17-10.6. Financial institution fraud. | ||
(a) Misappropriation of financial institution property. A | ||
person commits misappropriation of a financial institution's | ||
property whenever he or she knowingly obtains or exerts | ||
unauthorized control over any of the moneys, funds, credits, | ||
assets, securities, or other property owned by or under the | ||
custody or control of a financial institution, or under the |
custody or care of any agent, officer, director, or employee of | ||
such financial institution. | ||
(b) Commercial bribery of a financial institution. | ||
(1) A person commits commercial bribery of a financial | ||
institution when he or she knowingly confers or offers or | ||
agrees to confer any benefit upon any employee, agent, or | ||
fiduciary without the consent of the latter's employer or | ||
principal, with the intent to influence his or her conduct | ||
in relation to his or her employer's or principal's | ||
affairs. | ||
(2) An employee, agent, or fiduciary of a financial | ||
institution commits commercial bribery of a financial | ||
institution when, without the consent of his or her | ||
employer or principal, he or she knowingly solicits, | ||
accepts, or agrees to accept any benefit from another | ||
person upon an agreement or understanding that such benefit | ||
will influence his or her conduct in relation to his or her | ||
employer's or principal's affairs. | ||
(c) Financial institution fraud. A person commits | ||
financial institution fraud when he or she knowingly executes | ||
or attempts to execute a scheme or artifice: | ||
(1) to defraud a financial institution; or | ||
(2) to obtain any of the moneys, funds, credits, | ||
assets, securities, or other property owned by or under the | ||
custody or control of a financial institution, by means of | ||
pretenses, representations, or promises he or she knows to |
be false. | ||
(d) Loan fraud. A person commits loan fraud when he or she | ||
knowingly, with intent to defraud, makes any false statement or | ||
report, or overvalues any land, property, or security, with the | ||
intent to influence in any way the action of a financial | ||
institution to act upon any application, advance, discount, | ||
purchase, purchase agreement, repurchase agreement, | ||
commitment, or loan, or any change or extension of any of the | ||
same, by renewal, deferment of action, or otherwise, or the | ||
acceptance, release, or substitution of security. | ||
(e) Concealment of collateral. A person commits | ||
concealment of collateral when he or she, with intent to | ||
defraud, knowingly conceals, removes, disposes of, or converts | ||
to the person's own use or to that of another any property | ||
mortgaged or pledged to or held by a financial institution. | ||
(f) Financial institution robbery. A person commits | ||
robbery when he or she knowingly, by force or threat of force, | ||
or by intimidation, takes, or attempts to take, from the person | ||
or presence of another, or obtains or attempts to obtain by | ||
extortion, any property or money or any other thing of value | ||
belonging to, or in the care, custody, control, management, or | ||
possession of, a financial institution. | ||
(g) Conspiracy to commit a financial crime. | ||
(1) A person commits conspiracy to commit a financial | ||
crime when, with the intent that any violation of this | ||
Section be committed, he or she agrees with another person |
to the commission of that offense. | ||
(2) No person may be convicted of conspiracy to commit | ||
a financial crime unless an overt act or acts in | ||
furtherance of the agreement is alleged and proved to have | ||
been committed by that person or by a co-conspirator and | ||
the accused is a part of a common scheme or plan to engage | ||
in the unlawful activity. | ||
(3) It shall not be a defense to conspiracy to commit a | ||
financial crime that the person or persons with whom the | ||
accused is alleged to have conspired: | ||
(A) has not been prosecuted or convicted; | ||
(B) has been convicted of a different offense; | ||
(C) is not amenable to justice; | ||
(D) has been acquitted; or | ||
(E) lacked the capacity to commit the offense. | ||
(h) Continuing financial crimes enterprise. A person | ||
commits a continuing financial crimes enterprise when he or she | ||
knowingly, within an 18-month period, commits 3 or more | ||
separate offenses constituting any combination of the | ||
following: | ||
(1) an offense under this Section; | ||
(2) a felony offense in violation of Section 16A-3 or | ||
subsection (a) of Section 16-25 or paragraph (4) or (5) of | ||
subsection (a) of Section 16-1 of this Code for the purpose | ||
of reselling or otherwise re-entering the merchandise in | ||
commerce, including conveying the merchandise to a |
merchant in exchange for anything of value; or | ||
(3) if involving a financial institution, any other | ||
felony offense under this Code. | ||
(i) Organizer of a continuing financial crimes enterprise. | ||
(1) A person commits being an organizer of a continuing | ||
financial crimes enterprise when he or she: | ||
(A) with the intent to commit any offense, agrees | ||
with another person to the commission of any | ||
combination of the following offenses on 3 or
more | ||
separate occasions within an 18-month period: | ||
(i) an offense under this Section; | ||
(ii) a felony offense in violation of Section | ||
16A-3 or subsection (a) of Section 16-25 or | ||
paragraph (4) or (5) of subsection (a) of Section | ||
16-1 of this Code for the purpose of reselling or | ||
otherwise re-entering the merchandise in commerce, | ||
including conveying the merchandise to a merchant | ||
in exchange for anything of value; or | ||
(iii) if involving a financial institution, | ||
any other felony offense under this Code; and | ||
(B) with respect to the other persons within the | ||
conspiracy, occupies a position of organizer, | ||
supervisor, or financier or other position of | ||
management. | ||
(2) The person with whom the accused agreed to commit | ||
the 3 or more offenses under this Section, or, if involving |
a financial institution, any other felony offenses under | ||
this Code, need not be the same person or persons for each | ||
offense, as long as the accused was a part of the common | ||
scheme or plan to engage in each of the 3 or more alleged | ||
offenses. | ||
(j) Sentence. | ||
(1) Except as otherwise provided in this subsection, a | ||
violation of this Section, the full value of which: | ||
(A) does not exceed $500, is a Class A misdemeanor; | ||
(B) does not exceed $500, and the person has been | ||
previously convicted of a financial crime or any type | ||
of theft, robbery, armed robbery, burglary, | ||
residential burglary, possession of burglary tools, or | ||
home invasion, is guilty of a Class 4 felony; | ||
(C) exceeds $500 but does not exceed $10,000, is a | ||
Class 3 felony; | ||
(D) exceeds $10,000 but does not exceed $100,000, | ||
is a Class 2 felony; | ||
(E) exceeds $100,000 but does not exceed $500,000, | ||
is a Class 1 felony; | ||
(F) exceeds $500,000 but does not exceed | ||
$1,000,000, is a Class 1 non-probationable felony; | ||
when a charge of financial crime, the full value of | ||
which exceeds $500,000 but does not exceed $1,000,000, | ||
is brought, the value of the financial crime involved | ||
is an element of the offense to be resolved by the |
trier of fact as either exceeding or not exceeding | ||
$500,000; | ||
(G) exceeds $1,000,000, is a Class X felony; when a | ||
charge of financial crime, the full value of which | ||
exceeds $1,000,000, is brought, the value of the | ||
financial crime involved is an element of the offense | ||
to be resolved by the trier of fact as either exceeding | ||
or not exceeding $1,000,000. | ||
(2) A violation of subsection (f) is a Class 1 felony. | ||
(3) A violation of subsection (h) is a Class 1 felony. | ||
(4) A violation for subsection (i) is a Class X felony. | ||
(k) A "financial crime" means an offense described in this | ||
Section. | ||
(l) Period of limitations. The period of limitations for | ||
prosecution of any offense defined in this Section begins at | ||
the time when the last act in furtherance of the offense is | ||
committed.
| ||
(m) Forfeiture. Any violation of subdivision (2) of | ||
subsection (h) or subdivision (i)(1)(A)(ii) shall be subject to | ||
the remedies, procedures, and forfeiture as set forth in | ||
Article 29B subsections (f) through (s) of Section 29B-1 of | ||
this Code. | ||
Property seized or forfeited under this Section is subject | ||
to reporting under the Seizure and Forfeiture Reporting Act. | ||
(Source: P.A. 100-512, eff. 7-1-18.) |
(720 ILCS 5/29B-0.5 new) | ||
Sec. 29B-0.5. Definitions. In this Article: | ||
"Conduct" or "conducts" includes, in addition to its | ||
ordinary
meaning, initiating, concluding, or participating in | ||
initiating or concluding
a transaction. | ||
"Criminally derived property" means: (1) any property, | ||
real or personal, constituting
or
derived from proceeds | ||
obtained, directly or indirectly, from activity that | ||
constitutes a felony under State, federal, or foreign law; or | ||
(2) any property
represented to be property constituting or | ||
derived from proceeds obtained,
directly or indirectly, from | ||
activity that constitutes a felony under State, federal, or | ||
foreign law. | ||
"Department" means the Department of State Police of this | ||
State or its successor agency. | ||
"Director" means the Director of State Police or his or her | ||
designated agents. | ||
"Financial institution" means any bank; saving and loan
| ||
association; trust company; agency or branch of a foreign bank | ||
in the
United States; currency exchange; credit union; mortgage | ||
banking
institution; pawnbroker; loan or finance company; | ||
operator of a credit card
system; issuer, redeemer, or cashier | ||
of travelers checks, checks, or money
orders; dealer in | ||
precious metals, stones, or jewels; broker or dealer in
| ||
securities or commodities; investment banker; or investment | ||
company. |
"Financial transaction" means a purchase, sale, loan, | ||
pledge, gift,
transfer, delivery, or other disposition | ||
utilizing criminally derived property,
and with respect to | ||
financial institutions, includes a deposit, withdrawal,
| ||
transfer between accounts, exchange of currency, loan, | ||
extension of credit,
purchase or sale of any stock, bond, | ||
certificate of deposit or other monetary
instrument, use of | ||
safe deposit box, or any other payment, transfer or delivery | ||
by, through, or to a
financial institution.
"Financial
| ||
transaction" also
means a transaction which without regard to | ||
whether the funds, monetary
instruments, or real or personal | ||
property involved in the transaction are
criminally derived, | ||
any transaction which in any way or degree: (1) involves
the | ||
movement of funds by wire or any other means; (2) involves one | ||
or more
monetary instruments; or (3) the transfer of title to | ||
any real or personal
property.
The receipt by an attorney of | ||
bona fide fees for the purpose
of legal representation is not a | ||
financial transaction for purposes of this
Article. | ||
"Form 4-64" means the Illinois State Police | ||
Notice/Inventory of Seized Property (Form 4-64). | ||
"Knowing that the property involved in a financial | ||
transaction represents the proceeds of some form of unlawful | ||
activity" means that the person knew the property involved in | ||
the transaction represented proceeds from some form, though not | ||
necessarily which form, of activity that constitutes a felony | ||
under State, federal, or foreign law. |
"Monetary instrument" means United States coins and | ||
currency;
coins and currency of a foreign country; travelers | ||
checks; personal checks,
bank checks, and money orders; | ||
investment securities; bearer
negotiable instruments; bearer | ||
investment securities; or bearer securities
and certificates | ||
of stock in a form that title passes upon
delivery. | ||
"Specified criminal activity" means any violation of | ||
Section 29D-15.1 and any violation of Article 29D of this Code. | ||
"Transaction reporting requirement under State law" means | ||
any violation as defined under the Currency Reporting Act.
| ||
(720 ILCS 5/29B-1) (from Ch. 38, par. 29B-1)
| ||
(Text of Section before amendment by P.A. 100-512 )
| ||
Sec. 29B-1. (a) A person commits the offense of money | ||
laundering:
| ||
(1) when, knowing that the property involved in a | ||
financial transaction represents the proceeds of some form | ||
of unlawful activity, he or she conducts or attempts to | ||
conduct such a financial transaction which in fact involves | ||
criminally derived property: | ||
(A) with the intent to promote the carrying on of | ||
the unlawful activity from which the criminally | ||
derived property was obtained; or | ||
(B) where he or she knows or reasonably should know | ||
that the financial transaction is designed in whole or | ||
in part: |
(i) to conceal or disguise the nature, the | ||
location, the source, the ownership or the control | ||
of the criminally derived property; or | ||
(ii) to avoid a transaction reporting | ||
requirement under State law; or | ||
(1.5) when he or she transports, transmits, or | ||
transfers, or attempts to transport, transmit, or transfer | ||
a monetary instrument: | ||
(A) with the intent to promote the carrying on of | ||
the unlawful activity from which the criminally | ||
derived property was obtained; or | ||
(B) knowing, or having reason to know, that the | ||
financial transaction is designed in whole or in part: | ||
(i) to conceal or disguise the nature, the | ||
location, the source, the ownership or the control | ||
of the criminally derived property; or | ||
(ii) to avoid a transaction reporting | ||
requirement under State law;
or
| ||
(2) when, with the intent to:
| ||
(A) promote the carrying on of a specified criminal | ||
activity as defined
in this Article; or
| ||
(B) conceal or disguise the nature, location, | ||
source, ownership, or
control of property believed to | ||
be the proceeds of a specified criminal
activity as | ||
defined by subdivision (b)(6); or | ||
(C) avoid a transaction reporting requirement |
under State law,
| ||
he or she conducts or attempts to conduct a financial | ||
transaction
involving property he or she believes to be the | ||
proceeds of specified criminal
activity as defined by | ||
subdivision (b)(6) or property used to conduct or
| ||
facilitate specified criminal activity as defined by | ||
subdivision (b)(6).
| ||
(b) As used in this Section:
| ||
(0.5) "Knowing that the property involved in a | ||
financial transaction represents the proceeds of some form | ||
of unlawful activity" means that the person knew the | ||
property involved in the transaction represented proceeds | ||
from some form, though not necessarily which form, of | ||
activity that constitutes a felony under State, federal, or | ||
foreign law.
| ||
(1) "Financial transaction" means a purchase, sale, | ||
loan, pledge, gift,
transfer, delivery or other | ||
disposition utilizing criminally derived property,
and | ||
with respect to financial institutions, includes a | ||
deposit, withdrawal,
transfer between accounts, exchange | ||
of currency, loan, extension of credit,
purchase or sale of | ||
any stock, bond, certificate of deposit or other monetary
| ||
instrument, use of safe deposit box, or any other payment, | ||
transfer or delivery by, through, or to a
financial | ||
institution.
For purposes of clause (a)(2) of this Section, | ||
the term "financial
transaction" also
means a transaction |
which without regard to whether the funds, monetary
| ||
instruments, or real or personal property involved in the | ||
transaction are
criminally derived, any transaction which | ||
in any way or degree: (1) involves
the movement of funds by | ||
wire or any other means; (2) involves one or more
monetary | ||
instruments; or (3) the transfer of title to any real or | ||
personal
property.
The receipt by an attorney of bona fide | ||
fees for the purpose
of legal representation is not a | ||
financial transaction for purposes of this
Section.
| ||
(2) "Financial institution" means any bank; saving and | ||
loan
association; trust company; agency or branch of a | ||
foreign bank in the
United States; currency exchange; | ||
credit union, mortgage banking
institution; pawnbroker; | ||
loan or finance company; operator of a credit card
system; | ||
issuer, redeemer or cashier of travelers checks, checks or | ||
money
orders; dealer in precious metals, stones or jewels; | ||
broker or dealer in
securities or commodities; investment | ||
banker; or investment company.
| ||
(3) "Monetary instrument" means United States coins | ||
and currency;
coins and currency of a foreign country; | ||
travelers checks; personal checks,
bank checks, and money | ||
orders; investment securities; bearer
negotiable | ||
instruments; bearer investment securities; or bearer | ||
securities
and certificates of stock in such form that | ||
title thereto passes upon
delivery.
| ||
(4) "Criminally derived property" means: (A) any |
property, real or personal, constituting
or
derived from | ||
proceeds obtained, directly or indirectly, from activity | ||
that constitutes a felony under State, federal, or foreign | ||
law; or (B) any property
represented to be property | ||
constituting or derived from proceeds obtained,
directly | ||
or indirectly, from activity that constitutes a felony | ||
under State, federal, or foreign law.
| ||
(5) "Conduct" or "conducts" includes, in addition to | ||
its ordinary
meaning, initiating, concluding, or | ||
participating in initiating or concluding
a transaction.
| ||
(6) "Specified criminal activity" means any violation | ||
of Section 29D-15.1
(720 ILCS 5/29D-15.1) and any violation | ||
of Article 29D of this Code.
| ||
(7) "Director" means the Director of State Police or | ||
his or her designated agents. | ||
(8) "Department" means the Department of State Police | ||
of the State of Illinois or its successor agency.
| ||
(9) "Transaction reporting requirement under State | ||
law" means any violation as defined under the Currency | ||
Reporting Act.
| ||
(c) Sentence.
| ||
(1) Laundering of criminally derived property of a | ||
value not exceeding
$10,000 is a Class 3 felony;
| ||
(2) Laundering of criminally derived property of a | ||
value exceeding
$10,000 but not exceeding $100,000 is a | ||
Class 2 felony;
|
(3) Laundering of criminally derived property of a | ||
value exceeding
$100,000 but not exceeding $500,000 is a | ||
Class 1 felony;
| ||
(4) Money laundering in violation of subsection (a)(2) | ||
of this Section
is a Class X felony;
| ||
(5) Laundering of criminally derived property of a | ||
value exceeding
$500,000 is a
Class 1 non-probationable | ||
felony;
| ||
(6) In a prosecution under clause (a)(1.5)(B)(ii) of | ||
this Section, the sentences are as follows: | ||
(A) Laundering of property of a value not exceeding | ||
$10,000 is a Class 3 felony; | ||
(B) Laundering of property of a value exceeding | ||
$10,000 but not exceeding $100,000 is a Class 2 felony; | ||
(C) Laundering of property of a value exceeding | ||
$100,000 but not exceeding $500,000 is a Class 1 | ||
felony; | ||
(D) Laundering of property of a value exceeding | ||
$500,000 is a Class 1 non-probationable felony. | ||
(d) Evidence. In a prosecution under this Article, either | ||
party may introduce the following evidence pertaining to the | ||
issue of whether the property or proceeds were known to be some | ||
form of criminally derived property or from some form of | ||
unlawful activity: | ||
(1) A financial transaction was conducted or | ||
structured or attempted in violation of the reporting |
requirements of any State or federal law; or | ||
(2) A financial transaction was conducted or attempted | ||
with the use of a false or fictitious name or a forged | ||
instrument; or | ||
(3) A falsely altered or completed written instrument | ||
or a written instrument that contains any materially false | ||
personal identifying information was made, used, offered | ||
or presented, whether accepted or not, in connection with a | ||
financial transaction; or | ||
(4) A financial transaction was structured or | ||
attempted to be structured so as to falsely report the | ||
actual consideration or value of the transaction; or | ||
(5) A money transmitter, a person engaged in a trade or | ||
business or any employee of a money transmitter or a person | ||
engaged in a trade or business, knows or reasonably should | ||
know that false personal identifying information has been | ||
presented and incorporates the false personal identifying | ||
information into any report or record; or | ||
(6) The criminally derived property is transported or | ||
possessed in a fashion inconsistent with the ordinary or | ||
usual means of transportation or possession of such | ||
property and where the property is discovered in the | ||
absence of any documentation or other indicia of legitimate | ||
origin or right to such property; or | ||
(7) A person pays or receives substantially less than | ||
face value for one or more monetary instruments; or |
(8) A person engages in a transaction involving one or | ||
more monetary instruments, where the physical condition or | ||
form of the monetary instrument or instruments makes it | ||
apparent that they are not the product of bona fide | ||
business or financial transactions. | ||
(e) Duty to enforce this Article. | ||
(1) It is the duty of the Department of State Police, | ||
and its agents, officers, and investigators, to enforce all | ||
provisions of this Article, except those specifically | ||
delegated, and to cooperate with all agencies charged with | ||
the enforcement of the laws of the United States, or of any | ||
state, relating to money laundering. Only an agent, | ||
officer, or investigator designated by the Director may be | ||
authorized in accordance with this Section to serve seizure | ||
notices, warrants, subpoenas, and summonses under the | ||
authority of this State. | ||
(2) Any agent, officer, investigator, or peace officer | ||
designated by the Director may: (A) make seizure of | ||
property pursuant to the provisions of this Article; and | ||
(B) perform such other law enforcement duties as the | ||
Director designates. It is the duty of all State's | ||
Attorneys to prosecute violations of this Article and | ||
institute legal proceedings as authorized under this | ||
Article. | ||
(f) Protective orders. | ||
(1) Upon application of the State, the court may enter |
a restraining order or injunction, require the execution of | ||
a satisfactory performance bond, or take any other action | ||
to preserve the availability of property described in | ||
subsection (h) for forfeiture under this Article: | ||
(A) upon the filing of an indictment, information, | ||
or complaint charging a violation of this Article for | ||
which forfeiture may be ordered under this Article and | ||
alleging that the property with respect to which the | ||
order is sought would be subject to forfeiture under | ||
this Article; or
| ||
(B) prior to the filing of such an indictment, | ||
information, or complaint, if, after notice to persons | ||
appearing to have an interest in the property and | ||
opportunity for a hearing, the court determines that: | ||
(i) there is probable cause to believe that the | ||
State will prevail on the issue of forfeiture and | ||
that failure to enter the order will result in the | ||
property being destroyed, removed from the | ||
jurisdiction of the court, or otherwise made | ||
unavailable for forfeiture; and | ||
(ii) the need to preserve the availability of | ||
the property through the entry of the requested | ||
order outweighs the hardship on any party against | ||
whom the order is to be entered. | ||
Provided, however, that an order entered pursuant | ||
to subparagraph (B) shall be effective for not more |
than 90 days, unless extended by the court for good | ||
cause shown or unless an indictment, information, | ||
complaint, or administrative notice has been filed. | ||
(2) A temporary restraining order under this | ||
subsection may be entered upon application of the State | ||
without notice or opportunity for a hearing when an | ||
indictment, information, complaint, or administrative | ||
notice has not yet been filed with respect to the property, | ||
if the State demonstrates that there is probable cause to | ||
believe that the property with respect to which the order | ||
is sought would be subject to forfeiture under this Section | ||
and that provision of notice will jeopardize the | ||
availability of the property for forfeiture. Such a | ||
temporary order shall expire not more than 30 days after | ||
the date on which it is entered, unless extended for good | ||
cause shown or unless the party against whom it is entered | ||
consents to an extension for a longer period. A hearing | ||
requested concerning an order entered under this paragraph | ||
shall be held at the earliest possible time and prior to | ||
the expiration of the temporary order. | ||
(3) The court may receive and consider, at a hearing | ||
held pursuant to this subsection (f), evidence and | ||
information that would be inadmissible under the Illinois | ||
rules of evidence.
| ||
(4) Order to repatriate and deposit. | ||
(A) In general. Pursuant to its authority to enter |
a pretrial restraining order under this Section, the | ||
court may order a defendant to repatriate any property | ||
that may be seized and forfeited and to deposit that | ||
property pending trial with the Illinois State Police | ||
or another law enforcement agency designated by the | ||
Illinois State Police. | ||
(B) Failure to comply. Failure to comply with an | ||
order under this subsection (f) is punishable as a | ||
civil or criminal contempt of court.
| ||
(g) Warrant of seizure. The State may request the issuance | ||
of a warrant authorizing the seizure of property described in | ||
subsection (h) in the same manner as provided for a search | ||
warrant. If the court determines that there is probable cause | ||
to believe that the property to be seized would be subject to | ||
forfeiture, the court shall issue a warrant authorizing the | ||
seizure of such property. | ||
(h) Forfeiture. | ||
(1) The following are subject to forfeiture: | ||
(A) any property, real or personal, constituting, | ||
derived from, or traceable to any proceeds the person | ||
obtained directly or indirectly, as a result of a | ||
violation of this Article; | ||
(B) any of the person's property used, or intended | ||
to be used, in any manner or part, to commit, or to | ||
facilitate the commission of, a violation of this | ||
Article; |
(C) all conveyances, including aircraft, vehicles | ||
or vessels, which are used, or intended for use, to | ||
transport, or in any manner to facilitate the | ||
transportation, sale, receipt, possession, or | ||
concealment of property described in subparagraphs (A) | ||
and (B), but: | ||
(i) no conveyance used by any person as a | ||
common carrier in the transaction of business as a | ||
common carrier is subject to forfeiture under this | ||
Section unless it appears that the owner or other | ||
person in charge of the conveyance is a consenting | ||
party or privy to a violation of this Article; | ||
(ii) no conveyance is subject to forfeiture | ||
under this Section by reason of any act or omission | ||
which the owner proves to have been committed or | ||
omitted without his or her knowledge or consent; | ||
(iii) a forfeiture of a conveyance encumbered | ||
by a bona fide security interest is subject to the | ||
interest of the secured party if he or she neither | ||
had knowledge of nor consented to the act or | ||
omission; | ||
(D) all real property, including any right, title, | ||
and interest (including, but not limited to, any | ||
leasehold interest or the beneficial interest in a land | ||
trust) in the whole of any lot or tract of land and any | ||
appurtenances or improvements, which is used or |
intended to be used, in any manner or part, to commit, | ||
or in any manner to facilitate the commission of, any | ||
violation of this Article or that is the proceeds of | ||
any violation or act that constitutes a violation of | ||
this Article.
| ||
(2) Property subject to forfeiture under this Article | ||
may be seized by the Director or any peace officer upon | ||
process or seizure warrant issued by any court having | ||
jurisdiction over the property. Seizure by the Director or | ||
any peace officer without process may be made: | ||
(A) if the seizure is incident to a seizure | ||
warrant; | ||
(B) if the property subject to seizure has been the | ||
subject of a prior judgment in favor of the State in a | ||
criminal proceeding, or in an injunction or forfeiture | ||
proceeding based upon this Article; | ||
(C) if there is probable cause to believe that the | ||
property is directly or indirectly dangerous to health | ||
or safety; | ||
(D) if there is probable cause to believe that the | ||
property is subject to forfeiture under this Article | ||
and the property is seized under circumstances in which | ||
a warrantless seizure or arrest would be reasonable; or | ||
(E) in accordance with the Code of Criminal | ||
Procedure of 1963. | ||
(3) In the event of seizure pursuant to paragraph (2), |
forfeiture proceedings shall be instituted in accordance | ||
with subsections (i) through (r). | ||
(4) Property taken or detained under this Section shall | ||
not be subject to replevin, but is deemed to be in the | ||
custody of the Director subject only to the order and | ||
judgments of the circuit court having jurisdiction over the | ||
forfeiture proceedings and the decisions of the State's | ||
Attorney under this Article. When property is seized under | ||
this Article, the seizing agency shall promptly conduct an | ||
inventory of the seized property and estimate the | ||
property's value and shall forward a copy of the inventory | ||
of seized property and the estimate of the property's value | ||
to the Director. Upon receiving notice of seizure, the | ||
Director may: | ||
(A) place the property under seal; | ||
(B) remove the property to a place designated by | ||
the Director; | ||
(C) keep the property in the possession of the | ||
seizing agency; | ||
(D) remove the property to a storage area for | ||
safekeeping or, if the property is a negotiable | ||
instrument or money and is not needed for evidentiary | ||
purposes, deposit it in an interest bearing account; | ||
(E) place the property under constructive seizure | ||
by posting notice of pending forfeiture on it, by | ||
giving notice of pending forfeiture to its owners and |
interest holders, or by filing notice of pending | ||
forfeiture in any appropriate public record relating | ||
to the property; or | ||
(F) provide for another agency or custodian, | ||
including an owner, secured party, or lienholder, to | ||
take custody of the property upon the terms and | ||
conditions set by the Director. | ||
(5) When property is forfeited under this Article, the | ||
Director shall sell all such property unless such property | ||
is required by law to be destroyed or is harmful to the | ||
public, and shall distribute the proceeds of the sale, | ||
together with any moneys forfeited or seized, in accordance | ||
with paragraph (6). However, upon the application of the | ||
seizing agency or prosecutor who was responsible for the | ||
investigation, arrest or arrests and prosecution which | ||
lead to the forfeiture, the Director may return any item of | ||
forfeited property to the seizing agency or prosecutor for | ||
official use in the enforcement of laws, if the agency or | ||
prosecutor can demonstrate that the item requested would be | ||
useful to the agency or prosecutor in its enforcement | ||
efforts. When any real property returned to the seizing | ||
agency is sold by the agency or its unit of government, the | ||
proceeds of the sale shall be delivered to the Director and | ||
distributed in accordance with paragraph (6). | ||
(6) All monies and the sale proceeds of all other | ||
property forfeited and seized under this Article shall be |
distributed as follows: | ||
(A) 65% shall be distributed to the metropolitan | ||
enforcement group, local, municipal, county, or State | ||
law enforcement agency or agencies which conducted or | ||
participated in the investigation resulting in the | ||
forfeiture. The distribution shall bear a reasonable | ||
relationship to the degree of direct participation of | ||
the law enforcement agency in the effort resulting in | ||
the forfeiture, taking into account the total value of | ||
the property forfeited and the total law enforcement | ||
effort with respect to the violation of the law upon | ||
which the forfeiture is based. Amounts distributed to | ||
the agency or agencies shall be used for the | ||
enforcement of laws. | ||
(B)(i) 12.5% shall be distributed to the Office of | ||
the State's Attorney of the county in which the | ||
prosecution resulting in the forfeiture was | ||
instituted, deposited in a special fund in the county | ||
treasury and appropriated to the State's Attorney for | ||
use in the enforcement of laws. In counties over | ||
3,000,000 population, 25% shall be distributed to the | ||
Office of the State's Attorney for use in the | ||
enforcement of laws. If the prosecution is undertaken | ||
solely by the Attorney General, the portion provided | ||
hereunder shall be distributed to the Attorney General | ||
for use in the enforcement of laws. |
(ii) 12.5% shall be distributed to the Office of | ||
the State's Attorneys Appellate Prosecutor and | ||
deposited in the Narcotics Profit Forfeiture Fund of | ||
that office to be used for additional expenses incurred | ||
in the investigation, prosecution and appeal of cases | ||
arising under laws. The Office of the State's Attorneys | ||
Appellate Prosecutor shall not receive distribution | ||
from cases brought in counties with over 3,000,000 | ||
population. | ||
(C) 10% shall be retained by the Department of | ||
State Police for expenses related to the | ||
administration and sale of seized and forfeited | ||
property. | ||
Moneys and the sale proceeds distributed to the | ||
Department of State Police under this Article shall be | ||
deposited in the Money Laundering Asset Recovery Fund | ||
created in the State treasury and shall be used by the | ||
Department of State Police for State law enforcement | ||
purposes. | ||
(7) All moneys and sale proceeds of property forfeited | ||
and seized under this Article and distributed according to | ||
paragraph (6) may also be used to purchase opioid | ||
antagonists as defined in Section 5-23 of the Alcoholism | ||
and Other Drug Abuse and Dependency Act. | ||
(i) Notice to owner or interest holder. | ||
(1) Whenever notice of pending forfeiture or service of |
an in rem complaint is required under the provisions of | ||
this Article, such notice or service shall be given as | ||
follows: | ||
(A) If the owner's or interest holder's name and | ||
current address are known, then by either personal | ||
service or mailing a copy of the notice by certified | ||
mail, return receipt requested, to that address. For | ||
purposes of notice under this Section, if a person has | ||
been arrested for the conduct giving rise to the | ||
forfeiture, then the address provided to the arresting | ||
agency at the time of arrest shall be deemed to be that | ||
person's known address. Provided, however, if an owner | ||
or interest holder's address changes prior to the | ||
effective date of the notice of pending forfeiture, the | ||
owner or interest holder shall promptly notify the | ||
seizing agency of the change in address or, if the | ||
owner or interest holder's address changes subsequent | ||
to the effective date of the notice of pending | ||
forfeiture, the owner or interest holder shall | ||
promptly notify the State's Attorney of the change in | ||
address; or | ||
(B) If the property seized is a conveyance, to the | ||
address reflected in the office of the agency or | ||
official in which title or interest to the conveyance | ||
is required by law to be recorded, then by mailing a | ||
copy of the notice by certified mail, return receipt |
requested, to that address; or | ||
(C) If the owner's or interest holder's address is | ||
not known, and is not on record as provided in | ||
paragraph (B), then by publication for 3 successive | ||
weeks in a newspaper of general circulation in the | ||
county in which the seizure occurred. | ||
(2) Notice served under this Article is effective upon | ||
personal service, the last date of publication, or the | ||
mailing of written notice, whichever is earlier. | ||
(j) Notice to State's Attorney. The law enforcement agency | ||
seizing property for forfeiture under this Article shall, | ||
within 90 days after seizure, notify the State's Attorney for | ||
the county, either where an act or omission giving rise to the | ||
forfeiture occurred or where the property was seized, of the | ||
seizure of the property and the facts and circumstances giving | ||
rise to the seizure and shall provide the State's Attorney with | ||
the inventory of the property and its estimated value. When the | ||
property seized for forfeiture is a vehicle, the law | ||
enforcement agency seizing the property shall immediately | ||
notify the Secretary of State that forfeiture proceedings are | ||
pending regarding such vehicle. | ||
(k) Non-judicial forfeiture. If non-real property that | ||
exceeds $20,000 in value excluding the value of any conveyance, | ||
or if real property is seized under the provisions of this | ||
Article, the State's Attorney shall institute judicial in rem | ||
forfeiture proceedings as described in subsection (l) of this |
Section within 45 days from receipt of notice of seizure from | ||
the seizing agency under subsection (j) of this Section. | ||
However, if non-real property that does not exceed $20,000 in | ||
value excluding the value of any conveyance is seized, the | ||
following procedure shall be used: | ||
(1) If, after review of the facts surrounding the | ||
seizure, the State's Attorney is of the opinion that the | ||
seized property is subject to forfeiture, then within 45 | ||
days after the receipt of notice of seizure from the | ||
seizing agency, the State's Attorney shall cause notice of | ||
pending forfeiture to be given to the owner of the property | ||
and all known interest holders of the property in | ||
accordance with subsection (i) of this Section. | ||
(2) The notice of pending forfeiture must include a | ||
description of the property, the estimated value of the | ||
property, the date and place of seizure, the conduct giving | ||
rise to forfeiture or the violation of law alleged, and a | ||
summary of procedures and procedural rights applicable to | ||
the forfeiture action. | ||
(3)(A) Any person claiming an interest in property | ||
which is the subject of notice under paragraph (1) of this | ||
subsection (k), must, in order to preserve any rights or | ||
claims to the property, within 45 days after the effective | ||
date of notice as described in subsection (i) of this | ||
Section, file a verified claim with the State's Attorney | ||
expressing his or her interest in the property. The claim |
must set forth: | ||
(i) the caption of the proceedings as set forth on | ||
the notice of pending forfeiture and the name of the | ||
claimant; | ||
(ii) the address at which the claimant will accept | ||
mail; | ||
(iii) the nature and extent of the claimant's | ||
interest in the property; | ||
(iv) the date, identity of the transferor, and | ||
circumstances of the claimant's acquisition of the | ||
interest in the property;
| ||
(v) the name and address of all other persons known | ||
to have an interest in the property; | ||
(vi) the specific provision of law relied on in | ||
asserting the property is not subject to forfeiture; | ||
(vii) all essential facts supporting each | ||
assertion; and | ||
(viii) the relief sought. | ||
(B) If a claimant files the claim and deposits with the | ||
State's Attorney a cost bond, in the form of a cashier's | ||
check payable to the clerk of the court, in the sum of 10% | ||
of the reasonable value of the property as alleged by the | ||
State's Attorney or the sum of $100, whichever is greater, | ||
upon condition that, in the case of forfeiture, the | ||
claimant must pay all costs and expenses of forfeiture | ||
proceedings, then the State's Attorney shall institute |
judicial in rem forfeiture proceedings and deposit the cost | ||
bond with the clerk of the court as described in subsection | ||
(l) of this Section within 45 days after receipt of the | ||
claim and cost bond. In lieu of a cost bond, a person | ||
claiming interest in the seized property may file, under | ||
penalty of perjury, an indigency affidavit which has been | ||
approved by a circuit court judge. | ||
(C) If none of the seized property is forfeited in the | ||
judicial in rem proceeding, the clerk of the court shall | ||
return to the claimant, unless the court orders otherwise, | ||
90% of the sum which has been deposited and shall retain as | ||
costs 10% of the money deposited. If any of the seized | ||
property is forfeited under the judicial forfeiture | ||
proceeding, the clerk of the court shall transfer 90% of | ||
the sum which has been deposited to the State's Attorney | ||
prosecuting the civil forfeiture to be applied to the costs | ||
of prosecution and the clerk shall retain as costs 10% of | ||
the sum deposited. | ||
(4) If no claim is filed or bond given within the 45 | ||
day period as described in paragraph (3) of this subsection | ||
(k), the State's Attorney shall declare the property | ||
forfeited and shall promptly notify the owner and all known | ||
interest holders of the property and the Director of State | ||
Police of the declaration of forfeiture and the Director | ||
shall dispose of the property in accordance with law. | ||
(l) Judicial in rem procedures. If property seized under |
the provisions of this Article is non-real property that | ||
exceeds $20,000 in value excluding the value of any conveyance, | ||
or is real property, or a claimant has filed a claim and a cost | ||
bond under paragraph (3) of subsection (k) of this Section, the | ||
following judicial in rem procedures shall apply: | ||
(1) If, after a review of the facts surrounding the | ||
seizure, the State's Attorney is of the opinion that the | ||
seized property is subject to forfeiture, then within 45 | ||
days of the receipt of notice of seizure by the seizing | ||
agency or the filing of the claim and cost bond, whichever | ||
is later, the State's Attorney shall institute judicial | ||
forfeiture proceedings by filing a verified complaint for | ||
forfeiture and, if the claimant has filed a claim and cost | ||
bond, by depositing the cost bond with the clerk of the | ||
court. When authorized by law, a forfeiture must be ordered | ||
by a court on an action in rem brought by a State's | ||
Attorney under a verified complaint for forfeiture. | ||
(2) During the probable cause portion of the judicial | ||
in rem proceeding wherein the State presents its | ||
case-in-chief, the court must receive and consider, among | ||
other things, all relevant hearsay evidence and | ||
information. The laws of evidence relating to civil actions | ||
apply to all other portions of the judicial in rem | ||
proceeding. | ||
(3) Only an owner of or interest holder in the property | ||
may file an answer asserting a claim against the property |
in the action in rem. For purposes of this Section, the | ||
owner or interest holder shall be referred to as claimant. | ||
Upon motion of the State, the court shall first hold a | ||
hearing, wherein any claimant must establish by a | ||
preponderance of the evidence, that he or she has a lawful, | ||
legitimate ownership interest in the property and that it | ||
was obtained through a lawful source. | ||
(4) The answer must be signed by the owner or interest | ||
holder under penalty of perjury and must set forth: | ||
(A) the caption of the proceedings as set forth on | ||
the notice of pending forfeiture and the name of the | ||
claimant; | ||
(B) the address at which the claimant will accept | ||
mail; | ||
(C) the nature and extent of the claimant's | ||
interest in the property; | ||
(D) the date, identity of transferor, and | ||
circumstances of the claimant's acquisition of the | ||
interest in the property; | ||
(E) the name and address of all other persons known | ||
to have an interest in the property; | ||
(F) all essential facts supporting each assertion; | ||
and | ||
(G) the precise relief sought.
| ||
(5) The answer must be filed with the court within 45 | ||
days after service of the civil in rem complaint. |
(6) The hearing must be held within 60 days after | ||
filing of the answer unless continued for good cause.
| ||
(7) The State shall show the existence of probable | ||
cause for forfeiture of the property. If the State shows | ||
probable cause, the claimant has the burden of showing by a | ||
preponderance of the evidence that the claimant's interest | ||
in the property is not subject to forfeiture.
| ||
(8) If the State does not show existence of probable | ||
cause, the court shall order the interest in the property | ||
returned or conveyed to the claimant and shall order all | ||
other property forfeited to the State. If the State does | ||
show existence of probable cause, the court shall order all | ||
property forfeited to the State. | ||
(9) A defendant convicted in any criminal proceeding is | ||
precluded from later denying the essential allegations of | ||
the criminal offense of which the defendant was convicted | ||
in any proceeding under this Article regardless of the | ||
pendency of an appeal from that conviction. However, | ||
evidence of the pendency of an appeal is admissible. | ||
(10) An acquittal or dismissal in a criminal proceeding | ||
does not preclude civil proceedings under this Article; | ||
however, for good cause shown, on a motion by the State's | ||
Attorney, the court may stay civil forfeiture proceedings | ||
during the criminal trial for a related criminal indictment | ||
or information alleging a money laundering violation. Such | ||
a stay shall not be available pending an appeal. Property |
subject to forfeiture under this Article shall not be | ||
subject to return or release by a court exercising | ||
jurisdiction over a criminal case involving the seizure of | ||
such property unless such return or release is consented to | ||
by the State's Attorney. | ||
(11) All property declared forfeited under this | ||
Article vests in this State on the commission of the | ||
conduct giving rise to forfeiture together with the | ||
proceeds of the property after that time. Any such property | ||
or proceeds subsequently transferred to any person remain | ||
subject to forfeiture and thereafter shall be ordered | ||
forfeited. | ||
(12) A civil action under this Article must be | ||
commenced within 5 years after the last conduct giving rise | ||
to forfeiture became known or should have become known or 5 | ||
years after the forfeitable property is discovered, | ||
whichever is later, excluding any time during which either | ||
the property or claimant is out of the State or in | ||
confinement or during which criminal proceedings relating | ||
to the same conduct are in progress. | ||
(m) Stay of time periods. If property is seized for | ||
evidence and for forfeiture, the time periods for instituting | ||
judicial and non-judicial forfeiture proceedings shall not | ||
begin until the property is no longer necessary for evidence. | ||
(n) Settlement of claims. Notwithstanding other provisions | ||
of this Article, the State's Attorney and a claimant of seized |
property may enter into an agreed-upon settlement concerning | ||
the seized property in such an amount and upon such terms as | ||
are set out in writing in a settlement agreement. | ||
(o) Property constituting attorney fees. Nothing in this | ||
Article applies to property which constitutes reasonable bona | ||
fide attorney's fees paid to an attorney for services rendered | ||
or to be rendered in the forfeiture proceeding or criminal | ||
proceeding relating directly thereto where such property was | ||
paid before its seizure, before the issuance of any seizure | ||
warrant or court order prohibiting transfer of the property and | ||
where the attorney, at the time he or she received the property | ||
did not know that it was property subject to forfeiture under | ||
this Article. | ||
(p) Construction. It is the intent of the General Assembly | ||
that the forfeiture provisions of this Article be liberally | ||
construed so as to effect their remedial purpose. The | ||
forfeiture of property and other remedies hereunder shall be | ||
considered to be in addition to, and not exclusive of, any | ||
sentence or other remedy provided by law. | ||
(q) Judicial review. If property has been declared | ||
forfeited under subsection (k) of this Section, any person who | ||
has an interest in the property declared forfeited may, within | ||
30 days after the effective date of the notice of the | ||
declaration of forfeiture, file a claim and cost bond as | ||
described in paragraph (3) of subsection (k) of this Section. | ||
If a claim and cost bond is filed under this Section, then the |
procedures described in subsection (l) of this Section apply. | ||
(r) Burden of proof of exemption or exception. It is not | ||
necessary for the State to negate any exemption or exception in | ||
this Article in any complaint, information, indictment or other | ||
pleading or in any trial, hearing, or other proceeding under | ||
this Article. The burden of proof of any exemption or exception | ||
is upon the person claiming it. | ||
(s) Review of administrative decisions.
All administrative | ||
findings, rulings, final determinations, findings, and | ||
conclusions of the State's Attorney's Office under this Article | ||
are final and conclusive decisions of the matters involved. Any | ||
person aggrieved by the decision may obtain review of the | ||
decision pursuant to the provisions of the Administrative | ||
Review Law and the rules adopted pursuant to that Law. Pending | ||
final decision on such review, the administrative acts, orders, | ||
and rulings of the State's Attorney's Office remain in full | ||
force and effect unless modified or suspended by order of court | ||
pending final judicial decision. Pending final decision on such | ||
review, the acts, orders, and rulings of the State's Attorney's | ||
Office remain in full force and effect, unless stayed by order | ||
of court. However, no stay of any decision of the | ||
administrative agency shall issue unless the person aggrieved | ||
by the decision establishes by a preponderance of the evidence | ||
that good cause exists for the stay. In determining good cause, | ||
the court shall find that the aggrieved party has established a | ||
substantial likelihood of prevailing on the merits and that |
granting the stay will not have an injurious effect on the | ||
general public.
| ||
(Source: P.A. 99-480, eff. 9-9-15.)
| ||
(Text of Section after amendment by P.A. 100-512 )
| ||
Sec. 29B-1. Money laundering. | ||
(a) A person commits the offense of money laundering:
| ||
(1) when, knowing that the property involved in a | ||
financial transaction represents the proceeds of some form | ||
of unlawful activity, he or she conducts or attempts to | ||
conduct the such a financial transaction which in fact | ||
involves criminally derived property: | ||
(A) with the intent to promote the carrying on of | ||
the unlawful activity from which the criminally | ||
derived property was obtained; or | ||
(B) where he or she knows or reasonably should know | ||
that the financial transaction is designed in whole or | ||
in part: | ||
(i) to conceal or disguise the nature, the | ||
location, the source, the ownership or the control | ||
of the criminally derived property; or | ||
(ii) to avoid a transaction reporting | ||
requirement under State law; or | ||
(1.5) when he or she transports, transmits, or | ||
transfers, or attempts to transport, transmit, or transfer | ||
a monetary instrument: |
(A) with the intent to promote the carrying on of | ||
the unlawful activity from which the criminally | ||
derived property was obtained; or | ||
(B) knowing, or having reason to know, that the | ||
financial transaction is designed in whole or in part: | ||
(i) to conceal or disguise the nature, the | ||
location, the source, the ownership or the control | ||
of the criminally derived property; or | ||
(ii) to avoid a transaction reporting | ||
requirement under State law;
or
| ||
(2) when, with the intent to:
| ||
(A) promote the carrying on of a specified criminal | ||
activity as defined
in this Article; or
| ||
(B) conceal or disguise the nature, location, | ||
source, ownership, or
control of property believed to | ||
be the proceeds of a specified criminal
activity as | ||
defined in this Article by subdivision (b)(6) ; or | ||
(C) avoid a transaction reporting requirement | ||
under State law,
| ||
he or she conducts or attempts to conduct a financial | ||
transaction
involving property he or she believes to be the | ||
proceeds of specified criminal
activity as defined by | ||
subdivision (b)(6) or property used to conduct or
| ||
facilitate specified criminal activity as defined in this | ||
Article by subdivision (b)(6) .
| ||
(b) (Blank). As used in this Section:
|
(0.5) "Knowing that the property involved in a | ||
financial transaction represents the proceeds of some form | ||
of unlawful activity" means that the person knew the | ||
property involved in the transaction represented proceeds | ||
from some form, though not necessarily which form, of | ||
activity that constitutes a felony under State, federal, or | ||
foreign law.
| ||
(1) "Financial transaction" means a purchase, sale, | ||
loan, pledge, gift,
transfer, delivery or other | ||
disposition utilizing criminally derived property,
and | ||
with respect to financial institutions, includes a | ||
deposit, withdrawal,
transfer between accounts, exchange | ||
of currency, loan, extension of credit,
purchase or sale of | ||
any stock, bond, certificate of deposit or other monetary
| ||
instrument, use of safe deposit box, or any other payment, | ||
transfer or delivery by, through, or to a
financial | ||
institution.
