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Public Act 097-0680 | ||||
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Criminal Code of 1961 is amended by changing | ||||
Section 36-1.5 as follows: | ||||
(720 ILCS 5/36-1.5) | ||||
Sec. 36-1.5. 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. Upon making a finding of probable | ||
cause as required under this Section, and after taking into | ||
account the respective interests of all known claimants to the | ||
property including the State, the circuit court shall enter a | ||
restraining order or injunction, or take other appropriate | ||
action, as necessary to ensure that the property is not removed | ||
from the court's jurisdiction and is not concealed, destroyed, | ||
or otherwise disposed of by the property owner or interest | ||
holder before a forfeiture hearing is conducted.
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(Source: P.A. 97-544, eff. 1-1-12.) | ||
Section 10. The Drug Asset Forfeiture Procedure Act is | ||
amended by changing Section 3.5 as follows: | ||
(725 ILCS 150/3.5) | ||
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. Upon making a finding of probable | ||
cause as required under this Section, and after taking into | ||
account the respective interests of all known claimants to the | ||
property including the State, the circuit court shall enter a | ||
restraining order or injunction, or take other appropriate | ||
action, as necessary to ensure that the property is not removed | ||
from the court's jurisdiction and is not concealed, destroyed, | ||
or otherwise disposed of by the property owner or interest | ||
holder before a forfeiture hearing is conducted.
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(Source: P.A. 97-544, eff. 1-1-12.)
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Section 99. Effective date. This Act takes effect January | ||
1, 2012.
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