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Public Act 097-0544
Public Act 0544 97TH GENERAL ASSEMBLY
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Public Act 097-0544
| | SB2268 Enrolled | LRB097 10022 RLC 50193 b |
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| AN ACT concerning criminal law.
| Be it enacted by the People of the State of Illinois, | represented in the General Assembly:
| Section 5. The Criminal Code of 1961 is amended by adding | Section 36-1.5 as follows:
| (720 ILCS 5/36-1.5 new) | 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, 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.
| Section 6. The Cannabis Control Act is amended by changing | Section 12 as follows:
| (720 ILCS 550/12) (from Ch. 56 1/2, par. 712)
| 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) 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 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.
| (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. 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 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. | 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. 94-1004, eff. 7-3-06; 95-989, eff. 10-3-08.)
| Section 7. The Illinois Controlled Substances Act is | amended by changing Section 505 as follows:
| (720 ILCS 570/505) (from Ch. 56 1/2, par. 1505)
| 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 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 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 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. 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 of Professional
Regulation.
| (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) 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 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.
| (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. 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 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. | 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 is the holder thereof, | constitutes authority for the seizure and
forfeiture of the | plants.
| (Source: P.A. 94-1004, eff. 7-3-06.)
| Section 8. The Methamphetamine Control and Community | Protection Act is amended by changing Section 85 as follows:
| (720 ILCS 646/85)
| 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) 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 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.
| (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. 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. 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.
| (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. 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. 94-556, eff. 9-11-05; 94-1004, eff. 7-3-06.)
| Section 10. The Drug Asset Forfeiture Procedure Act is | amended by changing Section 6 and by adding Section 3.5 as | follows:
| (725 ILCS 150/3.5 new) | 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, 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.
|
| (725 ILCS 150/6) (from Ch. 56 1/2, par. 1676)
| Sec. 6. Non-Judicial Forfeiture. If non-real property that | exceeds $150,000
$20,000 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 $20,000 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. 94-556, eff. 9-11-05.)
|
Effective Date: 1/1/2012
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