For purposes of clause (a)(2) of this Section, | ||
the term "financial
transaction" also
means a transaction | ||
which without regard to whether the funds, monetary
| ||
instruments, or real or personal property involved in the | ||
transaction are
criminally derived, any transaction which | ||
in any way or degree: (1) involves
the movement of funds by | ||
wire or any other means; (2) involves one or more
monetary | ||
instruments; or (3) the transfer of title to any real or | ||
personal
property.
The receipt by an attorney of bona fide | ||
fees for the purpose
of legal representation is not a |
financial transaction for purposes of this
Section.
| ||
(2) "Financial institution" means any bank; saving and | ||
loan
association; trust company; agency or branch of a | ||
foreign bank in the
United States; currency exchange; | ||
credit union, mortgage banking
institution; pawnbroker; | ||
loan or finance company; operator of a credit card
system; | ||
issuer, redeemer or cashier of travelers checks, checks or | ||
money
orders; dealer in precious metals, stones or jewels; | ||
broker or dealer in
securities or commodities; investment | ||
banker; or investment company.
| ||
(3) "Monetary instrument" means United States coins | ||
and currency;
coins and currency of a foreign country; | ||
travelers checks; personal checks,
bank checks, and money | ||
orders; investment securities; bearer
negotiable | ||
instruments; bearer investment securities; or bearer | ||
securities
and certificates of stock in such form that | ||
title thereto passes upon
delivery.
| ||
(4) "Criminally derived property" means: (A) any | ||
property, real or personal, constituting
or
derived from | ||
proceeds obtained, directly or indirectly, from activity | ||
that constitutes a felony under State, federal, or foreign | ||
law; or (B) any property
represented to be property | ||
constituting or derived from proceeds obtained,
directly | ||
or indirectly, from activity that constitutes a felony | ||
under State, federal, or foreign law.
| ||
(5) "Conduct" or "conducts" includes, in addition to |
its ordinary
meaning, initiating, concluding, or | ||
participating in initiating or concluding
a transaction.
| ||
(6) "Specified criminal activity" means any violation | ||
of Section 29D-15.1
(720 ILCS 5/29D-15.1) and any violation | ||
of Article 29D of this Code.
| ||
(7) "Director" means the Director of State Police or | ||
his or her designated agents. | ||
(8) "Department" means the Department of State Police | ||
of the State of Illinois or its successor agency. | ||
(9) "Transaction reporting requirement under State | ||
law" means any violation as defined under the Currency | ||
Reporting Act.
| ||
(c) Sentence.
| ||
(1) Laundering of criminally derived property of a | ||
value not exceeding
$10,000 is a Class 3 felony;
| ||
(2) Laundering of criminally derived property of a | ||
value exceeding
$10,000 but not exceeding $100,000 is a | ||
Class 2 felony;
| ||
(3) Laundering of criminally derived property of a | ||
value exceeding
$100,000 but not exceeding $500,000 is a | ||
Class 1 felony;
| ||
(4) Money laundering in violation of subsection (a)(2) | ||
of this Section
is a Class X felony;
| ||
(5) Laundering of criminally derived property of a | ||
value exceeding
$500,000 is a
Class 1 non-probationable | ||
felony;
|
(6) In a prosecution under clause (a)(1.5)(B)(ii) of | ||
this Section, the sentences are as follows: | ||
(A) Laundering of property of a value not exceeding | ||
$10,000 is a Class 3 felony; | ||
(B) Laundering of property of a value exceeding | ||
$10,000 but not exceeding $100,000 is a Class 2 felony; | ||
(C) Laundering of property of a value exceeding | ||
$100,000 but not exceeding $500,000 is a Class 1 | ||
felony; | ||
(D) Laundering of property of a value exceeding | ||
$500,000 is a Class 1 non-probationable felony. | ||
(d) Evidence. In a prosecution under this Article, either | ||
party may introduce the following evidence pertaining to the | ||
issue of whether the property or proceeds were known to be some | ||
form of criminally derived property or from some form of | ||
unlawful activity: | ||
(1) A financial transaction was conducted or | ||
structured or attempted in violation of the reporting | ||
requirements of any State or federal law; or | ||
(2) A financial transaction was conducted or attempted | ||
with the use of a false or fictitious name or a forged | ||
instrument; or | ||
(3) A falsely altered or completed written instrument | ||
or a written instrument that contains any materially false | ||
personal identifying information was made, used, offered | ||
or presented, whether accepted or not, in connection with a |
financial transaction; or | ||
(4) A financial transaction was structured or | ||
attempted to be structured so as to falsely report the | ||
actual consideration or value of the transaction; or | ||
(5) A money transmitter, a person engaged in a trade or | ||
business or any employee of a money transmitter or a person | ||
engaged in a trade or business, knows or reasonably should | ||
know that false personal identifying information has been | ||
presented and incorporates the false personal identifying | ||
information into any report or record; or | ||
(6) The criminally derived property is transported or | ||
possessed in a fashion inconsistent with the ordinary or | ||
usual means of transportation or possession of such | ||
property and where the property is discovered in the | ||
absence of any documentation or other indicia of legitimate | ||
origin or right to such property; or | ||
(7) A person pays or receives substantially less than | ||
face value for one or more monetary instruments; or | ||
(8) A person engages in a transaction involving one or | ||
more monetary instruments, where the physical condition or | ||
form of the monetary instrument or instruments makes it | ||
apparent that they are not the product of bona fide | ||
business or financial transactions. | ||
(e) Duty to enforce this Article. | ||
(1) It is the duty of the Department of State Police, | ||
and its agents, officers, and investigators, to enforce all |
provisions of this Article, except those specifically | ||
delegated, and to cooperate with all agencies charged with | ||
the enforcement of the laws of the United States, or of any | ||
state, relating to money laundering. Only an agent, | ||
officer, or investigator designated by the Director may be | ||
authorized in accordance with this Section to serve seizure | ||
notices, warrants, subpoenas, and summonses under the | ||
authority of this State. | ||
(2) Any agent, officer, investigator, or peace officer | ||
designated by the Director may: (A) make seizure of | ||
property pursuant to the provisions of this Article; and | ||
(B) perform such other law enforcement duties as the | ||
Director designates. It is the duty of all State's | ||
Attorneys to prosecute violations of this Article and | ||
institute legal proceedings as authorized under this | ||
Article. | ||
(f) Protective orders. | ||
(1) Upon application of the State, the court may enter | ||
a restraining order or injunction, require the execution of | ||
a satisfactory performance bond, or take any other action | ||
to preserve the availability of property described in | ||
subsection (h) for forfeiture under this Article: | ||
(A) upon the filing of an indictment, information, | ||
or complaint charging a violation of this Article for | ||
which forfeiture may be ordered under this Article and | ||
alleging that the property with respect to which the |
order is sought would be subject to forfeiture under | ||
this Article; or | ||
(B) prior to the filing of such an indictment, | ||
information, or complaint, if, after notice to persons | ||
appearing to have an interest in the property and | ||
opportunity for a hearing, the court determines that: | ||
(i) there is probable cause to believe that the | ||
State will prevail on the issue of forfeiture and | ||
that failure to enter the order will result in the | ||
property being destroyed, removed from the | ||
jurisdiction of the court, or otherwise made | ||
unavailable for forfeiture; and | ||
(ii) the need to preserve the availability of | ||
the property through the entry of the requested | ||
order outweighs the hardship on any party against | ||
whom the order is to be entered. | ||
Provided, however, that an order entered pursuant | ||
to subparagraph (B) shall be effective for not more | ||
than 90 days, unless extended by the court for good | ||
cause shown or unless an indictment, information, | ||
complaint, or administrative notice has been filed. | ||
(2) A temporary restraining order under this | ||
subsection may be entered upon application of the State | ||
without notice or opportunity for a hearing when an | ||
indictment, information, complaint, or administrative | ||
notice has not yet been filed with respect to the property, |
if the State demonstrates that there is probable cause to | ||
believe that the property with respect to which the order | ||
is sought would be subject to forfeiture under this Section | ||
and that provision of notice will jeopardize the | ||
availability of the property for forfeiture. Such a | ||
temporary order shall expire not more than 30 days after | ||
the date on which it is entered, unless extended for good | ||
cause shown or unless the party against whom it is entered | ||
consents to an extension for a longer period. A hearing | ||
requested concerning an order entered under this paragraph | ||
shall be held at the earliest possible time and prior to | ||
the expiration of the temporary order. | ||
(3) The court may receive and consider, at a hearing | ||
held pursuant to this subsection (f), evidence and | ||
information that would be inadmissible under the Illinois | ||
rules of evidence.
| ||
(4) Order to repatriate and deposit. | ||
(A) In general. Pursuant to its authority to enter | ||
a pretrial restraining order under this Section, the | ||
court may order a defendant to repatriate any property | ||
that may be seized and forfeited and to deposit that | ||
property pending trial with the Illinois State Police | ||
or another law enforcement agency designated by the | ||
Illinois State Police. | ||
(B) Failure to comply. Failure to comply with an | ||
order under this subsection (f) is punishable as a |
civil or criminal contempt of court.
| ||
(g) Warrant of seizure. The State may request the issuance | ||
of a warrant authorizing the seizure of property described in | ||
subsection (h) in the same manner as provided for a search | ||
warrant. If the court determines that there is probable cause | ||
to believe that the property to be seized would be subject to | ||
forfeiture, the court shall issue a warrant authorizing the | ||
seizure of such property. | ||
(h) Forfeiture. | ||
(1) The following are subject to forfeiture: | ||
(A) any property, real or personal, constituting, | ||
derived from, or traceable to any proceeds the person | ||
obtained directly or indirectly, as a result of a | ||
violation of this Article; | ||
(B) any of the person's property used, or intended | ||
to be used, in any manner or part, to commit, or to | ||
facilitate the commission of, a violation of this | ||
Article; | ||
(C) all conveyances, including aircraft, vehicles | ||
or vessels, which are used, or intended for use, to | ||
transport, or in any manner to facilitate the | ||
transportation, sale, receipt, possession, or | ||
concealment of property described in subparagraphs (A) | ||
and (B), but: | ||
(i) no conveyance used by any person as a | ||
common carrier in the transaction of business as a |
common carrier is subject to forfeiture under this | ||
Section unless it appears that the owner or other | ||
person in charge of the conveyance is a consenting | ||
party or privy to a violation of this Article; | ||
(ii) no conveyance is subject to forfeiture | ||
under this Section by reason of any act or omission | ||
which the owner proves to have been committed or | ||
omitted without his or her knowledge or consent; | ||
(iii) a forfeiture of a conveyance encumbered | ||
by a bona fide security interest is subject to the | ||
interest of the secured party if he or she neither | ||
had knowledge of nor consented to the act or | ||
omission; | ||
(D) all real property, including any right, title, | ||
and interest (including, but not limited to, any | ||
leasehold interest or the beneficial interest in a land | ||
trust) in the whole of any lot or tract of land and any | ||
appurtenances or improvements, which is used or | ||
intended to be used, in any manner or part, to commit, | ||
or in any manner to facilitate the commission of, any | ||
violation of this Article or that is the proceeds of | ||
any violation or act that constitutes a violation of | ||
this Article. | ||
(2) Property subject to forfeiture under this Article | ||
may be seized by the Director or any peace officer upon | ||
process or seizure warrant issued by any court having |
jurisdiction over the property. Seizure by the Director or | ||
any peace officer without process may be made: | ||
(A) if the seizure is incident to a seizure | ||
warrant; | ||
(B) if the property subject to seizure has been the | ||
subject of a prior judgment in favor of the State in a | ||
criminal proceeding, or in an injunction or forfeiture | ||
proceeding based upon this Article; | ||
(C) if there is probable cause to believe that the | ||
property is directly or indirectly dangerous to health | ||
or safety; | ||
(D) if there is probable cause to believe that the | ||
property is subject to forfeiture under this Article | ||
and the property is seized under circumstances in which | ||
a warrantless seizure or arrest would be reasonable; or | ||
(E) in accordance with the Code of Criminal | ||
Procedure of 1963. | ||
(3) In the event of seizure pursuant to paragraph (2), | ||
forfeiture proceedings shall be instituted in accordance | ||
with subsections (i) through (r). | ||
(4) Property taken or detained under this Section shall | ||
not be subject to replevin, but is deemed to be in the | ||
custody of the Director subject only to the order and | ||
judgments of the circuit court having jurisdiction over the | ||
forfeiture proceedings and the decisions of the State's | ||
Attorney under this Article. When property is seized under |
this Article, the seizing agency shall promptly conduct an | ||
inventory of the seized property and estimate the | ||
property's value and shall forward a copy of the inventory | ||
of seized property and the estimate of the property's value | ||
to the Director. Upon receiving notice of seizure, the | ||
Director may: | ||
(A) place the property under seal; | ||
(B) remove the property to a place designated by | ||
the Director; | ||
(C) keep the property in the possession of the | ||
seizing agency; | ||
(D) remove the property to a storage area for | ||
safekeeping or, if the property is a negotiable | ||
instrument or money and is not needed for evidentiary | ||
purposes, deposit it in an interest bearing account; | ||
(E) place the property under constructive seizure | ||
by posting notice of pending forfeiture on it, by | ||
giving notice of pending forfeiture to its owners and | ||
interest holders, or by filing notice of pending | ||
forfeiture in any appropriate public record relating | ||
to the property; or | ||
(F) provide for another agency or custodian, | ||
including an owner, secured party, or lienholder, to | ||
take custody of the property upon the terms and | ||
conditions set by the Director. | ||
(5) When property is forfeited under this Article, the |
Director shall sell all such property unless such property | ||
is required by law to be destroyed or is harmful to the | ||
public, and shall distribute the proceeds of the sale, | ||
together with any moneys forfeited or seized, in accordance | ||
with paragraph (6). | ||
(6) All monies and the sale proceeds of all other | ||
property forfeited and seized under this Article shall be | ||
distributed as follows: | ||
(A) 65% shall be distributed to the metropolitan | ||
enforcement group, local, municipal, county, or State | ||
law enforcement agency or agencies which conducted or | ||
participated in the investigation resulting in the | ||
forfeiture. The distribution shall bear a reasonable | ||
relationship to the degree of direct participation of | ||
the law enforcement agency in the effort resulting in | ||
the forfeiture, taking into account the total value of | ||
the property forfeited and the total law enforcement | ||
effort with respect to the violation of the law upon | ||
which the forfeiture is based. Amounts distributed to | ||
the agency or agencies shall be used for the | ||
enforcement of laws. | ||
(B)(i) 12.5% shall be distributed to the Office of | ||
the State's Attorney of the county in which the | ||
prosecution resulting in the forfeiture was | ||
instituted, deposited in a special fund in the county | ||
treasury and appropriated to the State's Attorney for |
use in the enforcement of laws. In counties over | ||
3,000,000 population, 25% shall be distributed to the | ||
Office of the State's Attorney for use in the | ||
enforcement of laws. If the prosecution is undertaken | ||
solely by the Attorney General, the portion provided | ||
hereunder shall be distributed to the Attorney General | ||
for use in the enforcement of laws. | ||
(ii) 12.5% shall be distributed to the Office of | ||
the State's Attorneys Appellate Prosecutor and | ||
deposited in the Narcotics Profit Forfeiture Fund of | ||
that office to be used for additional expenses incurred | ||
in the investigation, prosecution and appeal of cases | ||
arising under laws. The Office of the State's Attorneys | ||
Appellate Prosecutor shall not receive distribution | ||
from cases brought in counties with over 3,000,000 | ||
population. | ||
(C) 10% shall be retained by the Department of | ||
State Police for expenses related to the | ||
administration and sale of seized and forfeited | ||
property. | ||
Moneys and the sale proceeds distributed to the | ||
Department of State Police under this Article shall be | ||
deposited in the Money Laundering Asset Recovery Fund | ||
created in the State treasury and shall be used by the | ||
Department of State Police for State law enforcement | ||
purposes. |
(7) All moneys and sale proceeds of property forfeited | ||
and seized under this Article and distributed according to | ||
paragraph (6) may also be used to purchase opioid | ||
antagonists as defined in Section 5-23 of the Alcoholism | ||
and Other Drug Abuse and Dependency Act. | ||
(7.5) Preliminary Review. | ||
(A) Within 14 days of the seizure, the State shall | ||
seek a preliminary determination from the circuit | ||
court as to whether there is probable cause that the | ||
property may be subject to forfeiture. | ||
(B) The rules of evidence shall not apply to any | ||
proceeding conducted under this Section. | ||
(C) The court may conduct the review under | ||
subparagraph (A) of this paragraph (7.5) | ||
simultaneously with a proceeding under Section 109-1 | ||
of the Code of Criminal Procedure of 1963 for a related | ||
criminal offense if a prosecution is commenced by | ||
information or complaint. | ||
(D) The court may accept a finding of probable | ||
cause at a preliminary hearing following the filing of | ||
an information or complaint charging a related | ||
criminal offense or following the return of indictment | ||
by a grand jury charging the related offense as | ||
sufficient evidence of probable cause as required | ||
under subparagraph (A) of this paragraph (7.5). | ||
(E) Upon a finding of probable cause as required |
under this Section, the circuit court shall order the | ||
property subject to the applicable forfeiture Act held | ||
until the conclusion of any forfeiture proceeding. | ||
(i) Notice to owner or interest holder. | ||
(1) The first attempted service shall be commenced | ||
within 28 days of the latter of filing of the verified | ||
claim or the receipt of the notice from seizing agency by | ||
form 4-64. A complaint for forfeiture or a notice of | ||
pending forfeiture shall be served on a claimant if the | ||
owner's or interest holder's name and current address are | ||
known, then by either: (i) personal service or; (ii) | ||
mailing a copy of the notice by certified mail, return | ||
receipt requested and first class mail, to that address. If | ||
no signed return receipt is received by the State's | ||
Attorney within 28 days of mailing or no communication from | ||
the owner or interest holder is received by the State's | ||
Attorney documenting actual notice by the parties, the | ||
State's Attorney shall, within a reasonable period of time, | ||
mail a second copy of the notice by certified mail, return | ||
receipt requested and first class mail, to that address. If | ||
no signed return receipt is received by the State's | ||
Attorney within 28 days of the second mailing, or no | ||
communication from the owner or interest holder is received | ||
by the State's Attorney documenting actual notice by the | ||
parties, the State's Attorney shall have 60 days to attempt | ||
to personally serve the notice by personal service, |
including substitute service by leaving a copy at the usual | ||
place of abode with some person of the family or a person | ||
residing there, of the age of 13 years or upwards. If after | ||
3 attempts at service in this manner, and no service of the | ||
notice is accomplished, the notice shall be posted in a | ||
conspicuous manner at this address and service shall be | ||
made by the posting. The attempts at service and the | ||
posting if required, shall be documented by the person | ||
attempting service and the documentation shall be made part | ||
of a return of service returned to the State's Attorney. | ||
The State's Attorney may utilize any Sheriff or Deputy | ||
Sheriff, a peace officer, a private process server or | ||
investigator, or an employee, agent, or investigator of the | ||
State's Attorney's Office to attempt service without | ||
seeking leave of court. After the procedures listed are | ||
followed, service shall be effective on the owner or | ||
interest holder on the date of receipt by the State's | ||
Attorney of a returned return receipt requested, or on the | ||
date of receipt of a communication from an owner or | ||
interest holder documenting actual notice, whichever is | ||
first in time, or on the date of the last act performed by | ||
the State's Attorney in attempting personal service. For | ||
purposes of notice under this Section, if a person has been | ||
arrested for the conduct giving rise to the forfeiture, the | ||
address provided to the arresting agency at the time of | ||
arrest shall be deemed to be that person's known address. |
Provided, however, if an owner or interest holder's address | ||
changes prior to the effective date of the notice of | ||
pending forfeiture, the owner or interest holder shall | ||
promptly notify the seizing agency of the change in address | ||
or, if the owner or interest holder's address changes | ||
subsequent to the effective date of the notice of pending | ||
forfeiture, the owner or interest holder shall promptly | ||
notify the State's Attorney of the change in address. If | ||
the property seized is a conveyance, notice shall also be | ||
directed to the address reflected in the office of the | ||
agency or official in which title or interest to the | ||
conveyance is required by law to be recorded. | ||
(A) (Blank); | ||
(A-5) If the owner's or interest holder's address | ||
is not known, and is not on record as provided in | ||
paragraph (1), service by publication for 3 successive | ||
weeks in a newspaper of general circulation in the | ||
county in which the seizure occurred shall suffice for | ||
service requirements. | ||
(A-10) Notice to any business entity, corporation, | ||
LLC, LLP, or partnership shall be complete by a single | ||
mailing of a copy of the notice by certified mail, | ||
return receipt requested and first class mail, to that | ||
address. This notice is complete regardless of the | ||
return of a signed "return receipt requested". | ||
(A-15) Notice to a person whose address is not |
within the State shall be completed by a single mailing | ||
of a copy of the notice by certified mail, return | ||
receipt requested and first class
mail to that address. | ||
This notice is complete regardless of the return of a | ||
signed "return receipt requested". | ||
(A-20) Notice to a person whose address is not | ||
within the United States shall be completed by a single | ||
mailing of a copy of the notice by certified mail, | ||
return receipt requested and first class mail to that | ||
address. This notice is complete regardless of the | ||
return of a signed "return receipt requested". If | ||
certified mail is not available in the foreign country | ||
where the person has an address, notice shall proceed | ||
by paragraph (A-15) publication requirements. | ||
(A-25) A person who the State's Attorney | ||
reasonably should know is incarcerated within this | ||
State, shall also include, mailing a copy of the notice | ||
by certified mail, return receipt requested and first | ||
class mail, to the address of the detention facility | ||
with the inmate's name clearly marked on the envelope. | ||
After a claimant files a verified claim with the | ||
State's Attorney and provides an address at which they | ||
will accept service, the complaint shall be served and | ||
notice shall be complete upon the mailing of the | ||
complaint to the claimant at the address the claimant | ||
provided via certified mail, return receipt requested |
and first class mail. No return receipt card need be | ||
received, or any other attempts at service need be made | ||
to comply with service and notice requirements under | ||
this Section. This certified mailing, return receipt | ||
requested shall be proof of service of the complaint on | ||
the claimant. If notice is to be shown by actual notice | ||
from communication with a claimant, then the State's | ||
Attorney shall file an affidavit as proof of service | ||
providing details of the communication which shall be | ||
accepted as proof of service by the court. | ||
(B) If the property seized is a conveyance, to the | ||
address reflected in the office of the agency or | ||
official in which title or interest to the conveyance | ||
is required by law to be recorded, then by mailing a | ||
copy of the notice by certified mail, return receipt | ||
requested, to that address; or | ||
(C) (Blank). | ||
(2) Notice served under this Article is effective upon | ||
personal service, the last date of publication, or the | ||
mailing of written notice, whichever is earlier. | ||
(j) Notice to State's Attorney. The law enforcement agency | ||
seizing property for forfeiture under this Article shall, | ||
within 60 days after seizure, notify the State's Attorney for | ||
the county, either where an act or omission giving rise to the | ||
forfeiture occurred or where the property was seized, of the | ||
seizure of the property and the facts and circumstances giving |
rise to the seizure and shall provide the State's Attorney with | ||
the inventory of the property and its estimated value. When the | ||
property seized for forfeiture is a vehicle, the law | ||
enforcement agency seizing the property shall immediately | ||
notify the Secretary of State that forfeiture proceedings are | ||
pending regarding such vehicle. This notice shall be by the | ||
form 4-64. | ||
(k) Non-judicial forfeiture. If non-real property that | ||
exceeds $20,000 in value excluding the value of any conveyance, | ||
or if real property is seized under the provisions of this | ||
Article, the State's Attorney shall institute judicial in rem | ||
forfeiture proceedings as described in subsection (l) of this | ||
Section within 28 days from receipt of notice of seizure from | ||
the seizing agency under subsection (j) of this Section. | ||
However, if non-real property that does not exceed $20,000 in | ||
value excluding the value of any conveyance is seized, the | ||
following procedure shall be used: | ||
(1) If, after review of the facts surrounding the | ||
seizure, the State's Attorney is of the opinion that the | ||
seized property is subject to forfeiture, then within 45 | ||
days after the receipt of notice of seizure from the | ||
seizing agency, the State's Attorney shall cause notice of | ||
pending forfeiture to be given to the owner of the property | ||
and all known interest holders of the property in | ||
accordance with subsection (i) of this Section. | ||
(2) The notice of pending forfeiture must include a |
description of the property, the estimated value of the | ||
property, the date and place of seizure, the conduct giving | ||
rise to forfeiture or the violation of law alleged, and a | ||
summary of procedures and procedural rights applicable to | ||
the forfeiture action. | ||
(3)(A) Any person claiming an interest in property | ||
which is the subject of notice under paragraph (1) of this | ||
subsection (k), must, in order to preserve any rights or | ||
claims to the property, within 45 days after the effective | ||
date of notice as described in subsection (i) of this | ||
Section, file a verified claim with the State's Attorney | ||
expressing his or her interest in the property. The claim | ||
must set forth: | ||
(i) the caption of the proceedings as set forth on | ||
the notice of pending forfeiture and the name of the | ||
claimant; | ||
(ii) the address at which the claimant will accept | ||
mail; | ||
(iii) the nature and extent of the claimant's | ||
interest in the property; | ||
(iv) the date, identity of the transferor, and | ||
circumstances of the claimant's acquisition of the | ||
interest in the property; | ||
(v) the name and address of all other persons known | ||
to have an interest in the property; | ||
(vi) the specific provision of law relied on in |
asserting the property is not subject to forfeiture; | ||
(vii) all essential facts supporting each | ||
assertion; and | ||
(viii) the relief sought. | ||
(B) If a claimant files the claim, then the State's | ||
Attorney shall institute judicial in rem forfeiture | ||
proceedings with the clerk of the court as described in | ||
subsection (l) of this Section within 45 days after receipt | ||
of the claim. | ||
(C) (Blank). | ||
(4) If no claim is filed within the 45 day period as | ||
described in paragraph (3) of this subsection (k), the | ||
State's Attorney shall declare the property forfeited and | ||
shall promptly notify the owner and all known interest | ||
holders of the property and the Director of State Police of | ||
the declaration of forfeiture and the Director shall | ||
dispose of the property in accordance with law. | ||
(l) Judicial in rem procedures. If property seized under | ||
the provisions of this Article is non-real property that | ||
exceeds $20,000 in value excluding the value of any conveyance, | ||
or is real property, or a claimant has filed a claim under | ||
paragraph (3) of subsection (k) of this Section, the following | ||
judicial in rem procedures shall apply: | ||
(1) If, after a review of the facts surrounding the | ||
seizure, the State's Attorney is of the opinion that the | ||
seized property is subject to forfeiture, then within 28 |
days of the receipt of notice of seizure by the seizing | ||
agency or the filing of the claim, whichever is later, the | ||
State's Attorney shall institute judicial forfeiture | ||
proceedings by filing a verified complaint for forfeiture. | ||
When authorized by law, a forfeiture must be ordered by a | ||
court on an action in rem brought by a State's Attorney | ||
under a verified complaint for forfeiture. | ||
(1.5) A complaint of forfeiture shall include: | ||
(i) a description of the property seized; | ||
(ii) the date and place of seizure of the property; | ||
(iii) the name and address of the law enforcement | ||
agency making the seizure; and | ||
(iv) the specific statutory and factual grounds | ||
for the seizure. | ||
(1.10) The complaint shall be served upon the person | ||
from whom the property was seized and all persons known or | ||
reasonably believed by the State to claim an interest in | ||
the property, as provided in subsection (i) of this | ||
Section. The complaint shall be accompanied by the | ||
following written notice: | ||
"This is a civil court proceeding subject to the Code | ||
of Civil Procedure. You received this Complaint of | ||
Forfeiture because the State's Attorney's office has | ||
brought a legal action seeking forfeiture of your seized | ||
property. This complaint starts the court process where the | ||
State seeks to prove that your property should be forfeited |
and not returned to you. This process is also your | ||
opportunity to try to prove to a judge that you should get | ||
your property back. The complaint lists the date, time, and | ||
location of your first court date. You must appear in court | ||
on that day, or you may lose the case automatically. You | ||
must also file an appearance and answer. If you are unable | ||
to pay the appearance fee, you may qualify to have the fee | ||
waived. If there is a criminal case related to the seizure | ||
of your property, your case may be set for trial after the | ||
criminal case has been resolved. Before trial, the judge | ||
may allow discovery, where the State can ask you to respond | ||
in writing to questions and give them certain documents, | ||
and you can make similar requests of the State. The trial | ||
is your opportunity to explain what happened when your | ||
property was seized and why you should get the property | ||
back." | ||
(2) The laws of evidence relating to civil actions | ||
shall apply to proceedings under this Article with the | ||
following exception. The parties shall be allowed to use, | ||
and the court shall receive and consider all relevant | ||
hearsay evidence which relates to evidentiary foundation, | ||
chain of custody, business records, recordings, laboratory | ||
analysis, laboratory reports, and relevant hearsay related | ||
to the use of technology in the investigation which | ||
resulted in the seizure of property which is now subject to | ||
this forfeiture action. |
(3) Only an owner of or interest holder in the property | ||
may file an answer asserting a claim against the property | ||
in the action in rem. For purposes of this Section, the | ||
owner or interest holder shall be referred to as claimant. | ||
Upon motion of the State, the court shall first hold a | ||
hearing, wherein any claimant must establish by a | ||
preponderance of the evidence, that he or she has a lawful, | ||
legitimate ownership interest in the property and that it | ||
was obtained through a lawful source. | ||
(4) The answer must be signed by the owner or interest | ||
holder under penalty of perjury and must set forth: | ||
(A) the caption of the proceedings as set forth on | ||
the notice of pending forfeiture and the name of the | ||
claimant; | ||
(B) the address at which the claimant will accept | ||
mail; | ||
(C) the nature and extent of the claimant's | ||
interest in the property; | ||
(D) the date, identity of transferor, and | ||
circumstances of the claimant's acquisition of the | ||
interest in the property; | ||
(E) the name and address of all other persons known | ||
to have an interest in the property; | ||
(F) all essential facts supporting each assertion; | ||
(G) the precise relief sought; and | ||
(H) the answer shall follow the rules under the |
Code of Civil Procedure. | ||
(5) The answer must be filed with the court within 45 | ||
days after service of the civil in rem complaint. | ||
(6) The hearing must be held within 60 days after | ||
filing of the answer unless continued for good cause.
| ||
(7) At the judicial in rem proceeding, in the State's | ||
case in chief, the State shall show by a preponderance of | ||
the evidence that the property is subject to forfeiture. If | ||
the State makes such a showing, the claimant shall have the | ||
burden of production to set forth evidence that the | ||
property is not related to the alleged factual basis of the | ||
forfeiture. After this production of evidence, the State | ||
shall maintain the burden of proof to overcome this | ||
assertion. A claimant shall provide the State notice of its | ||
intent to allege that the currency or its equivalent is not | ||
related to the alleged factual basis of the forfeiture and | ||
why.
As to conveyances, at the judicial in rem proceeding, | ||
in their case in chief, the State shall show by a | ||
preponderance of the evidence, that (1) the property is | ||
subject to forfeiture; and (2) at least one of the | ||
following: | ||
(i) that the claimant was legally accountable for | ||
the conduct giving rise to the forfeiture; | ||
(ii) that the claimant knew or reasonably should | ||
have known of the conduct giving rise to the | ||
forfeiture; |
(iii) that the claimant knew or reasonable should | ||
have known that the conduct giving rise to the | ||
forfeiture was likely to occur; | ||
(iv) that the claimant held the property for the | ||
benefit of, or as nominee for, any person whose conduct | ||
gave rise to its forfeiture; | ||
(v) that if the claimant acquired their interest | ||
through any person engaging in any of the conduct | ||
described above or conduct giving rise to the | ||
forfeiture; | ||
(1) the claimant did not acquire it as a bona | ||
fide purchaser for value; or | ||
(2) the claimant acquired the interest under | ||
the circumstances that they reasonably should have | ||
known the property was derived from, or used in, | ||
the conduct giving rise to the forfeiture; or | ||
(vii) that the claimant is not the true owner of | ||
the property that is subject to forfeiture.
| ||
(8) If the State does not meet its burden to show that | ||
the property is subject to forfeiture, the court shall | ||
order the interest in the property returned or conveyed to | ||
the claimant and shall order all other property forfeited | ||
to the State. If the State does meet its burden to show | ||
that the property is subject to forfeiture, the court shall | ||
order all property forfeited to the State. | ||
(9) A defendant convicted in any criminal proceeding is |
precluded from later denying the essential allegations of | ||
the criminal offense of which the defendant was convicted | ||
in any proceeding under this Article regardless of the | ||
pendency of an appeal from that conviction. However, | ||
evidence of the pendency of an appeal is admissible. | ||
(10) On a motion by the the parties, the court may stay | ||
civil forfeiture proceedings during the criminal trial for | ||
a related criminal indictment or information alleging a | ||
money laundering violation. Such a stay shall not be | ||
available pending an appeal. Property subject to | ||
forfeiture under this Article shall not be subject to | ||
return or release by a court exercising jurisdiction over a | ||
criminal case involving the seizure of such property unless | ||
such return or release is consented to by the State's | ||
Attorney. | ||
Notwithstanding any other provision of this Section, | ||
the State's burden of proof at the trial of the forfeiture | ||
action shall be by clear and convincing evidence if: (1) a | ||
finding of not guilty is entered as to all counts and all | ||
defendants in a criminal proceeding relating to the conduct | ||
giving rise to the forfeiture action; or (2) the State | ||
receives an adverse finding at a preliminary hearing and | ||
fails to secure an indictment in a criminal proceeding | ||
relating to the factual allegations of the forfeiture | ||
action. | ||
(11) All property declared forfeited under this |
Article vests in this State on the commission of the | ||
conduct giving rise to forfeiture together with the | ||
proceeds of the property after that time. Except as | ||
otherwise provided in this Article, title to any such | ||
property or proceeds subsequently transferred to any | ||
person remain subject to forfeiture and thereafter shall be | ||
ordered forfeited unless the person to whom the property | ||
was transferred makes an appropriate claim and has his or | ||
her claim adjudicated at the judicial in rem hearing. | ||
(12) A civil action under this Article must be | ||
commenced within 5 years after the last conduct giving rise | ||
to forfeiture became known or should have become known or 5 | ||
years after the forfeitable property is discovered, | ||
whichever is later, excluding any time during which either | ||
the property or claimant is out of the State or in | ||
confinement or during which criminal proceedings relating | ||
to the same conduct are in progress. | ||
(m) Stay of time periods. If property is seized for | ||
evidence and for forfeiture, the time periods for instituting | ||
judicial and non-judicial forfeiture proceedings shall not | ||
begin until the property is no longer necessary for evidence. | ||
(n) Settlement of claims. Notwithstanding other provisions | ||
of this Article, the State's Attorney and a claimant of seized | ||
property may enter into an agreed-upon settlement concerning | ||
the seized property in such an amount and upon such terms as | ||
are set out in writing in a settlement agreement. All proceeds |
from a settlement agreement shall be tendered to the Department | ||
of State Police and distributed under paragraph (6) of | ||
subsection (h) of this Section. | ||
(o) Property constituting attorney fees. Nothing in this | ||
Article applies to property which constitutes reasonable bona | ||
fide attorney's fees paid to an attorney for services rendered | ||
or to be rendered in the forfeiture proceeding or criminal | ||
proceeding relating directly thereto where such property was | ||
paid before its seizure, before the issuance of any seizure | ||
warrant or court order prohibiting transfer of the property and | ||
where the attorney, at the time he or she received the property | ||
did not know that it was property subject to forfeiture under | ||
this Article. | ||
(p) Construction. It is the intent of the General Assembly | ||
that the forfeiture provisions of this Article be liberally | ||
construed so as to effect their remedial purpose. The | ||
forfeiture of property and other remedies hereunder shall be | ||
considered to be in addition to, and not exclusive of, any | ||
sentence or other remedy provided by law. | ||
(q) Judicial review. If property has been declared | ||
forfeited under subsection (k) of this Section, any person who | ||
has an interest in the property declared forfeited may, within | ||
30 days after the effective date of the notice of the | ||
declaration of forfeiture, file a claim as described in | ||
paragraph (3) of subsection (k) of this Section. If a claim is | ||
filed under this Section, then the procedures described in |
subsection (l) of this Section apply. | ||
(r) (Blank). | ||
(s) Review of administrative decisions.
All administrative | ||
findings, rulings, final determinations, findings, and | ||
conclusions of the State's Attorney's Office under this Article | ||
are final and conclusive decisions of the matters involved. Any | ||
person aggrieved by the decision may obtain review of the | ||
decision pursuant to the provisions of the Administrative | ||
Review Law and the rules adopted pursuant to that Law. Pending | ||
final decision on such review, the administrative acts, orders, | ||
and rulings of the State's Attorney's Office remain in full | ||
force and effect unless modified or suspended by order of court | ||
pending final judicial decision. Pending final decision on such | ||
review, the acts, orders, and rulings of the State's Attorney's | ||
Office remain in full force and effect, unless stayed by order | ||
of court. However, no stay of any decision of the | ||
administrative agency shall issue unless the person aggrieved | ||
by the decision establishes by a preponderance of the evidence | ||
that good cause exists for the stay. In determining good cause, | ||
the court shall find that the aggrieved party has established a | ||
substantial likelihood of prevailing on the merits and that | ||
granting the stay will not have an injurious effect on the | ||
general public. | ||
(t) Actual physical seizure of real property subject to | ||
forfeiture under this Act requires the issuance of a seizure | ||
warrant. Nothing in this Section prohibits the constructive |
seizure of real property through the filing of a complaint for | ||
forfeiture in circuit court and the recording of a lis pendens | ||
against the real property which is subject to forfeiture | ||
without any hearing, warrant application, or judicial | ||
approval. | ||
(u) Property which is forfeited shall be subject to an 8th | ||
amendment to the United States Constitution disproportionate | ||
penalties analysis and the property forfeiture may be denied in | ||
whole or in part if the court finds that the forfeiture would | ||
constitute an excessive fine in violation of the 8th amendment | ||
as interpreted by case law. | ||
(v) If property is ordered forfeited under this Section | ||
from a claimant who held title to the property in joint tenancy | ||
or tenancy in common with another claimant, the court shall | ||
determine the amount of each owner's interest in the property | ||
according to principles of property law. | ||
(w) A claimant or a party interested in personal property | ||
contained within a seized conveyance may file a request with | ||
the State's Attorney in a non-judicial forfeiture action, or a | ||
motion with the court in a judicial forfeiture action for the | ||
return of any personal property contained within a conveyance | ||
which is seized under this Article. The return of personal | ||
property shall not be unreasonably withheld if the personal | ||
property is not mechanically or electrically coupled to the | ||
conveyance, needed for evidentiary purposes, or otherwise | ||
contraband. Any law enforcement agency that returns property |
under a court order under this Section shall not be liable to | ||
any person who claims ownership to the property if it is | ||
returned to an improper party. | ||
(x) Innocent owner hearing. | ||
(1) After a complaint for forfeiture has been filed and | ||
all claimants have appeared and answered, a claimant may | ||
file a motion with the court for an innocent owner hearing | ||
prior to trial. This motion shall be made and supported by | ||
sworn affidavit and shall assert the following along with | ||
specific facts which support each assertion: | ||
(i) that the claimant filing the motion is the true | ||
owner of the conveyance as interpreted by case law; | ||
(ii) that the claimant was not legally accountable | ||
for the conduct giving rise to the forfeiture or | ||
acquiesced in the conduct; | ||
(iii) that the claimant did not solicit, conspire, | ||
or attempt to commit the conduct giving rise to the | ||
forfeiture; | ||
(iv) that the claimant did not know or did not have | ||
reason to know that the conduct giving rise to the | ||
forfeiture was likely to occur; and | ||
(v) that the claimant did not hold the property for | ||
the benefit of, or as nominee for any person whose | ||
conduct gave rise to its forfeiture or if the owner or | ||
interest holder acquired the interest through any | ||
person, the owner or interest holder did not acquire it |
as a bona fide purchaser for value or acquired the | ||
interest without knowledge of the seizure of the | ||
property for forfeiture. | ||
(2) The claimant shall include specific facts which | ||
support these assertions in their motion. | ||
(3) Upon this filing, a hearing may only be conducted | ||
after the parties have been given the opportunity to | ||
conduct limited discovery as to the ownership and control | ||
of the property, the claimant's knowledge, or any matter | ||
relevant to the issues raised or facts alleged in the | ||
claimant's motion. Discovery shall be limited to the | ||
People's requests in these areas but may proceed by any | ||
means allowed in the Code of Civil Procedure. | ||
(i) After discovery is complete and the court has | ||
allowed for sufficient time to review and investigate | ||
the discovery responses, the court shall conduct a | ||
hearing. At the hearing, the fact that the conveyance | ||
is subject to forfeiture shall not be at issue. The | ||
court shall only hear evidence relating to the issue of | ||
innocent ownership. | ||
(ii) At the hearing on the motion, it shall be the | ||
burden of the claimant to prove each of the assertions | ||
listed in paragraph (1) of this subsection (x) by a | ||
preponderance of the evidence. | ||
(iii) If a claimant meets his burden of proof, the | ||
court shall grant the motion and order the property |
returned to the claimant. If the claimant fails to meet | ||
his or her burden of proof then the court shall deny | ||
the motion. | ||
(y) No property shall be forfeited under this Section from | ||
a person who, without actual or constructive notice that the | ||
property was the subject of forfeiture proceedings, obtained | ||
possession of the property as a bona fide purchaser for value. | ||
A person who purports to affect transfer of property after | ||
receiving actual or constructive notice that the property is | ||
subject to seizure or forfeiture is guilty of contempt of | ||
court, and shall be liable to the State for a penalty in the | ||
amount of the fair market value of the property. | ||
(z) Forfeiture proceedings under this Section shall be | ||
subject to the Code of Civil Procedure and the rules of | ||
evidence relating to civil actions. | ||
(aa) Return of property, damages, and costs. | ||
(1) The law enforcement agency that holds custody of | ||
property seized for forfeiture shall deliver property | ||
ordered by the court to be returned or conveyed to the | ||
claimant within a reasonable time not to exceed 7 days, | ||
unless the order is stayed by the trial court or a | ||
reviewing court pending an appeal, motion to reconsider, or | ||
other reason. | ||
(2) The law enforcement agency that holds custody of | ||
property is responsible for any damages, storage fees, and | ||
related costs applicable to property returned. The |
claimant shall not be subject to any charges by the State | ||
for storage of the property or expenses incurred in the | ||
preservation of the property. Charges for the towing of a | ||
conveyance shall be borne by the claimant unless the | ||
conveyance was towed for the sole reason of seizure for | ||
forfeiture. This Section does not prohibit the imposition | ||
of any fees or costs by a home rule unit of local | ||
government related to the impoundment of a conveyance under | ||
an ordinance enacted by the unit of government. | ||
(3) A law enforcement agency shall not retain forfeited | ||
property for its own use or transfer the property to any | ||
person or entity, except as provided under this Section. A | ||
law enforcement agency may apply in writing to the Director | ||
of State Police to request that a forfeited property be | ||
awarded to the agency for a specifically articulated | ||
official law enforcement use in an investigation. The | ||
Director of State Police shall provide a written | ||
justification in each instance detailing the reasons why | ||
the forfeited property was placed into official use and the | ||
justification shall be retained for a period of not less | ||
than 3 years. | ||
(bb) The changes made to this Section by this amendatory | ||
Act of the 100th General Assembly are subject to Sections 2 and | ||
4 of the Statute on Statutes. | ||
(Source: P.A. 99-480, eff. 9-9-15; 100-512, eff. 7-1-18.)
|
(720 ILCS 5/29B-2 new) | ||
Sec. 29B-2. Evidence in money laundering prosecutions. | ||
In a prosecution under this Article, either party may | ||
introduce the following evidence pertaining to the issue of | ||
whether the property or proceeds were known to be some form of | ||
criminally derived property or from some form of unlawful | ||
activity: | ||
(1) a financial transaction was conducted or | ||
structured or attempted in violation of the reporting | ||
requirements of any State or federal law; | ||
(2) a financial transaction was conducted or attempted | ||
with the use of a false or fictitious name or a forged | ||
instrument; | ||
(3) a falsely altered or completed written instrument | ||
or a written instrument that contains any materially false | ||
personal identifying information was made, used, offered | ||
or presented, whether accepted or not, in connection with a | ||
financial transaction; | ||
(4) a financial transaction was structured or | ||
attempted to be structured so as to falsely report the | ||
actual consideration or value of the transaction; | ||
(5) a money transmitter, a person engaged in a trade or | ||
business, or any employee of a money transmitter or a | ||
person engaged in a trade or business, knows or reasonably | ||
should know that false personal identifying information | ||
has been presented and incorporates the false personal |
identifying information into any report or record; | ||
(6) the criminally derived property is transported or | ||
possessed in a fashion inconsistent with the ordinary or | ||
usual means of transportation or possession of the property | ||
and where the property is discovered in the absence of any | ||
documentation or other indicia of legitimate origin or | ||
right to the property; | ||
(7) a person pays or receives substantially less than | ||
face value for one or more monetary instruments; or | ||
(8) a person engages in a transaction involving one or | ||
more monetary instruments, where the physical condition or | ||
form of the monetary instrument or instruments makes it | ||
apparent that they are not the product of bona fide | ||
business or financial transactions. | ||
(720 ILCS 5/29B-3 new) | ||
Sec. 29B-3. Duty to enforce this Article. | ||
(a) It is the duty of the Department of State Police, and | ||
its agents, officers, and investigators, to enforce this | ||
Article, except those provisions otherwise specifically | ||
delegated, and to cooperate with all agencies charged with the | ||
enforcement of the laws of the United States, or of any state, | ||
relating to money laundering. Only an agent, officer, or | ||
investigator designated by the Director may be authorized in | ||
accordance with this Section to serve seizure notices, | ||
warrants, subpoenas, and summonses under the authority of this |
State. | ||
(b) An agent, officer, investigator, or peace officer | ||
designated by the Director may: (1) make seizure of property | ||
under this Article; and (2) perform other law enforcement | ||
duties as the Director designates. It is the duty of all | ||
State's Attorneys to prosecute violations of this Article and | ||
institute legal proceedings as authorized under this Article. | ||
(720 ILCS 5/29B-4 new) | ||
Sec. 29B-4. Protective orders and warrants for forfeiture | ||
purposes. | ||
(a) Upon application of the State, the court may enter a | ||
restraining order or injunction, require the execution of a | ||
satisfactory performance bond, or take any other action to | ||
preserve the availability of property described in Section | ||
29B-5 of this Article for forfeiture under this Article: | ||
(1) upon the filing of an indictment, information, or | ||
complaint charging a violation of this Article for which | ||
forfeiture may be ordered under this Article and alleging | ||
that the property with respect to which the order is sought | ||
would be subject to forfeiture under this Article; or | ||
(2) prior to the filing of the indictment, information, | ||
or complaint, if, after notice to persons appearing to have | ||
an interest in the property and opportunity for a hearing, | ||
the court determines that: | ||
(A) there is probable cause to believe that the |
State will prevail on the issue of forfeiture and that | ||
failure to enter the order will result in the property | ||
being destroyed, removed from the jurisdiction of the | ||
court, or otherwise made unavailable for forfeiture; | ||
and | ||
(B) the need to preserve the availability of the | ||
property through the entry of the requested order | ||
outweighs the hardship on any party against whom the | ||
order is to be entered. | ||
Provided, however, that an order entered under | ||
paragraph (2) of this Section shall be effective for not | ||
more than 90 days, unless extended by the court for good | ||
cause shown or unless an indictment, information, | ||
complaint, or administrative notice has been filed. | ||
(b) A temporary restraining order under this subsection (b) | ||
may be entered upon application of the State without notice or | ||
opportunity for a hearing when an indictment, information, | ||
complaint, or administrative notice has not yet been filed with | ||
respect to the property, if the State demonstrates that there | ||
is probable cause to believe that the property with respect to | ||
which the order is sought would be subject to forfeiture under | ||
this Article and that provision of notice will jeopardize the | ||
availability of the property for forfeiture. The temporary | ||
order shall expire not more than 30 days after the date on | ||
which it is entered, unless extended for good cause shown or | ||
unless the party against whom it is entered consents to an |
extension for a longer period. A hearing requested concerning | ||
an order entered under this subsection (b) shall be held at the | ||
earliest possible time and prior to the expiration of the | ||
temporary order. | ||
(c) The court may receive and consider, at a hearing held | ||
under this Section, evidence and information that would be | ||
inadmissible under the Illinois rules of evidence. | ||
(d) Under its authority to enter a pretrial restraining | ||
order under this Section, the court may order a defendant to | ||
repatriate any property that may be seized and forfeited and to | ||
deposit that property pending trial with the Department of | ||
State Police or another law enforcement agency designated by | ||
the Department of State Police. Failure to comply with an order | ||
under this Section is punishable as a civil or criminal | ||
contempt of court. | ||
(e) The State may request the issuance of a warrant | ||
authorizing the seizure of property described in Section 29B-5 | ||
of this Article in the same manner as provided for a search | ||
warrant. If the court determines that there is probable cause | ||
to believe that the property to be seized would be subject to | ||
forfeiture, the court shall issue a warrant authorizing the | ||
seizure of that property. | ||
(720 ILCS 5/29B-5 new) | ||
Sec. 29B-5. Property subject to forfeiture. The following | ||
are subject to forfeiture: |
(1) any property, real or personal, constituting, derived | ||
from, or traceable to any proceeds the person obtained directly | ||
or indirectly, as a result of a violation of this Article; | ||
(2) any of the person's property used, or intended to be | ||
used, in any manner or part, to commit, or to facilitate the | ||
commission of, a violation of this Article; | ||
(3) all conveyances, including aircraft, vehicles, or | ||
vessels, which are used, or intended for use, to transport, or | ||
in any manner to facilitate the transportation, sale, receipt, | ||
possession, or concealment of property described in paragraphs | ||
(1) and (2) of this Section, but: | ||
(A) no conveyance used by any person as a common | ||
carrier in the transaction of business as a common carrier | ||
is subject to forfeiture under this Section unless it | ||
appears that the owner or other person in charge of the | ||
conveyance is a consenting party or privy to a violation of | ||
this Article; | ||
(B) no conveyance is subject to forfeiture under this | ||
Article by reason of any act or omission which the owner | ||
proves to have been committed or omitted without his or her | ||
knowledge or consent; | ||
(C) a forfeiture of a conveyance encumbered by a bona | ||
fide security interest is subject to the interest of the | ||
secured party if he or she neither had knowledge of nor | ||
consented to the act or omission; | ||
(4) all real property, including any right, title, and |
interest, including, but not limited to, any leasehold interest | ||
or the beneficial interest in a land trust, in the whole of any | ||
lot or tract of land and any appurtenances or improvements, | ||
which is used or intended to be used, in any manner or part, to | ||
commit, or in any manner to facilitate the commission of, any | ||
violation of this Article or that is the proceeds of any | ||
violation or act that constitutes a violation of this Article. | ||
(720 ILCS 5/29B-6 new) | ||
Sec. 29B-6. Seizure. | ||
(a) Property subject to forfeiture under this Article may | ||
be seized by the Director or any peace officer upon process or | ||
seizure warrant issued by any court having jurisdiction over | ||
the property. Seizure by the Director or any peace officer | ||
without process may be made: | ||
(1) if the seizure is incident to a seizure warrant; | ||
(2) if the property subject to seizure has been the | ||
subject of a prior judgment in favor of the State in a | ||
criminal proceeding, or in an injunction or forfeiture | ||
proceeding based upon this Article; | ||
(3) if there is probable cause to believe that the | ||
property is directly or indirectly dangerous to health or | ||
safety; | ||
(4) if there is probable cause to believe that the | ||
property is subject to forfeiture under this Article and | ||
the property is seized under circumstances in which a |
warrantless seizure or arrest would be reasonable; or | ||
(5) in accordance with the Code of Criminal Procedure | ||
of 1963. | ||
(b) In the event of seizure under subsection (a) of this | ||
Section, forfeiture proceedings shall be instituted in | ||
accordance with this Article. | ||
(c) Actual physical seizure of real property subject to | ||
forfeiture requires the issuance of a seizure warrant. Nothing | ||
in this Article prohibits the constructive seizure of real | ||
property through the filing of a complaint for forfeiture in | ||
circuit court and the recording of a lis pendens against the | ||
real property that is subject to forfeiture without any | ||
hearing, warrant application, or judicial approval. | ||
(720 ILCS 5/29B-7 new) | ||
Sec. 29B-7. Safekeeping of seized property pending | ||
disposition. | ||
(a) If property is seized under this Article, the seizing | ||
agency shall promptly conduct an inventory of the seized | ||
property and estimate the property's value and shall forward a | ||
copy of the inventory of seized property and the estimate of | ||
the property's value to the Director. Upon receiving notice of | ||
seizure, the Director may: | ||
(1) place the property under seal; | ||
(2) remove the property to a place designated by the | ||
Director; |
(3) keep the property in the possession of the seizing | ||
agency; | ||
(4) remove the property to a storage area for | ||
safekeeping or, if the property is a negotiable instrument | ||
or money and is not needed for evidentiary purposes, | ||
deposit it in an interest bearing account; | ||
(5) place the property under constructive seizure by | ||
posting notice of pending forfeiture on it, by giving | ||
notice of pending forfeiture to its owners and interest | ||
holders, or by filing notice of pending forfeiture in any | ||
appropriate public record relating to the property; or | ||
(6) provide for another agency or custodian, including | ||
an owner, secured party, or lienholder, to take custody of | ||
the property upon the terms and conditions set by the | ||
Director. | ||
(b) When property is forfeited under this Article, the | ||
Director shall sell all the property unless the property is | ||
required by law to be destroyed or is harmful to the public, | ||
and shall distribute the proceeds of the sale, together with | ||
any moneys forfeited or seized, under Section 29B-26 of this | ||
Article. | ||
(720 ILCS 5/29B-8 new) | ||
Sec. 29B-8. Notice to State's Attorney. The law enforcement | ||
agency seizing property for forfeiture under this Article | ||
shall, within 60 days after seizure, notify the State's |
Attorney for the county, either where an act or omission giving | ||
rise to the forfeiture occurred or where the property was | ||
seized, of the seizure of the property and the facts and | ||
circumstances giving rise to the seizure and shall provide the | ||
State's Attorney with the inventory of the property and its | ||
estimated value. If the property seized for forfeiture is a | ||
vehicle, the law enforcement agency seizing the property shall | ||
immediately notify the Secretary of State that forfeiture | ||
proceedings are pending regarding the vehicle. This notice | ||
shall be by Form 4-64. | ||
(720 ILCS 5/29B-9 new) | ||
Sec. 29B-9. Preliminary review. | ||
(a) Within 28 days of the seizure, the State shall seek a | ||
preliminary determination from the circuit court as to whether | ||
there is probable cause that the property may be subject to | ||
forfeiture. | ||
(b) The rules of evidence shall not apply to any proceeding | ||
conducted under this Section. | ||
(c) The court may conduct the review under subsection (a) | ||
of this Section simultaneously with a proceeding under Section | ||
109-1 of the Code of Criminal Procedure of 1963 for a related | ||
criminal offense if a prosecution is commenced by information | ||
or complaint. | ||
(d) The court may accept a finding of probable cause at a | ||
preliminary hearing following the filing of an information or |
complaint charging a related criminal offense or following the | ||
return of indictment by a grand jury charging the related | ||
offense as sufficient evidence of probable cause as required | ||
under subsection (a) of this Section. | ||
(e) Upon a finding of probable cause as required under this | ||
Section, the circuit court shall order the property subject to | ||
the applicable forfeiture Act held until the conclusion of any | ||
forfeiture proceeding. | ||
(720 ILCS 5/29B-10 new) | ||
Sec. 29B-10. Notice to owner or interest holder. | ||
(a) The first attempted service of notice shall be | ||
commenced within 28 days of the latter of filing of the | ||
verified claim or the receipt of the notice from the seizing | ||
agency by Form 4-64. A complaint for forfeiture or a notice of | ||
pending forfeiture shall be served on a claimant if the owner's | ||
or interest holder's name and current address are known, then | ||
by either: (1) personal service; or (2) mailing a copy of the | ||
notice by certified mail, return receipt requested, and first | ||
class mail to that address. | ||
(b) If no signed return receipt is received by the State's | ||
Attorney within 28 days of mailing or no communication from the | ||
owner or interest holder is received by the State's Attorney | ||
documenting actual notice by the parties, the State's Attorney | ||
shall, within a reasonable period of time, mail a second copy | ||
of the notice by certified mail, return receipt requested, and |
first class mail to that address. If no signed return receipt | ||
is received by the State's Attorney within 28 days of the | ||
second mailing, or no communication from the owner or interest | ||
holder is received by the State's Attorney documenting actual | ||
notice by the parties, the State's Attorney shall have 60 days | ||
to attempt to serve the notice by personal service, including | ||
substitute service by leaving a copy at the usual place of | ||
abode with some person of the family or a person residing | ||
there, of the age of 13 years or upwards. If, after 3 attempts | ||
at service in this manner, no service of the notice is | ||
accomplished, the notice shall be posted in a conspicuous | ||
manner at the address and service shall be made by the posting. | ||
The attempts at service and the posting if required, shall be | ||
documented by the person attempting service which shall be made | ||
part of a return of service returned to the State's Attorney. | ||
The State's Attorney may utilize any Sheriff or Deputy Sheriff, | ||
a peace officer, a private process server or investigator, or | ||
an employee, agent, or investigator of the State's Attorney's | ||
Office to attempt service without seeking leave of court. | ||
(c) After the procedures listed are followed, service shall | ||
be effective on the owner or interest holder on the date of | ||
receipt by the State's Attorney of a return receipt, or on the | ||
date of receipt of a communication from an owner or interest | ||
holder documenting actual notice, whichever is first in time, | ||
or on the date of the last act performed by the State's | ||
Attorney in attempting personal service. For purposes of notice |
under this Section, if a person has been arrested for the | ||
conduct giving rise to the forfeiture, the address provided to | ||
the arresting agency at the time of arrest shall be deemed to | ||
be that person's known address. Provided, however, if an owner | ||
or interest holder's address changes prior to the effective | ||
date of the notice of pending forfeiture, the owner or interest | ||
holder shall promptly notify the seizing agency of the change | ||
in address or, if the owner or interest holder's address | ||
changes subsequent to the effective date of the notice of | ||
pending forfeiture, the owner or interest holder shall promptly | ||
notify the State's Attorney of the change in address. If the | ||
property seized is a conveyance, notice shall also be directed | ||
to the address reflected in the office of the agency or | ||
official in which title to or interest in the conveyance is | ||
required by law to be recorded. | ||
(d) If the owner's or interest holder's address is not | ||
known, and is not on record as provided in this Section, | ||
service by publication for 3 successive weeks in a newspaper of | ||
general circulation in the county in which the seizure occurred | ||
shall suffice for service requirements. | ||
(e) Notice to any business entity, corporation, limited | ||
liability company, limited liability partnership, or | ||
partnership shall be completed by a single mailing of a copy of | ||
the notice by certified mail, return receipt requested, and | ||
first class mail to that address. This notice is complete | ||
regardless of the return of a signed return receipt. |
(f) Notice to a person whose address is not within the | ||
State shall be completed by a single mailing of a copy of the | ||
notice by certified mail, return receipt requested, and first | ||
class
mail to that address. This notice is complete regardless | ||
of the return of a signed return receipt. | ||
(g) Notice to a person whose address is not within the | ||
United States shall be completed by a single mailing of a copy | ||
of the notice by certified mail, return receipt requested, and | ||
first class mail to that address. This notice is complete | ||
regardless of the return of a signed return receipt. If | ||
certified mail is not available in the foreign country where | ||
the person has an address, notice shall proceed by publication | ||
requirements under subsection (d) of this Section. | ||
(h) A person whom the State's Attorney reasonably should | ||
know is incarcerated within this State, shall also include, | ||
mailing a copy of the notice by certified mail, return receipt | ||
requested, and first class mail to the address of the detention | ||
facility with the inmate's name clearly marked on the envelope. | ||
(i) After a claimant files a verified claim with the | ||
State's Attorney and provides an address at which the claimant | ||
will accept service, the complaint shall be served and notice | ||
shall be complete upon the mailing of the complaint to the | ||
claimant at the address the claimant provided via certified | ||
mail, return receipt requested, and first class mail. No return | ||
receipt need be received, or any other attempts at service need | ||
be made to comply with service and notice requirements under |
this Section. This certified mailing, return receipt | ||
requested, shall be proof of service of the complaint on the | ||
claimant. If notice is to be shown by actual notice from | ||
communication with a claimant, then the State's Attorney shall | ||
file an affidavit as proof of service, providing details of the | ||
communication, which shall be accepted as proof of service by | ||
the court. | ||
(j) If the property seized is a conveyance, to the address | ||
reflected in the office of the agency or official in which | ||
title to or interest in the conveyance is required by law to be | ||
recorded, then by mailing a copy of the notice by certified | ||
mail, return receipt requested, to that address. | ||
(k) Notice served under this Article is effective upon | ||
personal service, the last date of publication, or the mailing | ||
of written notice, whichever is earlier. | ||
(720 ILCS 5/29B-11 new) | ||
Sec. 29B-11. Replevin prohibited. Property taken or | ||
detained under this Article shall not be subject to replevin, | ||
but is deemed to be in the custody of the Director subject only | ||
to the order and judgments of the circuit court having | ||
jurisdiction over the forfeiture proceedings and the decisions | ||
of the State's Attorney under this Article. | ||
(720 ILCS 5/29B-12 new) | ||
Sec. 29B-12. Non-judicial forfeiture. If non-real |
property that exceeds $20,000 in value excluding the value of | ||
any conveyance, or if real property is seized under the | ||
provisions of this Article, the State's Attorney shall | ||
institute judicial in rem forfeiture proceedings as described | ||
in Section 29B-13 of this Article within 28 days from receipt | ||
of notice of seizure from the seizing agency under Section | ||
29B-8 of this Article. However, if non-real property that does | ||
not exceed $20,000 in value excluding the value of any | ||
conveyance is seized, the following procedure shall be used: | ||
(1) If, after review of the facts surrounding the seizure, | ||
the State's Attorney is of the opinion that the seized property | ||
is subject to forfeiture, then within 28 days after the receipt | ||
of notice of seizure from the seizing agency, the State's | ||
Attorney shall cause notice of pending forfeiture to be given | ||
to the owner of the property and all known interest holders of | ||
the property in accordance with Section 29B-10 of this Article. | ||
(2) The notice of pending forfeiture shall include a | ||
description of the property, the estimated value of the | ||
property, the date and place of seizure, the conduct giving | ||
rise to forfeiture or the violation of law alleged, and a | ||
summary of procedures and procedural rights applicable to the | ||
forfeiture action. | ||
(3)(A) Any person claiming an interest in property that is | ||
the subject of notice under paragraph (1) of this Section, | ||
must, in order to preserve any rights or claims to the | ||
property, within 45 days after the effective date of notice as |
described in Section 29B-10 of this Article, file a verified | ||
claim with the State's Attorney expressing his or her interest | ||
in the property. The claim shall set forth: | ||
(i) the caption of the proceedings as set forth on the | ||
notice of pending forfeiture and the name of the claimant; | ||
(ii) the address at which the claimant will accept | ||
mail; | ||
(iii) the nature and extent of the claimant's interest | ||
in the property; | ||
(iv) the date, identity of the transferor, and | ||
circumstances of the claimant's acquisition of the | ||
interest in the property; | ||
(v) the names and addresses of all other persons known | ||
to have an interest in the property; | ||
(vi) the specific provision of law relied on in | ||
asserting the property is not subject to forfeiture; | ||
(vii) all essential facts supporting each assertion; | ||
and | ||
(viii) the relief sought. | ||
(B) If a claimant files the claim, then the State's | ||
Attorney shall institute judicial in rem forfeiture | ||
proceedings with the clerk of the court as described in Section | ||
29B-13 of this Article within 28 days after receipt of the | ||
claim. | ||
(4) If no claim is filed within the 28-day period as | ||
described in paragraph (3) of this Section, the State's |
Attorney shall declare the property forfeited and shall | ||
promptly notify the owner and all known interest holders of the | ||
property and the Director of State Police of the declaration of | ||
forfeiture and the Director shall dispose of the property in | ||
accordance with law. | ||
(720 ILCS 5/29B-13 new) | ||
Sec. 29B-13. Judicial in rem procedures. If property seized | ||
under this Article is non-real property that exceeds $20,000 in | ||
value excluding the value of any conveyance, or is real | ||
property, or a claimant has filed a claim under paragraph (3) | ||
of Section 29B-12 of this Article, the following judicial in | ||
rem procedures shall apply: | ||
(1) If, after a review of the facts surrounding the | ||
seizure, the State's Attorney is of the opinion that the seized | ||
property is subject to forfeiture, then within 28 days of the | ||
receipt of notice of seizure by the seizing agency or the | ||
filing of the claim, whichever is later, the State's Attorney | ||
shall institute judicial forfeiture proceedings by filing a | ||
verified complaint for forfeiture. If authorized by law, a | ||
forfeiture shall be ordered by a court on an action in rem | ||
brought by a State's Attorney under a verified complaint for | ||
forfeiture. | ||
(2) A complaint of forfeiture shall include: | ||
(A) a description of the property seized; | ||
(B) the date and place of seizure of the property; |
(C) the name and address of the law enforcement agency | ||
making the seizure; and | ||
(D) the specific statutory and factual grounds for the | ||
seizure. | ||
(3) The complaint shall be served upon the person from whom | ||
the property was seized and all persons known or reasonably | ||
believed by the State to claim an interest in the property, as | ||
provided in Section 29B-10 of this Article. The complaint shall | ||
be accompanied by the following written notice: | ||
"This is a civil court proceeding subject to the Code of | ||
Civil Procedure. You received this Complaint of Forfeiture | ||
because the State's Attorney's office has brought a legal | ||
action seeking forfeiture of your seized property. This | ||
complaint starts the court process where the State seeks to | ||
prove that your property should be forfeited and not returned | ||
to you. This process is also your opportunity to try to prove | ||
to a judge that you should get your property back. The | ||
complaint lists the date, time, and location of your first | ||
court date. You must appear in court on that day, or you may | ||
lose the case automatically. You must also file an appearance | ||
and answer. If you are unable to pay the appearance fee, you | ||
may qualify to have the fee waived. If there is a criminal case | ||
related to the seizure of your property, your case may be set | ||
for trial after the criminal case has been resolved. Before | ||
trial, the judge may allow discovery, where the State can ask | ||
you to respond in writing to questions and give them certain |
documents, and you can make similar requests of the State. The | ||
trial is your opportunity to explain what happened when your | ||
property was seized and why you should get the property back." | ||
(4) Forfeiture proceedings under this Article shall be | ||
subject to the Code of Civil Procedure and the rules of | ||
evidence relating to civil actions shall apply to proceedings | ||
under this Article with the following exception. The parties | ||
shall be allowed to use, and the court shall receive and | ||
consider, all relevant hearsay evidence that relates to | ||
evidentiary foundation, chain of custody, business records, | ||
recordings, laboratory analysis, laboratory reports, and | ||
relevant hearsay related to the use of technology in the | ||
investigation that resulted in the seizure of property that is | ||
subject to the forfeiture action. | ||
(5) Only an owner of or interest holder in the property may | ||
file an answer asserting a claim against the property in the | ||
action in rem. For purposes of this Section, the owner or | ||
interest holder shall be referred to as claimant. Upon motion | ||
of the State, the court shall first hold a hearing, in which a | ||
claimant shall establish by a preponderance of the evidence, | ||
that he or she has a lawful, legitimate ownership interest in | ||
the property and that it was obtained through a lawful source. | ||
(6) The answer must be signed by the owner or interest | ||
holder under penalty of perjury and shall set forth: | ||
(A) the caption of the proceedings as set forth on the | ||
notice of pending forfeiture and the name of the claimant; |
(B) the address at which the claimant will accept mail; | ||
(C) the nature and extent of the claimant's interest in | ||
the property; | ||
(D) the date, identity of transferor, and | ||
circumstances of the claimant's acquisition of the | ||
interest in the property; | ||
(E) the names and addresses of all other persons known | ||
to have an interest in the property; | ||
(F) all essential facts supporting each assertion; | ||
(G) the precise relief sought; | ||
(H) in a forfeiture action involving currency or its | ||
equivalent, a claimant shall provide the State with notice | ||
of his or her intent to allege that the currency or its | ||
equivalent is not related to the alleged factual basis for | ||
the forfeiture, and why; and | ||
(I) the answer shall follow the rules under the Code of | ||
Civil Procedure. | ||
(7) The answer shall be filed with the court within 45 days | ||
after service of the civil in rem complaint. | ||
(8) The hearing shall be held within 60 days after filing | ||
of the answer unless continued for good cause. | ||
(9) At the judicial in rem proceeding, in the State's case | ||
in chief, the State shall show by a preponderance of the | ||
evidence that the property is subject to forfeiture. If the | ||
State makes such a showing, the claimant shall have the burden | ||
of production to set forth evidence that the property is not |
related to the alleged factual basis of the forfeiture. After | ||
this production of evidence, the State shall maintain the | ||
burden of proof to overcome this assertion. A claimant shall | ||
provide the State notice of its intent to allege that the | ||
currency or its equivalent is not related to the alleged | ||
factual basis of the forfeiture and why.
As to conveyances, at | ||
the judicial in rem proceeding, in its case in chief, the State | ||
shall show by a preponderance of the evidence, that (A) the | ||
property is subject to forfeiture; and (B) at least one of the | ||
following: | ||
(i) that the claimant was legally accountable for the | ||
conduct giving rise to the forfeiture; | ||
(ii) that the claimant knew or reasonably should have | ||
known of the conduct giving rise to the forfeiture; | ||
(iii) that the claimant knew or reasonably should have | ||
known that the conduct giving rise to the forfeiture was | ||
likely to occur; | ||
(iv) that the claimant held the property for the | ||
benefit of, or as nominee for, any person whose conduct | ||
gave rise to its forfeiture; | ||
(v) that if the claimant acquired the interest through | ||
any person engaging in any of the conduct described above | ||
or conduct giving rise to the forfeiture: | ||
(a) the claimant did not acquire it as a bona fide | ||
purchaser for value; or | ||
(b) the claimant acquired the interest under the |
circumstances that the claimant reasonably should have | ||
known the property was derived from, or used in, the | ||
conduct giving rise to the forfeiture; or | ||
(vi) that the claimant is not the true owner of the | ||
property that is subject to forfeiture. | ||
(10) If the State does not meet its burden to show that the | ||
property is subject to forfeiture, the court shall order the | ||
interest in the property returned or conveyed to the claimant | ||
and shall order all other property forfeited to the State. If | ||
the State does meet its burden to show that the property is | ||
subject to forfeiture, the court shall order all property | ||
forfeited to the State. | ||
(11) A defendant convicted in any criminal proceeding is | ||
precluded from later denying the essential allegations of the | ||
criminal offense of which the defendant was convicted in any | ||
proceeding under this Article regardless of the pendency of an | ||
appeal from that conviction. However, evidence of the pendency | ||
of an appeal is admissible. | ||
(12) On a motion by the parties, the court may stay civil | ||
forfeiture proceedings during the criminal trial for a related | ||
criminal indictment or information alleging a money laundering | ||
violation. Such a stay shall not be available pending an | ||
appeal. Property subject to forfeiture under this Article shall | ||
not be subject to return or release by a court exercising | ||
jurisdiction over a criminal case involving the seizure of the | ||
property unless the return or release is consented to by the |
State's Attorney. | ||
(720 ILCS 5/29B-14 new) | ||
Sec. 29B-14. Innocent owner hearing. | ||
(a) After a complaint for forfeiture has been filed and all | ||
claimants have appeared and answered, a claimant may file a | ||
motion with the court for an innocent owner hearing prior to | ||
trial. This motion shall be made and supported by sworn | ||
affidavit and shall assert the following along with specific | ||
facts that support each assertion: | ||
(1) that the claimant filing the motion is the true | ||
owner of the conveyance as interpreted by case law; | ||
(2) that the claimant was not legally accountable for | ||
the conduct giving rise to the forfeiture or acquiesced in | ||
the conduct; | ||
(3) that the claimant did not solicit, conspire, or | ||
attempt to commit the conduct giving rise to the | ||
forfeiture; | ||
(4) that the claimant did not know or did not have | ||
reason to know that the conduct giving rise to the | ||
forfeiture was likely to occur; and | ||
(5) that the claimant did not hold the property for the | ||
benefit of, or as nominee for any person whose conduct gave | ||
rise to its forfeiture or if the owner or interest holder | ||
acquired the interest through any person, the owner or | ||
interest holder did not acquire it as a bona fide purchaser |
for value or acquired the interest without knowledge of the | ||
seizure of the property for forfeiture. | ||
(b) The claimant's motion shall include specific facts | ||
supporting these assertions. | ||
(c) Upon this filing, a hearing may only be conducted after | ||
the parties have been given the opportunity to conduct limited | ||
discovery as to the ownership and control of the property, the | ||
claimant's knowledge, or any matter relevant to the issues | ||
raised or facts alleged in the claimant's motion. Discovery | ||
shall be limited to the People's requests in these areas but | ||
may proceed by any means allowed in the Code of Civil | ||
Procedure. | ||
(1) After discovery is complete and the court has | ||
allowed for sufficient time to review and investigate the | ||
discovery responses, the court shall conduct a hearing. At | ||
the hearing, the fact that the conveyance is subject to | ||
forfeiture shall not be at issue. The court shall only hear | ||
evidence relating to the issue of innocent ownership. | ||
(2) At the hearing on the motion, it shall be the | ||
burden of the claimant to prove each of the assertions | ||
listed in subsection (a) of this Section by a preponderance | ||
of the evidence. | ||
(3) If a claimant meets his or her burden of proof, the | ||
court shall grant the motion and order the property | ||
returned to the claimant. If the claimant fails to meet his | ||
or her burden of proof, then the court shall deny the |
motion and the forfeiture case shall proceed according to | ||
the Code of Civil Procedure. | ||
(720 ILCS 5/29B-15 new) | ||
Sec. 29B-15. Burden and commencement of forfeiture action. | ||
(a) Notwithstanding any other provision of this Article, | ||
the State's burden of proof at the trial of the forfeiture | ||
action shall be by clear and convincing evidence if: | ||
(1) a finding of not guilty is entered as to all counts | ||
and all defendants in a criminal proceeding relating to the | ||
conduct giving rise to the forfeiture action; or | ||
(2) the State receives an adverse finding at a | ||
preliminary hearing and fails to secure an indictment in a | ||
criminal proceeding relating to the factual allegations of | ||
the forfeiture action. | ||
(b) All property declared forfeited under this Article | ||
vests in the State on the commission of the conduct giving rise | ||
to forfeiture together with the proceeds of the property after | ||
that time. Except as otherwise provided in this Article, title | ||
to any property or proceeds subject to forfeiture subsequently | ||
transferred to any person remain subject to forfeiture and | ||
thereafter shall be ordered forfeited unless the person to whom | ||
the property was transferred makes an appropriate claim and has | ||
his or her claim adjudicated at the judicial in rem hearing. | ||
(c) A civil action under this Article shall be commenced | ||
within 5 years after the last conduct giving rise to forfeiture |
became known or should have become known or 5 years after the | ||
forfeitable property is discovered, whichever is later, | ||
excluding any time during which either the property or claimant | ||
is out of the State or in confinement or during which criminal | ||
proceedings relating to the same conduct are in progress. | ||
(720 ILCS 5/29B-16 new) | ||
Sec. 29B-16. Joint tenancy or tenancy in common. If | ||
property is ordered forfeited under this Section from a | ||
claimant who held title to the property in joint tenancy or | ||
tenancy in common with another claimant, the court shall | ||
determine the amount of each owner's interest in the property | ||
according to principles of property law. | ||
(720 ILCS 5/29B-17 new) | ||
Sec. 29B-17. Exception for bona fide purchasers. No | ||
property shall be forfeited under this Article from a person | ||
who, without actual or constructive notice that the property | ||
was the subject of forfeiture proceedings, obtained possession | ||
of the property as a bona fide purchaser for value. A person | ||
who purports to affect transfer of property after receiving | ||
actual or constructive notice that the property is subject to | ||
seizure or forfeiture is guilty of contempt of court, and shall | ||
be liable to the State for a penalty in the amount of the fair | ||
market value of the property. |
(720 ILCS 5/29B-18 new) | ||
Sec. 29B-18. Proportionality. Property that is forfeited | ||
shall be subject to an 8th Amendment to the United States | ||
Constitution disproportionate penalties analysis and the | ||
property forfeiture may be denied in whole or in part if the | ||
court finds that the forfeiture would constitute an excessive | ||
fine in violation of the 8th Amendment as interpreted by case | ||
law. | ||
(720 ILCS 5/29B-19 new) | ||
Sec. 29B-19. Stay of time periods. If property is seized | ||
for evidence and for forfeiture, the time periods for | ||
instituting judicial and non-judicial forfeiture proceedings | ||
shall not begin until the property is no longer necessary for | ||
evidence. | ||
(720 ILCS 5/29B-20 new) | ||
Sec. 29B-20. Settlement of claims. Notwithstanding other | ||
provisions of this Article, the State's Attorney and a claimant | ||
of seized property may enter into an agreed-upon settlement | ||
concerning the seized property in such an amount and upon such | ||
terms as are set out in writing in a settlement agreement. All | ||
proceeds from a settlement agreement shall be tendered to the | ||
Department of State Police and distributed under Section 29B-26 | ||
of this Article. |
(720 ILCS 5/29B-21 new) | ||
Sec. 29B-21. Attorney's fees. Nothing in this Article | ||
applies to property that constitutes reasonable bona fide | ||
attorney's fees paid to an attorney for services rendered or to | ||
be rendered in the forfeiture proceeding or criminal proceeding | ||
relating directly thereto if the property was paid before its | ||
seizure, before the issuance of any seizure warrant or court | ||
order prohibiting transfer of the property and if the attorney, | ||
at the time he or she received the property did not know that | ||
it was property subject to forfeiture under this Article. | ||
(720 ILCS 5/29B-22 new) | ||
Sec. 29B-22. Construction. | ||
(a) It is the intent of the General Assembly that the | ||
forfeiture provisions of this Article be liberally construed so | ||
as to effect their remedial purpose. The forfeiture of property | ||
and other remedies under this Article shall be considered to be | ||
in addition to, and not exclusive of, any sentence or other | ||
remedy provided by law. | ||
(b) The changes made to this Article by Public Act 100-0512 | ||
and this amendatory Act of the 100th General Assembly are | ||
subject to Section 2 of the Statute on Statutes. | ||
(720 ILCS 5/29B-23 new) | ||
Sec. 29B-23. Judicial review. If property has been declared | ||
forfeited under Section 29B-12 of this Article, any person who |
has an interest in the property declared forfeited may, within | ||
30 days after the effective date of the notice of the | ||
declaration of forfeiture, file a claim as described in | ||
paragraph (3) of Section 29B-12 of this Article. If a claim is | ||
filed under this Section, then the procedures described in | ||
Section of 29B-13 of this Article apply. | ||
(720 ILCS 5/29B-24 new) | ||
Sec. 29B-24. Review of administrative decisions. All | ||
administrative findings, rulings, final determinations, | ||
findings, and conclusions of the State's Attorney's Office | ||
under this Article are final and conclusive decisions of the | ||
matters involved. Any person aggrieved by the decision may | ||
obtain review of the decision under the provisions of the | ||
Administrative Review Law and the rules adopted under that Law. | ||
Pending final decision on such review, the administrative acts, | ||
orders, and rulings of the State's Attorney's Office remain in | ||
full force and effect unless modified or suspended by order of | ||
court pending final judicial decision. Pending final decision | ||
on such review, the acts, orders, and rulings of the State's | ||
Attorney's Office remain in full force and effect, unless | ||
stayed by order of court. However, no stay of any decision of | ||
the administrative agency shall issue unless the person | ||
aggrieved by the decision establishes by a preponderance of the | ||
evidence that good cause exists for the stay. In determining | ||
good cause, the court shall find that the aggrieved party has |
established a substantial likelihood of prevailing on the | ||
merits and that granting the stay will not have an injurious | ||
effect on the general public. | ||
(720 ILCS 5/29B-25 new) | ||
Sec. 29B-25. Return of property, damages, and costs. | ||
(a) The law enforcement agency that holds custody of | ||
property seized for forfeiture shall deliver property ordered | ||
by the court to be returned or conveyed to the claimant within | ||
a reasonable time not to exceed 7 days, unless the order is | ||
stayed by the trial court or a reviewing court pending an | ||
appeal, motion to reconsider, or other reason. | ||
(b) The law enforcement agency that holds custody of | ||
property is responsible for any damages, storage fees, and | ||
related costs applicable to property returned. The claimant | ||
shall not be subject to any charges by the State for storage of | ||
the property or expenses incurred in the preservation of the | ||
property. Charges for the towing of a conveyance shall be borne | ||
by the claimant unless the conveyance was towed for the sole | ||
reason of seizure for forfeiture. This Section does not | ||
prohibit the imposition of any fees or costs by a home rule | ||
unit of local government related to the impoundment of a | ||
conveyance under an ordinance enacted by the unit of | ||
government. | ||
(c) A law enforcement agency shall not retain forfeited | ||
property for its own use or transfer the property to any person |
or entity, except as provided under this Section. A law | ||
enforcement agency may apply in writing to the Director of | ||
State Police to request that forfeited property be awarded to | ||
the agency for a specifically articulated official law | ||
enforcement use in an investigation. The Director shall provide | ||
a written justification in each instance detailing the reasons | ||
why the forfeited property was placed into official use and the | ||
justification shall be retained for a period of not less than 3 | ||
years. | ||
(d) A claimant or a party interested in personal property | ||
contained within a seized conveyance may file a request with | ||
the State's Attorney in a non-judicial forfeiture action, or a | ||
motion with the court in a judicial forfeiture action for the | ||
return of any personal property contained within a conveyance | ||
that is seized under this Article. The return of personal | ||
property shall not be unreasonably withheld if the personal | ||
property is not mechanically or electrically coupled to the | ||
conveyance, needed for evidentiary purposes, or otherwise | ||
contraband. Any law enforcement agency that returns property | ||
under a court order under this Section shall not be liable to | ||
any person who claims ownership to the property if it is | ||
returned to an improper party. | ||
(720 ILCS 5/29B-26 new) | ||
Sec. 29B-26. Distribution of proceeds. | ||
All monies and the sale proceeds of all other property |
forfeited and seized under this Article shall be distributed as | ||
follows: | ||
(1) 65% shall be distributed to the metropolitan | ||
enforcement group, local, municipal, county, or State law | ||
enforcement agency or agencies that conducted or | ||
participated in the investigation resulting in the | ||
forfeiture. The distribution shall bear a reasonable | ||
relationship to the degree of direct participation of the | ||
law enforcement agency in the effort resulting in the | ||
forfeiture, taking into account the total value of the | ||
property forfeited and the total law enforcement effort | ||
with respect to the violation of the law upon which the | ||
forfeiture is based. Amounts distributed to the agency or | ||
agencies shall be used for the enforcement of laws. | ||
(2)(i) 12.5% shall be distributed to the Office of the | ||
State's Attorney of the county in which the prosecution | ||
resulting in the forfeiture was instituted, deposited in a | ||
special fund in the county treasury and appropriated to the | ||
State's Attorney for use in the enforcement of laws. In | ||
counties over 3,000,000 population, 25% shall be | ||
distributed to the Office of the State's Attorney for use | ||
in the enforcement of laws. If the prosecution is | ||
undertaken solely by the Attorney General, the portion | ||
provided under this subparagraph (i) shall be distributed | ||
to the Attorney General for use in the enforcement of laws. | ||
(ii) 12.5% shall be distributed to the Office of the |
State's Attorneys Appellate Prosecutor and deposited in | ||
the Narcotics Profit Forfeiture Fund of that office to be | ||
used for additional expenses incurred in the | ||
investigation, prosecution, and appeal of cases arising | ||
under laws. The Office of the State's Attorneys Appellate | ||
Prosecutor shall not receive distribution from cases | ||
brought in counties with over 3,000,000 population. | ||
(3) 10% shall be retained by the Department of State Police | ||
for expenses related to the administration and sale of seized | ||
and forfeited property. | ||
Moneys and the sale proceeds distributed to the Department | ||
of State Police under this Article shall be deposited in the | ||
Money Laundering Asset Recovery Fund created in the State | ||
treasury and shall be used by the Department of State Police | ||
for State law enforcement purposes. All moneys and sale | ||
proceeds of property forfeited and seized under this Article | ||
and distributed according to this Section may also be used to | ||
purchase opioid antagonists as defined in Section 5-23 of the | ||
Alcoholism and Other Drug Abuse and Dependency Act. | ||
(720 ILCS 5/29B-27 new) | ||
Sec. 29B-27. Applicability; savings clause. | ||
(a) The changes made to this Article by Public Act 100-0512 | ||
and this amendatory Act of the 100th General Assembly only | ||
apply to property seized on and after July 1, 2018. | ||
(b) The changes made to this Article by this amendatory Act |
of the 100th General Assembly are subject to Section 4 of the | ||
Statute on Statutes. | ||
(720 ILCS 5/33G-6) | ||
(Text of Section before amendment by P.A. 100-512 ) | ||
(Section scheduled to be repealed on June 11, 2022) | ||
Sec. 33G-6. Remedial proceedings, procedures, and | ||
forfeiture. Under this Article: | ||
(a) The circuit court shall have jurisdiction to prevent | ||
and restrain violations of this Article by issuing appropriate | ||
orders, including: | ||
(1) ordering any person to disgorge illicit proceeds | ||
obtained by a violation of this Article or divest himself | ||
or herself of any interest, direct or indirect, in any | ||
enterprise or real or personal property of any character, | ||
including money, obtained, directly or indirectly, by a | ||
violation of this Article; | ||
(2) imposing reasonable restrictions on the future | ||
activities or investments of any person or enterprise, | ||
including prohibiting any person or enterprise from | ||
engaging in the same type of endeavor as the person or | ||
enterprise engaged in, that violated this Article; or | ||
(3) ordering dissolution or reorganization of any | ||
enterprise, making due provision for the rights of innocent | ||
persons. | ||
(b) Any violation of this Article is subject to the |
remedies, procedures, and forfeiture as set forth in | ||
subsections (f) through (s) of Section 29B-1 of this Code.
| ||
(Source: P.A. 97-686, eff. 6-11-12 .) | ||
(Text of Section after amendment by P.A. 100-512 ) | ||
(Section scheduled to be repealed on June 11, 2022) | ||
Sec. 33G-6. Remedial proceedings, procedures, and | ||
forfeiture. Under this Article: | ||
(a) The circuit court shall have jurisdiction to prevent | ||
and restrain violations of this Article by issuing appropriate | ||
orders, including: | ||
(1) ordering any person to disgorge illicit proceeds | ||
obtained by a violation of this Article or divest himself | ||
or herself of any interest, direct or indirect, in any | ||
enterprise or real or personal property of any character, | ||
including money, obtained, directly or indirectly, by a | ||
violation of this Article; | ||
(2) imposing reasonable restrictions on the future | ||
activities or investments of any person or enterprise, | ||
including prohibiting any person or enterprise from | ||
engaging in the same type of endeavor as the person or | ||
enterprise engaged in, that violated this Article; or | ||
(3) ordering dissolution or reorganization of any | ||
enterprise, making due provision for the rights of innocent | ||
persons. | ||
(b) Any violation of this Article is subject to the |
remedies, procedures, and forfeiture as set forth in Article | ||
29B subsections (f) through (s) of Section 29B-1 of this Code. | ||
(c) Property seized or forfeited under this Article is | ||
subject to reporting under the Seizure and Forfeiture Reporting | ||
Act.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(720 ILCS 5/36-1.1) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 36-1.1. Seizure. | ||
(a) Any property subject to forfeiture under this Article | ||
may be seized and impounded by the Director of State Police or | ||
any peace officer upon process or seizure warrant issued by any | ||
court having jurisdiction over the property. | ||
(b) Any property subject to forfeiture under this Article | ||
may be seized and impounded by the Director of State Police or | ||
any peace officer without process if there is probable cause to | ||
believe that the property is subject to forfeiture under | ||
Section 36-1 of this Article and the property is seized under | ||
circumstances in which a warrantless seizure or arrest would be | ||
reasonable. | ||
(c) If the seized property is a conveyance, an | ||
investigation shall be made by the law enforcement agency as to | ||
any person whose right, title, interest, or lien is of record | ||
in the office of the agency or official in which title to or |
interest in to the conveyance is required by law to be | ||
recorded. | ||
(d) After seizure under this Section, notice shall be given | ||
to all known interest holders that forfeiture proceedings, | ||
including a preliminary review, may be instituted and the | ||
proceedings may be instituted under this Article.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(720 ILCS 5/36-1.3) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 36-1.3. Safekeeping of seized property pending | ||
disposition. | ||
(a) Property seized under this Article is deemed to be in | ||
the custody of the Director of State Police , subject only to | ||
the order and judgments of the circuit court having | ||
jurisdiction over the forfeiture proceedings and the decisions | ||
of the State's Attorney under this Article. | ||
(b) If property is seized under this Article, the seizing | ||
agency shall promptly conduct an inventory of the seized | ||
property and estimate the property's value, and shall forward a | ||
copy of the inventory of seized property and the estimate of | ||
the property's value to the Director of State Police. Upon | ||
receiving notice of seizure, the Director of State Police may: | ||
(1) place the property under seal; | ||
(2) remove the property to a place designated by the |
Director of State Police; | ||
(3) keep the property in the possession of the seizing | ||
agency; | ||
(4) remove the property to a storage area for | ||
safekeeping; or | ||
(5) place the property under constructive seizure by | ||
posting notice of pending forfeiture on it, by giving | ||
notice of pending forfeiture to its owners and interest | ||
holders, or by filing notice of pending forfeiture in any | ||
appropriate public record relating to the property; or | ||
(6) provide for another agency or custodian, including | ||
an owner, secured party, or lienholder, to take custody of | ||
the property upon the terms and conditions set by the | ||
seizing agency. | ||
(c) The seizing agency shall exercise ordinary care to | ||
protect the subject of the forfeiture from negligent loss, | ||
damage, or destruction. | ||
(d) Property seized or forfeited under this Article is | ||
subject to reporting under the Seizure and Forfeiture Reporting | ||
Act.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(720 ILCS 5/36-1.4) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 36-1.4. Notice to State's Attorney. The law |
enforcement agency seizing property for forfeiture under this | ||
Article shall, as soon as practicable but not later than 28 | ||
days after the seizure, notify the State's Attorney for the | ||
county in which an act or omission giving rise to the seizure | ||
occurred or in which the property was seized and the facts and | ||
circumstances giving rise to the seizure, and shall provide the | ||
State's Attorney with the inventory of the property and its | ||
estimated value. The notice shall be by the delivery of | ||
Illinois State Police Notice/Inventory of Seized Property | ||
(Form 4-64) the form 4-64 . If the property seized for | ||
forfeiture is a vehicle, the law enforcement agency seizing the | ||
property shall immediately notify the Secretary of State that | ||
forfeiture proceedings are pending regarding the vehicle.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(720 ILCS 5/36-1.5) | ||
(Text of Section before amendment by P.A. 100-512 ) | ||
Sec. 36-1.5. Preliminary review. | ||
(a) Within 14 days of the seizure, the State's Attorney in | ||
the county in which the seizure occurred shall seek a | ||
preliminary determination from the circuit court as to whether | ||
there is probable cause that the property may be subject to | ||
forfeiture. | ||
(b) The rules of evidence shall not apply to any proceeding | ||
conducted under this Section. | ||
(c) The court may conduct the review under subsection (a) |
simultaneously with a proceeding pursuant to Section 109-1 of | ||
the Code of Criminal Procedure of 1963 for a related criminal | ||
offense if a prosecution is commenced by information or | ||
complaint. | ||
(d) The court may accept a finding of probable cause at a | ||
preliminary hearing following the filing of an information or | ||
complaint charging a related criminal offense or following the | ||
return of indictment by a grand jury charging the related | ||
offense as sufficient evidence of probable cause as required | ||
under subsection (a). | ||
(e) Upon making a finding of probable cause as required | ||
under this Section, the circuit court shall order the property | ||
subject to the provisions of the applicable forfeiture Act held | ||
until the conclusion of any forfeiture proceeding. | ||
For seizures of conveyances, within 7 days of a finding of | ||
probable cause under subsection (a), the registered owner or | ||
other claimant may file a motion in writing supported by sworn | ||
affidavits claiming that denial of the use of the conveyance | ||
during the pendency of the forfeiture proceedings creates a | ||
substantial hardship. The court shall consider the following | ||
factors in determining whether a substantial hardship has been | ||
proven: | ||
(1) the nature of the claimed hardship; | ||
(2) the availability of public transportation or other | ||
available means of transportation; and | ||
(3) any available alternatives to alleviate the |
hardship other than the return of the seized conveyance. | ||
If the court determines that a substantial hardship has | ||
been proven, the court shall then balance the nature of the | ||
hardship against the State's interest in safeguarding the | ||
conveyance. If the court determines that the hardship outweighs | ||
the State's interest in safeguarding the conveyance, the court | ||
may temporarily release the conveyance to the registered owner | ||
or the registered owner's authorized designee, or both, until | ||
the conclusion of the forfeiture proceedings or for such | ||
shorter period as ordered by the court provided that the person | ||
to whom the conveyance is released provides proof of insurance | ||
and a valid driver's license and all State and local | ||
registrations for operation of the conveyance are current. The | ||
court shall place conditions on the conveyance limiting its use | ||
to the stated hardship and restricting the conveyance's use to | ||
only those individuals authorized to use the conveyance by the | ||
registered owner. The court shall revoke the order releasing | ||
the conveyance and order that the conveyance be reseized by law | ||
enforcement if the conditions of release are violated or if the | ||
conveyance is used in the commission of any offense identified | ||
in subsection (a) of Section 6-205 of the Illinois Vehicle | ||
Code. | ||
If the court orders the release of the conveyance during | ||
the pendency of the forfeiture proceedings, the registered | ||
owner or his or her authorized designee shall post a cash | ||
security with the Clerk of the Court as ordered by the court. |
The court shall consider the following factors in determining | ||
the amount of the cash security: | ||
(A) the full market value of the conveyance; | ||
(B) the nature of the hardship; | ||
(C) the extent and length of the usage of the | ||
conveyance; and | ||
(D) such other conditions as the court deems necessary | ||
to safeguard the conveyance. | ||
If the conveyance is released, the court shall order that | ||
the registered owner or his or her designee safeguard the | ||
conveyance, not remove the conveyance from the jurisdiction, | ||
not conceal, destroy, or otherwise dispose of the conveyance, | ||
not encumber the conveyance, and not diminish the value of the | ||
conveyance in any way. The court shall also make a | ||
determination of the full market value of the conveyance prior | ||
to it being released based on a source or sources defined in 50 | ||
Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). | ||
If the conveyance subject to forfeiture is released under | ||
this Section and is subsequently forfeited, the person to whom | ||
the conveyance was released shall return the conveyance to the | ||
law enforcement agency that seized the conveyance within 7 days | ||
from the date of the declaration of forfeiture or order of | ||
forfeiture. If the conveyance is not returned within 7 days, | ||
the cash security shall be forfeited in the same manner as the | ||
conveyance subject to forfeiture. If the cash security was less | ||
than the full market value, a judgment shall be entered against |
the parties to whom the conveyance was released and the | ||
registered owner, jointly and severally, for the difference | ||
between the full market value and the amount of the cash | ||
security. If the conveyance is returned in a condition other | ||
than the condition in which it was released, the cash security | ||
shall be returned to the surety who posted the security minus | ||
the amount of the diminished value, and that amount shall be | ||
forfeited in the same manner as the conveyance subject to | ||
forfeiture. Additionally, the court may enter an order allowing | ||
any law enforcement agency in the State of Illinois to seize | ||
the conveyance wherever it may be found in the State to satisfy | ||
the judgment if the cash security was less than the full market | ||
value of the conveyance.
| ||
(Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12; | ||
98-1020, eff. 8-22-14.) | ||
(Text of Section after amendment by P.A. 100-512 ) | ||
Sec. 36-1.5. Preliminary review. | ||
(a) Within 14 days of the seizure, the State's Attorney of | ||
in the county in which the seizure occurred shall seek a | ||
preliminary determination from the circuit court as to whether | ||
there is probable cause that the property may be subject to | ||
forfeiture. | ||
(b) The rules of evidence shall not apply to any proceeding | ||
conducted under this Section. | ||
(c) The court may conduct the review under subsection (a) |
of this Section simultaneously with a proceeding under pursuant | ||
to Section 109-1 of the Code of Criminal Procedure of 1963 for | ||
a related criminal offense if a prosecution is commenced by | ||
information or complaint. | ||
(d) The court may accept a finding of probable cause at a | ||
preliminary hearing following the filing of an information or | ||
complaint charging a related criminal offense or following the | ||
return of indictment by a grand jury charging the related | ||
offense as sufficient evidence of probable cause as required | ||
under subsection (a) of ths Section . | ||
(e) Upon making a finding of probable cause as required | ||
under this Section, the circuit court shall order the property | ||
subject to the provisions of the applicable forfeiture Act held | ||
until the conclusion of any forfeiture proceeding. | ||
For seizures of conveyances, within 28 days of a finding of | ||
probable cause under subsection (a) of this Section , the | ||
registered owner or other claimant may file a motion in writing | ||
supported by sworn affidavits claiming that denial of the use | ||
of the conveyance during the pendency of the forfeiture | ||
proceedings creates a substantial hardship and alleges facts | ||
showing that the hardship delay was not due to his or her | ||
culpable negligence. The court shall consider the following | ||
factors in determining whether a substantial hardship has been | ||
proven: | ||
(1) the nature of the claimed hardship; | ||
(2) the availability of public transportation or other |
available means of transportation; and | ||
(3) any available alternatives to alleviate the | ||
hardship other than the return of the seized conveyance. | ||
If the court determines that a substantial hardship has | ||
been proven, the court shall then balance the nature of the | ||
hardship against the State's interest in safeguarding the | ||
conveyance. If the court determines that the hardship outweighs | ||
the State's interest in safeguarding the conveyance, the court | ||
may temporarily release the conveyance to the registered owner | ||
or the registered owner's authorized designee, or both, until | ||
the conclusion of the forfeiture proceedings or for such | ||
shorter period as ordered by the court provided that the person | ||
to whom the conveyance is released provides proof of insurance | ||
and a valid driver's license and all State and local | ||
registrations for operation of the conveyance are current. The | ||
court shall place conditions on the conveyance limiting its use | ||
to the stated hardship and providing transportation for | ||
employment, religious purposes, medical needs, child care, and | ||
restricting the conveyance's use to only those individuals | ||
authorized to use the conveyance by the registered owner. The | ||
use of the vehicle shall be further restricted to exclude all | ||
recreational and entertainment purposes. The court may order | ||
additional restrictions it deems reasonable and just on its own | ||
motion or on motion of the People. The court shall revoke the | ||
order releasing the conveyance and order that the conveyance be | ||
reseized by law enforcement if the conditions of release are |
violated or if the conveyance is used in the commission of any | ||
offense identified in subsection (a) of Section 6-205 of the | ||
Illinois Vehicle Code. | ||
If the court orders the release of the conveyance during | ||
the pendency of the forfeiture proceedings, the court may order | ||
the registered owner or his or her authorized designee to post | ||
a cash security with the clerk Clerk of the court Court as | ||
ordered by the court. If cash security is ordered, the court | ||
shall consider the following factors in determining the amount | ||
of the cash security: | ||
(A) the full market value of the conveyance; | ||
(B) the nature of the hardship; | ||
(C) the extent and length of the usage of the | ||
conveyance; | ||
(D) the ability of the owner or designee to pay; and | ||
(E) other conditions as the court deems necessary to | ||
safeguard the conveyance. | ||
If the conveyance is released, the court shall order that | ||
the registered owner or his or her designee safeguard the | ||
conveyance, not remove the conveyance from the jurisdiction, | ||
not conceal, destroy, or otherwise dispose of the conveyance, | ||
not encumber the conveyance, and not diminish the value of the | ||
conveyance in any way. The court shall also make a | ||
determination of the full market value of the conveyance prior | ||
to it being released based on a source or sources defined in 50 | ||
Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). |
If the conveyance subject to forfeiture is released under | ||
this Section and is subsequently forfeited, the person to whom | ||
the conveyance was released shall return the conveyance to the | ||
law enforcement agency that seized the conveyance within 7 days | ||
from the date of the declaration of forfeiture or order of | ||
forfeiture. If the conveyance is not returned within 7 days, | ||
the cash security shall be forfeited in the same manner as the | ||
conveyance subject to forfeiture. If the cash security was less | ||
than the full market value, a judgment shall be entered against | ||
the parties to whom the conveyance was released and the | ||
registered owner, jointly and severally, for the difference | ||
between the full market value and the amount of the cash | ||
security. If the conveyance is returned in a condition other | ||
than the condition in which it was released, the cash security | ||
shall be returned to the surety who posted the security minus | ||
the amount of the diminished value, and that amount shall be | ||
forfeited in the same manner as the conveyance subject to | ||
forfeiture. Additionally, the court may enter an order allowing | ||
any law enforcement agency in the State of Illinois to seize | ||
the conveyance wherever it may be found in the State to satisfy | ||
the judgment if the cash security was less than the full market | ||
value of the conveyance.
| ||
(Source: P.A. 100-512, eff. 7-1-18.)
| ||
(720 ILCS 5/36-2) (from Ch. 38, par. 36-2)
| ||
(Text of Section before amendment by P.A. 100-512 )
|
Sec. 36-2. Action for forfeiture. | ||
(a) The State's Attorney in the county in which such | ||
seizure occurs
if he or she finds that the forfeiture was | ||
incurred without willful negligence
or without any intention on | ||
the part of the owner of the vessel or watercraft, vehicle
or | ||
aircraft or any person whose right, title or interest is of | ||
record as
described in Section 36-1, to violate the law, or | ||
finds the existence of
such mitigating circumstances as to | ||
justify remission of the forfeiture,
may cause the law | ||
enforcement agency to remit the same upon such terms and | ||
conditions
as the State's Attorney deems reasonable and just. | ||
The State's Attorney
shall exercise his or her discretion under | ||
the foregoing provision of this
Section 36-2(a) prior to or | ||
promptly after the preliminary review under Section 36-1.5. | ||
(b) If the State's Attorney does not cause the forfeiture | ||
to
be remitted he or she shall forthwith bring an action for | ||
forfeiture in the
Circuit Court within whose jurisdiction the | ||
seizure and confiscation has
taken place. The State's Attorney | ||
shall give notice of seizure and the forfeiture proceeding to | ||
each person according to the following method: upon each person | ||
whose right, title, or interest is of record in the office of | ||
the Secretary of State, the Secretary of Transportation, the | ||
Administrator of the Federal Aviation Agency, or any other | ||
department of this State, or any other state of the United | ||
States if the vessel or watercraft, vehicle, or aircraft is | ||
required to be so registered, as the case may be, by delivering |
the notice and complaint in open court or by certified mail to | ||
the address as given upon the records of the Secretary of | ||
State, the Division of Aeronautics of the Department of | ||
Transportation, the Capital Development Board, or any other | ||
department of this State or the United States if the vessel or | ||
watercraft, vehicle, or aircraft is required to be so | ||
registered. | ||
(c) The owner of the seized vessel or watercraft, vehicle, | ||
or aircraft or any person
whose right, title, or interest is of | ||
record as described in Section
36-1, may within 20 days after | ||
delivery in open court or the mailing of such notice file a
| ||
verified answer to the Complaint and may appear at the hearing | ||
on the
action for forfeiture. | ||
(d) The State shall show at such hearing by a
preponderance | ||
of the evidence, that such vessel or watercraft, vehicle, or | ||
aircraft was
used in the commission of an offense described in | ||
Section 36-1. | ||
(e) The
owner of such vessel or watercraft, vehicle, or | ||
aircraft or any person whose right,
title, or interest is of | ||
record as described in Section 36-1, may show
by a | ||
preponderance of the evidence that he did not know, and did not
| ||
have reason to know, that the vessel or watercraft, vehicle, or | ||
aircraft was to be used
in the commission of such an offense or | ||
that any of the exceptions set
forth in Section 36-3 are | ||
applicable. | ||
(f) Unless the State shall make such
showing, the Court |
shall order such vessel or watercraft, vehicle, or aircraft | ||
released
to the owner. Where the State has made such showing, | ||
the Court may order
the vessel or watercraft, vehicle, or | ||
aircraft destroyed or may order it forfeited to
any local, | ||
municipal or county law enforcement agency, or the Department
| ||
of State Police or the Department of Revenue of
the State of | ||
Illinois.
| ||
(g) A copy of the order shall be filed with the law | ||
enforcement agency, and with each Federal or State office
or | ||
agency with which such vessel or watercraft, vehicle, or | ||
aircraft is required to be
registered. Such order, when filed, | ||
constitutes authority for the
issuance of clear title to such | ||
vessel or watercraft, vehicle, or aircraft, to the
department | ||
or agency to whom it is delivered or any purchaser thereof.
The | ||
law enforcement agency shall comply promptly with instructions | ||
to remit received
from the State's Attorney or Attorney General | ||
in accordance with
Sections 36-2(a) or 36-3.
| ||
(h) The proceeds of any sale at public auction pursuant to | ||
Section
36-2 of this Act, after payment of all liens and | ||
deduction of the
reasonable charges and expenses incurred by | ||
the State's Attorney's Office shall be paid to the law | ||
enforcement agency having seized the vehicle for forfeiture.
| ||
(Source: P.A. 98-699, eff. 1-1-15; 98-1020, eff. 8-22-14; | ||
99-78, eff. 7-20-15.)
| ||
(Text of Section after amendment by P.A. 100-512 )
|
Sec. 36-2. Complaint for forfeiture. | ||
(a) If the State's Attorney of in the county in which such | ||
seizure occurs
finds that the alleged violation of law giving | ||
rise to the seizure was incurred without willful negligence
or | ||
without any intention on the part of the owner of the vessel or | ||
watercraft, vehicle
or aircraft or any person whose right, | ||
title or interest is of record as
described in Section 36-1 of | ||
this Article, to violate the law, or finds the existence of
| ||
such mitigating circumstances as to justify remission of the | ||
forfeiture, he or she
may cause the law enforcement agency | ||
having custody of the property to return the property to the | ||
owner within a reasonable time not to exceed 7 days. The | ||
State's Attorney
shall exercise his or her discretion under | ||
this subsection (a) prior to or promptly after the preliminary | ||
review under Section 36-1.5. | ||
(b) If, after review of the facts surrounding the seizure, | ||
the State's Attorney is of the opinion that the seized property | ||
is subject to forfeiture and the State's Attorney does not | ||
cause the forfeiture to
be remitted under subsection (a) of | ||
this Section, he or she shall forthwith bring an action for | ||
forfeiture in the
circuit court Circuit Court within whose | ||
jurisdiction the seizure and confiscation has
taken place by | ||
filing a verified complaint for of forfeiture in the circuit | ||
court within whose jurisdiction the seizure occurred, or within | ||
whose jurisdiction an act or omission giving rise to the | ||
seizure occurred, subject to Supreme Court Rule 187. The |
complaint shall be filed as soon as practicable but not later | ||
less than 28 days after the State's Attorney receives notice | ||
from the seizing agency as provided a finding of probable cause | ||
at a preliminary review under Section 36-1.4 36-1.5 of this | ||
Article. A complaint of forfeiture shall include: | ||
(1) a description of the property seized; | ||
(2) the date and place of seizure of the property; | ||
(3) the name and address of the law enforcement agency | ||
making the seizure; and | ||
(4) the specific statutory and factual grounds for the | ||
seizure. | ||
The complaint shall be served upon each person whose right, | ||
title, or interest is of record in the office of the Secretary | ||
of State, the Secretary of Transportation, the Administrator of | ||
the Federal Aviation Agency, or any other department of this | ||
State, or any other state of the United States if the vessel or | ||
watercraft, vehicle, or aircraft is required to be so | ||
registered, as the case may be, the person from whom the | ||
property was seized, and all persons known or reasonably | ||
believed by the State to claim an interest in the property, as | ||
provided in this Article. The complaint shall be accompanied by | ||
the following written notice: | ||
"This is a civil court proceeding subject to the Code of | ||
Civil Procedure. You received this Complaint of Forfeiture | ||
because the State's Attorney's office has brought a legal | ||
action seeking forfeiture of your seized property. This |
complaint starts the court process where the State seeks to | ||
prove that your property should be forfeited and not returned | ||
to you. This process is also your opportunity to try to prove | ||
to a judge that you should get your property back. The | ||
complaint lists the date, time, and location of your first | ||
court date. You must appear in court on that day, or you may | ||
lose the case automatically. You must also file an appearance | ||
and answer. If you are unable to pay the appearance fee, you | ||
may qualify to have the fee waived. If there is a criminal case | ||
related to the seizure of your property, your case may be set | ||
for trial after the criminal case has been resolved. Before | ||
trial, the judge may allow discovery, where the State can ask | ||
you to respond in writing to questions and give them certain | ||
documents, and you can make similar requests of the State. The | ||
trial is your opportunity to explain what happened when your | ||
property was seized and why you should get the property back." | ||
(c) (Blank). | ||
(d) (Blank). | ||
(e) (Blank). | ||
(f) (Blank).
| ||
(g) (Blank).
| ||
(h) (Blank).
| ||
(Source: P.A. 99-78, eff. 7-20-15; 100-512, eff. 7-1-18.)
| ||
(720 ILCS 5/36-2.1) | ||
(This Section may contain text from a Public Act with a |
delayed effective date ) | ||
Sec. 36-2.1. Notice to owner or interest holder.
The first | ||
attempted service of notice shall be commenced within 28 days | ||
of the receipt of the notice from the seizing agency by Form | ||
the form 4-64. If the property seized is a conveyance, notice | ||
shall also be directed to the address reflected in the office | ||
of the agency or official in which title to or interest in to | ||
the conveyance is required by law to be recorded. A complaint | ||
for forfeiture shall be served upon the property owner or | ||
interest holder in the following manner: | ||
(1) If the owner's or interest holder's name and | ||
current address are known, then by either: | ||
(A) personal service; or | ||
(B) mailing a copy of the notice by certified mail, | ||
return receipt requested , and first class mail , to that | ||
address. | ||
(i) If notice is sent by certified mail and no | ||
signed return receipt is received by the State's | ||
Attorney within 28 days of mailing, and no | ||
communication from the owner or interest holder is | ||
received by the State's Attorney documenting | ||
actual notice by said parties, the State's | ||
Attorney shall, within a reasonable period of | ||
time, mail a second copy of the notice by certified | ||
mail, return receipt requested , and first class | ||
mail , to that address. |
(ii) If no signed return receipt is received by | ||
the State's Attorney within 28 days of the second | ||
attempt at service by certified mail, and no | ||
communication from the owner or interest holder is | ||
received by the State's Attorney documenting | ||
actual notice by said parties, the State's | ||
Attorney shall have 60 days to attempt to serve the | ||
notice by personal service, which also includes | ||
substitute service by leaving a copy at the usual | ||
place of abode, with some person of the family or a | ||
person residing there, of the age of 13 years or | ||
upwards. If , after 3 attempts at service in this | ||
manner, no service of the notice is accomplished, | ||
then the notice shall be posted in a conspicuous | ||
manner at this address and service shall be made by | ||
the posting. | ||
The attempts at service and the posting if | ||
required, shall be documented by the person attempting | ||
service and said documentation shall be made part of a | ||
return of service returned to the State's Attorney. | ||
The State's Attorney may utilize a Sheriff or | ||
Deputy Sheriff, any peace officer, a private process | ||
server or investigator, or any employee, agent, or | ||
investigator of the State's Attorney's office to | ||
attempt service without seeking leave of court. | ||
After the procedures are followed, service shall |
be effective on an owner or interest holder on the date | ||
of receipt by the State's Attorney of a returned return | ||
receipt requested , or on the date of receipt of a | ||
communication from an owner or interest holder | ||
documenting actual notice, whichever is first in time, | ||
or on the date of the last act performed by the State's | ||
Attorney in attempting personal service under item | ||
(ii) of this paragraph (1). If notice is to be shown by | ||
actual notice from communication with a claimant, then | ||
the State's Attorney shall file an affidavit providing | ||
details of the communication, which shall be accepted | ||
as sufficient proof of service by the court. | ||
For purposes of notice under this Section, if a | ||
person has been arrested for the conduct giving rise to | ||
the forfeiture, the address provided to the arresting | ||
agency at the time of arrest shall be deemed to be that | ||
person's known address. Provided, however, if an owner | ||
or interest holder's address changes prior to the | ||
effective date of the complaint for forfeiture, the | ||
owner or interest holder shall promptly notify the | ||
seizing agency of the change in address or, if the | ||
owner or interest holder's address changes subsequent | ||
to the effective date of the notice of pending | ||
forfeiture, the owner or interest holder shall | ||
promptly notify the State's Attorney of the change in | ||
address; or if the property seized is a conveyance, to |
the address reflected in the office of the agency or | ||
official in which title to or interest in to the | ||
conveyance is required by law to be recorded. | ||
(2) If the owner's or interest holder's address is not | ||
known, and is not on record, then notice shall be served by | ||
publication for 3 successive weeks in a newspaper of | ||
general circulation in the county in which the seizure | ||
occurred. | ||
(3) Notice to any business entity, corporation, | ||
limited liability company, limited liability partnership | ||
LLC, LLP , or partnership shall be completed complete by a | ||
single mailing of a copy of the notice by certified mail, | ||
return receipt requested , and first class mail , to that | ||
address. This notice is complete regardless of the return | ||
of a signed " return receipt requested" . | ||
(4) Notice to a person whose address is not within the | ||
State shall be completed complete by a single mailing of a | ||
copy of the notice by certified mail, return receipt | ||
requested , and first class mail , to that address. This | ||
notice is complete regardless of the return of a signed | ||
" return receipt requested" . | ||
(5) Notice to a person whose address is not within the | ||
United States shall be completed complete by a single | ||
mailing of a copy of the notice by certified mail, return | ||
receipt requested , and first class mail , to that address. | ||
This notice shall be complete regardless of the return of a |
signed " return receipt requested" . If certified mail is not | ||
available in the foreign country where the person has an | ||
address, then notice shall proceed by publication under | ||
paragraph (2) of this Section. | ||
(6) Notice to any person whom the State's Attorney | ||
reasonably should know is incarcerated within the State | ||
shall also include the mailing a copy of the notice by | ||
certified mail, return receipt requested , and first class | ||
mail , to the address of the detention facility with the | ||
inmate's name clearly marked on the envelope.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(720 ILCS 5/36-2.2) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 36-2.2. Replevin prohibited; return of personal | ||
property inside seized conveyance. | ||
(a) Property seized under this Article shall not be subject | ||
to replevin, but is deemed to be in the custody of the Director | ||
of State Police , subject only to the order and judgments of the | ||
circuit court having jurisdiction over the forfeiture | ||
proceedings and the decisions of the State's Attorney. | ||
(b) A claimant or a party interested in personal property | ||
contained within a seized conveyance may file a motion with the | ||
court in a judicial forfeiture action for the return of any | ||
personal property contained within a conveyance seized under |
this Article. The return of personal property shall not be | ||
unreasonably withheld if the personal property is not | ||
mechanically or electrically coupled to the conveyance, needed | ||
for evidentiary purposes, or otherwise contraband. A law | ||
enforcement agency that returns property under a court order | ||
under this Section shall not be liable to any person who claims | ||
ownership to the property if the property is returned to an | ||
improper party.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(720 ILCS 5/36-2.5) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 36-2.5. Judicial in rem procedures. | ||
(a) The laws of evidence relating to civil actions shall | ||
apply to judicial in rem proceedings under this Article. | ||
(b) Only an owner of or interest holder in the property may | ||
file an answer asserting a claim against the property in the | ||
action in rem. For purposes of this Section, the owner or | ||
interest holder shall be referred to as claimant. A person not | ||
named in the forfeiture complaint who claims to have an | ||
interest in the property may petition to intervene as a | ||
claimant under Section 2-408 of the Code of Civil Procedure. | ||
(c) The answer shall be filed with the court within 45 days | ||
after service of the civil in rem complaint. | ||
(d) The trial shall be held within 60 days after filing of |
the answer unless continued for good cause. | ||
(e) In its case in chief, the State shall show by a | ||
preponderance of the evidence that: | ||
(1) the property is subject to forfeiture; and | ||
(2) at least one of the following: | ||
(i) the claimant knew or should have known that the | ||
conduct was likely to occur; or | ||
(ii) the claimant is not the true owner of the | ||
property that is subject to forfeiture. | ||
In any forfeiture case under this Article, a claimant may | ||
present evidence to overcome evidence presented by the State | ||
that the property is subject to forfeiture. | ||
(f) Notwithstanding any other provision of this Section, | ||
the State's burden of proof at the trial of the forfeiture | ||
action shall be by clear and convincing evidence if: | ||
(1) a finding of not guilty is entered as to all counts | ||
and all defendants in a criminal proceeding relating to the | ||
conduct giving rise to the forfeiture action; or | ||
(2) the State receives an adverse finding at a | ||
preliminary hearing and fails to secure an indictment in a | ||
criminal proceeding related to the factual allegations of | ||
the forfeiture action. | ||
(g) If the State does not meet its burden of proof, the | ||
court shall order the interest in the property returned or | ||
conveyed to the claimant and shall order all other property in | ||
which the State does meet its burden of proof forfeited to the |
State. If the State does meet its burden of proof, the court | ||
shall order all property forfeited to the State. | ||
(h) A defendant convicted in any criminal proceeding is | ||
precluded from later denying the essential allegations of the | ||
criminal offense of which the defendant was convicted in any | ||
proceeding under this Article regardless of the pendency of an | ||
appeal from that conviction. However, evidence of the pendency | ||
of an appeal is admissible. | ||
(i) An acquittal or dismissal in a criminal proceeding | ||
shall not preclude civil proceedings under this Act; however, | ||
for good cause shown, on a motion by either party, the court | ||
may stay civil forfeiture proceedings during the criminal trial | ||
for a related criminal indictment or information alleging a | ||
violation of law authorizing forfeiture under Section 36-1 of | ||
this Article. | ||
(j) Title to all property declared forfeited under this Act | ||
vests in this State on the commission of the conduct giving | ||
rise to forfeiture together with the proceeds of the property | ||
after that time. Except as otherwise provided in this Article, | ||
any property or proceeds subsequently transferred to any person | ||
remain subject to forfeiture unless a person to whom the | ||
property was transferred makes an appropriate claim under or | ||
has the their claim adjudicated at the judicial in rem hearing. | ||
(k) No property shall be forfeited under this Article from | ||
a person who, without actual or constructive notice that the | ||
property was the subject of forfeiture proceedings, obtained |
possession of the property as a bona fide purchaser for value. | ||
A person who purports to transfer property after receiving | ||
actual or constructive notice that the property is subject to | ||
seizure or forfeiture is guilty of contempt of court, and shall | ||
be liable to the State for a penalty in the amount of the fair | ||
market value of the property. | ||
(l) A civil action under this Article shall be commenced | ||
within 5 years after the last conduct giving rise to forfeiture | ||
became known or should have become known or 5 years after the | ||
forfeitable property is discovered, whichever is later, | ||
excluding any time during which either the property or claimant | ||
is out of the State or in confinement or during which criminal | ||
proceedings relating to the same conduct are in progress. | ||
(m) If property is ordered forfeited under this Article | ||
from a claimant who held title to the property in joint tenancy | ||
or tenancy in common with another claimant, the court shall | ||
determine the amount of each owner's interest in the property | ||
according to principles of property law.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(720 ILCS 5/36-2.7) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 36-2.7. Innocent owner hearing. | ||
(a) After a complaint for forfeiture has been filed and all | ||
claimants have appeared and answered, a claimant may file a |
motion with the court for an innocent owner hearing prior to | ||
trial. This motion shall be made and supported by sworn | ||
affidavit and shall assert the following along with specific | ||
facts that which support each assertion: | ||
(1) that the claimant filing the motion is the true | ||
owner of the conveyance as interpreted by case law; and | ||
(2) that the claimant did not know or did not have | ||
reason to know the conduct giving rise to the forfeiture | ||
was likely to occur. | ||
(b) The claimant's motion claimant shall include specific | ||
facts that which support these assertions in their motion . | ||
(b) (c) Upon the filing, a hearing may only be conducted | ||
after the parties have been given the opportunity to conduct | ||
limited discovery as to the ownership and control of the | ||
property, the claimant's knowledge, or any matter relevant to | ||
the issues raised or facts alleged in the claimant's motion. | ||
Discovery shall be limited to the People's requests in these | ||
areas but may proceed by any means allowed in the Code of Civil | ||
Procedure. | ||
(c) (d) After discovery is complete and the court has | ||
allowed for sufficient time to review and investigate the | ||
discovery responses, the court shall conduct a hearing. At the | ||
hearing, the fact that the conveyance is subject to forfeiture | ||
shall not be at issue. The court shall only hear evidence | ||
relating to the issue of innocent ownership. | ||
(d) (e) At the hearing on the motion, the claimant shall |
bear the burden of proving each of the assertions listed in | ||
subsection (a) of this Section by a preponderance of the | ||
evidence. (f) If a claimant meets the their burden of proof, | ||
the court shall grant the motion and order the conveyance | ||
returned to the claimant. If the claimant fails to meet the | ||
their burden of proof, the court shall deny the motion and the | ||
forfeiture case shall proceed according to the Code Rules of | ||
Civil Procedure.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(720 ILCS 5/36-7) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 36-7. Distribution of proceeds; selling or retaining | ||
seized property prohibited. | ||
(a) Except as otherwise provided in this Section, the court | ||
shall order that property forfeited under this Article be | ||
delivered to the Department of State Police within 60 days. | ||
(b) The Department of State Police or its designee shall | ||
dispose of all property at public auction and shall distribute | ||
the proceeds of the sale, together with any moneys forfeited or | ||
seized, under subsection (c) of this Section. | ||
(c) All moneys monies and the sale proceeds of all other | ||
property forfeited and seized under this Act shall be | ||
distributed as follows: | ||
(1) 65% shall be distributed to the drug task force, |
metropolitan enforcement group, local, municipal, county, | ||
or State state law enforcement agency or agencies that | ||
which conducted or participated in the investigation | ||
resulting in the forfeiture. The distribution shall bear a | ||
reasonable relationship to the degree of direct | ||
participation of the law enforcement agency in the effort | ||
resulting in the forfeiture, taking into account the total | ||
value of the property forfeited and the total law | ||
enforcement effort with respect to the violation of the law | ||
upon which the forfeiture is based. Amounts distributed to | ||
the agency or agencies shall be used, at the discretion of | ||
the agency, for the enforcement of criminal laws; or for | ||
public education in the community or schools in the | ||
prevention or detection of the abuse of drugs or alcohol; | ||
or for security cameras used for the prevention or | ||
detection of violence, except that amounts distributed to | ||
the Secretary of State shall be deposited into the | ||
Secretary of State Evidence Fund to be used as provided in | ||
Section 2-115 of the Illinois Vehicle Code. | ||
Any local, municipal, or county law enforcement agency | ||
entitled to receive a monetary distribution of forfeiture | ||
proceeds may share those forfeiture proceeds pursuant to | ||
the terms of an intergovernmental agreement with a | ||
municipality that has a population in excess of 20,000 if: | ||
(A) the receiving agency has entered into an | ||
intergovernmental agreement with the municipality to |
provide police services; | ||
(B) the intergovernmental agreement for police | ||
services provides for consideration in an amount of not | ||
less than $1,000,000 per year; | ||
(C) the seizure took place within the geographical | ||
limits of the municipality; and | ||
(D) the funds are used only for the enforcement of | ||
criminal laws; for public education in the community or | ||
schools in the prevention or detection of the abuse of | ||
drugs or alcohol; or for security cameras used for the | ||
prevention or detection of violence or the
| ||
establishment of a municipal police force, including | ||
the training of officers, construction of a police | ||
station, the purchase of law enforcement equipment, or | ||
vehicles. | ||
(2) 12.5% shall be distributed to the Office of the | ||
State's Attorney of the county in which the prosecution | ||
resulting in the forfeiture was instituted, deposited in a | ||
special fund in the county treasury and appropriated to the | ||
State's Attorney for use, at the discretion of the State's | ||
Attorney, in the enforcement of criminal laws; or for | ||
public education in the community or schools in the | ||
prevention or detection of the abuse of drugs or alcohol; | ||
or at the discretion of the State's Attorney, in addition | ||
to other authorized purposes, to make grants to local | ||
substance abuse treatment facilities and half-way houses. |
In counties over 3,000,000 population, 25% will be | ||
distributed to the Office of the State's Attorney for use, | ||
at the discretion of the State's Attorney, in the | ||
enforcement of criminal laws; or for public education in | ||
the community or schools in the prevention or detection of | ||
the abuse of drugs or alcohol; or at the discretion of the | ||
State's Attorney, in addition to other authorized | ||
purposes, to make grants to local substance abuse treatment | ||
facilities and half-way houses. If the prosecution is | ||
undertaken solely by the Attorney General, the portion | ||
provided shall be distributed to the Attorney General for | ||
use in the enforcement of criminal laws governing cannabis | ||
and controlled substances or for public education in the | ||
community or schools in the prevention or detection of the | ||
abuse of drugs or alcohol. | ||
12.5% shall be distributed to the Office of the State's | ||
Attorneys Appellate Prosecutor and shall be used at the | ||
discretion of the State's Attorneys Appellate Prosecutor | ||
for additional expenses incurred in the investigation, | ||
prosecution and appeal of cases arising in the enforcement | ||
of criminal laws; or for public education in the community | ||
or schools in the prevention or detection of the abuse of | ||
drugs or alcohol. The Office of the State's Attorneys | ||
Appellate Prosecutor shall not receive distribution from | ||
cases brought in counties with over 3,000,000 population. | ||
(3) 10% shall be retained by the Department of State |
Police for expenses related to the administration and sale | ||
of seized and forfeited property. | ||
(d) A law enforcement agency shall not retain forfeited | ||
property for its own use or transfer the property to any person | ||
or entity, except as provided under this Section. A law | ||
enforcement agency may apply in writing to the Director of | ||
State Police to request that a forfeited property be awarded to | ||
the agency for a specifically articulated official law | ||
enforcement use in an investigation. The Director of State | ||
Police shall provide a written justification in each instance | ||
detailing the reasons why the forfeited property was placed | ||
into official use, and the justification shall be retained for | ||
a period of not less than 3 years.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(720 ILCS 5/36-10 new) | ||
Sec. 36-10. Applicability; savings clause. | ||
(a) The changes made to this Article by Public Act 100-0512 | ||
and this amendatory Act of the 100th General Assembly only | ||
apply to property seized on and after July 1, 2018. | ||
(b) The changes made to this Article by this amendatory Act | ||
of the 100th General Assembly are subject to Section 4 of the | ||
Statute on Statutes. | ||
Section 25. The Cannabis Control Act is amended by changing | ||
Section 12 as follows:
|
(720 ILCS 550/12) (from Ch. 56 1/2, par. 712)
| ||
(Text of Section before amendment by P.A. 100-512 )
| ||
Sec. 12. (a) The following are subject to forfeiture:
| ||
(1) all substances containing cannabis which have been | ||
produced,
manufactured, delivered, or possessed in | ||
violation of this Act;
| ||
(2) all raw materials, products and equipment of any | ||
kind which are
produced, delivered, or possessed in | ||
connection with any substance
containing cannabis in | ||
violation of this Act;
| ||
(3) all conveyances, including aircraft, vehicles or | ||
vessels, which
are used, or intended for use, to transport, | ||
or in any manner to
facilitate the transportation, sale, | ||
receipt, possession, or
concealment of property described | ||
in paragraph (1) or (2) that constitutes
a felony violation | ||
of the Act, but:
| ||
(i) no conveyance used by any person as a common | ||
carrier in the
transaction of business as a common | ||
carrier is subject to forfeiture
under this Section | ||
unless it appears that the owner or other person in
| ||
charge of the conveyance is a consenting party or privy | ||
to a violation
of this Act;
| ||
(ii) no conveyance is subject to forfeiture under | ||
this Section by
reason of any act or omission which the | ||
owner proves to have been
committed or omitted without |
his knowledge or consent;
| ||
(iii) a forfeiture of a conveyance encumbered by a | ||
bona fide
security interest is subject to the interest | ||
of the secured party if he
neither had knowledge of nor | ||
consented to the act or omission;
| ||
(4) all money, things of value, books, records, and | ||
research
products and materials including formulas, | ||
microfilm, tapes, and data
which are used, or intended for | ||
use in a felony violation of this Act;
| ||
(5) everything of value furnished or intended to be | ||
furnished by any
person in exchange for a substance in | ||
violation of this Act, all proceeds
traceable to such an | ||
exchange, and all moneys, negotiable instruments, and
| ||
securities used, or intended to be used, to commit or in | ||
any manner to
facilitate any felony violation of this Act;
| ||
(6) all real property, including any right, title, and | ||
interest including, but not limited to, any leasehold | ||
interest or the beneficial interest to a land trust, in the | ||
whole of any lot or tract of land and any appurtenances or | ||
improvements, that is used or intended to be used to | ||
facilitate the manufacture, distribution, sale, receipt, | ||
or concealment of property described in paragraph (1) or | ||
(2) of this subsection (a) that constitutes a felony | ||
violation of more than 2,000 grams of a substance | ||
containing cannabis or that is the proceeds of any felony | ||
violation of this Act. |
(b) Property subject to forfeiture under this Act may be | ||
seized by
the Director or any peace officer upon process or | ||
seizure warrant issued by
any court having jurisdiction over | ||
the property. Seizure by the Director
or any peace officer | ||
without process may be made:
| ||
(1) if the property subject to seizure has been the | ||
subject of a
prior judgment in favor of the State in a | ||
criminal proceeding or
in an injunction or forfeiture | ||
proceeding based upon this Act or the Drug
Asset Forfeiture | ||
Procedure Act;
| ||
(2) if there is probable cause to believe that the | ||
property is
directly or indirectly dangerous to health or | ||
safety;
| ||
(3) if there is probable cause to believe that the | ||
property is subject
to forfeiture under this Act and the | ||
property is seized under
circumstances in which a | ||
warrantless seizure or arrest would be reasonable; or
| ||
(4) in accordance with the Code of Criminal Procedure | ||
of 1963.
| ||
(c) In the event of seizure pursuant to subsection (b), | ||
notice shall be given forthwith to all known interest holders | ||
that forfeiture
proceedings, including a preliminary review, | ||
shall be instituted in accordance with the
Drug Asset | ||
Forfeiture Procedure Act and such proceedings shall thereafter | ||
be instituted in accordance with that Act. Upon a showing of | ||
good cause, the notice required for a preliminary review under |
this Section may be postponed.
| ||
(c-1) In the event the State's Attorney is of the opinion | ||
that real property is subject to forfeiture under this Act, | ||
forfeiture proceedings shall be instituted in accordance with | ||
the Drug Asset Forfeiture Procedure Act. The exemptions from | ||
forfeiture provisions of Section 8 of the Drug Asset Forfeiture | ||
Procedure Act are applicable. | ||
(d) Property taken or detained under this Section shall not | ||
be
subject to replevin, but is deemed to be in the custody of | ||
the Director
subject only to the order and judgments of the | ||
circuit court having
jurisdiction over the forfeiture | ||
proceedings and the decisions of the
State's Attorney under the | ||
Drug Asset Forfeiture Procedure Act. When
property is seized | ||
under this Act, the seizing agency shall promptly
conduct an | ||
inventory of the seized property, estimate the property's | ||
value,
and shall forward a copy of the inventory of seized | ||
property and the
estimate of the property's value to the | ||
Director. Upon receiving notice of
seizure, the Director may:
| ||
(1) place the property under seal;
| ||
(2) remove the property to a place designated by him;
| ||
(3) keep the property in the possession of the seizing | ||
agency;
| ||
(4) remove the property to a storage area for | ||
safekeeping or, if the
property is a negotiable instrument | ||
or money and is not needed for
evidentiary purposes, | ||
deposit it in an interest bearing account;
|
(5) place the property under constructive seizure by | ||
posting notice of
pending forfeiture on it, by giving | ||
notice of pending forfeiture to its
owners and interest | ||
holders, or by filing notice of pending forfeiture in
any | ||
appropriate public record relating to the property; or
| ||
(6) provide for another agency or custodian, including | ||
an owner, secured
party, or lienholder, to take custody of | ||
the property upon the terms and
conditions set by the | ||
Director.
| ||
(e) No disposition may be made of property under seal until | ||
the time
for taking an appeal has elapsed or until all appeals | ||
have been
concluded unless a court, upon application therefor, | ||
orders the sale of
perishable substances and the deposit of the | ||
proceeds of the sale with
the court.
| ||
(f) When property is forfeited under this Act the Director | ||
shall
sell all such property unless such property is required | ||
by law to be
destroyed or is harmful to the public, and shall | ||
distribute the proceeds of
the sale, together with any moneys | ||
forfeited or seized, in accordance
with subsection (g). | ||
However, upon the application of the seizing agency or
| ||
prosecutor who was responsible for the investigation, arrest or | ||
arrests and
prosecution which lead to the forfeiture, the | ||
Director may return any item
of forfeited property to the | ||
seizing agency or prosecutor for official use
in the | ||
enforcement of laws relating to cannabis or controlled | ||
substances,
if the agency or prosecutor can demonstrate that |
the item requested would
be useful to the agency or prosecutor | ||
in their enforcement efforts. When any forfeited conveyance, | ||
including an aircraft, vehicle, or vessel, is returned to the | ||
seizing agency or prosecutor, the conveyance may be used | ||
immediately in the enforcement of the criminal laws of this | ||
State. Upon disposal, all proceeds from the sale of the | ||
conveyance must be used for drug enforcement purposes. When
any | ||
real property returned to the seizing agency is sold by the | ||
agency or
its unit of government, the proceeds of the sale | ||
shall be delivered to the
Director and distributed in | ||
accordance with subsection (g).
| ||
(g) All monies and the sale proceeds of all other property | ||
forfeited and
seized under this Act shall be distributed as | ||
follows:
| ||
(1)(i) 65% shall be distributed to the metropolitan | ||
enforcement group,
local, municipal, county, or state law | ||
enforcement agency or agencies which
conducted or | ||
participated in the investigation resulting in the | ||
forfeiture.
The distribution shall bear a reasonable | ||
relationship to the degree of
direct participation of the | ||
law enforcement agency in the effort resulting
in the | ||
forfeiture, taking into account the total value of the | ||
property
forfeited and the total law enforcement effort | ||
with respect to the
violation of the law upon which the | ||
forfeiture is based.
Amounts distributed to the agency or | ||
agencies shall be used for the
enforcement of laws |
governing cannabis and controlled substances; for public | ||
education in the community or schools in the
prevention or | ||
detection of the abuse of drugs or
alcohol; or for security | ||
cameras used for the prevention or detection of violence, | ||
except
that amounts distributed to the Secretary of State | ||
shall be deposited into
the Secretary of State Evidence | ||
Fund to be used as provided in Section
2-115 of the | ||
Illinois Vehicle Code.
| ||
(ii) Any local, municipal, or county law enforcement | ||
agency entitled to receive a monetary distribution of | ||
forfeiture proceeds may share those forfeiture proceeds | ||
pursuant to the terms of an intergovernmental agreement | ||
with a municipality that has a population in excess of | ||
20,000 if: | ||
(I) the receiving agency has entered into an | ||
intergovernmental agreement with the municipality to | ||
provide police services; | ||
(II) the intergovernmental agreement for police | ||
services provides for consideration in an amount of not | ||
less than $1,000,000 per year; | ||
(III) the seizure took place within the | ||
geographical limits of the municipality; and | ||
(IV) the funds are used only for the enforcement
of | ||
laws governing cannabis and controlled substances; for | ||
public education in the community or schools in the
| ||
prevention or detection of the abuse of drugs or
|
alcohol; or
for security cameras used for the | ||
prevention or detection
of violence or the | ||
establishment of a municipal police
force, including | ||
the training of officers, construction of
a police | ||
station, the purchase of law enforcement
equipment, or | ||
vehicles. | ||
(2)(i) 12.5% shall be distributed to the Office of the | ||
State's
Attorney of the county in which the prosecution | ||
resulting in the forfeiture
was instituted, deposited in a | ||
special fund in the county treasury and
appropriated to the | ||
State's Attorney for use in the enforcement of laws
| ||
governing cannabis and controlled substances; for public | ||
education in the community or schools in the
prevention or | ||
detection of the abuse of drugs or
alcohol; or at the | ||
discretion of the State's Attorney, in addition to other | ||
authorized purposes, to make grants to local substance | ||
abuse treatment facilities and half-way houses. In | ||
counties over 3,000,000
population, 25% will be | ||
distributed to the Office of the State's Attorney for use | ||
in the
enforcement of laws governing cannabis and | ||
controlled substances; for public education in the | ||
community or schools in the
prevention or detection of the | ||
abuse of drugs or
alcohol; or at the discretion of the | ||
State's Attorney, in addition to other authorized | ||
purposes, to make grants to local substance abuse treatment | ||
facilities and half-way houses. If the
prosecution is |
undertaken solely by the Attorney General, the portion
| ||
provided hereunder shall be distributed to the Attorney | ||
General for use in
the enforcement of laws governing | ||
cannabis and controlled substances.
| ||
(ii) 12.5% shall be distributed to the Office of the | ||
State's Attorneys
Appellate Prosecutor and deposited in | ||
the Narcotics Profit Forfeiture Fund
of that Office to be | ||
used for additional expenses incurred in the
| ||
investigation, prosecution and appeal of cases arising | ||
under laws governing
cannabis and controlled substances or | ||
for public education in the community or schools in the
| ||
prevention or detection of the abuse of drugs or
alcohol. | ||
The Office of the State's Attorneys
Appellate Prosecutor | ||
shall not receive distribution from cases brought in
| ||
counties with over 3,000,000 population.
| ||
(3) 10% shall be retained by the Department of State | ||
Police for expenses
related to the administration and sale | ||
of seized and forfeited property.
| ||
(Source: P.A. 99-686, eff. 7-29-16.)
| ||
(Text of Section after amendment by P.A. 100-512 )
| ||
Sec. 12. (a) The following are subject to forfeiture:
| ||
(1) (blank);
| ||
(2) all raw materials, products , and equipment of any | ||
kind which are
produced, delivered, or possessed in | ||
connection with any substance
containing cannabis in a |
felony violation of this Act;
| ||
(3) all conveyances, including aircraft, vehicles , or | ||
vessels, which
are used, or intended for use, to transport, | ||
or in any manner to
facilitate the transportation, sale, | ||
receipt, possession, or
concealment of any substance | ||
containing cannabis or property described in paragraph (2) | ||
of this subsection (a) that constitutes
a felony violation | ||
of the Act, but:
| ||
(i) no conveyance used by any person as a common | ||
carrier in the
transaction of business as a common | ||
carrier is subject to forfeiture
under this Section | ||
unless it appears that the owner or other person in
| ||
charge of the conveyance is a consenting party or privy | ||
to the violation;
| ||
(ii) no conveyance is subject to forfeiture under | ||
this Section by
reason of any act or omission which the | ||
owner proves to have been
committed or omitted without | ||
his knowledge or consent;
| ||
(iii) a forfeiture of a conveyance encumbered by a | ||
bona fide
security interest is subject to the interest | ||
of the secured party if he
neither had knowledge of nor | ||
consented to the act or omission;
| ||
(4) all money, things of value, books, records, and | ||
research
products and materials including formulas, | ||
microfilm, tapes, and data
which are used, or intended for | ||
use in a felony violation of this Act;
|
(5) everything of value furnished or intended to be | ||
furnished by any
person in exchange for a substance in | ||
violation of this Act, all proceeds
traceable to such an | ||
exchange, and all moneys, negotiable instruments, and
| ||
securities used, or intended to be used, to commit or in | ||
any manner to
facilitate any felony violation of this Act;
| ||
(6) all real property, including any right, title, and | ||
interest including, but not limited to, any leasehold | ||
interest or the beneficial interest in to a land trust, in | ||
the whole of any lot or tract of land and any appurtenances | ||
or improvements, that is used or intended to be used to | ||
facilitate the manufacture, distribution, sale, receipt, | ||
or concealment of a substance containing cannabis or | ||
property described in paragraph (2) of this subsection (a) | ||
that constitutes a felony violation of this Act involving | ||
more than 2,000 grams of a substance containing cannabis or | ||
that is the proceeds of any felony violation of this Act. | ||
(b) Property subject to forfeiture under this Act may be | ||
seized under the Drug Asset Forfeiture Procedure Act. In the | ||
event of seizure, forfeiture proceedings shall be instituted | ||
under the Drug Asset Forfeiture Procedure Act.
| ||
(c) Forfeiture under this Act is subject to subject to an | ||
8th Amendment amendment to the United States Constitution | ||
disproportionate penalties analysis as provided under Section | ||
9.5 of the Drug Asset Forfeiture Procedure Act.
| ||
(c-1) With regard to possession of cannabis offenses only, |
a sum of currency with a value of less than $500 shall not be | ||
subject to forfeiture under this Act. For all other offenses | ||
under this Act, a sum of currency with a value of less than | ||
$100 shall not be subject to forfeiture under this Act. In | ||
seizures of currency in excess of these amounts, this Section | ||
shall not create an exemption for these amounts. | ||
(d) (Blank).
| ||
(e) (Blank).
| ||
(f) (Blank).
| ||
(g) (Blank).
| ||
(h) Contraband, including cannabis possessed without | ||
authorization under State or federal law, is not subject to | ||
forfeiture. No property right exists in contraband. Contraband | ||
is subject to seizure and shall be disposed of according to | ||
State law. | ||
(i) The changes made to this Section by Public Act 100-0512 | ||
and this amendatory Act of the 100th General Assembly only | ||
apply to property seized on and after July 1, 2018. | ||
(j) The changes made to this Section by this amendatory Act | ||
of the 100th General Assembly are subject to Section 4 of the | ||
Statute on Statutes. | ||
(Source: P.A. 99-686, eff. 7-29-16; 100-512, eff. 7-1-18.)
| ||
Section 30. The Illinois Controlled Substances Act is | ||
amended by changing Section 505 as follows:
|
(720 ILCS 570/505) (from Ch. 56 1/2, par. 1505)
| ||
(Text of Section before amendment by P.A. 100-512 )
| ||
Sec. 505. (a) The following are subject to forfeiture:
| ||
(1) all substances which have been manufactured, | ||
distributed,
dispensed, or possessed in violation of this | ||
Act;
| ||
(2) all raw materials, products and equipment of any | ||
kind which are
used, or intended for use in manufacturing, | ||
distributing, dispensing,
administering or possessing any | ||
substance in violation of this Act;
| ||
(3) all conveyances, including aircraft, vehicles or | ||
vessels, which are
used, or intended for use, to transport, | ||
or in any manner to facilitate
the transportation, sale, | ||
receipt, possession, or concealment of property
described | ||
in paragraphs (1) and (2), but:
| ||
(i) no conveyance used by any person as a common | ||
carrier in the
transaction of business as a common | ||
carrier is subject to forfeiture under
this Section | ||
unless it appears that the owner or other person in | ||
charge of
the conveyance is a consenting party or privy | ||
to a violation of this Act;
| ||
(ii) no conveyance is subject to forfeiture under | ||
this Section by reason
of any act or omission which the | ||
owner proves to have been committed or
omitted without | ||
his or her knowledge or consent;
| ||
(iii) a forfeiture of a conveyance encumbered by a |
bona fide security
interest is subject to the interest | ||
of the secured party if he or she neither had
knowledge | ||
of nor consented to the act or omission;
| ||
(4) all money, things of value, books, records, and | ||
research
products and materials including formulas, | ||
microfilm, tapes, and data which
are used, or intended to | ||
be used in violation of this Act;
| ||
(5) everything of value furnished, or intended to be | ||
furnished, in
exchange for a substance in violation of this | ||
Act, all proceeds traceable
to such an exchange, and all | ||
moneys, negotiable instruments, and securities
used, or | ||
intended to be used, to commit or in any manner to | ||
facilitate
any violation of this Act;
| ||
(6) all real property, including any right, title, and | ||
interest
(including, but not limited to, any leasehold | ||
interest or the beneficial
interest in a land trust) in the | ||
whole of any lot or tract of land and any
appurtenances or | ||
improvements, which is used or intended to be used, in any
| ||
manner or part, to commit, or in any manner to facilitate | ||
the commission
of, any violation or act that constitutes a | ||
violation of Section 401 or 405
of this Act or that is the | ||
proceeds of any violation or act that
constitutes a | ||
violation of Section 401 or 405 of this Act.
| ||
(b) Property subject to forfeiture under this Act may be | ||
seized by the
Director or any peace officer upon process or | ||
seizure warrant issued by
any court having jurisdiction over |
the property. Seizure by the Director
or any peace officer | ||
without process may be made:
| ||
(1) if the seizure is incident to inspection under an | ||
administrative
inspection warrant;
| ||
(2) if the property subject to seizure has been the | ||
subject of a prior
judgment in favor of the State in a | ||
criminal proceeding, or in an injunction
or forfeiture | ||
proceeding based upon this Act or the Drug Asset Forfeiture
| ||
Procedure Act;
| ||
(3) if there is probable cause to believe that the | ||
property is directly
or indirectly dangerous to health or | ||
safety;
| ||
(4) if there is probable cause to believe that the | ||
property is subject
to forfeiture under this Act and the | ||
property is seized under
circumstances in which a | ||
warrantless seizure or arrest would be reasonable; or
| ||
(5) in accordance with the Code of Criminal Procedure | ||
of 1963.
| ||
(c) In the event of seizure pursuant to subsection (b), | ||
notice shall be given forthwith to all known interest holders | ||
that forfeiture
proceedings, including a preliminary review, | ||
shall be instituted in accordance with the Drug
Asset | ||
Forfeiture Procedure Act and such proceedings shall thereafter | ||
be instituted in accordance with that Act. Upon a showing of | ||
good cause, the notice required for a preliminary review under | ||
this Section may be postponed.
|
(d) Property taken or detained under this Section shall not | ||
be subject
to replevin, but is deemed to be in the custody of | ||
the Director subject
only to the order and judgments of the | ||
circuit court having jurisdiction over
the forfeiture | ||
proceedings and the decisions of the State's Attorney
under the | ||
Drug Asset Forfeiture Procedure Act. When property is seized
| ||
under this Act, the seizing agency shall promptly conduct an | ||
inventory of
the seized property and estimate the property's | ||
value, and shall forward a
copy of the inventory of seized | ||
property and the estimate of the property's
value to the | ||
Director. Upon receiving notice of seizure, the Director may:
| ||
(1) place the property under seal;
| ||
(2) remove the property to a place designated by the | ||
Director;
| ||
(3) keep the property in the possession of the seizing | ||
agency;
| ||
(4) remove the property to a storage area for | ||
safekeeping or, if the
property is a negotiable instrument | ||
or money and is not needed for
evidentiary purposes, | ||
deposit it in an interest bearing account;
| ||
(5) place the property under constructive seizure by | ||
posting notice of
pending forfeiture on it, by giving | ||
notice of pending forfeiture to its
owners and interest | ||
holders, or by filing notice of pending forfeiture in
any | ||
appropriate public record relating to the property; or
| ||
(6) provide for another agency or custodian, including |
an owner, secured
party, or lienholder, to take custody of | ||
the property upon the terms and
conditions set by the | ||
Director.
| ||
(e) If the Department of Financial and Professional | ||
Regulation suspends or revokes
a registration, all controlled | ||
substances owned or possessed by the
registrant at the time of | ||
suspension or the effective date of the
revocation order may be | ||
placed under seal by the Director. No disposition may be made | ||
of
substances under seal until the time for taking an appeal | ||
has elapsed or
until all appeals have been concluded unless a | ||
court, upon application
therefor, orders the sale of perishable | ||
substances and the deposit of the
proceeds of the sale with the | ||
court. Upon a suspension or revocation order becoming final,
| ||
all substances may be forfeited to the Illinois State Police.
| ||
(f) When property is forfeited under this Act the Director | ||
shall
sell all such property unless such property is required | ||
by law to be
destroyed or is harmful to the public, and shall | ||
distribute the proceeds of
the sale, together with any moneys | ||
forfeited or seized, in accordance
with subsection (g). | ||
However, upon the application of the seizing agency or
| ||
prosecutor who was responsible for the investigation, arrest or | ||
arrests and
prosecution which lead to the forfeiture, the | ||
Director may return any item
of forfeited property to the | ||
seizing agency or prosecutor for official use
in the | ||
enforcement of laws relating to cannabis or controlled | ||
substances,
if the agency or prosecutor can demonstrate that |
the item requested would
be useful to the agency or prosecutor | ||
in their enforcement efforts. When any forfeited conveyance, | ||
including an aircraft, vehicle, or vessel, is returned to the | ||
seizing agency or prosecutor, the conveyance may be used | ||
immediately in the enforcement of the criminal laws of this | ||
State. Upon disposal, all proceeds from the sale of the | ||
conveyance must be used for drug enforcement purposes. When
any | ||
real property returned to the seizing agency is sold by the | ||
agency or
its unit of government, the proceeds of the sale | ||
shall be delivered to the
Director and distributed in | ||
accordance with subsection (g).
| ||
(g) All monies and the sale proceeds of all other property | ||
forfeited and
seized under this Act shall be distributed as | ||
follows:
| ||
(1)(i) 65% shall be distributed to the metropolitan | ||
enforcement group,
local, municipal, county, or state law | ||
enforcement agency or agencies which
conducted or | ||
participated in the investigation resulting in the | ||
forfeiture.
The distribution shall bear a reasonable | ||
relationship to the degree of
direct participation of the | ||
law enforcement agency in the effort resulting
in the | ||
forfeiture, taking into account the total value of the | ||
property
forfeited and the total law enforcement effort | ||
with respect to the
violation of the law upon which the | ||
forfeiture is based.
Amounts distributed to the agency or | ||
agencies shall be used for the
enforcement of laws |
governing cannabis and controlled substances; for public | ||
education in the community or schools in the
prevention or | ||
detection of the abuse of drugs or
alcohol; or for security | ||
cameras used for the prevention or detection of violence, | ||
except that
amounts distributed to the Secretary of State | ||
shall be deposited into the
Secretary of State Evidence | ||
Fund to be used as provided in Section 2-115 of the
| ||
Illinois Vehicle Code.
| ||
(ii) Any local, municipal, or county law enforcement | ||
agency entitled to receive a monetary distribution of | ||
forfeiture proceeds may share those forfeiture proceeds | ||
pursuant to the terms of an intergovernmental agreement | ||
with a municipality that has a population in excess of | ||
20,000 if: | ||
(I) the receiving agency has entered into an | ||
intergovernmental agreement with the municipality to | ||
provide police services; | ||
(II) the intergovernmental agreement for police | ||
services provides for consideration in an amount of not | ||
less than $1,000,000 per year; | ||
(III) the seizure took place within the | ||
geographical limits of the municipality; and | ||
(IV) the funds are used only for the enforcement
of | ||
laws governing cannabis and controlled substances; for | ||
public education in the community or schools in the
| ||
prevention or detection of the abuse of drugs or
|
alcohol; or
for security cameras used for the | ||
prevention or detection
of violence or the | ||
establishment of a municipal police
force, including | ||
the training of officers, construction of
a police | ||
station, the purchase of law enforcement
equipment, or | ||
vehicles. | ||
(2)(i) 12.5% shall be distributed to the Office of the | ||
State's
Attorney of the county in which the prosecution | ||
resulting in the forfeiture
was instituted, deposited in a | ||
special fund in the county treasury and
appropriated to the | ||
State's Attorney for use in the enforcement of laws
| ||
governing cannabis and controlled substances; for public | ||
education in the community or schools in the
prevention or | ||
detection of the abuse of drugs or
alcohol; or at the | ||
discretion of the State's Attorney, in addition to other | ||
authorized purposes, to make grants to local substance | ||
abuse treatment facilities and half-way houses. In | ||
counties over 3,000,000
population, 25% will be | ||
distributed to the Office of the State's Attorney for
use | ||
in the
enforcement of laws governing cannabis and | ||
controlled substances; for public education in the | ||
community or schools in the
prevention or detection of the | ||
abuse of drugs or
alcohol; or at the discretion of the | ||
State's Attorney, in addition to other authorized | ||
purposes, to make grants to local substance abuse treatment | ||
facilities and half-way houses. If the
prosecution is |
undertaken solely by the Attorney General, the portion
| ||
provided hereunder shall be distributed to the Attorney | ||
General for use in
the enforcement of laws governing | ||
cannabis and controlled substances or
for public education | ||
in the community or schools in the
prevention or detection | ||
of the abuse of drugs or
alcohol.
| ||
(ii) 12.5% shall be distributed to the Office of the | ||
State's Attorneys
Appellate Prosecutor and deposited in | ||
the Narcotics Profit Forfeiture Fund
of that office to be | ||
used for additional expenses incurred in the
| ||
investigation, prosecution and appeal of cases arising | ||
under laws governing
cannabis and controlled substances or
| ||
for public education in the community or schools in the
| ||
prevention or detection of the abuse of drugs or
alcohol. | ||
The Office of the State's Attorneys
Appellate Prosecutor | ||
shall not receive distribution from cases brought in
| ||
counties with over 3,000,000 population.
| ||
(3) 10% shall be retained by the Department of State | ||
Police for expenses
related to the administration and sale | ||
of seized and forfeited property.
| ||
(h) Species of plants from which controlled substances in | ||
Schedules I
and II may be derived which have been planted or | ||
cultivated in violation of
this Act, or of which the owners or | ||
cultivators are unknown, or which are
wild growths, may be | ||
seized and summarily forfeited to the State. The
failure, upon | ||
demand by the Director or any peace officer, of the person in
|
occupancy or in control of land or premises upon which the | ||
species of
plants are growing or being stored, to produce | ||
registration, or proof that
he or she is the holder thereof, | ||
constitutes authority for the seizure and
forfeiture of the | ||
plants.
| ||
(Source: P.A. 99-686, eff. 7-29-16.)
| ||
(Text of Section after amendment by P.A. 100-512 )
| ||
Sec. 505. (a) The following are subject to forfeiture:
| ||
(1) (blank);
| ||
(2) all raw materials, products , and equipment of any | ||
kind which are
used, or intended for use in manufacturing, | ||
distributing, dispensing,
administering or possessing any | ||
substance in violation of this Act;
| ||
(3) all conveyances, including aircraft, vehicles , or | ||
vessels, which are
used, or intended for use, to transport, | ||
or in any manner to facilitate
the transportation, sale, | ||
receipt, possession, or concealment of substances | ||
manufactured, distributed, dispensed, or possessed in | ||
violation of this Act, or property
described in paragraph | ||
paragraphs (2) of this subsection (a), but:
| ||
(i) no conveyance used by any person as a common | ||
carrier in the
transaction of business as a common | ||
carrier is subject to forfeiture under
this Section | ||
unless it appears that the owner or other person in | ||
charge of
the conveyance is a consenting party or privy |
to a violation of this Act;
| ||
(ii) no conveyance is subject to forfeiture under | ||
this Section by reason
of any act or omission which the | ||
owner proves to have been committed or
omitted without | ||
his or her knowledge or consent;
| ||
(iii) a forfeiture of a conveyance encumbered by a | ||
bona fide security
interest is subject to the interest | ||
of the secured party if he or she neither had
knowledge | ||
of nor consented to the act or omission;
| ||
(4) all money, things of value, books, records, and | ||
research
products and materials including formulas, | ||
microfilm, tapes, and data which
are used, or intended to | ||
be used in violation of this Act;
| ||
(5) everything of value furnished, or intended to be | ||
furnished, in
exchange for a substance in violation of this | ||
Act, all proceeds traceable
to such an exchange, and all | ||
moneys, negotiable instruments, and securities
used, or | ||
intended to be used, to commit or in any manner to | ||
facilitate
any violation of this Act;
| ||
(6) all real property, including any right, title, and | ||
interest
(including, but not limited to, any leasehold | ||
interest or the beneficial
interest in a land trust) in the | ||
whole of any lot or tract of land and any
appurtenances or | ||
improvements, which is used or intended to be used, in any
| ||
manner or part, to commit, or in any manner to facilitate | ||
the commission
of, any violation or act that constitutes a |
violation of Section 401 or 405
of this Act or that is the | ||
proceeds of any violation or act that
constitutes a | ||
violation of Section 401 or 405 of this Act.
| ||
(b) Property subject to forfeiture under this Act may be | ||
seized under the Drug Asset Forfeiture Procedure Act. In the | ||
event of seizure, forfeiture proceedings shall be instituted | ||
under the Drug Asset Forfeiture Procedure Act.
| ||
(c) Forfeiture under this Act is subject to subject to an | ||
8th Amendment amendment to the United States Constitution | ||
disproportionate penalties analysis as provided under Section | ||
9.5 of the Drug Asset Forfeiture Procedure Act.
| ||
(d) With regard to possession of controlled substances | ||
offenses only, a sum of currency with a value of less than $500 | ||
shall not be subject to forfeiture under this Act. For all | ||
other offenses under this Act, a sum of currency with a value | ||
of less than currency with a value of under $100 shall not be | ||
subject to forfeiture under this Act. In seizures of currency | ||
in excess of these amounts, this Section shall not create an | ||
exemption for these amounts.
| ||
(d-5) For felony offenses involving possession of | ||
controlled substances only, no property shall be subject to | ||
forfeiture under this Act because of the possession of less | ||
than 2 single unit doses of a controlled substance. This | ||
exemption shall not apply in instances when the possessor, or | ||
another person at the direction of the possessor, engaged in | ||
the destruction of any amount of a controlled substance. The |
amount of a single unit dose shall be the State's burden to | ||
prove in its their case in chief. | ||
(e) If the Department of Financial and Professional | ||
Regulation suspends or revokes
a registration, all controlled | ||
substances owned or possessed by the
registrant at the time of | ||
suspension or the effective date of the
revocation order may be | ||
placed under seal by the Director. No disposition may be made | ||
of
substances under seal until the time for taking an appeal | ||
has elapsed or
until all appeals have been concluded unless a | ||
court, upon application
therefor, orders the sale of perishable | ||
substances and the deposit of the
proceeds of the sale with the | ||
court. Upon a suspension or revocation order becoming final,
| ||
all substances are subject to seizure and forfeiture under the | ||
Drug Asset Forfeiture Procedure Act.
| ||
(f) (Blank).
| ||
(g) (Blank).
| ||
(h) (Blank).
| ||
(i) Contraband, including controlled substances possessed | ||
without authorization under State or federal law, is not | ||
subject to forfeiture. No property right exists in contraband. | ||
Contraband is subject to seizure and shall be disposed of | ||
according to State law. | ||
(j) The changes made to this Section by Public Act 100-0512 | ||
and this amendatory Act of the 100th General Assembly only | ||
apply to property seized on and after July 1, 2018. | ||
(k) The changes made to this Section by this amendatory Act |
of the 100th General Assembly are subject to Section 4 of the | ||
Statute on Statutes. | ||
(Source: P.A. 99-686, eff. 7-29-16; 100-512, eff. 7-1-18.)
| ||
Section 35. The Methamphetamine Control and Community | ||
Protection Act is amended by changing Section 85 as follows: | ||
(720 ILCS 646/85) | ||
(Text of Section before amendment by P.A. 100-512 )
| ||
Sec. 85. Forfeiture. | ||
(a) The following are subject to forfeiture:
| ||
(1) all substances containing methamphetamine which | ||
have
been produced, manufactured, delivered, or possessed | ||
in violation of this Act;
| ||
(2) all methamphetamine manufacturing materials which | ||
have
been produced, delivered, or possessed in connection | ||
with any substance containing methamphetamine in violation | ||
of this Act;
| ||
(3) all conveyances, including aircraft, vehicles or
| ||
vessels, which are used, or intended for use, to transport, | ||
or in any manner to facilitate the transportation, sale, | ||
receipt, possession, or concealment of property described | ||
in paragraph (1) or (2) that constitutes a felony violation | ||
of the Act, but:
| ||
(i) no conveyance used by any person as a common
| ||
carrier in the transaction of business as a common |
carrier is subject to forfeiture under this Section | ||
unless it appears that the owner or other person in | ||
charge of the conveyance is a consenting party or privy | ||
to a violation of this Act;
| ||
(ii) no conveyance is subject to forfeiture
under | ||
this Section by reason of any act or omission which the | ||
owner proves to have been committed or omitted without | ||
his or her knowledge or consent;
| ||
(iii) a forfeiture of a conveyance encumbered by
a | ||
bona fide security interest is subject to the interest | ||
of the secured party if he or she neither had knowledge | ||
of nor consented to the act or omission;
| ||
(4) all money, things of value, books, records, and
| ||
research products and materials including formulas, | ||
microfilm, tapes, and data which are used, or intended for | ||
use in a felony violation of this Act;
| ||
(5) everything of value furnished or intended to be
| ||
furnished by any person in exchange for a substance in | ||
violation of this Act, all proceeds traceable to such an | ||
exchange, and all moneys, negotiable instruments, and | ||
securities used, or intended to be used, to commit or in | ||
any manner to facilitate any felony violation of this Act.
| ||
(6) all real property, including any right, title, and | ||
interest (including, but not limited to, any leasehold | ||
interest or the beneficial interest in a land trust) in the | ||
whole of any lot or tract of land and any appurtenances or |
improvements, which is used, or intended to be used, in any | ||
manner or part, to commit, or in any manner to facilitate | ||
the commission of, any violation or act that constitutes a | ||
violation of this Act or that is the proceeds of any | ||
violation or act that constitutes a violation of this Act.
| ||
(b) Property subject to forfeiture under this Act may be | ||
seized by the Director or any peace officer upon process or | ||
seizure warrant issued by any court having jurisdiction over | ||
the property. Seizure by the Director or any peace officer | ||
without process may be made:
| ||
(1) if the property subject to seizure has been the
| ||
subject of a prior judgment in favor of the State in a | ||
criminal proceeding or in an injunction or forfeiture | ||
proceeding based upon this Act or the Drug Asset Forfeiture | ||
Procedure Act;
| ||
(2) if there is probable cause to believe that the
| ||
property is directly or indirectly dangerous to health or | ||
safety;
| ||
(3) if there is probable cause to believe that the
| ||
property is subject to forfeiture under this Act and the | ||
property is seized under circumstances in which a | ||
warrantless seizure or arrest would be reasonable; or
| ||
(4) in accordance with the Code of Criminal
Procedure | ||
of 1963.
| ||
(c) In the event of seizure pursuant to subsection (b), | ||
notice shall be given forthwith to all known interest holders |
that forfeiture proceedings, including a preliminary review, | ||
shall be instituted in accordance with the Drug Asset | ||
Forfeiture Procedure Act and such proceedings shall thereafter | ||
be instituted in accordance with that Act. Upon a showing of | ||
good cause, the notice required for a preliminary review under | ||
this Section may be postponed.
| ||
(d) Property taken or detained under this Section is not | ||
subject to replevin, but is deemed to be in the custody of the | ||
Director subject only to the order and judgments of the circuit | ||
court having jurisdiction over the forfeiture proceedings and | ||
the decisions of the State's Attorney under the Drug Asset | ||
Forfeiture Procedure Act. When property is seized under this | ||
Act, the seizing agency shall promptly conduct an inventory of | ||
the seized property, estimate the property's value, and forward | ||
a copy of the inventory of seized property and the estimate of | ||
the property's value to the Director. Upon receiving notice of | ||
seizure, the Director may:
| ||
(1) place the property under seal;
| ||
(2) remove the property to a place designated by him or | ||
her;
| ||
(3) keep the property in the possession of the
seizing | ||
agency;
| ||
(4) remove the property to a storage area for
| ||
safekeeping or, if the property is a negotiable instrument | ||
or money and is not needed for evidentiary purposes, | ||
deposit it in an interest bearing account;
|
(5) place the property under constructive seizure by
| ||
posting notice of pending forfeiture on it, by giving | ||
notice of pending forfeiture to its owners and interest | ||
holders, or by filing notice of pending forfeiture in any | ||
appropriate public record relating to the property; or
| ||
(6) provide for another agency or custodian,
including | ||
an owner, secured party, or lienholder, to take custody of | ||
the property upon the terms and conditions set by the | ||
Director.
| ||
(e) No disposition may be made of property under seal until | ||
the time for taking an appeal has elapsed or until all appeals | ||
have been concluded unless a court, upon application therefor, | ||
orders the sale of perishable substances and the deposit of the | ||
proceeds of the sale with the court.
| ||
(f) When property is forfeited under this Act, the Director | ||
shall sell the property unless the property is required by law | ||
to be destroyed or is harmful to the public, and shall | ||
distribute the proceeds of the sale, together with any moneys | ||
forfeited or seized, in accordance with subsection (g). | ||
However, upon the application of the seizing agency or | ||
prosecutor who was responsible for the investigation, arrest or | ||
arrests and prosecution which lead to the forfeiture, the | ||
Director may return any item of forfeited property to the | ||
seizing agency or prosecutor for official use in the | ||
enforcement of laws relating to methamphetamine, cannabis, or | ||
controlled substances, if the agency or prosecutor |
demonstrates that the item requested would be useful to the | ||
agency or prosecutor in their enforcement efforts. When any | ||
forfeited conveyance, including an aircraft, vehicle, or | ||
vessel, is returned to the seizing agency or prosecutor, the | ||
conveyance may be used immediately in the enforcement of the | ||
criminal laws of this State. Upon disposal, all proceeds from | ||
the sale of the conveyance must be used for drug enforcement | ||
purposes. When any real property returned to the seizing agency | ||
is sold by the agency or its unit of government, the proceeds | ||
of the sale shall be delivered to the Director and distributed | ||
in accordance with subsection (g).
| ||
(g) All moneys and the sale proceeds of all other property | ||
forfeited and seized under this Act shall be distributed as | ||
follows:
| ||
(1)(i) 65% shall be distributed to the metropolitan
| ||
enforcement group, local, municipal, county, or State law | ||
enforcement agency or agencies which conducted or | ||
participated in the investigation resulting in the | ||
forfeiture. The distribution shall bear a reasonable | ||
relationship to the degree of direct participation of the | ||
law enforcement agency in the effort resulting in the | ||
forfeiture, taking into account the total value of the | ||
property forfeited and the total law enforcement effort | ||
with respect to the violation of the law upon which the | ||
forfeiture is based. Amounts distributed to the agency or | ||
agencies shall be used for the enforcement of laws |
governing methamphetamine, cannabis, and controlled | ||
substances; for public education in the community or | ||
schools in the
prevention or detection of the abuse of | ||
drugs or
alcohol; or for security cameras used for the | ||
prevention or detection of violence, except that amounts | ||
distributed to the Secretary of State shall be deposited | ||
into the Secretary of State Evidence Fund to be used as | ||
provided in Section 2-115 of the Illinois Vehicle Code.
| ||
(ii) Any local, municipal, or county law enforcement | ||
agency entitled to receive a monetary distribution of | ||
forfeiture proceeds may share those forfeiture proceeds | ||
pursuant to the terms of an intergovernmental agreement | ||
with a municipality that has a population in excess of | ||
20,000 if: | ||
(I) the receiving agency has entered into an | ||
intergovernmental agreement with the municipality to | ||
provide police services; | ||
(II) the intergovernmental agreement for police | ||
services provides for consideration in an amount of not | ||
less than $1,000,000 per year; | ||
(III) the seizure took place within the | ||
geographical limits of the municipality; and | ||
(IV) the funds are used only for the enforcement
of | ||
laws governing cannabis and controlled substances; for | ||
public education in the community or schools in the
| ||
prevention or detection of the abuse of drugs or
|
alcohol; or
for security cameras used for the | ||
prevention or detection
of violence or the | ||
establishment of a municipal police
force, including | ||
the training of officers, construction of
a police | ||
station, the purchase of law enforcement
equipment, or | ||
vehicles. | ||
(2)(i) 12.5% shall be distributed to the Office of
the | ||
State's Attorney of the county in which the prosecution | ||
resulting in the forfeiture was instituted, deposited in a | ||
special fund in the county treasury and appropriated to the | ||
State's Attorney for use in the enforcement of laws | ||
governing methamphetamine, cannabis, and controlled | ||
substances; for public education in the community or | ||
schools in the
prevention or detection of the abuse of | ||
drugs or
alcohol; or at the discretion of the State's | ||
Attorney, in addition to other authorized purposes, to make | ||
grants to local substance abuse treatment facilities and | ||
half-way houses. In counties with a population over | ||
3,000,000, 25% shall be distributed to the Office of the | ||
State's Attorney for use in the enforcement of laws | ||
governing methamphetamine, cannabis, and controlled | ||
substances; for public education in the community or | ||
schools in the
prevention or detection of the abuse of | ||
drugs or
alcohol; or at the discretion of the State's | ||
Attorney, in addition to other authorized purposes, to make | ||
grants to local substance abuse treatment facilities and |
half-way houses. If the prosecution is undertaken solely by | ||
the Attorney General, the portion provided hereunder shall | ||
be distributed to the Attorney General for use in the | ||
enforcement of laws governing methamphetamine, cannabis, | ||
and controlled substances or for public education in the | ||
community or schools in the
prevention or detection of the | ||
abuse of drugs or
alcohol.
| ||
(ii) 12.5% shall be distributed to the Office of
the | ||
State's Attorneys Appellate Prosecutor and deposited in | ||
the Narcotics Profit Forfeiture Fund of that Office to be | ||
used for additional expenses incurred in the | ||
investigation, prosecution and appeal of cases arising | ||
under laws governing methamphetamine, cannabis, and | ||
controlled substances or for public education in the | ||
community or schools in the
prevention or detection of the | ||
abuse of drugs or
alcohol. The Office of the State's | ||
Attorneys Appellate Prosecutor shall not receive | ||
distribution from cases brought in counties with a | ||
population over 3,000,000.
| ||
(3) 10% shall be retained by the Department of State
| ||
Police for expenses related to the administration and sale | ||
of seized and forfeited property.
| ||
(Source: P.A. 99-686, eff. 7-29-16.) | ||
(Text of Section after amendment by P.A. 100-512 ) | ||
Sec. 85. Forfeiture. |
(a) The following are subject to forfeiture:
| ||
(1) (blank);
| ||
(2) all methamphetamine manufacturing materials which | ||
have
been produced, delivered, or possessed in connection | ||
with any substance containing methamphetamine in violation | ||
of this Act;
| ||
(3) all conveyances, including aircraft, vehicles , or
| ||
vessels, which are used, or intended for use, to transport, | ||
or in any manner to facilitate the transportation, sale, | ||
receipt, possession, or concealment of any substance | ||
containing methamphetamine or property described in | ||
paragraph (2) of this subsection (a) that constitutes a | ||
felony violation of the Act, but:
| ||
(i) no conveyance used by any person as a common
| ||
carrier in the transaction of business as a common | ||
carrier is subject to forfeiture under this Section | ||
unless it appears that the owner or other person in | ||
charge of the conveyance is a consenting party or privy | ||
to the violation;
| ||
(ii) no conveyance is subject to forfeiture
under | ||
this Section by reason of any act or omission which the | ||
owner proves to have been committed or omitted without | ||
his or her knowledge or consent;
| ||
(iii) a forfeiture of a conveyance encumbered by
a | ||
bona fide security interest is subject to the interest | ||
of the secured party if he or she neither had knowledge |
of nor consented to the act or omission;
| ||
(4) all money, things of value, books, records, and
| ||
research products and materials including formulas, | ||
microfilm, tapes, and data which are used, or intended for | ||
use in a felony violation of this Act;
| ||
(5) everything of value furnished or intended to be
| ||
furnished by any person in exchange for a substance in | ||
violation of this Act, all proceeds traceable to such an | ||
exchange, and all moneys, negotiable instruments, and | ||
securities used, or intended to be used, to commit or in | ||
any manner to facilitate any felony violation of this Act ; | ||
.
| ||
(6) all real property, including any right, title, and | ||
interest (including, but not limited to, any leasehold | ||
interest or the beneficial interest in a land trust) in the | ||
whole of any lot or tract of land and any appurtenances or | ||
improvements, which is used, or intended to be used, in any | ||
manner or part, to commit, or in any manner to facilitate | ||
the commission of, any violation or act that constitutes a | ||
violation of this Act or that is the proceeds of any | ||
violation or act that constitutes a violation of this Act.
| ||
(b) Property subject to forfeiture under this Act may be | ||
seized under the Drug Asset Forfeiture Procedure Act. In the | ||
event of seizure, forfeiture proceedings shall be instituted | ||
under the Drug Asset Forfeiture Procedure Act.
| ||
(c) Forfeiture under this Act is subject to subject to an |
8th Amendment amendment to the United States Constitution | ||
disproportionate penalties analysis as provided under Section | ||
9.5 of the Drug Asset Forfeiture Procedure Act.
| ||
(d) With regard to possession of methamphetamine offenses | ||
only, a sum of currency with a value of less than $500 shall | ||
not be subject to forfeiture under this Act. For all other | ||
offenses under this Act, a sum of currency with a value of less | ||
than under $100 shall not be subject to forfeiture under this | ||
Act.
In seizures of currency in excess of these amounts, this | ||
Section shall not create an exemption for these amounts. | ||
(e) For felony offenses involving possession of a substance | ||
containing methamphetamine only, no property shall be subject | ||
to forfeiture under this Act because of the possession of less | ||
than 2 single unit doses of a substance. This exemption shall | ||
not apply in instances when the possessor, or another person at | ||
the direction of the possessor, is engaged in the destruction | ||
of any amount of a substance containing methamphetamine. The | ||
amount of a single unit dose shall be the State's burden to | ||
prove in its their case in chief.
| ||
(f) (Blank).
| ||
(g) (Blank).
| ||
(h) Contraband, including methamphetamine or any | ||
controlled substance possessed without authorization under | ||
State or federal law, is not subject to forfeiture. No property | ||
right exists in contraband. Contraband is subject to seizure | ||
and shall be disposed of according to State law. |
(i) The changes made to this Section by Public Act 100-0512 | ||
and this amendatory Act of the 100th General Assembly only | ||
apply to property seized on and after July 1, 2018. | ||
(j) The changes made to this Section by this amendatory Act | ||
of the 100th General Assembly are subject to Section 4 of the | ||
Statute on Statutes. | ||
(Source: P.A. 99-686, eff. 7-29-16; 100-512, eff. 7-1-18.) | ||
Section 40. The Drug Asset Forfeiture Procedure Act is | ||
amended by changing Sections 3.1, 3.3, 3.5, 4, 5, 5.1, 6, 7, 8, | ||
9, 9.1, and 11, by adding Section 13.4, renumbering and | ||
changing Sections 15 and 17, and renumbering Section 20 as | ||
follows: | ||
(725 ILCS 150/3.1) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 3.1. Seizure. | ||
(a) Actual physical seizure of real property subject to | ||
forfeiture under this Act requires the issuance of a seizure | ||
warrant. Nothing in this Section prohibits the constructive | ||
seizure of real property through the filing of a complaint for | ||
forfeiture in circuit court and the recording of a lis pendens | ||
against the real property without a hearing, warrant | ||
application, or judicial approval. | ||
(b) Personal property subject to forfeiture under the |
Illinois Controlled Substances Act, the Cannabis Control Act, | ||
the Illinois Food, Drug and Cosmetic Act, or the | ||
Methamphetamine Control and Community Protection Act may be | ||
seized by the Director of State Police or any peace officer | ||
upon process or seizure warrant issued by any court having | ||
jurisdiction over the property. | ||
(c) Personal property subject to forfeiture under the | ||
Illinois Controlled Substances Act, the Cannabis Control Act, | ||
the Illinois Food, Drug and Cosmetic Act, or the | ||
Methamphetamine Control and Community Protection Act may be | ||
seized by the Director of State Police or any peace officer | ||
without process: | ||
(1) if the seizure is incident to inspection under an | ||
administrative inspection warrant; | ||
(2) if the property subject to seizure has been the | ||
subject of a prior judgment in favor of the State in a | ||
criminal proceeding or in an injunction or forfeiture | ||
proceeding based upon this Act; | ||
(3) if there is probable cause to believe that the | ||
property is directly or indirectly dangerous to health or | ||
safety; | ||
(4) if there is probable cause to believe that the | ||
property is subject to forfeiture under the Illinois | ||
Controlled Substances Act, the Cannabis Control Act, the | ||
Illinois Food, Drug and Cosmetic Act, or the | ||
Methamphetamine Control and Community Protection Act, and |
the property is seized under circumstances in which a | ||
warrantless seizure or arrest would be reasonable; or | ||
(5) under the Code of Criminal Procedure of 1963. | ||
(d) If a conveyance is seized under this Act, an | ||
investigation shall be made by the law enforcement agency as to | ||
any person whose right, title, interest, or lien is of record | ||
in the office of the agency or official in which title to or | ||
interest in to the conveyance is required by law to be | ||
recorded. | ||
(e) After seizure under this Section, notice shall be given | ||
to all known interest holders that forfeiture proceedings, | ||
including a preliminary review, may be instituted and the | ||
proceedings may be instituted under this Act. Upon a showing of | ||
good cause related to an ongoing investigation, the notice | ||
required for a preliminary review under this Section may be | ||
postponed.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(725 ILCS 150/3.3) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 3.3. Safekeeping of seized property pending | ||
disposition. | ||
(a) Property seized under this Act is deemed to be in the | ||
custody of the Director of State Police , subject only to the | ||
order and judgments of the circuit court having jurisdiction |
over the forfeiture proceedings and the decisions of the | ||
State's Attorney under this Act. | ||
(b) If property is seized under this Act, the seizing | ||
agency shall promptly conduct an inventory of the seized | ||
property and estimate the property's value, and shall forward a | ||
copy of the inventory of seized property and the estimate of | ||
the property's value to the Director of State Police. Upon | ||
receiving notice of seizure, the Director of State Police may: | ||
(1) place the property under seal; | ||
(2) remove the property to a place designated by the | ||
seizing agency; | ||
(3) keep the property in the possession of the Director | ||
of State Police; | ||
(4) remove the property to a storage area for | ||
safekeeping; or | ||
(5) place the property under constructive seizure by | ||
posting notice of pending forfeiture on it, by giving | ||
notice of pending forfeiture to its owners and interest | ||
holders, or by filing notice of pending forfeiture in any | ||
appropriate public record relating to the property; or | ||
(6) provide for another agency or custodian, including | ||
an owner, secured party, or lienholder, to take custody of | ||
the property upon the terms and conditions set by the | ||
seizing agency. | ||
(c) The seizing agency is required to exercise ordinary | ||
care to protect the seized property from negligent loss, |
damage, or destruction.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(725 ILCS 150/3.5) | ||
(Text of Section before amendment by P.A. 100-512 ) | ||
Sec. 3.5. Preliminary review. | ||
(a) Within 14 days of the seizure, the State shall seek a | ||
preliminary determination from the circuit court as to whether | ||
there is probable cause that the property may be subject to | ||
forfeiture. | ||
(b) The rules of evidence shall not apply to any proceeding | ||
conducted under this Section. | ||
(c) The court may conduct the review under subsection (a) | ||
simultaneously with a proceeding pursuant to Section 109-1 of | ||
the Code of Criminal Procedure of 1963 for a related criminal | ||
offense if a prosecution is commenced by information or | ||
complaint. | ||
(d) The court may accept a finding of probable cause at a | ||
preliminary hearing following the filing of an information or | ||
complaint charging a related criminal offense or following the | ||
return of indictment by a grand jury charging the related | ||
offense as sufficient evidence of probable cause as required | ||
under subsection (a). | ||
(e) Upon making a finding of probable cause as required | ||
under this Section, the circuit court shall order the property | ||
subject to the provisions of the applicable forfeiture Act held |
until the conclusion of any forfeiture proceeding. | ||
For seizures of conveyances, within 7 days of a finding of | ||
probable cause under subsection (a), the registered owner or | ||
other claimant may file a motion in writing supported by sworn | ||
affidavits claiming that denial of the use of the conveyance | ||
during the pendency of the forfeiture proceedings creates a | ||
substantial hardship. The court shall consider the following | ||
factors in determining whether a substantial hardship has been | ||
proven: | ||
(1) the nature of the claimed hardship; | ||
(2) the availability of public transportation or other | ||
available means of transportation; and | ||
(3) any available alternatives to alleviate the | ||
hardship other than the return of the seized conveyance. | ||
If the court determines that a substantial hardship has | ||
been proven, the court shall then balance the nature of the | ||
hardship against the State's interest in safeguarding the | ||
conveyance. If the court determines that the hardship outweighs | ||
the State's interest in safeguarding the conveyance, the court | ||
may temporarily release the conveyance to the registered owner | ||
or the registered owner's authorized designee, or both, until | ||
the conclusion of the forfeiture proceedings or for such | ||
shorter period as ordered by the court provided that the person | ||
to whom the conveyance is released provides proof of insurance | ||
and a valid driver's license and all State and local | ||
registrations for operation of the conveyance are current. The |
court shall place conditions on the conveyance limiting its use | ||
to the stated hardship and restricting the conveyance's use to | ||
only those individuals authorized to use the conveyance by the | ||
registered owner. The court shall revoke the order releasing | ||
the conveyance and order that the conveyance be reseized by law | ||
enforcement if the conditions of release are violated or if the | ||
conveyance is used in the commission of any offense identified | ||
in subsection (a) of Section 6-205 of the Illinois Vehicle | ||
Code. | ||
If the court orders the release of the conveyance during | ||
the pendency of the forfeiture proceedings, the registered | ||
owner or his or her authorized designee shall post a cash | ||
security with the Clerk of the Court as ordered by the court. | ||
The court shall consider the following factors in determining | ||
the amount of the cash security: | ||
(A) the full market value of the conveyance; | ||
(B) the nature of the hardship; | ||
(C) the extent and length of the usage of the | ||
conveyance; and | ||
(D) such other conditions as the court deems necessary | ||
to safeguard the conveyance. | ||
If the conveyance is released, the court shall order that | ||
the registered owner or his or her designee safeguard the | ||
conveyance, not remove the conveyance from the jurisdiction, | ||
not conceal, destroy, or otherwise dispose of the conveyance, | ||
not encumber the conveyance, and not diminish the value of the |
conveyance in any way. The court shall also make a | ||
determination of the full market value of the conveyance prior | ||
to it being released based on a source or sources defined in 50 | ||
Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). | ||
If the conveyance subject to forfeiture is released under | ||
this Section and is subsequently forfeited, the person to whom | ||
the conveyance was released shall return the conveyance to the | ||
law enforcement agency that seized the conveyance within 7 days | ||
from the date of the declaration of forfeiture or order of | ||
forfeiture. If the conveyance is not returned within 7 days, | ||
the cash security shall be forfeited in the same manner as the | ||
conveyance subject to forfeiture. If the cash security was less | ||
than the full market value, a judgment shall be entered against | ||
the parties to whom the conveyance was released and the | ||
registered owner, jointly and severally, for the difference | ||
between the full market value and the amount of the cash | ||
security. If the conveyance is returned in a condition other | ||
than the condition in which it was released, the cash security | ||
shall be returned to the surety who posted the security minus | ||
the amount of the diminished value, and that amount shall be | ||
forfeited in the same manner as the conveyance subject to | ||
forfeiture. Additionally, the court may enter an order allowing | ||
any law enforcement agency in the State of Illinois to seize | ||
the conveyance wherever it may be found in the State to satisfy | ||
the judgment if the cash security was less than the full market | ||
value of the conveyance.
|
(Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12.) | ||
(Text of Section after amendment by P.A. 100-512 ) | ||
Sec. 3.5. Preliminary review. | ||
(a) Within 14 days of the seizure, the State shall seek a | ||
preliminary determination from the circuit court as to whether | ||
there is probable cause that the property may be subject to | ||
forfeiture. | ||
(b) The rules of evidence shall not apply to any proceeding | ||
conducted under this Section. | ||
(c) The court may conduct the review under subsection (a) | ||
of this Section simultaneously with a proceeding under pursuant | ||
to Section 109-1 of the Code of Criminal Procedure of 1963 for | ||
a related criminal offense if a prosecution is commenced by | ||
information or complaint. | ||
(d) The court may accept a finding of probable cause at a | ||
preliminary hearing following the filing of an information or | ||
complaint charging a related criminal offense or following the | ||
return of indictment by a grand jury charging the related | ||
offense as sufficient evidence of probable cause as required | ||
under subsection (a) of this Section . | ||
(e) Upon making a finding of probable cause as required | ||
under this Section, the circuit court shall order the property | ||
subject to the provisions of the applicable forfeiture Act held | ||
until the conclusion of any forfeiture proceeding. | ||
For seizures of conveyances, within 28 days after a finding |
of probable cause under subsection (a) of this Section , the | ||
registered owner or other claimant may file a motion in writing | ||
supported by sworn affidavits claiming that denial of the use | ||
of the conveyance during the pendency of the forfeiture | ||
proceedings creates a substantial hardship and alleges facts | ||
showing that the hardship delay was not due to his or her | ||
culpable negligence. The court shall consider the following | ||
factors in determining whether a substantial hardship has been | ||
proven: | ||
(1) the nature of the claimed hardship; | ||
(2) the availability of public transportation or other | ||
available means of transportation; and | ||
(3) any available alternatives to alleviate the | ||
hardship other than the return of the seized conveyance. | ||
If the court determines that a substantial hardship has | ||
been proven, the court shall then balance the nature of the | ||
hardship against the State's interest in safeguarding the | ||
conveyance. If the court determines that the hardship outweighs | ||
the State's interest in safeguarding the conveyance, the court | ||
may temporarily release the conveyance to the registered owner | ||
or the registered owner's authorized designee, or both, until | ||
the conclusion of the forfeiture proceedings or for such | ||
shorter period as ordered by the court provided that the person | ||
to whom the conveyance is released provides proof of insurance | ||
and a valid driver's license and all State and local | ||
registrations for operation of the conveyance are current. The |
court shall place conditions on the conveyance limiting its use | ||
to the stated hardship and providing transportation for | ||
employment, religious purposes, medical needs, child care, and | ||
obtaining food, and restricting the conveyance's use to only | ||
those individuals authorized to use the conveyance by the | ||
registered owner. The use of the vehicle shall be further | ||
restricted to exclude all recreational and entertainment | ||
purposes. The court may order any additional restrictions it | ||
deems reasonable and just on its own motion or on motion of the | ||
People. The court shall revoke the order releasing the | ||
conveyance and order that the conveyance be reseized by law | ||
enforcement if the conditions of release are violated or if the | ||
conveyance is used in the commission of any offense identified | ||
in subsection (a) of Section 6-205 of the Illinois Vehicle | ||
Code. | ||
If the court orders the release of the conveyance during | ||
the pendency of the forfeiture proceedings, the court may order | ||
the registered owner or his or her authorized designee to post | ||
a cash security with the clerk Clerk of the court Court as | ||
ordered by the court. If cash security is ordered, the court | ||
shall consider the following factors in determining the amount | ||
of the cash security: | ||
(A) the full market value of the conveyance; | ||
(B) the nature of the hardship; | ||
(C) the extent and length of the usage of the | ||
conveyance; |
(D) the ability of the owner or designee to pay; and | ||
(E) other conditions as the court deems necessary to | ||
safeguard the conveyance. | ||
If the conveyance is released, the court shall order that | ||
the registered owner or his or her designee safeguard the | ||
conveyance, not remove the conveyance from the jurisdiction, | ||
not conceal, destroy, or otherwise dispose of the conveyance, | ||
not encumber the conveyance, and not diminish the value of the | ||
conveyance in any way. The court shall also make a | ||
determination of the full market value of the conveyance prior | ||
to it being released based on a source or sources defined in 50 | ||
Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). | ||
If the conveyance subject to forfeiture is released under | ||
this Section and is subsequently forfeited, the person to whom | ||
the conveyance was released shall return the conveyance to the | ||
law enforcement agency that seized the conveyance within 7 days | ||
from the date of the declaration of forfeiture or order of | ||
forfeiture. If the conveyance is not returned within 7 days, | ||
the cash security shall be forfeited in the same manner as the | ||
conveyance subject to forfeiture. If the cash security was less | ||
than the full market value, a judgment shall be entered against | ||
the parties to whom the conveyance was released and the | ||
registered owner, jointly and severally, for the difference | ||
between the full market value and the amount of the cash | ||
security. If the conveyance is returned in a condition other | ||
than the condition in which it was released, the cash security |
shall be returned to the surety who posted the security minus | ||
the amount of the diminished value, and that amount shall be | ||
forfeited in the same manner as the conveyance subject to | ||
forfeiture. Additionally, the court may enter an order allowing | ||
any law enforcement agency in the State of Illinois to seize | ||
the conveyance wherever it may be found in the State to satisfy | ||
the judgment if the cash security was less than the full market | ||
value of the conveyance.
| ||
(Source: P.A. 100-512, eff. 7-1-18.)
| ||
(725 ILCS 150/4) (from Ch. 56 1/2, par. 1674)
| ||
(Text of Section before amendment by P.A. 100-512 )
| ||
Sec. 4. Notice to owner or interest holder.
| ||
(A) Whenever notice of pending forfeiture or service of an | ||
in rem
complaint is required under the provisions of this Act, | ||
such notice or
service shall be given as follows:
| ||
(1) If the owner's or interest holder's name and | ||
current address are
known, then by either personal service | ||
or mailing a copy of the notice by
certified mail, return | ||
receipt requested, to that address. For purposes of
notice | ||
under this Section, if a person has been arrested for the | ||
conduct
giving rise to the forfeiture, then the address | ||
provided to the arresting
agency at the time of arrest | ||
shall be deemed to be that person's known
address. | ||
Provided, however, if an owner or interest holder's address
| ||
changes prior to the effective date of the notice of |
pending forfeiture,
the owner or interest holder shall | ||
promptly notify the seizing agency of
the change in address | ||
or, if the owner or interest holder's address changes
| ||
subsequent to the effective date of the notice of pending | ||
forfeiture, the
owner or interest holder shall promptly | ||
notify the State's Attorney of the
change in address; or
| ||
(2) If the property seized is a conveyance, to the | ||
address reflected in
the office of the agency or official | ||
in which title or interest to the
conveyance is required by | ||
law to be recorded, then by mailing a copy of the
notice by | ||
certified mail, return receipt requested, to that address; | ||
or
| ||
(3) If the owner's or interest holder's address is not | ||
known, and is not
on record as provided in paragraph (2), | ||
then by publication for 3
successive weeks in a newspaper | ||
of general circulation in the county in
which the seizure | ||
occurred.
| ||
(B) Notice served under this Act is effective upon personal | ||
service,
the last date of publication, or the mailing of | ||
written notice, whichever
is earlier.
| ||
(Source: P.A. 86-1382; 87-614.)
| ||
(Text of Section after amendment by P.A. 100-512 )
| ||
Sec. 4. Notice to owner or interest holder. The first | ||
attempted service of notice shall be commenced within 28 days | ||
of the filing of the verified claim or the receipt of the |
notice from the seizing agency by Illinois State Police | ||
Notice/Inventory of Seized Property (Form 4-64) the form 4-64 , | ||
whichever occurs sooner. A complaint for forfeiture or a notice | ||
of pending forfeiture shall be served upon the property owner | ||
or interest holder in the following manner: | ||
(1) If the owner's or interest holder's name and | ||
current address are known, then by either: | ||
(A) personal service; or | ||
(B) mailing a copy of the notice by certified mail, | ||
return receipt requested , and first class mail , to that | ||
address. | ||
(i) If notice is sent by certified mail and no | ||
signed return receipt is received by the State's | ||
Attorney within 28 days of mailing, and no | ||
communication from the owner or interest holder is | ||
received by the State's Attorney documenting | ||
actual notice by said parties, then the State's | ||
Attorney shall, within a reasonable period of | ||
time, mail a second copy of the notice by certified | ||
mail, return receipt requested , and first class | ||
mail , to that address. | ||
(ii) If no signed return receipt is received by | ||
the State's Attorney within 28 days of the second | ||
attempt at service by certified mail, and no | ||
communication from the owner or interest holder is | ||
received by the State's Attorney documenting |
actual notice by said parties, then the State's | ||
Attorney shall have 60 days to attempt to serve the | ||
notice by personal service, which also includes | ||
substitute service by leaving a copy at the usual | ||
place of abode, with some person of the family or a | ||
person residing there, of the age of 13 years or | ||
upwards. If , after 3 attempts at service in this | ||
manner, no service of the notice is accomplished, | ||
then the notice shall be posted in a conspicuous | ||
manner at this address and service shall be made by | ||
posting. | ||
The attempts at service and the posting if | ||
required, shall be documented by the person | ||
attempting service and said documentation shall be | ||
made part of a return of service returned to the | ||
State's Attorney. | ||
The State's Attorney may utilize any Sheriff | ||
or Deputy Sheriff , any peace officer, a private | ||
process server or investigator, or any employee, | ||
agent, or investigator of the State's Attorney's | ||
Office to attempt service without seeking leave of | ||
court. | ||
After the procedures set forth are followed, | ||
service shall be effective on an owner or interest | ||
holder on the date of receipt by the State's | ||
Attorney of a returned return receipt requested , |
or on the date of receipt of a communication from | ||
an owner or interest holder documenting actual | ||
notice, whichever is first in time, or on the date | ||
of the last act performed by the State's Attorney | ||
in attempting personal service under subparagraph | ||
(ii) above. If notice is to be shown by actual | ||
notice from communication with a claimant, then | ||
the State's Attorney shall file an affidavit | ||
providing details of the communication, which may | ||
be accepted as sufficient proof of service by the | ||
court. | ||
After a claimant files a verified claim with | ||
the State's Attorney and provides provide an | ||
address at which the claimant they will accept | ||
service, the complaint shall be served and notice | ||
shall be perfected upon mailing of the complaint to | ||
the claimant at the address the claimant provided | ||
via certified mail, return receipt requested , and | ||
first class mail. No return receipt card need be | ||
received, or any other attempts at service need be | ||
made to comply with service and notice | ||
requirements under this Act. This certified | ||
mailing, return receipt requested , shall be proof | ||
of service of the complaint on the claimant. | ||
For purposes of notice under this Section, if a | ||
person has been arrested for the conduct giving |
rise to the forfeiture, then the address provided | ||
to the arresting agency at the time of arrest shall | ||
be deemed to be that person's known address. | ||
Provided, however, if an owner or interest | ||
holder's address changes prior to the effective | ||
date of the notice of pending forfeiture, the owner | ||
or interest holder shall promptly notify the | ||
seizing agency of the change in address or, if the | ||
owner or interest holder's address changes | ||
subsequent to the effective date of the notice of | ||
pending forfeiture, the owner or interest holder | ||
shall promptly notify the State's Attorney of the | ||
change in address; or if the property seized is a | ||
conveyance, to the address reflected in the office | ||
of the agency or official in which title to or | ||
interest in to the conveyance is required by law to | ||
be recorded. | ||
(2) If the owner's or interest holder's address is not | ||
known, and is not on record, then notice shall be served by | ||
publication for 3 successive weeks in a newspaper of | ||
general circulation in the county in which the seizure | ||
occurred. | ||
(3) After a claimant files a verified claim with the | ||
State's Attorney and provides an address at which the | ||
claimant they will accept service, the complaint shall be | ||
served and notice shall be perfected upon mailing of the |
complaint to the claimant at the address the claimant | ||
provided via certified mail, return receipt requested , and | ||
first class mail. No return receipt card need be received | ||
or any other attempts at service need be made to comply | ||
with service and notice requirements under this Act. This | ||
certified mailing, return receipt requested , shall be | ||
proof of service of the complaint on the claimant. | ||
(4) Notice to any business entity, corporation, | ||
limited liability company, limited liability partnership | ||
LLC, LLP , or partnership shall be completed complete by a | ||
single mailing of a copy of the notice by certified mail, | ||
return receipt requested , and first class mail , to that | ||
address. This notice is complete regardless of the return | ||
of a signed " return receipt requested" . | ||
(5) Notice to a person whose address is not within the | ||
State shall be completed complete by a single mailing of a | ||
copy of the notice by certified mail, return receipt | ||
requested , and first class mail , to that address. This | ||
notice is complete regardless of the return of a signed | ||
" return receipt requested" . | ||
(6) Notice to a person whose address is not within the | ||
United States shall be completed complete by a single | ||
mailing of a copy of the notice by certified mail, return | ||
receipt requested , and first class mail , to that address. | ||
This notice shall be complete regardless of the return of a | ||
signed " return receipt requested" . If certified mail is not |
available in the foreign country where the person has an | ||
address, then notice shall proceed by publication under | ||
paragraph (2) of this Section. | ||
(7) Notice to any person whom the State's Attorney | ||
reasonably should know is incarcerated within the State | ||
shall also include the mailing a copy of the notice by | ||
certified mail, return receipt requested , and first class | ||
mail , to the address of the detention facility with the | ||
inmate's name clearly marked on the envelope.
| ||
(A) (Blank).
| ||
(B) (Blank).
| ||
(Source: P.A. 100-512, eff. 7-1-18.)
| ||
(725 ILCS 150/5) (from Ch. 56 1/2, par. 1675)
| ||
(Text of Section before amendment by P.A. 100-512 )
| ||
Sec. 5. Notice to State's Attorney. The law enforcement | ||
agency
seizing property for forfeiture under the Illinois | ||
Controlled
Substances Act, the Cannabis Control Act, or the | ||
Methamphetamine Control and Community Protection Act shall,
| ||
within 52 days of seizure, notify the State's Attorney for the | ||
county in
which an act or omission giving rise to the | ||
forfeiture occurred or in which
the property was seized of the | ||
seizure of the property and the facts and
circumstances giving | ||
rise to the seizure and shall provide the State's
Attorney with | ||
the inventory of the property and its estimated value. When
the | ||
property seized for forfeiture is a vehicle, the law |
enforcement agency
seizing the property shall immediately | ||
notify the Secretary of State that
forfeiture proceedings are | ||
pending regarding such vehicle.
| ||
(Source: P.A. 94-556, eff. 9-11-05.)
| ||
(Text of Section after amendment by P.A. 100-512 )
| ||
Sec. 5. Notice to State's Attorney. The law enforcement | ||
agency
seizing property for forfeiture under the Illinois | ||
Controlled
Substances Act, the Cannabis Control Act, or the | ||
Methamphetamine Control and Community Protection Act, or the | ||
Illinois Food, Drug, and Cosmetic Act shall, as soon as | ||
practicable but not later than 28 days after the seizure, | ||
notify the State's Attorney for the county in
which an act or | ||
omission giving rise to the seizure occurred or in which
the | ||
property was seized of the seizure of the property and the | ||
facts and
circumstances giving rise to the seizure and shall | ||
provide the State's
Attorney with the inventory of the property | ||
and its estimated value. Said notice shall be by the delivery | ||
of Form the form 4-64. When
the property seized for forfeiture | ||
is a vehicle, the law enforcement agency
seizing the property | ||
shall immediately notify the Secretary of State that
forfeiture | ||
proceedings are pending regarding such vehicle.
| ||
(Source: P.A. 100-512, eff. 7-1-18.)
| ||
(725 ILCS 150/5.1) | ||
(This Section may contain text from a Public Act with a |
delayed effective date ) | ||
Sec. 5.1. Replevin prohibited; return of personal property | ||
inside seized conveyance. | ||
(a) Property seized under this Act shall not be subject to | ||
replevin, but is deemed to be in the custody of the Director of | ||
State Police , subject only to the order and judgments of the | ||
circuit court having jurisdiction over the forfeiture | ||
proceedings and the decisions of the State's Attorney. | ||
(b) A claimant or a party interested in personal property | ||
contained within a seized conveyance may file a request with | ||
the State's Attorney in an administrative forfeiture action, or | ||
a motion with the court in a judicial forfeiture action, for | ||
the return of any personal property contained within a | ||
conveyance seized under this Act. The return of personal | ||
property shall not be unreasonably withheld if the personal | ||
property is not mechanically or electrically coupled to the | ||
conveyance, needed for evidentiary purposes, or otherwise | ||
contraband. A law enforcement agency that returns property | ||
under a court order under this Section shall not be liable to | ||
any person who claims ownership to the property if the property | ||
is returned to an improper party.
| ||
(Source: P.A. 100-512, eff. 7-1-18.)
| ||
(725 ILCS 150/6) (from Ch. 56 1/2, par. 1676)
| ||
(Text of Section before amendment by P.A. 100-512 )
| ||
Sec. 6. Non-judicial forfeiture. If non-real property that |
exceeds $150,000
in value excluding the value of any | ||
conveyance, or if real property
is seized under the provisions | ||
of the Illinois Controlled Substances Act,
the Cannabis Control | ||
Act, or the Methamphetamine Control and Community Protection | ||
Act, the State's Attorney shall institute judicial in
rem | ||
forfeiture proceedings as described in Section 9 of this Act | ||
within 45
days from receipt of notice of seizure from the | ||
seizing agency under
Section 5 of this Act. However, if | ||
non-real property that does not exceed
$150,000 in value | ||
excluding the value of any conveyance is seized, the
following | ||
procedure shall be used:
| ||
(A) If, after review of the facts surrounding the | ||
seizure, the State's
Attorney is of the opinion that the | ||
seized property is subject to
forfeiture, then within 45 | ||
days of the receipt of notice of seizure from the
seizing | ||
agency, the State's Attorney shall cause notice of pending
| ||
forfeiture to be given to the owner of the property and all | ||
known interest
holders of the property in accordance with | ||
Section 4 of this Act.
| ||
(B) The notice of pending forfeiture must include a | ||
description of the
property, the estimated value of the | ||
property, the date and place of
seizure, the conduct giving | ||
rise to forfeiture or the violation of law
alleged, and a | ||
summary of procedures and procedural rights applicable to
| ||
the forfeiture action.
| ||
(C)(1) Any person claiming an interest in property |
which is the
subject of notice under subsection (A) of | ||
Section 6 of this Act, may,
within 45 days after the | ||
effective date of notice as described in Section 4
of this | ||
Act, file a verified claim with the State's Attorney | ||
expressing his
or her interest in the property. The claim | ||
must set forth:
| ||
(i) the caption of the proceedings as set forth on | ||
the notice of
pending forfeiture and the name of the | ||
claimant;
| ||
(ii) the address at which the claimant will accept | ||
mail;
| ||
(iii) the nature and extent of the claimant's | ||
interest in the property;
| ||
(iv) the date, identity of the transferor, and | ||
circumstances of the
claimant's acquisition of the | ||
interest in the property;
| ||
(v) the name and address of all other persons known | ||
to have an
interest in the property;
| ||
(vi) the specific provision of law relied on in | ||
asserting the property
is not subject to forfeiture;
| ||
(vii) all essential facts supporting each | ||
assertion; and
| ||
(viii) the relief sought.
| ||
(2) If a claimant files the claim and deposits with | ||
the State's Attorney
a cost bond, in the form of a | ||
cashier's check payable to the clerk of the
court, in the |
sum of 10 percent of the reasonable value of the property | ||
as
alleged by the State's Attorney or the sum of $100, | ||
whichever is greater,
upon condition that, in the case of | ||
forfeiture, the claimant must pay all
costs and expenses of | ||
forfeiture proceedings, then the State's Attorney
shall | ||
institute judicial in rem forfeiture proceedings and | ||
deposit the cost
bond with the clerk of the court as | ||
described in Section 9 of this Act
within 45 days after | ||
receipt of the claim and cost bond. In lieu of a cost
bond, | ||
a person claiming interest in the seized property may file, | ||
under
penalty of perjury, an indigency affidavit.
| ||
(3) If none of the seized property is forfeited in the | ||
judicial in rem
proceeding, the clerk of the court shall | ||
return to the claimant, unless the
court orders otherwise, | ||
90% of the sum which has been deposited and shall
retain as | ||
costs 10% of the money deposited. If any of the seized | ||
property
is forfeited under the judicial forfeiture | ||
proceeding, the clerk of
the court shall transfer 90% of | ||
the sum which has been deposited to the
State's Attorney | ||
prosecuting the civil forfeiture to be applied to the
costs | ||
of prosecution and the clerk shall retain as costs 10% of | ||
the sum
deposited.
| ||
(D) If no claim is filed or bond given within the 45 | ||
day period as
described in subsection (C) of Section 6 of | ||
this Act, the State's Attorney
shall declare the property | ||
forfeited and shall promptly notify the
owner and all known |
interest holders of the property and the Director of the
| ||
Illinois Department of State Police of the declaration of | ||
forfeiture and
the Director shall dispose of the property | ||
in accordance with law.
| ||
(Source: P.A. 97-544, eff. 1-1-12.)
| ||
(Text of Section after amendment by P.A. 100-512 )
| ||
Sec. 6. Non-judicial forfeiture. If non-real property that | ||
exceeds $150,000
in value excluding the value of any | ||
conveyance, or if real property
is seized under the provisions | ||
of the Illinois Controlled Substances Act,
the Cannabis Control | ||
Act, or the Methamphetamine Control and Community Protection | ||
Act, the State's Attorney shall institute judicial in
rem | ||
forfeiture proceedings as described in Section 9 of this Act | ||
within 28 45
days from receipt of notice of seizure from the | ||
seizing agency under
Section 5 of this Act. However, if | ||
non-real property that does not exceed
$150,000 in value | ||
excluding the value of any conveyance is seized, the
following | ||
procedure shall be used:
| ||
(A) If, after review of the facts surrounding the | ||
seizure, the State's
Attorney is of the opinion that the | ||
seized property is subject to
forfeiture, then within 28 45 | ||
days of the receipt of notice of seizure from the
seizing | ||
agency, the State's Attorney shall cause notice of pending
| ||
forfeiture to be given to the owner of the property and all | ||
known interest
holders of the property in accordance with |
Section 4 of this Act.
| ||
(B) The notice of pending forfeiture must include a | ||
description of the
property, the estimated value of the | ||
property, the date and place of
seizure, the conduct giving | ||
rise to forfeiture or the violation of law
alleged, and a | ||
summary of procedures and procedural rights applicable to
| ||
the forfeiture action.
| ||
(C)(1) Any person claiming an interest in property | ||
which is the
subject of notice under subsection (A) of this | ||
Section 6 of this Act, may,
within 45 days after the | ||
effective date of notice as described in Section 4
of this | ||
Act, file a verified claim with the State's Attorney | ||
expressing his
or her interest in the property. The claim | ||
must set forth:
| ||
(i) the caption of the proceedings as set forth on | ||
the notice of
pending forfeiture and the name of the | ||
claimant;
| ||
(ii) the address at which the claimant will accept | ||
mail;
| ||
(iii) the nature and extent of the claimant's | ||
interest in the property;
| ||
(iv) the date, identity of the transferor, and | ||
circumstances of the
claimant's acquisition of the | ||
interest in the property;
| ||
(v) the names and addresses name and address of all | ||
other persons known to have an
interest in the |
property;
| ||
(vi) the specific provision of law relied on in | ||
asserting the property
is not subject to forfeiture;
| ||
(vii) all essential facts supporting each | ||
assertion; and
| ||
(viii) the relief sought.
| ||
(2) If a claimant files the claim then the State's | ||
Attorney
shall institute judicial in rem forfeiture | ||
proceedings
within 28 30 days after receipt of the claim. .
| ||
(D) If no claim is filed within the 45 day period as
| ||
described in subsection (C) of this Section 6 of this Act , | ||
the State's Attorney
shall declare the property forfeited | ||
and shall promptly notify the
owner and all known interest | ||
holders of the property and the Director of the
Illinois | ||
Department of State Police of the declaration of forfeiture | ||
and
the Director shall dispose of the property in | ||
accordance with law.
| ||
(Source: P.A. 100-512, eff. 7-1-18.)
| ||
(725 ILCS 150/7) (from Ch. 56 1/2, par. 1677)
| ||
(Text of Section before amendment by P.A. 100-512 )
| ||
Sec. 7. Presumptions. The following situations shall give | ||
rise to a
presumption that the property described therein was | ||
furnished or intended
to be furnished in exchange for a | ||
substance in violation of the Illinois
Controlled Substances | ||
Act, the Cannabis Control Act, or the Methamphetamine Control |
and Community Protection Act, or is the proceeds
of such an | ||
exchange, and therefore forfeitable under this Act, such
| ||
presumptions being rebuttable by a preponderance of the | ||
evidence:
| ||
(1) All moneys, coin, or currency found in close proximity | ||
to
forfeitable substances, to forfeitable drug manufacturing | ||
or distributing
paraphernalia, or to forfeitable records of the | ||
importation, manufacture or
distribution of substances;
| ||
(2) All property acquired or caused to be acquired by a | ||
person either
between the dates of occurrence of two or more | ||
acts in felony violation of
the Illinois Controlled Substances | ||
Act, the Cannabis Control Act, or the Methamphetamine Control | ||
and Community Protection Act,
or an act committed in another | ||
state, territory or
country which would be punishable as a | ||
felony under the Illinois
Controlled Substances Act, the | ||
Cannabis Control Act, or the Methamphetamine Control and | ||
Community Protection Act, committed by that
person within 5 | ||
years of each other, or all property acquired by such
person | ||
within a reasonable amount of time after the commission of such | ||
acts if:
| ||
(a) At least one of the above acts was committed after | ||
the effective
date of this Act; and
| ||
(b) At least one of the acts is or was punishable as a | ||
Class X, Class 1,
or Class 2 felony; and
| ||
(c) There was no likely source for such property other | ||
than a violation
of the above Acts.
|
(Source: P.A. 94-556, eff. 9-11-05.)
| ||
(Text of Section after amendment by P.A. 100-512 )
| ||
Sec. 7. Presumptions and inferences. | ||
(1) The following situation shall give rise to a
| ||
presumption that the property described therein was furnished | ||
or intended
to be furnished in exchange for a substance in | ||
violation of the Illinois
Controlled Substances Act, the | ||
Cannabis Control Act, or the Methamphetamine Control and | ||
Community Protection Act, or is the proceeds
of such an | ||
exchange, and therefore forfeitable under this Act, such
| ||
presumptions being rebuttable by a preponderance of the | ||
evidence:
| ||
All moneys, coin, or currency found in close proximity to
| ||
any forfeitable substances manufactured, distributed, | ||
dispensed, or possessed in violation of the Illinois
Controlled | ||
Substances Act, the Cannabis Control Act, or the | ||
Methamphetamine Control and Community Protection Act , to | ||
forfeitable drug manufacturing or distributing
paraphernalia, | ||
or to forfeitable records of the importation, manufacture or
| ||
distribution of substances.
| ||
(2) In the following situation, the trier of fact may infer | ||
that the property described therein was furnished or intended | ||
to be furnished in exchange for a substance in violation of the | ||
Illinois Controlled Substances Act, the Cannabis Control Act, | ||
or the Methamphetamine Control and Community Protection Act, or |
is the proceeds of such an exchange, and therefore forfeitable | ||
under this Act: | ||
All property acquired or caused to be acquired by a person | ||
either
between the dates of occurrence of two or more acts in | ||
felony violation of
the Illinois Controlled Substances Act, the | ||
Cannabis Control Act, or the Methamphetamine Control and | ||
Community Protection Act,
or an act committed in another state, | ||
territory or
country which would be punishable as a felony | ||
under the Illinois
Controlled Substances Act, the Cannabis | ||
Control Act, or the Methamphetamine Control and Community | ||
Protection Act, committed by that
person within 5 years of each | ||
other, or all property acquired by such
person within a | ||
reasonable amount of time after the commission of such acts if:
| ||
(a) at At least one of the above acts was committed | ||
after the effective
date of this Act; and
| ||
(b) both Both of the acts are or were punishable as a | ||
Class X, Class 1,
or Class 2 felony; and
| ||
(c) there There was no likely source for such property | ||
other than a violation
of the above Acts.
| ||
(3) Presumptions and permissive inferences set forth in | ||
this Section shall apply to all portions of all phases of all | ||
the judicial in rem forfeiture proceedings under this Act. | ||
(Source: P.A. 100-512, eff. 7-1-18.)
| ||
(725 ILCS 150/8) (from Ch. 56 1/2, par. 1678)
| ||
(Text of Section before amendment by P.A. 100-512 )
|
Sec. 8. Exemptions from forfeiture. A property interest is | ||
exempt
from forfeiture under this Section if its owner or | ||
interest holder
establishes by a preponderance of evidence that | ||
the owner or interest holder:
| ||
(A)(i) in the case of personal property, is not legally | ||
accountable
for the conduct giving rise to the forfeiture, did | ||
not acquiesce in it, and
did not know and could not reasonably | ||
have known of the conduct or that
the conduct was likely to | ||
occur, or
| ||
(ii) in the case of real property, is not legally | ||
accountable for
the conduct giving rise to the forfeiture, or | ||
did not solicit, conspire, or
attempt to commit the conduct | ||
giving rise to the forfeiture; and
| ||
(B) had not acquired and did not stand to acquire | ||
substantial proceeds
from the conduct giving rise to its | ||
forfeiture other than as an interest
holder in an arms length | ||
commercial transaction; and
| ||
(C) with respect to conveyances, did not hold the property | ||
jointly or in
common with a person whose conduct gave rise to | ||
the forfeiture; and
| ||
(D) does not hold the property for the benefit of or as | ||
nominee for any
person whose conduct gave rise to its | ||
forfeiture, and, if the owner or
interest holder acquired the | ||
interest through any such person, the owner or
interest holder | ||
acquired it as a bona fide purchaser for value without
| ||
knowingly taking part in the conduct giving rise to the |
forfeiture; and
| ||
(E) that the owner or interest holder acquired the | ||
interest:
| ||
(i) before the commencement of the conduct giving rise to | ||
its forfeiture
and the person whose conduct gave rise to its | ||
forfeiture did not have the
authority to convey the interest to | ||
a bona fide purchaser for value at the
time of the conduct; or
| ||
(ii) after the commencement of the conduct giving rise to | ||
its forfeiture,
and the owner or interest holder acquired the | ||
interest as a mortgagee,
secured creditor, lienholder, or bona | ||
fide purchaser for value without
knowledge of the conduct which | ||
gave rise to the forfeiture; and
| ||
(a) in the case of personal property, without knowledge of | ||
the seizure
of the property for forfeiture; or
| ||
(b) in the case of real estate, before the filing in the | ||
office of the
Recorder of Deeds of the county in which the real | ||
estate is located of a
notice of seizure for forfeiture or a | ||
lis pendens notice.
| ||
(Source: P.A. 86-1382.)
| ||
(Text of Section after amendment by P.A. 100-512 )
| ||
Sec. 8. Exemptions from forfeiture. | ||
(a) No vessel or watercraft, vehicle, or aircraft used by | ||
any person as a common carrier in the transaction of business | ||
as a common carrier may be forfeited under this Act unless the | ||
State proves by a preponderance of the evidence that: |
(1) in the case of a railway car or engine, the owner, | ||
or | ||
(2) in the case of any other such vessel or watercraft, | ||
vehicle or aircraft, the owner or the master of such vessel | ||
or watercraft or the owner or conductor, driver, pilot, or | ||
other person in charge of that vehicle or aircraft was at | ||
the time of the alleged illegal act a consenting party or | ||
privy to that knowledge. | ||
(b) No vessel or watercraft, vehicle, or aircraft shall be | ||
forfeited under this Act by reason of any act or omission | ||
committed or omitted by any person other than such owner while | ||
a vessel or watercraft, vehicle, or aircraft was unlawfully in | ||
the possession of a person who acquired possession in violation | ||
of the criminal laws of the United States , or of any state.
| ||
(A) (blank); and
| ||
(B) (blank); and
| ||
(C) (blank); and
| ||
(D) (blank); and
| ||
(E) (blank); and
| ||
(Source: P.A. 100-512, eff. 7-1-18.)
| ||
(725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)
| ||
(Text of Section before amendment by P.A. 100-512 )
| ||
Sec. 9. Judicial in rem procedures. If property seized | ||
under the
provisions of the Illinois Controlled Substances Act, | ||
the Cannabis Control
Act, or the Methamphetamine Control and |
Community Protection Act is non-real property that exceeds | ||
$20,000 in value excluding the value
of any conveyance, or is | ||
real property, or a claimant has filed a claim and
a cost bond | ||
under subsection (C) of Section 6 of this Act, the following
| ||
judicial in rem procedures shall apply:
| ||
(A) If, after a review of the facts surrounding the | ||
seizure, the State's
Attorney is of the opinion that the seized | ||
property is subject to
forfeiture, then within 45 days of the | ||
receipt of notice of seizure by the
seizing agency or the | ||
filing of the claim and cost bond, whichever is
later, the | ||
State's Attorney shall institute judicial forfeiture | ||
proceedings
by filing a verified complaint for forfeiture and, | ||
if the claimant has
filed a claim and cost bond, by depositing | ||
the cost bond with the clerk of
the court. When authorized by | ||
law, a forfeiture must be ordered by a court
on an action in | ||
rem brought by a State's Attorney under a verified
complaint | ||
for forfeiture.
| ||
(B) During the probable cause portion of the judicial in | ||
rem
proceeding wherein the State presents its case-in-chief, | ||
the court must
receive and consider, among other things, all | ||
relevant hearsay evidence and
information. The laws of evidence | ||
relating to civil actions shall apply to
all other portions of | ||
the judicial in rem proceeding.
| ||
(C) Only an owner of or interest holder in the property may | ||
file an
answer asserting a claim against the property in the | ||
action in rem. For
purposes of this Section, the owner or |
interest holder shall be referred
to as claimant.
| ||
(D) The answer must be signed by the owner or interest | ||
holder under
penalty of perjury and must set forth:
| ||
(i) the caption of the proceedings as set forth on the | ||
notice of pending
forfeiture and the name of the claimant;
| ||
(ii) the address at which the claimant will accept | ||
mail;
| ||
(iii) the nature and extent of the claimant's interest | ||
in the property;
| ||
(iv) the date, identity of transferor, and | ||
circumstances of the
claimant's acquisition of the | ||
interest in the property;
| ||
(v) the name and address of all other persons known to | ||
have an interest
in the property;
| ||
(vi) the specific provisions of Section 8 of this Act
| ||
relied on in asserting it
is not subject to forfeiture;
| ||
(vii) all essential facts supporting each assertion; | ||
and
| ||
(viii) the precise relief sought.
| ||
(E) The answer must be filed with the court within 45 days | ||
after service
of the civil in rem complaint.
| ||
(F) The hearing must be held within 60 days after filing of | ||
the answer
unless continued for good cause.
| ||
(G) The State shall show the existence of probable cause | ||
for forfeiture
of the property. If the State shows probable | ||
cause, the claimant has the
burden of showing by a |
preponderance of the evidence that the claimant's
interest in | ||
the property is not subject to forfeiture.
| ||
(H) If the State does not show existence of probable cause | ||
or a claimant
has established by a preponderance of evidence | ||
that the claimant has an
interest that is exempt under Section | ||
8 of this Act, the court shall order
the interest in the | ||
property returned or conveyed to the claimant and shall
order | ||
all other property forfeited to the State. If the State does | ||
show
existence of probable cause and the claimant does not | ||
establish by a
preponderance of evidence that the claimant has | ||
an interest that is exempt
under Section 8 of this Act, the | ||
court shall order all property forfeited
to the State.
| ||
(I) A defendant convicted in any criminal proceeding is | ||
precluded from
later denying the essential allegations of the | ||
criminal offense of which
the defendant was convicted in any | ||
proceeding under this Act
regardless of the pendency of an | ||
appeal from that conviction. However,
evidence of the pendency | ||
of an appeal is admissible.
| ||
(J) An acquittal or dismissal in a criminal proceeding | ||
shall not
preclude civil proceedings under this Act; however, | ||
for good cause shown,
on a motion by the State's Attorney, the | ||
court may stay civil forfeiture
proceedings during the criminal | ||
trial for a related criminal indictment or
information alleging | ||
a violation of the Illinois Controlled Substances Act,
the | ||
Cannabis Control Act, or the Methamphetamine Control and | ||
Community Protection Act. Such a stay shall not be available |
pending an
appeal. Property subject to forfeiture under the | ||
Illinois Controlled
Substances Act, the Cannabis Control Act, | ||
or the Methamphetamine Control and Community Protection Act | ||
shall not be subject to return
or release by a court exercising | ||
jurisdiction over a criminal case
involving the seizure of such | ||
property unless such return or release is
consented to by the | ||
State's Attorney.
| ||
(K) All property declared forfeited under this Act vests in | ||
this State
on the commission of the conduct giving rise to | ||
forfeiture together with
the proceeds of the property after | ||
that time. Any such property or
proceeds subsequently | ||
transferred to any person remain subject to
forfeiture and | ||
thereafter shall be ordered forfeited unless the transferee
| ||
claims and establishes in a hearing under the provisions of | ||
this Act that
the transferee's interest is exempt under Section | ||
8 of this Act.
| ||
(L) A civil action under this Act must be commenced within | ||
5 years
after the last conduct giving rise to forfeiture became | ||
known or should
have become known or 5 years after the | ||
forfeitable property is
discovered, whichever is later, | ||
excluding any time during which either the
property or claimant | ||
is out of the State or in confinement or during which
criminal | ||
proceedings relating to the same conduct are in progress.
| ||
(Source: P.A. 94-556, eff. 9-11-05.)
| ||
(Text of Section after amendment by P.A. 100-512 )
|
Sec. 9. Judicial in rem procedures. If property seized | ||
under the
provisions of the Illinois Controlled Substances Act, | ||
the Cannabis Control
Act, or the Methamphetamine Control and | ||
Community Protection Act is non-real property that exceeds | ||
$150,000 in value excluding the value
of any conveyance, or is | ||
real property, or a claimant has filed a claim and
a cost bond | ||
under subsection (C) of Section 6 of this Act, the following
| ||
judicial in rem procedures shall apply:
| ||
(A) If, after a review of the facts surrounding the | ||
seizure, the State's
Attorney is of the opinion that the seized | ||
property is subject to
forfeiture, the State's Attorney shall | ||
institute judicial forfeiture proceedings
by filing a verified | ||
complaint for forfeiture in the circuit court within whose | ||
jurisdiction the seizure occurred, or within whose | ||
jurisdiction an act or omission giving rise to the seizure | ||
occurred, subject to Supreme Court Rule 187. The complaint for | ||
of forfeiture shall be filed as soon as practicable, but not | ||
later than 28 days after the filing of a verified claim by a | ||
claimant if the property was acted upon under a non-judicial | ||
forfeiture action, or 28 days after the State's Attorney | ||
receives notice from the seizing agency as provided under | ||
Section 5 of this Act, whichever occurs later. When authorized | ||
by law, a forfeiture must be ordered by a court
on an action in | ||
rem brought by a State's Attorney under a verified
complaint | ||
for forfeiture.
| ||
(A-5) If the State's Attorney finds that the alleged |
violation of law giving rise to the seizure was incurred | ||
without willful negligence or without any intention on the part | ||
of the owner of the property to violate the law or finds the | ||
existence of those mitigating circumstances to justify | ||
remission of the forfeiture, may cause the law enforcement | ||
agency having custody of the property to return the property to | ||
the owner within a reasonable time not to exceed 7 days. The | ||
State's Attorney shall exercise his or her discretion prior to | ||
or promptly after the preliminary review under Section 3.5 of | ||
this Act. Judicial in rem forfeiture proceedings under this Act | ||
shall be subject to the Code of Civil Procedure and the rules | ||
of evidence relating to civil actions. | ||
(A-10) A complaint of forfeiture shall include: | ||
(1) a description of the property seized; | ||
(2) the date and place of seizure of the property; | ||
(3) the name and address of the law enforcement agency | ||
making the seizure; and | ||
(4) the specific statutory and factual grounds for the | ||
seizure. | ||
The complaint shall be served upon the person from whom the | ||
property was seized and all persons known or reasonably | ||
believed by the State to claim an interest in the property, as | ||
provided in Section 4 of this Act. The complaint shall be | ||
accompanied by the following written notice: | ||
"This is a civil court proceeding subject to the Code of | ||
Civil Procedure. You received this Complaint of Forfeiture |
because the State's Attorney's office has brought a legal | ||
action seeking forfeiture of your seized property. This | ||
complaint starts the court process where the state seeks to | ||
prove that your property should be forfeited and not | ||
returned to you. This process is also your opportunity to | ||
try to prove to a judge that you should get your property | ||
back. The complaint lists the date, time, and location of | ||
your first court date. You must appear in court on that | ||
day, or you may lose the case automatically. You must also | ||
file an appearance and answer. If you are unable to pay the | ||
appearance fee, you may qualify to have the fee waived. If | ||
there is a criminal case related to the seizure of your | ||
property, your case may be set for trial after the criminal | ||
case has been resolved. Before trial, the judge may allow | ||
discovery, where the State can ask you to respond in | ||
writing to questions and give them certain documents, and | ||
you can make similar requests of the State. The trial is | ||
your opportunity to explain what happened when your | ||
property was seized and why you should get the property | ||
back." . | ||
(B) The laws of evidence relating to civil actions shall | ||
apply to
all other proceedings under this Act except that the | ||
parties shall be allowed to use, and the court must receive and | ||
consider, all relevant hearsay evidence that which relates to | ||
evidentiary foundation, chain of custody, business records, | ||
recordings, laboratory analysis, laboratory reports, and the |
use of technology in the investigation that resulted in the | ||
seizure of the property that which is subject to the this | ||
forfeiture action.
| ||
(C) Only an owner of or interest holder in the property may | ||
file an
answer asserting a claim against the property in the | ||
action in rem. For
purposes of this Section, the owner or | ||
interest holder shall be referred
to as claimant. A person not | ||
named in the forfeiture complaint who claims to have an | ||
interest in the property may petition to intervene as a | ||
claimant under Section 2-408 of the Code of Civil Procedure.
| ||
(D) The answer must be signed by the owner or interest | ||
holder under
penalty of perjury and must set forth:
| ||
(i) the caption of the proceedings as set forth on the | ||
notice of pending
forfeiture and the name of the claimant;
| ||
(ii) the address at which the claimant will accept | ||
mail;
| ||
(iii) the nature and extent of the claimant's interest | ||
in the property;
| ||
(iv) the date, identity of transferor, and | ||
circumstances of the
claimant's acquisition of the | ||
interest in the property;
| ||
(v) the names and addresses name and address of all | ||
other persons known to have an interest
in the property;
| ||
(vi) the specific provisions of Section 8 of this Act
| ||
relied on in asserting it
is exempt from forfeiture, if | ||
applicable;
|
(vii) all essential facts supporting each assertion;
| ||
(viii) the precise relief sought; and | ||
(ix) in a forfeiture action involving currency or its | ||
equivalent, a claimant shall provide the State with notice | ||
of the claimant's their intent to allege that the currency | ||
or its equivalent is not related to the alleged factual | ||
basis for the forfeiture, and why.
| ||
(E) The answer must be filed with the court within 45 days | ||
after service
of the civil in rem complaint.
| ||
(F) The trial shall be held within 60 days after filing of | ||
the answer
unless continued for good cause.
| ||
(G) The State, in its case in chief , shall show by a | ||
preponderance of the evidence the property is subject to | ||
forfeiture; and at least one of the following:
| ||
(i) In the case of personal property, including | ||
conveyances: | ||
(a) that the claimant was legally accountable for | ||
the conduct giving rise to the forfeiture; | ||
(b) that the claimant knew or reasonably should | ||
have known of the conduct giving rise to the | ||
forfeiture; | ||
(c) that the claimant knew or reasonably should | ||
have known that the conduct giving rise to the | ||
forfeiture was likely to occur; | ||
(d) that the claimant held the property for the | ||
benefit of, or as nominee for, any person whose conduct |
gave rise to its forfeiture; | ||
(e) that if the claimant acquired the their | ||
interest through any person engaging in any of the | ||
conduct described above or conduct giving rise to the | ||
forfeiture: | ||
(1) the claimant did not acquire it as a bona | ||
fide purchaser for value, or | ||
(2) the claimant acquired the interest under | ||
such circumstances that the claimant they | ||
reasonably should have known the property was | ||
derived from, or used in, the conduct giving rise | ||
to the forfeiture; or | ||
(f) that the claimant is not the true owner of the | ||
property; | ||
(g) that the claimant acquired the interest: | ||
(1) before the commencement of the conduct | ||
giving rise to the forfeiture and the person whose | ||
conduct gave rise to the forfeiture did not have | ||
authority to convey the interest to a bona fide | ||
purchaser for value at the time of the conduct; or | ||
(2) after the commencement of the conduct | ||
giving rise to the forfeiture and the owner or | ||
interest holder acquired the interest as a | ||
mortgagee, secured creditor, lienholder, or bona | ||
fide purchaser for value without knowledge of the | ||
conduct that which gave rise to the forfeiture, and |
without the knowledge of the seizure of the | ||
property for forfeiture. | ||
(ii) In the case of real property: | ||
(a) that the claimant was legally accountable for | ||
the conduct giving rise to the forfeiture; | ||
(b) that the claimant solicited, conspired, or | ||
attempted to commit the conduct giving rise to the | ||
forfeiture; or | ||
(c) that the claimant had acquired or stood to | ||
acquire substantial proceeds from the conduct giving | ||
rise to its forfeiture other than as an interest holder | ||
in an arm's length transaction; | ||
(d) that the claimant is not the true owner of the | ||
property; | ||
(e) that the claimant acquired the interest: | ||
(1) before the commencement of the conduct | ||
giving rise to the forfeiture and the person whose | ||
conduct gave rise to the forfeiture did not have | ||
authority to convey the interest to a bona fide | ||
purchaser for value at the time of the conduct; or | ||
(2) after the commencement of the conduct | ||
giving rise to the forfeiture and the owner or | ||
interest holder acquired the interest as a | ||
mortgagee, secured creditor, lienholder, or bona | ||
fide purchaser for value without knowledge of the | ||
conduct that which gave rise to the forfeiture, and |
before the filing in the office of the recorder of | ||
deeds of the county in which the real estate is | ||
located a notice of seizure for forfeiture or a lis | ||
pendens notice. | ||
(G-5) If the property that is the subject of the forfeiture | ||
proceeding is currency or its equivalent, the State, in its | ||
case in chief, shall show by a preponderance of the evidence | ||
that the property is subject to forfeiture. If the State makes | ||
that showing, the claimant shall have the burden of production | ||
to set forth evidence that the currency or its equivalent is | ||
not related to the alleged factual basis of the forfeiture. | ||
After the production of evidence, the State shall maintain the | ||
burden of proof to overcome this assertion. | ||
(G-10) Notwithstanding any other provision of this | ||
Section, the State's burden of proof at the trial of the | ||
forfeiture action shall be by clear and convincing evidence if: | ||
(1) a finding of not guilty is entered as to all counts | ||
and all defendants in a criminal proceeding relating to the | ||
conduct giving rise to the forfeiture action; or | ||
(2) the State receives an adverse finding at a | ||
preliminary hearing and fails to secure an indictment in a | ||
criminal proceeding related to the factual allegations of | ||
the forfeiture action. | ||
(H) If the State does not meet its burden of proof, the | ||
court shall order
the interest in the property returned or | ||
conveyed to the claimant and shall
order all other property as |
to which the State does meet its burden of proof forfeited to | ||
the State. If the State does meet its burden of proof , the | ||
court shall order all property forfeited
to the State.
| ||
(I) A defendant convicted in any criminal proceeding is | ||
precluded from
later denying the essential allegations of the | ||
criminal offense of which
the defendant was convicted in any | ||
proceeding under this Act
regardless of the pendency of an | ||
appeal from that conviction. However,
evidence of the pendency | ||
of an appeal is admissible.
| ||
(J) An acquittal or dismissal in a criminal proceeding | ||
shall not
preclude civil proceedings under this Act; however, | ||
for good cause shown,
on a motion by the State's Attorney, the | ||
court may stay civil forfeiture
proceedings during the criminal | ||
trial for a related criminal indictment or
information alleging | ||
a violation of the Illinois Controlled Substances Act,
the | ||
Cannabis Control Act, or the Methamphetamine Control and | ||
Community Protection Act. Such a stay shall not be available | ||
pending an
appeal. Property subject to forfeiture under the | ||
Illinois Controlled
Substances Act, the Cannabis Control Act, | ||
or the Methamphetamine Control and Community Protection Act | ||
shall not be subject to return
or release by a court exercising | ||
jurisdiction over a criminal case
involving the seizure of such | ||
property unless such return or release is
consented to by the | ||
State's Attorney.
| ||
(K) Title to all property declared forfeited under this Act | ||
vests in the this State
on the commission of the conduct giving |
rise to forfeiture together with
the proceeds of the property | ||
after that time. Except as otherwise provided in this Act, any | ||
such property or
proceeds subsequently transferred to any | ||
person remain subject to
forfeiture unless a person to whom the | ||
property was transferred makes an appropriate claim under this | ||
Act and has the their claim adjudicated in the judicial in rem | ||
proceeding.
| ||
(L) A civil action under this Act must be commenced within | ||
5 years
after the last conduct giving rise to forfeiture became | ||
known or should
have become known or 5 years after the | ||
forfeitable property is
discovered, whichever is later, | ||
excluding any time during which either the
property or claimant | ||
is out of the State or in confinement or during which
criminal | ||
proceedings relating to the same conduct are in progress. | ||
(M) No property shall be forfeited under this Act from a | ||
person who, without actual or constructive notice that the | ||
property was the subject of forfeiture proceedings, obtained | ||
possession of the property as a bona fide purchaser for value. | ||
A person who purports to transfer property after receiving | ||
actual or constructive notice that the property is subject to | ||
seizure or forfeiture is guilty of contempt of court and shall | ||
be liable to the State for a penalty in the amount of the fair | ||
market value of the property. | ||
(N) If property is ordered forfeited under this Act from a | ||
claimant who held title to the property in joint tenancy or | ||
tenancy in common with another claimant, the court shall |
determine the amount of each owner's interest in the property | ||
according to principles of property law.
| ||
(Source: P.A. 100-512, eff. 7-1-18.)
| ||
(725 ILCS 150/9.1) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 9.1. Innocent owner hearing. | ||
(a) After a complaint for forfeiture is filed and all | ||
claimants have appeared and answered, a claimant may file a | ||
motion with the court for an innocent owner hearing prior to | ||
trial. This motion shall be made and supported by sworn | ||
affidavit and shall assert the following along with specific | ||
facts that which support each assertion: | ||
(1) that the claimant filing the motion is the true | ||
owner of the conveyance as interpreted by case law; | ||
(2) that the claimant was not legally accountable for | ||
the conduct giving rise to the forfeiture or acquiesced in | ||
the conduct; | ||
(3) that the claimant did not solicit, conspire, or | ||
attempt to commit the conduct giving rise to the | ||
forfeiture; | ||
(4) that the claimant did not know or did not they have | ||
reason to know that the conduct giving rise to the | ||
forfeiture was likely to occur; and | ||
(5) that the claimant did not hold the property for the |
benefit of, or as nominee for any person whose conduct gave | ||
rise to its forfeiture, or if the owner or interest holder | ||
acquired the interest through any such person, the owner or | ||
interest holder did not acquire it as a bona fide purchaser | ||
for value, or acquired the interest without knowledge of | ||
the seizure of the property for forfeiture. | ||
(b) The claimant's motion shall include specific facts | ||
supporting these assertions. | ||
(b) (c) Upon this filing, a hearing may only be held after | ||
the parties have been given the opportunity to conduct limited | ||
discovery as to the ownership and control of the property, the | ||
claimant's knowledge, or any matter relevant to the issues | ||
raised or facts alleged in the claimant's motion. Discovery | ||
shall be limited to the People's requests in these areas but | ||
may proceed by any means allowed in the Code of Civil | ||
Procedure. | ||
(c) (d) After discovery is complete and the court has | ||
allowed for sufficient time to review and investigate the | ||
discovery responses, the court shall conduct a hearing. At the | ||
hearing, the fact that the property is subject to forfeiture | ||
shall not be at issue. The court shall only hear evidence | ||
relating to the issue of innocent ownership. | ||
(d) (e) At the hearing on the motion, the claimant shall | ||
bear the burden of proving by a preponderance of the evidence | ||
each of the assertions set forth in subsection (a) of this | ||
Section. (f) If a claimant meets the their burden of proof, the |
court shall grant the motion and order the property returned to | ||
the claimant. If the claimant fails to meet the their burden of | ||
proof, then the court shall deny the motion and the forfeiture | ||
case shall proceed according to the Code Rules of Civil | ||
Procedure.
| ||
(Source: P.A. 100-512, eff. 7-1-18.)
| ||
(725 ILCS 150/11) (from Ch. 56 1/2, par. 1681)
| ||
(Text of Section before amendment by P.A. 100-512 )
| ||
Sec. 11. Settlement of claims. Notwithstanding other | ||
provisions of
this Act, the State's Attorney and a claimant of | ||
seized property may enter
into an agreed-upon settlement | ||
concerning the seized property in such an
amount and upon such | ||
terms as are set out in writing in a settlement agreement.
| ||
(Source: P.A. 86-1382.)
| ||
(Text of Section after amendment by P.A. 100-512 )
| ||
Sec. 11. Settlement of claims. Notwithstanding other | ||
provisions of
this Act, the State's Attorney and a claimant of | ||
seized property may enter
into an agreed-upon settlement | ||
concerning the seized property in such an
amount and upon such | ||
terms as are set out in writing in a settlement agreement. All | ||
proceeds from a settlement agreement shall be tendered to the | ||
Department of State Police and distributed in accordance with | ||
the provisions of Section 13.2 17 of this Act.
| ||
(Source: P.A. 100-512, eff. 7-1-18.)
|
(725 ILCS 150/13.1) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 13.1 15 . Return of property, damages, and costs. | ||
(a) The law enforcement agency that holds custody of | ||
property seized for forfeiture shall deliver property ordered | ||
by the court to be returned or conveyed to the claimant within | ||
a reasonable time not to exceed 7 days, unless the order is | ||
stayed by the trial court or a reviewing court pending an | ||
appeal, motion to reconsider, or other reason. | ||
(b) The law enforcement agency that holds custody of | ||
property described in subsection (a) of this Section is | ||
responsible for any damages, storage fees, and related costs | ||
applicable to property returned. The claimant shall not be | ||
subject to any charges by the State for storage of the property | ||
or expenses incurred in the preservation of the property. | ||
Charges for the towing of a conveyance shall be borne by the | ||
claimant unless the conveyance was towed for the sole reason of | ||
seizure for forfeiture. This Section does not prohibit the | ||
imposition of any fees or costs by a home rule unit of local | ||
government related to the impoundment of a conveyance pursuant | ||
to an ordinance enacted by the unit of government. | ||
(c) A law enforcement agency shall not retain forfeited | ||
property for its own use or transfer the property to any person | ||
or entity, except as provided under this Section. A law |
enforcement agency may apply in writing to the Director of | ||
State Police to request that a forfeited property be awarded to | ||
the agency for a specifically articulated official law | ||
enforcement use in an investigation. The Director of State | ||
Police shall provide a written justification in each instance | ||
detailing the reasons why the forfeited property was placed | ||
into official use and the justification shall be retained for a | ||
period of not less than 3 years.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(725 ILCS 150/13.2) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 13.2 17 . Distribution of proceeds; selling or | ||
retaining seized property prohibited. | ||
(a) Except as otherwise provided in this Section, the court | ||
shall order that property forfeited under this Act be delivered | ||
to the Department of State Police within 60 days. | ||
(b) All moneys monies and the sale proceeds of all other | ||
property forfeited and seized under this Act shall be | ||
distributed as follows: | ||
(1)(i) 65% shall be distributed to the metropolitan | ||
enforcement group, local, municipal, county, or State | ||
state law enforcement agency or agencies that which | ||
conducted or participated in the investigation resulting | ||
in the forfeiture. The distribution shall bear a reasonable |
relationship to the degree of direct participation of the | ||
law enforcement agency in the effort resulting in the | ||
forfeiture, taking into account the total value of the | ||
property forfeited and the total law enforcement effort | ||
with respect to the violation of the law upon which the | ||
forfeiture is based. Amounts distributed to the agency or | ||
agencies shall be used for the enforcement of laws | ||
governing cannabis and controlled substances; for public | ||
education in the community or schools in the prevention or | ||
detection of the abuse of drugs or alcohol; or for security | ||
cameras used for the prevention or detection of violence, | ||
except that amounts distributed to the Secretary of State | ||
shall be deposited into the Secretary of State Evidence | ||
Fund to be used as provided in Section 2-115 of the | ||
Illinois Vehicle Code. | ||
(ii) Any local, municipal, or county law enforcement | ||
agency entitled to receive a monetary distribution of | ||
forfeiture proceeds may share those forfeiture proceeds | ||
pursuant to the terms of an intergovernmental agreement | ||
with a municipality that has a population in excess of | ||
20,000 if: | ||
(A) the receiving agency has entered into an | ||
intergovernmental agreement with the municipality to | ||
provide police services; | ||
(B) the intergovernmental agreement for police | ||
services provides for consideration in an amount of not |
less than $1,000,000 per year; | ||
(C) the seizure took place within the geographical | ||
limits of the municipality; and | ||
(D) the funds are used only for the enforcement of | ||
laws governing cannabis and controlled substances; for | ||
public education in the community or schools in the | ||
prevention or detection of the abuse of drugs or | ||
alcohol; or for security cameras used for the | ||
prevention or detection of violence or the | ||
establishment of a municipal police force, including | ||
the training of officers, construction of a police | ||
station, or the purchase of law enforcement equipment | ||
or vehicles. | ||
(2)(i) 12.5% shall be distributed to the Office of the | ||
State's Attorney of the county in which the prosecution | ||
resulting in the forfeiture was instituted, deposited in a | ||
special fund in the county treasury and appropriated to the | ||
State's Attorney for use in the enforcement of laws | ||
governing cannabis and controlled substances; for public | ||
education in the community or schools in the prevention or | ||
detection of the abuse of drugs or alcohol; or , at the | ||
discretion of the State's Attorney, in addition to other | ||
authorized purposes, to make grants to local substance | ||
abuse treatment facilities and half-way houses. In | ||
counties over 3,000,000 population, 25% shall be | ||
distributed to the Office of the State's Attorney for use |
in the enforcement of laws governing cannabis and | ||
controlled substances; for public education in the | ||
community or schools in the prevention or detection of the | ||
abuse of drugs or alcohol; or at the discretion of the | ||
State's Attorney, in addition to other authorized | ||
purposes, to make grants to local substance abuse treatment | ||
facilities and half-way houses. If the prosecution is | ||
undertaken solely by the Attorney General, the portion | ||
provided shall be distributed to the Attorney General for | ||
use in the enforcement of laws governing cannabis and | ||
controlled substances or for public education in the | ||
community or schools in the prevention or detection of the | ||
abuse of drugs or alcohol. | ||
(ii) 12.5% shall be distributed to the Office of the | ||
State's Attorneys Appellate Prosecutor and deposited in | ||
the Narcotics Profit Forfeiture Fund of that office to be | ||
used for additional expenses incurred in the | ||
investigation, prosecution and appeal of cases arising | ||
under laws governing cannabis and controlled substances or | ||
for public education in the community or schools in the | ||
prevention or detection of the abuse of drugs or alcohol. | ||
The Office of the State's Attorneys Appellate Prosecutor | ||
shall not receive distribution from cases brought in | ||
counties with over 3,000,000 population. | ||
(3) 10% shall be retained by the Department of State | ||
Police for expenses related to the administration and sale |
of seized and forfeited property.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(725 ILCS 150/13.3) | ||
(This Section may contain text from a Public Act with a | ||
delayed effective date ) | ||
Sec. 13.3 20 . Reporting. Property seized or forfeited under | ||
this Act is subject to reporting under the Seizure and | ||
Forfeiture Reporting Act.
| ||
(Source: P.A. 100-512, eff. 7-1-18.) | ||
(725 ILCS 150/13.4 new) | ||
Sec. 13.4. Applicability; savings clause. | ||
(a) The changes made to this Act by Public Act 100-0512 and | ||
this amendatory Act of the 100th General Assembly only apply to | ||
property seized on and after July 1, 2018. | ||
(b) The changes made to this Act by this amendatory Act of | ||
the 100th General Assembly are subject to Section 4 of the | ||
Statute on Statutes. | ||
Section 42. The Illinois Streetgang Terrorism Omnibus | ||
Prevention Act is amended by changing Section 40 as follows:
| ||
(740 ILCS 147/40)
| ||
(Text of Section before amendment by P.A. 100-512 )
| ||
Sec. 40. Contraband.
|
(a) The following are declared to be contraband and no | ||
person shall
have a property interest in them:
| ||
(1) any property that is directly or indirectly used or | ||
intended
for use in any manner to facilitate streetgang | ||
related activity;
and
| ||
(2) any property constituting or derived from gross | ||
profits or other
proceeds obtained from streetgang related | ||
activity.
| ||
(b) Within 60 days of the date of the seizure of contraband | ||
under this
Section, the State's Attorney shall initiate | ||
forfeiture proceedings as
provided
in Article 36 of the | ||
Criminal Code of 2012. An owner or person who has a lien
on the | ||
property may
establish as a defense to the forfeiture of | ||
property
that is subject to forfeiture under this Section that | ||
the owner or lienholder
had no knowledge that the property was | ||
acquired through a pattern of
streetgang related activity. | ||
Property that is forfeited under this Section
shall be disposed | ||
of as provided in Article 36 of the Criminal Code of 2012
for | ||
the forfeiture of vehicles, vessels, and aircraft. The
proceeds | ||
of the disposition shall be paid to the Gang Violence Victims
| ||
and Witnesses Fund to be used to assist in the prosecution of | ||
gang crimes.
| ||
(Source: P.A. 97-1150, eff. 1-25-13.)
| ||
(Text of Section after amendment by P.A. 100-512 )
| ||
Sec. 40. Forfeiture.
|
(a) The following are subject to seizure and forfeiture:
| ||
(1) any property that is directly or indirectly used or | ||
intended
for use in any manner to facilitate streetgang | ||
related activity;
and
| ||
(2) any property constituting or derived from gross | ||
profits or other
proceeds obtained from streetgang related | ||
activity.
| ||
(b) Property subject to forfeiture under this Section may | ||
be seized under the procedures set forth under Section 36-2.1 | ||
of the Criminal Code of 2012, except that actual physical | ||
seizure of real property subject to forfeiture under this Act | ||
requires the issuance of a seizure warrant. Nothing in this | ||
Section prohibits the constructive seizure of real property | ||
through the filing of a complaint for forfeiture in circuit | ||
court and the recording of a lis pendens against the real | ||
property without a hearing, warrant application, or judicial | ||
approval. | ||
(c) The State's Attorney may initiate forfeiture | ||
proceedings under the procedures in Article 36 of the Criminal | ||
Code of 2012. The State shall bear the burden of proving by a | ||
preponderance of the evidence that the property was acquired | ||
through a pattern of streetgang related activity. | ||
(d) Property forfeited under this Section shall be disposed | ||
of in accordance with Section 36-7 of Article 36 of the | ||
Criminal Code of 2012 for the forfeiture of vehicles, vessels, | ||
and aircraft. |
(e) Within 60 days of the date of the seizure of contraband | ||
under this
Section, the State's Attorney shall initiate | ||
forfeiture proceedings as
provided
in Article 36 of the | ||
Criminal Code of 2012. An owner or person who has a lien
on the | ||
property may
establish as a defense to the forfeiture of | ||
property
that is subject to forfeiture under this Section that | ||
the owner or lienholder
had no knowledge that the property was | ||
acquired through a pattern of
streetgang related activity. | ||
Property that is forfeited under this Section
shall be disposed | ||
of as provided in Article 36 of the Criminal Code of 2012
for | ||
the forfeiture of vehicles, vessels, and aircraft. The
proceeds | ||
of the disposition shall be paid to the Gang Violence Victims
| ||
and Witnesses Fund to be used to assist in the prosecution of | ||
gang crimes. | ||
(f) Property seized or forfeited under this Section is | ||
subject to reporting under the Seizure and Forfeiture Reporting | ||
Act.
| ||
(g) The changes made to this Section by Public Act 100-0512 | ||
only apply to property seized on and after July 1, 2018. | ||
(Source: P.A. 100-512, eff. 7-1-18.)
| ||
Section 45. The Illinois Securities Law of 1953 is amended | ||
by changing Section 11 as follows:
| ||
(815 ILCS 5/11) (from Ch. 121 1/2, par. 137.11)
| ||
(Text of Section before amendment by P.A. 100-512 )
|
Sec. 11. Duties and powers of the Secretary of State.
| ||
A. (1) The administration of this Act is vested in the | ||
Secretary of State,
who may from time to time make, amend and | ||
rescind such rules and
regulations as may be necessary to carry | ||
out this Act, including rules and
regulations governing | ||
procedures of registration, statements, applications and
| ||
reports for various classes of securities, persons and matters | ||
within his or
her jurisdiction and defining any terms, whether | ||
or not used in this Act,
insofar as the definitions are not | ||
inconsistent with this Act. The rules and
regulations adopted | ||
by the Secretary of State under this Act shall be effective
in | ||
the manner provided for in the Illinois Administrative | ||
Procedure Act.
| ||
(2) Among other things, the Secretary of State shall have | ||
authority, for
the purposes of this Act, to prescribe the form | ||
or forms in which required
information shall be set forth, | ||
accounting practices, the items or
details to be shown in | ||
balance sheets and earning statements, and the
methods to be | ||
followed in the preparation of accounts, in the appraisal
or | ||
valuation of assets and liabilities, in the determination of
| ||
depreciation and depletion, in the differentiation of | ||
recurring and
non-recurring income, in the differentiation of | ||
investment and operating
income, and in the preparation of | ||
consolidated balance sheets or income
accounts of any person, | ||
directly or indirectly, controlling or
controlled by the | ||
issuer, or any person under direct or indirect common
control |
with the issuer.
| ||
(3) No provision of this Act imposing any liability shall | ||
apply to any act
done or omitted in good faith in conformity | ||
with any rule or regulation of the
Secretary of State under | ||
this Act, notwithstanding that the rule
or regulation may, | ||
after the act or omission, be amended or
rescinded or be | ||
determined by judicial or other authority to be invalid for any
| ||
reason.
| ||
(4) The Securities Department of the Office of the | ||
Secretary of State shall
be deemed a criminal justice agency | ||
for purposes of all federal and state laws
and regulations and, | ||
in that capacity, shall be entitled to access to any
| ||
information available to criminal justice agencies
and has the | ||
power to
appoint special agents to conduct all investigations, | ||
searches, seizures,
arrests, and other duties imposed under the | ||
provisions of any law
administered by the Department. The | ||
special agents have and may
exercise all the powers of peace | ||
officers solely for the purpose of
enforcing provisions of this | ||
Act.
| ||
The Director must authorize to each special agent employed | ||
under
this Section a distinct badge that, on its face, (i) | ||
clearly states that
the badge is authorized by the Department | ||
and (ii) contains a
unique and identifying number.
| ||
Special agents shall comply with all training requirements
| ||
established for law enforcement officers by provisions of the
| ||
Illinois Police Training Act.
|
(5) The Secretary of State, by rule, may conditionally or | ||
unconditionally
exempt any person, security, or transaction, | ||
or any class or classes of
persons, securities,
or transactions | ||
from any provision of Section 5, 6, 7, 8, 8a, or 9 of this
Act | ||
or of any rule promulgated under these Sections, to the extent | ||
that
such
exemption is
necessary or appropriate in the public | ||
interest, and is consistent with the
protection of investors.
| ||
B. The Secretary of State may, anything in this Act to the | ||
contrary
notwithstanding, require financial statements and | ||
reports of the issuer,
dealer, Internet portal, salesperson, | ||
investment adviser, or investment adviser
representative as | ||
often as circumstances may
warrant. In addition, the Secretary | ||
of
State may secure information or books and records from or | ||
through others
and may make or cause to be made investigations | ||
respecting the business,
affairs, and property of the issuer of | ||
securities, any person involved in the
sale or offer for sale, | ||
purchase or offer to purchase of any mineral investment
| ||
contract, mineral deferred delivery contract, or security and | ||
of dealers, Internet portals,
salespersons, investment | ||
advisers, and investment adviser
representatives that are | ||
registered or are the
subject of an application for | ||
registration under this Act. The
costs of an investigation | ||
shall be borne by the registrant or
the applicant, provided | ||
that the registrant or applicant shall not
be obligated to pay | ||
the costs without his, her or its consent in
advance.
| ||
C. Whenever it shall appear to the Secretary of State, |
either upon
complaint or otherwise, that this Act, or any rule | ||
or regulation
prescribed under authority thereof, has been or | ||
is about to be violated,
he or she may, in his or her | ||
discretion, do one or more of the
following:
| ||
(1) require or permit the person to file with the | ||
Secretary
of State a statement in writing under oath, or | ||
otherwise, as to all the facts
and circumstances concerning | ||
the subject matter which the Secretary of State
believes to | ||
be in the public interest to investigate, audit, examine, | ||
or
inspect;
| ||
(2) conduct an investigation, audit, examination, or | ||
inspection as
necessary or advisable for the protection of | ||
the interests of the
public; and
| ||
(3) appoint investigators to conduct all | ||
investigations, searches,
seizures,
arrests, and other | ||
duties imposed under the provisions of any law
administered | ||
by the Department. The Director must authorize to each
| ||
investigator employed under this Section a distinct badge
| ||
that,
on its face,
(i) clearly states that the badge is | ||
authorized by the Department and
(ii) contains a unique and | ||
identifying number.
| ||
D. (1) For the purpose of all investigations, audits, | ||
examinations, or
inspections which in the opinion
of the | ||
Secretary of State are necessary and proper for the enforcement
| ||
of this Act, the Secretary of State or a person designated by | ||
him or
her is empowered to administer oaths and affirmations, |
subpoena witnesses,
take evidence, and require, by subpoena or | ||
other lawful means provided by
this Act or the rules adopted by | ||
the Secretary of State,
the production of any books and | ||
records, papers,
or other
documents which the Secretary of | ||
State or a person designated by him
or her deems relevant or | ||
material to the inquiry.
| ||
(2) The Secretary of
State or a person designated by him or | ||
her is further empowered to
administer oaths and affirmations, | ||
subpoena witnesses, take evidence, and
require the production | ||
of any books and records, papers, or other documents
in this
| ||
State at the request of a securities agency of another state, | ||
if the
activities constituting the alleged violation for which | ||
the information is
sought would be in violation of Section 12 | ||
of this Act if the activities
had occurred in this State.
| ||
(3) The Circuit Court of any County of this State, upon | ||
application of the
Secretary of State or a person designated by | ||
him or her may order the
attendance of witnesses, the | ||
production of books and records, papers, accounts
and documents | ||
and the giving of testimony before the Secretary of State or a
| ||
person designated by him or her; and any failure to obey the | ||
order
may be punished by the Circuit Court as a contempt | ||
thereof.
| ||
(4) The fees of subpoenaed witnesses under this Act for
| ||
attendance and travel shall be the same as fees of witnesses | ||
before the
Circuit Courts of this State, to be paid when the | ||
witness
is excused from further attendance, provided, the |
witness is
subpoenaed at the instance of the Secretary of | ||
State; and payment of the fees shall be made and audited in the | ||
same manner as other expenses of
the Secretary of State.
| ||
(5) Whenever a subpoena is issued at the request of a | ||
complainant or
respondent as the case may be, the Secretary of | ||
State may require that the cost
of service and the fee of the | ||
witness shall be borne by the party at whose
instance the | ||
witness is summoned.
| ||
(6) The Secretary of State shall have power at his or her | ||
discretion, to
require a deposit to cover the cost of the | ||
service and
witness fees and the payment of the legal witness | ||
fee and mileage to the
witness served with subpoena.
| ||
(7) A subpoena issued under this Act shall be served in the | ||
same manner
as a subpoena issued out of a circuit court.
| ||
(8) The Secretary of State may in any investigation, | ||
audits, examinations,
or inspections cause the taking of | ||
depositions of persons residing within or
without this State in | ||
the manner provided in civil actions under the laws of
this | ||
State.
| ||
E. Anything in this Act to the contrary notwithstanding:
| ||
(1) If the Secretary of State shall find that the offer | ||
or sale or
proposed offer or sale or method of offer or | ||
sale of any securities by any
person, whether exempt or | ||
not, in this State, is fraudulent, or would
work or tend to | ||
work a fraud or deceit, or is being offered or sold in
| ||
violation of Section 12,
or there has been a failure or |
refusal to submit any notification filing or
fee required | ||
under this Act,
the Secretary of State may by written order | ||
prohibit
or suspend the offer or sale of securities by that | ||
person or deny or revoke the
registration of the securities | ||
or the exemption from registration
for the securities.
| ||
(2) If the Secretary of State shall find that any | ||
person has violated
subsection C, D, E, F, G, H, I, J, or K | ||
of Section 12 of
this Act, the Secretary of State may by | ||
written order temporarily or
permanently prohibit or | ||
suspend the person from offering or
selling any securities, | ||
any mineral
investment contract, or any mineral deferred | ||
delivery contract in this
State, provided that any person | ||
who is the subject of an order of
permanent prohibition may | ||
petition the Secretary of State for a hearing to
present | ||
evidence of rehabilitation or change in circumstances | ||
justifying
the amendment or termination of the order of | ||
permanent prohibition.
| ||
(3) If the Secretary of State shall find that any | ||
person is engaging or
has engaged in the business of | ||
selling or offering for sale securities as a
dealer, | ||
Internet portal, or salesperson or is acting or has acted | ||
as an investment adviser,
investment adviser | ||
representative, or
federal covered investment adviser,
| ||
without prior thereto and at the time thereof having | ||
complied with the
registration or notice filing | ||
requirements of this Act, the Secretary of
State may by
|
written order prohibit or suspend the person from engaging | ||
in the
business of selling or offering for sale securities, | ||
or acting as an investment
adviser, investment adviser | ||
representative, or federal covered investment
adviser, in | ||
this State.
| ||
(4) In addition to any other sanction or remedy | ||
contained in this
subsection E, the Secretary of State, | ||
after finding that any provision of
this Act has been | ||
violated, may impose a fine as provided by rule,
regulation | ||
or order not to exceed $10,000 for each
violation of this | ||
Act, may
issue an order of public censure against the | ||
violator, and may charge as
costs of investigation all | ||
reasonable expenses, including attorney's fees and
witness | ||
fees.
| ||
F. (1) The Secretary of State shall not deny, suspend or | ||
revoke the
registration of securities, suspend or revoke the | ||
registration of a
dealer, Internet portal, salesperson, | ||
investment adviser, or investment adviser
representative, | ||
prohibit or suspend the
offer or sale of any securities, | ||
prohibit or suspend any person from
offering or selling any | ||
securities in this State, prohibit or
suspend a dealer or | ||
salesperson from engaging in the business of selling or
| ||
offering for sale securities, prohibit or suspend a person from | ||
acting as
an investment adviser or federal covered investment | ||
adviser, or investment
adviser representative, impose any
fine | ||
for violation of this Act, issue an
order of public censure, or |
enter into an agreed settlement except after an
opportunity for | ||
hearing upon not less than 10 days notice given by personal
| ||
service or registered mail or certified mail, return receipt | ||
requested, to
the person or persons concerned. Such notice | ||
shall state the date and time
and place of the hearing and | ||
shall contain a brief statement of
the proposed action of the | ||
Secretary of State and the grounds for
the proposed action. A | ||
failure to appear at the hearing or
otherwise respond to the | ||
allegations set forth in the notice of
hearing shall constitute | ||
an admission of any facts alleged therein and shall
constitute | ||
sufficient basis to enter an order.
| ||
(2) Anything herein contained to the contrary | ||
notwithstanding, the Secretary
of State may temporarily | ||
prohibit or suspend, for a maximum period of 90 days,
by an | ||
order effective immediately, the offer or sale or registration | ||
of
securities, the registration of a dealer, Internet portal, | ||
salesperson, investment
adviser, or investment adviser | ||
representative, or
the offer or sale of securities by any | ||
person, or the business of rendering
investment advice, without | ||
the notice and prior hearing in this subsection
prescribed, if | ||
the Secretary of State shall in his or her opinion, based on
| ||
credible evidence, deem it necessary to prevent an imminent | ||
violation of this
Act or to prevent losses to investors which | ||
the Secretary of State reasonably
believes will occur as a | ||
result of a prior violation of this Act. Immediately
after | ||
taking action without such notice and hearing, the Secretary
of |
State shall deliver a copy of the
temporary order to the | ||
respondent named therein by personal service or
registered mail | ||
or certified mail, return receipt requested. The temporary
| ||
order shall set forth the grounds for the action and shall | ||
advise that the
respondent may request a hearing, that
the | ||
request for a hearing will not stop the effectiveness of the | ||
temporary
order and that respondent's failure to request a | ||
hearing within 30 days
after the date of the entry of the | ||
temporary order shall constitute an
admission of any facts | ||
alleged therein and shall constitute sufficient
basis to make | ||
the temporary order final. Any provision of this paragraph
(2) | ||
to the contrary notwithstanding, the Secretary of State may not
| ||
pursuant to the provisions of this paragraph (2) suspend the | ||
registration
of a dealer, limited Canadian dealer, | ||
salesperson, investment
adviser, or investment adviser | ||
representative based upon sub-paragraph (n)
of paragraph (l) of | ||
subsection E of Section 8 of this Act or revoke
the | ||
registration of securities or revoke the registration of any
| ||
dealer, salesperson, investment adviser representative, or | ||
investment
adviser.
| ||
(3) The Secretary of State may issue a temporary order | ||
suspending or
delaying the effectiveness of any registration of | ||
securities under
subsection A or B of Section 5, 6 or 7 of this | ||
Act subsequent to and upon
the basis of the issuance of any | ||
stop, suspension or similar order by the
Securities and | ||
Exchange Commission with respect to the securities which are
|
the subject of the registration under subsection A or B of | ||
Section 5, 6 or
7 of this Act, and the order shall become | ||
effective as of the date
and time of effectiveness of the | ||
Securities and Exchange Commission order and
shall be vacated | ||
automatically at such time as the order of the
Securities and | ||
Exchange Commission is no longer in effect.
| ||
(4) When the Secretary of State finds that an application | ||
for registration
as a dealer, Internet portal, salesperson, | ||
investment adviser, or investment
adviser representative | ||
should be denied, the Secretary
of State may enter an order | ||
denying the registration. Immediately
after taking such | ||
action, the Secretary of State shall deliver a
copy of the | ||
order to the respondent named therein by personal service or
| ||
registered mail or certified mail, return receipt requested. | ||
The order shall
state the grounds for the action and that the | ||
matter will be set
for hearing upon written request filed with | ||
the Secretary of State within 30
days after the receipt of the | ||
request by the respondent. The
respondent's failure to request | ||
a hearing within 30 days after receipt of
the order shall | ||
constitute an admission of any facts alleged
therein and shall | ||
make the order final. If a hearing is held, the
Secretary of | ||
State shall affirm, vacate, or modify the order.
| ||
(5) The findings and decision of the Secretary of State | ||
upon the
conclusion of each final hearing held pursuant to this | ||
subsection shall
be set forth in a written order signed on | ||
behalf of the Secretary of
State by his or her designee and |
shall be filed as a public record. All
hearings shall be held | ||
before a person designated by the Secretary of State,
and | ||
appropriate records thereof shall be kept.
| ||
(6) Notwithstanding the foregoing, the Secretary of State, | ||
after
notice and opportunity for hearing, may at his or her | ||
discretion enter into
an agreed settlement, stipulation or | ||
consent order with a respondent in
accordance with the | ||
provisions of the Illinois Administrative
Procedure Act. The | ||
provisions of the agreed settlement, stipulation or
consent | ||
order shall have the full force and effect of an order issued | ||
by the
Secretary of State.
| ||
(7) Anything in this Act to the contrary notwithstanding, | ||
whenever
the Secretary of State finds that a person is | ||
currently expelled from, refused
membership in or association | ||
with, or limited in any material capacity by a
self-regulatory | ||
organization registered under the Federal 1934 Act or the
| ||
Federal 1974 Act because of a fraudulent or deceptive act or a | ||
practice in
violation of a rule, regulation, or standard duly | ||
promulgated by the
self-regulatory organization, the Secretary | ||
of State may, at his or her
discretion, enter a Summary Order | ||
of Prohibition, which shall prohibit the
offer
or sale of any | ||
securities, mineral investment contract, or mineral deferred
| ||
delivery contract by the person in this State. The order shall | ||
take effect
immediately upon its entry. Immediately after | ||
taking the action the Secretary
of State shall deliver a copy | ||
of the order to the named Respondent by
personal service or |
registered mail or certified mail, return receipt
requested. A | ||
person who is the subject of an Order of Prohibition may
| ||
petition the Secretary of State for a hearing to present | ||
evidence of
rehabilitation or change in circumstances | ||
justifying the
amendment or termination of the Order of | ||
Prohibition.
| ||
G. No administrative action shall be brought by the | ||
Secretary of State
for relief under this Act or upon or because | ||
of any of the matters for
which relief is granted by this Act | ||
after the earlier to occur of (i) 3
years from the date upon | ||
which the Secretary of State had notice of facts
which in the | ||
exercise of reasonable diligence would lead to actual
knowledge | ||
of the alleged violation of the Act, or (ii) 5 years from the
| ||
date on which the alleged violation occurred.
| ||
H. The action of the Secretary of State in denying, | ||
suspending, or revoking
the registration of a dealer, Internet | ||
portal, limited Canadian dealer, salesperson, investment | ||
adviser, or investment adviser representative, in
prohibiting
| ||
any person from engaging in the business of offering or selling | ||
securities as a
dealer, limited Canadian dealer, or | ||
salesperson, in prohibiting or
suspending the offer or sale of
| ||
securities by any person, in prohibiting a person from acting | ||
as an investment
adviser, federal covered investment adviser, | ||
or investment adviser
representative, in denying, suspending, | ||
or
revoking the registration of securities, in
prohibiting or | ||
suspending the offer or sale or proposed offer or sale of
|
securities, in imposing any fine for violation of this Act, or | ||
in issuing any
order shall be subject to judicial review in the | ||
Circuit Courts
of
Cook or Sangamon Counties in this State. The
| ||
Administrative Review
Law shall apply to and
govern every | ||
action for the judicial review of final actions or decisions
of | ||
the Secretary of State under this Act.
| ||
I. Notwithstanding any other provisions of this Act to the | ||
contrary,
whenever it shall appear to the Secretary of State | ||
that any
person is engaged or about to engage in any acts or | ||
practices which
constitute or will constitute a violation of | ||
this Act or of any rule or
regulation prescribed under | ||
authority of this Act, the Secretary of State
may at his or her | ||
discretion, through the Attorney General take any of the
| ||
following actions:
| ||
(1) File a complaint and apply for a temporary | ||
restraining order without
notice, and upon a proper showing | ||
the court may enter a temporary
restraining order without | ||
bond, to enforce this Act.
| ||
(2) File a complaint and apply for a preliminary or | ||
permanent
injunction, and, after notice and a hearing and | ||
upon a proper showing,
the court may grant a preliminary or | ||
permanent injunction and may order the
defendant to make an | ||
offer of rescission with respect to any sales or
purchases | ||
of securities, mineral investment contracts, or mineral
| ||
deferred delivery contracts determined by the court to be | ||
unlawful under
this Act.
|
(3) Seek the seizure of assets when probable cause | ||
exists that the
assets
were
obtained by a defendant through | ||
conduct in violation of Section 12,
paragraph F, G, I, J, | ||
K, or L of this Act, and thereby subject to a judicial
| ||
forfeiture hearing as required under this Act.
| ||
(a) In the event that such probable cause exists | ||
that the subject of an
investigation who is alleged to | ||
have committed one of the relevant
violations of this | ||
Act has in his possession assets obtained as a
result | ||
of the conduct giving rise to the violation, the | ||
Secretary of
State may seek a seizure warrant in any | ||
circuit court in Illinois.
| ||
(b) In seeking a seizure warrant, the Secretary of | ||
State, or his
or her designee, shall submit to the | ||
court a sworn affidavit detailing the
probable cause | ||
evidence for the seizure, the location of the assets
to | ||
be seized, the relevant violation under Section 12 of | ||
this Act, and
a statement detailing any known owners or | ||
interest holders in the
assets.
| ||
(c) Seizure of the assets shall be made by any | ||
peace officer upon
process of the seizure warrant | ||
issued by the court. Following the
seizure of assets | ||
under this Act and pursuant to a seizure warrant,
| ||
notice of seizure, including a description of the | ||
seized assets, shall
immediately be returned to the | ||
issuing court. Seized assets shall be
maintained |
pending a judicial forfeiture hearing in accordance | ||
with
the instructions of the court.
| ||
(d) In the event that management of seized assets | ||
becomes necessary
to prevent the devaluation, | ||
dissipation, or otherwise to preserve the
property, | ||
the court shall have jurisdiction to appoint a | ||
receiver,
conservator, ancillary receiver, or | ||
ancillary conservator for that
purpose, as provided in | ||
item (2) of this subsection.
| ||
(4) Seek the forfeiture of assets obtained through | ||
conduct in violation of
Section 12, paragraph F, G, H, I, | ||
J, K, or L when authorized by law. A
forfeiture must be | ||
ordered by a circuit court or an action brought by the
| ||
Secretary of State as provided for in this Act, under a | ||
verified complaint
for forfeiture.
| ||
(a) In the event assets have been seized pursuant | ||
to this Act,
forfeiture
proceedings shall be | ||
instituted by the Attorney General within 45
days of | ||
seizure.
| ||
(b) Service of the complaint filed under the | ||
provisions of this Act
shall
be made in the manner as | ||
provided in civil actions in this State.
| ||
(c) Only an owner of or interest holder in the | ||
property may file an
answer asserting a claim against | ||
the property. For purposes of this Section,
the owner | ||
or interest holder shall be
referred to as claimant.
|
(d) The answer must be signed by the owner or | ||
interest holder under
penalty of perjury and must set | ||
forth:
| ||
(i) the caption of the proceedings as set forth | ||
on the notice of
pending forfeiture and the name of | ||
the claimant;
| ||
(ii) the address at which the claimant will | ||
accept mail;
| ||
(iii) the nature and extent of the claimant's | ||
interest in the
property;
| ||
(iv) the date, identity of the transferor, and | ||
circumstances of the
claimant's acquisition of the | ||
interest in the property;
| ||
(v) the name and address of all other persons | ||
known to have an
interest in the property;
| ||
(vi) the specific provisions of this Act | ||
relied on in asserting that
the
property is not | ||
subject to forfeiture;
| ||
(vii) all essential facts supporting each | ||
assertion; and
| ||
(viii) the precise relief sought.
| ||
(e) The answer must be filed with the court within | ||
45 days after service
of the complaint.
| ||
(f) A property interest is exempt from forfeiture | ||
under this Act if its
owner or interest holder | ||
establishes by a preponderance of
evidence that the |
owner or interest holder:
| ||
(i) is not legally accountable for the conduct | ||
giving rise to
the forfeiture, did not acquiesce in | ||
it, and did not know
and could not reasonably have | ||
known of the conduct or
that the conduct was likely | ||
to occur;
| ||
(ii) with respect to conveyances, did not hold | ||
the property
jointly or in common with a person | ||
whose conduct gave
rise to the forfeiture;
| ||
(iii) does not hold the property for the | ||
benefit of or as a
nominee for any person whose | ||
conduct gave rise to its
forfeiture and the owner | ||
or interest holder acquires it
as a bona fide | ||
purchaser for value without knowingly
taking part | ||
in the conduct giving rise to the forfeiture; or
| ||
(iv) acquired the interest after the
| ||
commencement of the conduct giving rise to its | ||
forfeiture
and the owner or interest holder | ||
acquired the interest as a
mortgagee, secured | ||
creditor, lienholder, or bona fide
purchaser for | ||
value without knowledge of the conduct
that gave | ||
rise to the forfeiture.
| ||
(g) The hearing must be held within 60 days after | ||
the answer is filed
unless continued for good cause.
| ||
(h) During the probable cause portion of the | ||
judicial in rem proceeding
wherein the Secretary of |
State presents its case-in-chief, the court
must | ||
receive and consider, among other things, any relevant
| ||
hearsay evidence and information. The laws of evidence | ||
relating
to civil actions shall apply to all other | ||
portions of the judicial in
rem proceeding.
| ||
(i) The Secretary of State shall show the existence | ||
of probable cause
for forfeiture of the property. If | ||
the Secretary of State shows
probable cause, the | ||
claimant has the burden of showing by a
preponderance | ||
of the evidence that the claimant's interest in the
| ||
property is not subject to forfeiture.
| ||
(j) If the Secretary of State does not show the | ||
existence of probable
cause or a claimant has an | ||
interest that is exempt under
subdivision I (4)(d) of | ||
this Section, the court shall order the interest in the
| ||
property returned
or conveyed to the claimant and shall | ||
order all other property
forfeited to the Secretary of | ||
State pursuant to all provisions of this Act. If
the | ||
Secretary of State does show the existence of probable
| ||
cause and the claimant does not establish by a | ||
preponderance of
the evidence that the claimant has an | ||
interest that is exempt under
subsection D herein, the | ||
court shall order all the property forfeited
to the | ||
Secretary of State pursuant to the provisions of the | ||
Section.
| ||
(k) A defendant convicted in any criminal |
proceeding is precluded
from later denying the | ||
essential allegations of the criminal offense
of which | ||
the defendant was convicted in any proceeding for
| ||
violations of the Act giving rise to forfeiture of | ||
property herein
regardless of the pendency of an appeal | ||
from that conviction.
However, evidence of the | ||
pendency of an appeal is admissible.
| ||
(l) An acquittal or dismissal in a criminal | ||
proceeding for violations of
the Act giving rise to the | ||
forfeiture of property herein shall not
preclude civil | ||
proceedings under this provision; however, for good
| ||
cause shown, on a motion by the Secretary of State, the | ||
court may
stay civil forfeiture proceedings during the | ||
criminal trial for a
related criminal indictment or | ||
information alleging violation of the
provisions of | ||
Section 12 of the Illinois Securities Law of 1953.
| ||
Property subject to forfeiture under this Section | ||
shall not be subject
to return or release by a court | ||
exercising jurisdiction over a
criminal case involving | ||
the seizure of the property unless the return
or | ||
release is consented to by the Secretary of State.
| ||
(m) All property declared forfeited under this Act | ||
vests in the State on
the commission of the conduct | ||
giving rise to forfeiture together
with the proceeds of | ||
the property after that time. Any such
property or | ||
proceeds subsequently transferred to any person remain
|
subject to forfeiture and thereafter shall be ordered | ||
forfeited unless
the transferee claims and establishes | ||
in a hearing under the
provisions of this Act that the | ||
transferee's interest is exempt under
the Act. Any | ||
assets forfeited to the State shall be disposed of in
| ||
following manner:
| ||
(i) all forfeited property and assets shall be | ||
liquidated by the
Secretary of State in accordance | ||
with all laws and
rules governing the disposition | ||
of such property;
| ||
(ii) the Secretary of State shall provide the | ||
court at the time the
property and assets are | ||
declared forfeited a verified
statement of | ||
investors subject to the conduct giving rise to the
| ||
forfeiture;
| ||
(iii) after payment of any costs of sale, | ||
receivership, storage, or
expenses for | ||
preservation of the property seized, other costs
| ||
to the State, and payment to claimants for any | ||
amount
deemed exempt from forfeiture, the proceeds | ||
from
liquidation shall be distributed pro rata to | ||
investors subject to the
conduct giving rise to the | ||
forfeiture; and
| ||
(iv) any proceeds remaining after all verified | ||
investors have
been made whole shall be | ||
distributed 25% to the
Securities Investors |
Education Fund, 25%
to the Securities Audit and
| ||
Enforcement Fund, 25% to the Attorney General or | ||
any
State's Attorney bringing criminal charges for | ||
the conduct
giving rise to the forfeiture, and 25% | ||
to other law
enforcement agencies participating in | ||
the investigation of
the criminal charges for the | ||
conduct giving rise to the
forfeiture. In the event | ||
that no other law enforcement
agencies are | ||
involved in the investigation of the conduct
| ||
giving rise to the forfeiture, then the portion to | ||
other law
enforcement agencies shall be | ||
distributed to the
Securities Investors Education | ||
Fund.
| ||
(n) The Secretary of State shall notify by | ||
certified mail, return
receipt
requested, all known | ||
investors in the matter giving rise to the forfeiture
| ||
of the forfeiture proceeding and sale of assets | ||
forfeited arising from the
violations of this Act, and | ||
shall further publish notice in a paper of
general | ||
circulation in the district in which the violations | ||
were prosecuted.
The notice to investors shall | ||
identify the name, address, and other
identifying | ||
information about any defendant prosecuted for | ||
violations
of this Act that resulted in forfeiture and | ||
sale of property, the offense
for which the defendant | ||
was convicted, and that the court has ordered
|
forfeiture and sale of property for claims of investors | ||
who incurred losses
or damages as a result of the | ||
violations. Investors may then file a claim
in a form | ||
prescribed by the Secretary of State in order to share | ||
in
disbursement of the proceeds from sale of the | ||
forfeited property.
Investor claims must be filed with | ||
the Secretary of State within 30 days
after receipt of | ||
the certified mail return receipt, or within 30 days | ||
after the
last
date of publication of the general | ||
notice in a paper of general circulation
in the | ||
district in which the violations were prosecuted, | ||
whichever occurs
last.
| ||
(o) A civil action under this subsection must be | ||
commenced within 5
years
after
the last conduct giving | ||
rise to the forfeiture became known or should
have | ||
become known or 5 years after the forfeitable property | ||
is
discovered, whichever is later, excluding time | ||
during which either the
property or claimant is out of | ||
this State or in confinement or during which
criminal | ||
proceedings relating to the same conduct are in | ||
progress.
| ||
(p) If property is seized for evidence and for | ||
forfeiture, the time
periods
for
instituting judicial | ||
forfeiture proceedings shall not begin until the
| ||
property is no longer necessary for evidence.
| ||
(q) Notwithstanding other provisions of this Act, |
the Secretary of State
and
a
claimant of forfeitable | ||
property may enter into an agreed-upon settlement
| ||
concerning the forfeitable property in such an amount | ||
and upon such
terms as are set out in writing in a | ||
settlement agreement.
| ||
(r) Nothing in this Act shall apply to property | ||
that constitutes
reasonable
bona
fide attorney's fees | ||
paid to an attorney for services rendered or to be
| ||
rendered in the forfeiture proceeding or criminal | ||
proceeding relating
directly thereto when the property | ||
was paid before its seizure and before
the issuance of | ||
any seizure warrant or court order prohibiting | ||
transfer of
the property and when the attorney, at the | ||
time he or she received the
property, did not know that | ||
it was property subject to forfeiture under
this Act.
| ||
The court shall further have jurisdiction and authority, in | ||
addition to the
penalties and other remedies in this Act | ||
provided, to enter an order for
the appointment of the court or | ||
a person as a receiver, conservator,
ancillary receiver or | ||
ancillary conservator for the defendant or the
defendant's | ||
assets located in this State, or to require restitution,
| ||
damages or disgorgement of profits on behalf of the person or | ||
persons
injured by the act or practice constituting the subject | ||
matter of the
action, and may assess costs against the | ||
defendant for the use of the
State; provided, however, that the | ||
civil remedies of rescission and
appointment of a receiver, |
conservator, ancillary receiver
or ancillary conservator shall | ||
not be available against any person by
reason of the failure to | ||
file with the Secretary of State, or on account of
the contents | ||
of, any report of sale provided for in subsection G or P of
| ||
Section 4, paragraph (2) of subsection D of Sections 5 and 6, | ||
or paragraph
(2) of subsection F of Section 7 of this Act. | ||
Appeals may be
taken as in other civil cases.
| ||
J. In no case shall the Secretary of State, or any of his | ||
or her
employees or agents, in the administration of this Act, | ||
incur any official or
personal liability by instituting an | ||
injunction or other proceeding or
by denying, suspending or | ||
revoking the registration of a dealer or
salesperson, or by | ||
denying, suspending or revoking the registration of
securities | ||
or prohibiting the offer or sale of securities, or by | ||
suspending or
prohibiting any person from acting as a dealer, | ||
limited Canadian dealer,
salesperson, investment adviser, or | ||
investment adviser
representative or from offering or selling | ||
securities.
| ||
K. No provision of this Act shall be construed to require | ||
or to
authorize the Secretary of State to require any | ||
investment adviser
or federal covered investment adviser | ||
engaged in rendering investment
supervisory services to | ||
disclose the
identity, investments, or affairs of any client of | ||
the investment
adviser or federal covered investment adviser, | ||
except insofar as the
disclosure may be necessary or
| ||
appropriate in a particular proceeding or investigation having |
as its
object the enforcement of this Act.
| ||
L. Whenever, after an examination, investigation or
| ||
hearing, the Secretary of State deems it of public interest or | ||
advantage,
he or she may certify a record to the State's | ||
Attorney of the county in
which the act complained of, examined | ||
or investigated occurred. The
State's Attorney of that county | ||
within 90 days after receipt of the record
shall file a written | ||
statement at the Office of the Secretary of State,
which | ||
statement shall set forth the action taken upon the record, or | ||
if no
action has been taken upon the record that fact, together | ||
with the reasons
therefor, shall be stated.
| ||
M. The Secretary of State may initiate, take, pursue, or | ||
prosecute any
action authorized or permitted under Section 6d | ||
of the Federal 1974 Act.
| ||
N. (1) Notwithstanding any provision of this Act to the | ||
contrary, to
encourage uniform interpretation, administration, | ||
and enforcement of the
provisions of this Act, the Secretary of | ||
State may cooperate with the
securities agencies or | ||
administrators of one or more states, Canadian provinces
or | ||
territories, or another country, the Securities and Exchange | ||
Commission, the
Commodity Futures Trading Commission, the | ||
Securities Investor Protection
Corporation, any | ||
self-regulatory organization, and any governmental law
| ||
enforcement or regulatory agency.
| ||
(2) The cooperation authorized by paragraph (1) of this | ||
subsection includes,
but is not limited to, the following:
|
(a) establishing or participating in a central | ||
depository or depositories
for registration under this Act | ||
and for documents or records required under
this Act;
| ||
(b) making a joint audit, inspection, examination, or | ||
investigation;
| ||
(c) holding a joint administrative hearing;
| ||
(d) filing and prosecuting a joint civil or criminal | ||
proceeding;
| ||
(e) sharing and exchanging personnel;
| ||
(f) sharing and exchanging information and documents; | ||
or
| ||
(g) issuing any joint statement or policy.
| ||
(Source: P.A. 99-182, eff. 1-1-16 .)
| ||
(Text of Section after amendment by P.A. 100-512 )
| ||
Sec. 11. Duties and powers of the Secretary of State.
| ||
A. (1) The administration of this Act is vested in the | ||
Secretary of State,
who may from time to time make, amend and | ||
rescind such rules and
regulations as may be necessary to carry | ||
out this Act, including rules and
regulations governing | ||
procedures of registration, statements, applications and
| ||
reports for various classes of securities, persons and matters | ||
within his or
her jurisdiction and defining any terms, whether | ||
or not used in this Act,
insofar as the definitions are not | ||
inconsistent with this Act. The rules and
regulations adopted | ||
by the Secretary of State under this Act shall be effective
in |
the manner provided for in the Illinois Administrative | ||
Procedure Act.
| ||
(2) Among other things, the Secretary of State shall have | ||
authority, for
the purposes of this Act, to prescribe the form | ||
or forms in which required
information shall be set forth, | ||
accounting practices, the items or
details to be shown in | ||
balance sheets and earning statements, and the
methods to be | ||
followed in the preparation of accounts, in the appraisal
or | ||
valuation of assets and liabilities, in the determination of
| ||
depreciation and depletion, in the differentiation of | ||
recurring and
non-recurring income, in the differentiation of | ||
investment and operating
income, and in the preparation of | ||
consolidated balance sheets or income
accounts of any person, | ||
directly or indirectly, controlling or
controlled by the | ||
issuer, or any person under direct or indirect common
control | ||
with the issuer.
| ||
(3) No provision of this Act imposing any liability shall | ||
apply to any act
done or omitted in good faith in conformity | ||
with any rule or regulation of the
Secretary of State under | ||
this Act, notwithstanding that the rule
or regulation may, | ||
after the act or omission, be amended or
rescinded or be | ||
determined by judicial or other authority to be invalid for any
| ||
reason.
| ||
(4) The Securities Department of the Office of the | ||
Secretary of State shall
be deemed a criminal justice agency | ||
for purposes of all federal and state laws
and regulations and, |
in that capacity, shall be entitled to access to any
| ||
information available to criminal justice agencies
and has the | ||
power to
appoint special agents to conduct all investigations, | ||
searches, seizures,
arrests, and other duties imposed under the | ||
provisions of any law
administered by the Department. The | ||
special agents have and may
exercise all the powers of peace | ||
officers solely for the purpose of
enforcing provisions of this | ||
Act.
| ||
The Director must authorize to each special agent employed | ||
under
this Section a distinct badge that, on its face, (i) | ||
clearly states that
the badge is authorized by the Department | ||
and (ii) contains a
unique and identifying number.
| ||
Special agents shall comply with all training requirements
| ||
established for law enforcement officers by provisions of the
| ||
Illinois Police Training Act.
| ||
(5) The Secretary of State, by rule, may conditionally or | ||
unconditionally
exempt any person, security, or transaction, | ||
or any class or classes of
persons, securities,
or transactions | ||
from any provision of Section 5, 6, 7, 8, 8a, or 9 of this
Act | ||
or of any rule promulgated under these Sections, to the extent | ||
that
such
exemption is
necessary or appropriate in the public | ||
interest, and is consistent with the
protection of investors.
| ||
B. The Secretary of State may, anything in this Act to the | ||
contrary
notwithstanding, require financial statements and | ||
reports of the issuer,
dealer, Internet portal, salesperson, | ||
investment adviser, or investment adviser
representative as |
often as circumstances may
warrant. In addition, the Secretary | ||
of
State may secure information or books and records from or | ||
through others
and may make or cause to be made investigations | ||
respecting the business,
affairs, and property of the issuer of | ||
securities, any person involved in the
sale or offer for sale, | ||
purchase or offer to purchase of any mineral investment
| ||
contract, mineral deferred delivery contract, or security and | ||
of dealers, Internet portals,
salespersons, investment | ||
advisers, and investment adviser
representatives that are | ||
registered or are the
subject of an application for | ||
registration under this Act. The
costs of an investigation | ||
shall be borne by the registrant or
the applicant, provided | ||
that the registrant or applicant shall not
be obligated to pay | ||
the costs without his, her or its consent in
advance.
| ||
C. Whenever it shall appear to the Secretary of State, | ||
either upon
complaint or otherwise, that this Act, or any rule | ||
or regulation
prescribed under authority thereof, has been or | ||
is about to be violated,
he or she may, in his or her | ||
discretion, do one or more of the
following:
| ||
(1) require or permit the person to file with the | ||
Secretary
of State a statement in writing under oath, or | ||
otherwise, as to all the facts
and circumstances concerning | ||
the subject matter which the Secretary of State
believes to | ||
be in the public interest to investigate, audit, examine, | ||
or
inspect;
| ||
(2) conduct an investigation, audit, examination, or |
inspection as
necessary or advisable for the protection of | ||
the interests of the
public; and
| ||
(3) appoint investigators to conduct all | ||
investigations, searches,
seizures,
arrests, and other | ||
duties imposed under the provisions of any law
administered | ||
by the Department. The Director must authorize to each
| ||
investigator employed under this Section a distinct badge
| ||
that,
on its face,
(i) clearly states that the badge is | ||
authorized by the Department and
(ii) contains a unique and | ||
identifying number.
| ||
D. (1) For the purpose of all investigations, audits, | ||
examinations, or
inspections which in the opinion
of the | ||
Secretary of State are necessary and proper for the enforcement
| ||
of this Act, the Secretary of State or a person designated by | ||
him or
her is empowered to administer oaths and affirmations, | ||
subpoena witnesses,
take evidence, and require, by subpoena or | ||
other lawful means provided by
this Act or the rules adopted by | ||
the Secretary of State,
the production of any books and | ||
records, papers,
or other
documents which the Secretary of | ||
State or a person designated by him
or her deems relevant or | ||
material to the inquiry.
| ||
(2) The Secretary of
State or a person designated by him or | ||
her is further empowered to
administer oaths and affirmations, | ||
subpoena witnesses, take evidence, and
require the production | ||
of any books and records, papers, or other documents
in this
| ||
State at the request of a securities agency of another state, |
if the
activities constituting the alleged violation for which | ||
the information is
sought would be in violation of Section 12 | ||
of this Act if the activities
had occurred in this State.
| ||
(3) The Circuit Court of any County of this State, upon | ||
application of the
Secretary of State or a person designated by | ||
him or her may order the
attendance of witnesses, the | ||
production of books and records, papers, accounts
and documents | ||
and the giving of testimony before the Secretary of State or a
| ||
person designated by him or her; and any failure to obey the | ||
order
may be punished by the Circuit Court as a contempt | ||
thereof.
| ||
(4) The fees of subpoenaed witnesses under this Act for
| ||
attendance and travel shall be the same as fees of witnesses | ||
before the
Circuit Courts of this State, to be paid when the | ||
witness
is excused from further attendance, provided, the | ||
witness is
subpoenaed at the instance of the Secretary of | ||
State; and payment of the fees shall be made and audited in the | ||
same manner as other expenses of
the Secretary of State.
| ||
(5) Whenever a subpoena is issued at the request of a | ||
complainant or
respondent as the case may be, the Secretary of | ||
State may require that the cost
of service and the fee of the | ||
witness shall be borne by the party at whose
instance the | ||
witness is summoned.
| ||
(6) The Secretary of State shall have power at his or her | ||
discretion, to
require a deposit to cover the cost of the | ||
service and
witness fees and the payment of the legal witness |
fee and mileage to the
witness served with subpoena.
| ||
(7) A subpoena issued under this Act shall be served in the | ||
same manner
as a subpoena issued out of a circuit court.
| ||
(8) The Secretary of State may in any investigation, | ||
audits, examinations,
or inspections cause the taking of | ||
depositions of persons residing within or
without this State in | ||
the manner provided in civil actions under the laws of
this | ||
State.
| ||
E. Anything in this Act to the contrary notwithstanding:
| ||
(1) If the Secretary of State shall find that the offer | ||
or sale or
proposed offer or sale or method of offer or | ||
sale of any securities by any
person, whether exempt or | ||
not, in this State, is fraudulent, or would
work or tend to | ||
work a fraud or deceit, or is being offered or sold in
| ||
violation of Section 12,
or there has been a failure or | ||
refusal to submit any notification filing or
fee required | ||
under this Act,
the Secretary of State may by written order | ||
prohibit
or suspend the offer or sale of securities by that | ||
person or deny or revoke the
registration of the securities | ||
or the exemption from registration
for the securities.
| ||
(2) If the Secretary of State shall find that any | ||
person has violated
subsection C, D, E, F, G, H, I, J, or K | ||
of Section 12 of
this Act, the Secretary of State may by | ||
written order temporarily or
permanently prohibit or | ||
suspend the person from offering or
selling any securities, | ||
any mineral
investment contract, or any mineral deferred |
delivery contract in this
State, provided that any person | ||
who is the subject of an order of
permanent prohibition may | ||
petition the Secretary of State for a hearing to
present | ||
evidence of rehabilitation or change in circumstances | ||
justifying
the amendment or termination of the order of | ||
permanent prohibition.
| ||
(3) If the Secretary of State shall find that any | ||
person is engaging or
has engaged in the business of | ||
selling or offering for sale securities as a
dealer, | ||
Internet portal, or salesperson or is acting or has acted | ||
as an investment adviser,
investment adviser | ||
representative, or
federal covered investment adviser,
| ||
without prior thereto and at the time thereof having | ||
complied with the
registration or notice filing | ||
requirements of this Act, the Secretary of
State may by
| ||
written order prohibit or suspend the person from engaging | ||
in the
business of selling or offering for sale securities, | ||
or acting as an investment
adviser, investment adviser | ||
representative, or federal covered investment
adviser, in | ||
this State.
| ||
(4) In addition to any other sanction or remedy | ||
contained in this
subsection E, the Secretary of State, | ||
after finding that any provision of
this Act has been | ||
violated, may impose a fine as provided by rule,
regulation | ||
or order not to exceed $10,000 for each
violation of this | ||
Act, may
issue an order of public censure against the |
violator, and may charge as
costs of investigation all | ||
reasonable expenses, including attorney's fees and
witness | ||
fees.
| ||
F. (1) The Secretary of State shall not deny, suspend or | ||
revoke the
registration of securities, suspend or revoke the | ||
registration of a
dealer, Internet portal, salesperson, | ||
investment adviser, or investment adviser
representative, | ||
prohibit or suspend the
offer or sale of any securities, | ||
prohibit or suspend any person from
offering or selling any | ||
securities in this State, prohibit or
suspend a dealer or | ||
salesperson from engaging in the business of selling or
| ||
offering for sale securities, prohibit or suspend a person from | ||
acting as
an investment adviser or federal covered investment | ||
adviser, or investment
adviser representative, impose any
fine | ||
for violation of this Act, issue an
order of public censure, or | ||
enter into an agreed settlement except after an
opportunity for | ||
hearing upon not less than 10 days notice given by personal
| ||
service or registered mail or certified mail, return receipt | ||
requested, to
the person or persons concerned. Such notice | ||
shall state the date and time
and place of the hearing and | ||
shall contain a brief statement of
the proposed action of the | ||
Secretary of State and the grounds for
the proposed action. A | ||
failure to appear at the hearing or
otherwise respond to the | ||
allegations set forth in the notice of
hearing shall constitute | ||
an admission of any facts alleged therein and shall
constitute | ||
sufficient basis to enter an order.
|
(2) Anything herein contained to the contrary | ||
notwithstanding, the Secretary
of State may temporarily | ||
prohibit or suspend, for a maximum period of 90 days,
by an | ||
order effective immediately, the offer or sale or registration | ||
of
securities, the registration of a dealer, Internet portal, | ||
salesperson, investment
adviser, or investment adviser | ||
representative, or
the offer or sale of securities by any | ||
person, or the business of rendering
investment advice, without | ||
the notice and prior hearing in this subsection
prescribed, if | ||
the Secretary of State shall in his or her opinion, based on
| ||
credible evidence, deem it necessary to prevent an imminent | ||
violation of this
Act or to prevent losses to investors which | ||
the Secretary of State reasonably
believes will occur as a | ||
result of a prior violation of this Act. Immediately
after | ||
taking action without such notice and hearing, the Secretary
of | ||
State shall deliver a copy of the
temporary order to the | ||
respondent named therein by personal service or
registered mail | ||
or certified mail, return receipt requested. The temporary
| ||
order shall set forth the grounds for the action and shall | ||
advise that the
respondent may request a hearing, that
the | ||
request for a hearing will not stop the effectiveness of the | ||
temporary
order and that respondent's failure to request a | ||
hearing within 30 days
after the date of the entry of the | ||
temporary order shall constitute an
admission of any facts | ||
alleged therein and shall constitute sufficient
basis to make | ||
the temporary order final. Any provision of this paragraph
(2) |
to the contrary notwithstanding, the Secretary of State may not
| ||
pursuant to the provisions of this paragraph (2) suspend the | ||
registration
of a dealer, limited Canadian dealer, | ||
salesperson, investment
adviser, or investment adviser | ||
representative based upon sub-paragraph (n)
of paragraph (l) of | ||
subsection E of Section 8 of this Act or revoke
the | ||
registration of securities or revoke the registration of any
| ||
dealer, salesperson, investment adviser representative, or | ||
investment
adviser.
| ||
(3) The Secretary of State may issue a temporary order | ||
suspending or
delaying the effectiveness of any registration of | ||
securities under
subsection A or B of Section 5, 6 or 7 of this | ||
Act subsequent to and upon
the basis of the issuance of any | ||
stop, suspension or similar order by the
Securities and | ||
Exchange Commission with respect to the securities which are
| ||
the subject of the registration under subsection A or B of | ||
Section 5, 6 or
7 of this Act, and the order shall become | ||
effective as of the date
and time of effectiveness of the | ||
Securities and Exchange Commission order and
shall be vacated | ||
automatically at such time as the order of the
Securities and | ||
Exchange Commission is no longer in effect.
| ||
(4) When the Secretary of State finds that an application | ||
for registration
as a dealer, Internet portal, salesperson, | ||
investment adviser, or investment
adviser representative | ||
should be denied, the Secretary
of State may enter an order | ||
denying the registration. Immediately
after taking such |
action, the Secretary of State shall deliver a
copy of the | ||
order to the respondent named therein by personal service or
| ||
registered mail or certified mail, return receipt requested. | ||
The order shall
state the grounds for the action and that the | ||
matter will be set
for hearing upon written request filed with | ||
the Secretary of State within 30
days after the receipt of the | ||
request by the respondent. The
respondent's failure to request | ||
a hearing within 30 days after receipt of
the order shall | ||
constitute an admission of any facts alleged
therein and shall | ||
make the order final. If a hearing is held, the
Secretary of | ||
State shall affirm, vacate, or modify the order.
| ||
(5) The findings and decision of the Secretary of State | ||
upon the
conclusion of each final hearing held pursuant to this | ||
subsection shall
be set forth in a written order signed on | ||
behalf of the Secretary of
State by his or her designee and | ||
shall be filed as a public record. All
hearings shall be held | ||
before a person designated by the Secretary of State,
and | ||
appropriate records thereof shall be kept.
| ||
(6) Notwithstanding the foregoing, the Secretary of State, | ||
after
notice and opportunity for hearing, may at his or her | ||
discretion enter into
an agreed settlement, stipulation or | ||
consent order with a respondent in
accordance with the | ||
provisions of the Illinois Administrative
Procedure Act. The | ||
provisions of the agreed settlement, stipulation or
consent | ||
order shall have the full force and effect of an order issued | ||
by the
Secretary of State.
|
(7) Anything in this Act to the contrary notwithstanding, | ||
whenever
the Secretary of State finds that a person is | ||
currently expelled from, refused
membership in or association | ||
with, or limited in any material capacity by a
self-regulatory | ||
organization registered under the Federal 1934 Act or the
| ||
Federal 1974 Act because of a fraudulent or deceptive act or a | ||
practice in
violation of a rule, regulation, or standard duly | ||
promulgated by the
self-regulatory organization, the Secretary | ||
of State may, at his or her
discretion, enter a Summary Order | ||
of Prohibition, which shall prohibit the
offer
or sale of any | ||
securities, mineral investment contract, or mineral deferred
| ||
delivery contract by the person in this State. The order shall | ||
take effect
immediately upon its entry. Immediately after | ||
taking the action the Secretary
of State shall deliver a copy | ||
of the order to the named Respondent by
personal service or | ||
registered mail or certified mail, return receipt
requested. A | ||
person who is the subject of an Order of Prohibition may
| ||
petition the Secretary of State for a hearing to present | ||
evidence of
rehabilitation or change in circumstances | ||
justifying the
amendment or termination of the Order of | ||
Prohibition.
| ||
G. No administrative action shall be brought by the | ||
Secretary of State
for relief under this Act or upon or because | ||
of any of the matters for
which relief is granted by this Act | ||
after the earlier to occur of (i) 3
years from the date upon | ||
which the Secretary of State had notice of facts
which in the |
exercise of reasonable diligence would lead to actual
knowledge | ||
of the alleged violation of the Act, or (ii) 5 years from the
| ||
date on which the alleged violation occurred.
| ||
H. The action of the Secretary of State in denying, | ||
suspending, or revoking
the registration of a dealer, Internet | ||
portal, limited Canadian dealer, salesperson, investment | ||
adviser, or investment adviser representative, in
prohibiting
| ||
any person from engaging in the business of offering or selling | ||
securities as a
dealer, limited Canadian dealer, or | ||
salesperson, in prohibiting or
suspending the offer or sale of
| ||
securities by any person, in prohibiting a person from acting | ||
as an investment
adviser, federal covered investment adviser, | ||
or investment adviser
representative, in denying, suspending, | ||
or
revoking the registration of securities, in
prohibiting or | ||
suspending the offer or sale or proposed offer or sale of
| ||
securities, in imposing any fine for violation of this Act, or | ||
in issuing any
order shall be subject to judicial review in the | ||
Circuit Courts
of
Cook or Sangamon Counties in this State. The
| ||
Administrative Review
Law shall apply to and
govern every | ||
action for the judicial review of final actions or decisions
of | ||
the Secretary of State under this Act.
| ||
I. Notwithstanding any other provisions of this Act to the | ||
contrary,
whenever it shall appear to the Secretary of State | ||
that any
person is engaged or about to engage in any acts or | ||
practices which
constitute or will constitute a violation of | ||
this Act or of any rule or
regulation prescribed under |
authority of this Act, the Secretary of State
may at his or her | ||
discretion, through the Attorney General take any of the
| ||
following actions:
| ||
(1) File a complaint and apply for a temporary | ||
restraining order without
notice, and upon a proper showing | ||
the court may enter a temporary
restraining order without | ||
bond, to enforce this Act.
| ||
(2) File a complaint and apply for a preliminary or | ||
permanent
injunction, and, after notice and a hearing and | ||
upon a proper showing,
the court may grant a preliminary or | ||
permanent injunction and may order the
defendant to make an | ||
offer of rescission with respect to any sales or
purchases | ||
of securities, mineral investment contracts, or mineral
| ||
deferred delivery contracts determined by the court to be | ||
unlawful under
this Act.
| ||
(3) Seek the seizure of assets when probable cause | ||
exists that the
assets
were
obtained by a defendant through | ||
conduct in violation of Section 12,
paragraph F, G, I, J, | ||
K, or L of this Act, and thereby subject to a judicial
| ||
forfeiture hearing as required under this Act.
| ||
(a) In the event that such probable cause exists | ||
that the subject of an
investigation who is alleged to | ||
have committed one of the relevant
violations of this | ||
Act has in his possession assets obtained as a
result | ||
of the conduct giving rise to the violation, the | ||
Secretary of
State may seek a seizure warrant in any |
circuit court in Illinois.
| ||
(b) In seeking a seizure warrant, the Secretary of | ||
State, or his
or her designee, shall submit to the | ||
court a sworn affidavit detailing the
probable cause | ||
evidence for the seizure, the location of the assets
to | ||
be seized, the relevant violation under Section 12 of | ||
this Act, and
a statement detailing any known owners or | ||
interest holders in the
assets.
| ||
(c) Seizure of the assets shall be made by any | ||
peace officer upon
process of the seizure warrant | ||
issued by the court. Following the
seizure of assets | ||
under this Act and pursuant to a seizure warrant,
| ||
notice of seizure, including a description of the | ||
seized assets, shall
immediately be returned to the | ||
issuing court. Seized assets shall be
maintained | ||
pending a judicial forfeiture hearing in accordance | ||
with
the instructions of the court.
| ||
(d) In the event that management of seized assets | ||
becomes necessary
to prevent the devaluation, | ||
dissipation, or otherwise to preserve the
property, | ||
the court shall have jurisdiction to appoint a | ||
receiver,
conservator, ancillary receiver, or | ||
ancillary conservator for that
purpose, as provided in | ||
item (2) of this subsection.
| ||
(4) Seek the forfeiture of assets obtained through | ||
conduct in violation of
Section 12, paragraph F, G, H, I, |
J, K, or L when authorized by law. A
forfeiture must be | ||
ordered by a circuit court or an action brought by the
| ||
Secretary of State as provided for in this Act, under a | ||
verified complaint
for forfeiture.
| ||
(a) In the event assets have been seized pursuant | ||
to this Act,
forfeiture
proceedings shall be | ||
instituted by the Attorney General within 45
days of | ||
seizure.
| ||
(b) Service of the complaint filed under the | ||
provisions of this Act
shall
be made in the manner as | ||
provided in civil actions in this State.
| ||
(c) Only an owner of or interest holder in the | ||
property may file an
answer asserting a claim against | ||
the property. For purposes of this Section,
the owner | ||
or interest holder shall be
referred to as claimant.
| ||
(d) The answer must be signed by the owner or | ||
interest holder under
penalty of perjury and must set | ||
forth:
| ||
(i) the caption of the proceedings as set forth | ||
on the notice of
pending forfeiture and the name of | ||
the claimant;
| ||
(ii) the address at which the claimant will | ||
accept mail;
| ||
(iii) the nature and extent of the claimant's | ||
interest in the
property;
| ||
(iv) the date, identity of the transferor, and |
circumstances of the
claimant's acquisition of the | ||
interest in the property;
| ||
(v) the names and addresses name and address of | ||
all other persons known to have an
interest in the | ||
property;
| ||
(vi) the specific provisions of this Act | ||
relied on in asserting that
the
property is not | ||
subject to forfeiture;
| ||
(vii) all essential facts supporting each | ||
assertion; and
| ||
(viii) the precise relief sought.
| ||
(e) The answer must be filed with the court within | ||
45 days after service
of the complaint.
| ||
(f) A property interest is exempt from forfeiture | ||
under this Act if its
owner or interest holder | ||
establishes by a preponderance of
evidence that the | ||
owner or interest holder:
| ||
(i) is not legally accountable for the conduct | ||
giving rise to
the forfeiture, did not acquiesce in | ||
it, and did not know
and could not reasonably have | ||
known of the conduct or
that the conduct was likely | ||
to occur;
| ||
(ii) with respect to conveyances, did not hold | ||
the property
jointly or in common with a person | ||
whose conduct gave
rise to the forfeiture;
| ||
(iii) does not hold the property for the |
benefit of or as a
nominee for any person whose | ||
conduct gave rise to its
forfeiture and the owner | ||
or interest holder acquires it
as a bona fide | ||
purchaser for value without knowingly
taking part | ||
in the conduct giving rise to the forfeiture; or
| ||
(iv) acquired the interest after the
| ||
commencement of the conduct giving rise to its | ||
forfeiture
and the owner or interest holder | ||
acquired the interest as a
mortgagee, secured | ||
creditor, lienholder, or bona fide
purchaser for | ||
value without knowledge of the conduct
that gave | ||
rise to the forfeiture.
| ||
(g) The hearing must be held within 60 days after | ||
the answer is filed
unless continued for good cause.
| ||
(h) During the probable cause portion of the | ||
judicial in rem proceeding
wherein the Secretary of | ||
State presents its case-in-chief, the court
must | ||
receive and consider, among other things, any relevant
| ||
hearsay evidence and information. The laws of evidence | ||
relating
to civil actions shall apply to all other | ||
portions of the judicial in
rem proceeding.
| ||
(i) The Secretary of State shall show the existence | ||
of probable cause
for forfeiture of the property. If | ||
the Secretary of State shows
probable cause, the | ||
claimant has the burden of showing by a
preponderance | ||
of the evidence that the claimant's interest in the
|
property is not subject to forfeiture.
| ||
(j) If the Secretary of State does not show the | ||
existence of probable
cause or a claimant has an | ||
interest that is exempt under
subdivision I (4)(d) of | ||
this Section, the court shall order the interest in the
| ||
property returned
or conveyed to the claimant and shall | ||
order all other property
forfeited to the Secretary of | ||
State pursuant to all provisions of this Act. If
the | ||
Secretary of State does show the existence of probable
| ||
cause and the claimant does not establish by a | ||
preponderance of
the evidence that the claimant has an | ||
interest that is exempt under
subsection D herein, the | ||
court shall order all the property forfeited
to the | ||
Secretary of State pursuant to the provisions of the | ||
Section.
| ||
(k) A defendant convicted in any criminal | ||
proceeding is precluded
from later denying the | ||
essential allegations of the criminal offense
of which | ||
the defendant was convicted in any proceeding for
| ||
violations of the Act giving rise to forfeiture of | ||
property herein
regardless of the pendency of an appeal | ||
from that conviction.
However, evidence of the | ||
pendency of an appeal is admissible.
| ||
(l) An acquittal or dismissal in a criminal | ||
proceeding for violations of
the Act giving rise to the | ||
forfeiture of property herein shall not
preclude civil |
proceedings under this provision; however, for good
| ||
cause shown, on a motion by the Secretary of State, the | ||
court may
stay civil forfeiture proceedings during the | ||
criminal trial for a
related criminal indictment or | ||
information alleging violation of the
provisions of | ||
Section 12 of the Illinois Securities Law of 1953.
| ||
Property subject to forfeiture under this Section | ||
shall not be subject
to return or release by a court | ||
exercising jurisdiction over a
criminal case involving | ||
the seizure of the property unless the return
or | ||
release is consented to by the Secretary of State.
| ||
(m) All property declared forfeited under this Act | ||
vests in the State on
the commission of the conduct | ||
giving rise to forfeiture together
with the proceeds of | ||
the property after that time. Any such
property or | ||
proceeds subsequently transferred to any person remain
| ||
subject to forfeiture and thereafter shall be ordered | ||
forfeited unless
the transferee claims and establishes | ||
in a hearing under the
provisions of this Act that the | ||
transferee's interest is exempt under
the Act. Any | ||
assets forfeited to the State shall be disposed of in
| ||
following manner:
| ||
(i) all forfeited property and assets shall be | ||
liquidated by the
Secretary of State in accordance | ||
with all laws and
rules governing the disposition | ||
of such property;
|
(ii) the Secretary of State shall provide the | ||
court at the time the
property and assets are | ||
declared forfeited a verified
statement of | ||
investors subject to the conduct giving rise to the
| ||
forfeiture;
| ||
(iii) after payment of any costs of sale, | ||
receivership, storage, or
expenses for | ||
preservation of the property seized, other costs
| ||
to the State, and payment to claimants for any | ||
amount
deemed exempt from forfeiture, the proceeds | ||
from
liquidation shall be distributed pro rata to | ||
investors subject to the
conduct giving rise to the | ||
forfeiture; and
| ||
(iv) any proceeds remaining after all verified | ||
investors have
been made whole shall be | ||
distributed 25% to the
Securities Investors | ||
Education Fund, 25%
to the Securities Audit and
| ||
Enforcement Fund, 25% to the Attorney General or | ||
any
State's Attorney bringing criminal charges for | ||
the conduct
giving rise to the forfeiture, and 25% | ||
to other law
enforcement agencies participating in | ||
the investigation of
the criminal charges for the | ||
conduct giving rise to the
forfeiture. In the event | ||
that no other law enforcement
agencies are | ||
involved in the investigation of the conduct
| ||
giving rise to the forfeiture, then the portion to |
other law
enforcement agencies shall be | ||
distributed to the
Securities Investors Education | ||
Fund.
| ||
(n) The Secretary of State shall notify by | ||
certified mail, return
receipt
requested, all known | ||
investors in the matter giving rise to the forfeiture
| ||
of the forfeiture proceeding and sale of assets | ||
forfeited arising from the
violations of this Act, and | ||
shall further publish notice in a paper of
general | ||
circulation in the district in which the violations | ||
were prosecuted.
The notice to investors shall | ||
identify the name, address, and other
identifying | ||
information about any defendant prosecuted for | ||
violations
of this Act that resulted in forfeiture and | ||
sale of property, the offense
for which the defendant | ||
was convicted, and that the court has ordered
| ||
forfeiture and sale of property for claims of investors | ||
who incurred losses
or damages as a result of the | ||
violations. Investors may then file a claim
in a form | ||
prescribed by the Secretary of State in order to share | ||
in
disbursement of the proceeds from sale of the | ||
forfeited property.
Investor claims must be filed with | ||
the Secretary of State within 30 days
after receipt of | ||
the certified mail return receipt, or within 30 days | ||
after the
last
date of publication of the general | ||
notice in a paper of general circulation
in the |
district in which the violations were prosecuted, | ||
whichever occurs
last.
| ||
(o) A civil action under this subsection must be | ||
commenced within 5
years
after
the last conduct giving | ||
rise to the forfeiture became known or should
have | ||
become known or 5 years after the forfeitable property | ||
is
discovered, whichever is later, excluding time | ||
during which either the
property or claimant is out of | ||
this State or in confinement or during which
criminal | ||
proceedings relating to the same conduct are in | ||
progress.
| ||
(p) If property is seized for evidence and for | ||
forfeiture, the time
periods
for
instituting judicial | ||
forfeiture proceedings shall not begin until the
| ||
property is no longer necessary for evidence.
| ||
(q) Notwithstanding other provisions of this Act, | ||
the Secretary of State
and
a
claimant of forfeitable | ||
property may enter into an agreed-upon settlement
| ||
concerning the forfeitable property in such an amount | ||
and upon such
terms as are set out in writing in a | ||
settlement agreement.
| ||
(r) Nothing in this Act shall apply to property | ||
that constitutes
reasonable
bona
fide attorney's fees | ||
paid to an attorney for services rendered or to be
| ||
rendered in the forfeiture proceeding or criminal | ||
proceeding relating
directly thereto when the property |
was paid before its seizure and before
the issuance of | ||
any seizure warrant or court order prohibiting | ||
transfer of
the property and when the attorney, at the | ||
time he or she received the
property, did not know that | ||
it was property subject to forfeiture under
this Act.
| ||
The court shall further have jurisdiction and authority, in | ||
addition to the
penalties and other remedies in this Act | ||
provided, to enter an order for
the appointment of the court or | ||
a person as a receiver, conservator,
ancillary receiver or | ||
ancillary conservator for the defendant or the
defendant's | ||
assets located in this State, or to require restitution,
| ||
damages or disgorgement of profits on behalf of the person or | ||
persons
injured by the act or practice constituting the subject | ||
matter of the
action, and may assess costs against the | ||
defendant for the use of the
State; provided, however, that the | ||
civil remedies of rescission and
appointment of a receiver, | ||
conservator, ancillary receiver
or ancillary conservator shall | ||
not be available against any person by
reason of the failure to | ||
file with the Secretary of State, or on account of
the contents | ||
of, any report of sale provided for in subsection G or P of
| ||
Section 4, paragraph (2) of subsection D of Sections 5 and 6, | ||
or paragraph
(2) of subsection F of Section 7 of this Act. | ||
Appeals may be
taken as in other civil cases.
| ||
I-5. Property forfeited under this Section is subject to | ||
reporting under the Seizure and Forfeiture Reporting Act. | ||
J. In no case shall the Secretary of State, or any of his |
or her
employees or agents, in the administration of this Act, | ||
incur any official or
personal liability by instituting an | ||
injunction or other proceeding or
by denying, suspending or | ||
revoking the registration of a dealer or
salesperson, or by | ||
denying, suspending or revoking the registration of
securities | ||
or prohibiting the offer or sale of securities, or by | ||
suspending or
prohibiting any person from acting as a dealer, | ||
limited Canadian dealer,
salesperson, investment adviser, or | ||
investment adviser
representative or from offering or selling | ||
securities.
| ||
K. No provision of this Act shall be construed to require | ||
or to
authorize the Secretary of State to require any | ||
investment adviser
or federal covered investment adviser | ||
engaged in rendering investment
supervisory services to | ||
disclose the
identity, investments, or affairs of any client of | ||
the investment
adviser or federal covered investment adviser, | ||
except insofar as the
disclosure may be necessary or
| ||
appropriate in a particular proceeding or investigation having | ||
as its
object the enforcement of this Act.
| ||
L. Whenever, after an examination, investigation or
| ||
hearing, the Secretary of State deems it of public interest or | ||
advantage,
he or she may certify a record to the State's | ||
Attorney of the county in
which the act complained of, examined | ||
or investigated occurred. The
State's Attorney of that county | ||
within 90 days after receipt of the record
shall file a written | ||
statement at the Office of the Secretary of State,
which |
statement shall set forth the action taken upon the record, or | ||
if no
action has been taken upon the record that fact, together | ||
with the reasons
therefor, shall be stated.
| ||
M. The Secretary of State may initiate, take, pursue, or | ||
prosecute any
action authorized or permitted under Section 6d | ||
of the Federal 1974 Act.
| ||
N. (1) Notwithstanding any provision of this Act to the | ||
contrary, to
encourage uniform interpretation, administration, | ||
and enforcement of the
provisions of this Act, the Secretary of | ||
State may cooperate with the
securities agencies or | ||
administrators of one or more states, Canadian provinces
or | ||
territories, or another country, the Securities and Exchange | ||
Commission, the
Commodity Futures Trading Commission, the | ||
Securities Investor Protection
Corporation, any | ||
self-regulatory organization, and any governmental law
| ||
enforcement or regulatory agency.
| ||
(2) The cooperation authorized by paragraph (1) of this | ||
subsection includes,
but is not limited to, the following:
| ||
(a) establishing or participating in a central | ||
depository or depositories
for registration under this Act | ||
and for documents or records required under
this Act;
| ||
(b) making a joint audit, inspection, examination, or | ||
investigation;
| ||
(c) holding a joint administrative hearing;
| ||
(d) filing and prosecuting a joint civil or criminal | ||
proceeding;
|
(e) sharing and exchanging personnel;
| ||
(f) sharing and exchanging information and documents; | ||
or
| ||
(g) issuing any joint statement or policy.
| ||
(Source: P.A. 99-182, eff. 1-1-16; 100-512, eff. 7-1-18.)
| ||
Section 50. "AN ACT concerning criminal law", approved | ||
September 19, 2017, (Public Act 100-0512) is amended by adding | ||
Section 997 as follows: | ||
Section 997. Savings clause. The provisions of this Act are | ||
subject to Section 4 of the Statute on Statutes. | ||
Section 95. No acceleration or delay. Where this Act makes | ||
changes in a statute that is represented in this Act by text | ||
that is not yet or no longer in effect (for example, a Section | ||
represented by multiple versions), the use of that text does | ||
not accelerate or delay the taking effect of (i) the changes | ||
made by this Act or (ii) provisions derived from any other | ||
Public Act.
| ||
Section 99. Effective date. This Act takes effect July 1, | ||
2018.
|