Public Act 098-1020
Public Act 1020 98TH GENERAL ASSEMBLY
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Public Act 098-1020
| | HB5523 Enrolled | LRB098 17373 RLC 52471 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 2012 is amended by changing | Sections 36-1, 36-1.5, 36-2, and 36-5 as follows:
| (720 ILCS 5/36-1) (from Ch. 38, par. 36-1)
| Sec. 36-1. Seizure. | (a) Any vessel, vehicle, or aircraft may be seized and | impounded by the law enforcement agency if the vessel, vehicle, | or aircraft is used with the knowledge
and consent of the owner | in the commission of, or in the attempt to commit as
defined in | Section 8-4 of this Code, an offense prohibited by: | (1) (a) Section 9-1 (first degree murder),
9-3 | (involuntary manslaughter and reckless homicide),
10-2 | (aggravated kidnaping), 11-1.20 (criminal sexual assault), | 11-1.30 (aggravated criminal sexual assault), 11-1.40 | (predatory criminal sexual assault of a child), subsection | (a) of Section 11-1.50 (criminal sexual abuse), subsection | (a), (c), or (d) of Section 11-1.60 (aggravated criminal | sexual abuse), Section 11-6 (indecent solicitation of a | child), 11-14.4 (promoting juvenile prostitution except | for keeping a place of juvenile prostitution), 11-15.1, | 11-19.1, 11-19.2, 11-20.1 (child pornography), paragraph |
| (a)(1), (a)(2), (a)(4), (b)(1), (b)(2), (e)(1), (e)(2), | (e)(3), (e)(4), (e)(5), (e)(6), or (e)(7) of Section | 12-3.05 (aggravated battery), 11-20.1B, 11-20.3,
12-4.1, | 12-4.2, 12-4.2-5, 12-4.3, 12-4.6,
12-7.3 (stalking), | 12-7.4 (aggravated stalking), 12-13, 12-14,
16-1 (theft if | the theft is of precious metal or of scrap metal), | subdivision (f)(2) or (f)(3) of Section 16-25 (retail | theft), Section 18-2 (armed robbery), 19-1 (burglary), | 19-2 (possession of burglary tools), 19-3 (residential | burglary), 20-1 (arson; residential arson; place of | worship arson), 20-2 (possession of explosives or | explosive or incendiary devices), subdivision (a)(6) or | (a)(7) of Section 24-1 (unlawful use of weapons), Section ,
| 24-1.2 (aggravated discharge of a firearm),
24-1.2-5 | (aggravated discharge of a machine gun or a firearm | equipped with a device designed or used for silencing the | report of a firearm),
24-1.5 (reckless discharge of a | firearm), 28-1 (gambling), or 29D-15.2 (possession of a | deadly substance) of this Code; , subdivision (a)(1), | (a)(2), (a)(4), (b)(1), (e)(1), (e)(2), (e)(3), (e)(4), | (e)(5), (e)(6), or (e)(7) of Section 12-3.05,
paragraph (a) | of Section 12-4 of this Code, paragraph (a) of Section | 11-1.50,
paragraph (a) of Section 12-15, paragraph (a), | (c), or (d) of Section 11-1.60, or paragraphs (a), (c) or | (d) of Section
12-16 of this Code, or paragraph (a)(6) or | (a)(7) of Section
24-1 of this Code; |
| (2) (b) Section 21, 22, 23, 24 or 26 of the Cigarette | Tax
Act if the vessel, vehicle, or aircraft contains more | than 10 cartons of
such cigarettes; | (3) (c) Section 28, 29, or 30 of the Cigarette Use Tax | Act if
the vessel, vehicle, or aircraft contains more than | 10 cartons of such
cigarettes; | (4) (d) Section 44 of the Environmental Protection Act; | (5) (e)
Section 11-204.1
of the Illinois Vehicle Code | (aggravated fleeing or attempting to elude a peace | officer); | (6) Section 11-501 of the Illinois Vehicle Code | (driving while under the influence of alcohol or other drug | or drugs, intoxicating compound or compounds or any | combination thereof) or a similar provision of a local | ordinance, and: | (f)
(1) driving under the influence of alcohol or other drug or | drugs, intoxicating compound or compounds or any
| combination thereof under Section 11-501 of the | Illinois Vehicle Code during a period in which | (A) during a period in which his
or her driving | privileges are revoked or suspended if where
the | revocation or suspension was for: | (i) Section 11-501 (driving under the | influence of alcohol or other drug or drugs, | intoxicating compound or compounds or any
| combination thereof), |
| (ii) Section 11-501.1 (statutory summary | suspension or revocation), | (iii) paragraph (b) of Section
11-401 (motor | vehicle accidents involving death or personal | injuries), or for | (iv) reckless homicide as defined in Section | 9-3
of this the Criminal Code of 1961 or the | Criminal Code of 2012; | (B) (2)
driving while under the influence of | alcohol, other drug or drugs, intoxicating compound or | compounds or any combination thereof and has been | previously convicted of reckless homicide or a similar | provision of a law of another state relating to | reckless homicide in which the person was determined to | have been under the influence of alcohol, other drug or | drugs, or intoxicating compound or compounds as an | element of the offense or the person has previously | been convicted of committing a violation of
driving | under the influence of alcohol or other drug or drugs, | intoxicating compound or compounds or any
combination | thereof and was involved in a motor vehicle accident | that resulted in death, great bodily harm, or permanent | disability or disfigurement to another, when the | violation was a proximate cause of the death or | injuries; | (C) (3) the person committed a violation of driving |
| under the influence of alcohol or other drug or drugs, | intoxicating compound or compounds or any
combination | thereof under Section 11-501 of the Illinois Vehicle | Code or a similar provision for the third or subsequent
| time; | (D) (4) the person committed the violation while he
| or she did not possess a valid driver's license or | permit or a valid restricted driving permit or a valid | judicial driving permit or a valid monitoring device | driving permit; or | (E) (5) the person committed the violation while he | or she knew or should have known that the vehicle he or | she was driving was not covered by a liability | insurance policy; | (7) (g) an offense described in subsection (g) of | Section 6-303 of the
Illinois Vehicle Code; or | (8) (h) an offense described in subsection (e) of
| Section 6-101 of the Illinois Vehicle Code;
may be
seized | and delivered forthwith to the sheriff of the county of | seizure.
| Within 15 days after such delivery the sheriff shall give | notice of seizure
to each person according to the following | method: Upon each such 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 such vessel, vehicle or | aircraft is required to be
so registered, as the case may be, | by mailing a copy of the notice by
certified mail to the | address as given upon the records of the Secretary of
State, | the Department of Aeronautics, Department of Public Works and
| Buildings or any other Department of this State or the United | States if
such vessel, vehicle or aircraft is required to be so | registered. Within
that 15 day period the sheriff shall also | notify the State's Attorney of
the county of seizure about the | seizure.
| (b) In addition, any mobile or portable equipment used in | the commission of an
act which is in violation of Section 7g of | the Metropolitan Water Reclamation
District Act shall be | subject to seizure and forfeiture under the same
procedures | provided in this Article for the seizure and forfeiture of | vessels,
vehicles, and aircraft, and any such equipment shall | be deemed a vessel, vehicle,
or aircraft for purposes of this | Article.
| (c) In addition, when When a person discharges a firearm at | another individual from a vehicle with
the knowledge and | consent of the owner of the vehicle and with the intent to
| cause death or great bodily harm to that individual and as a | result causes
death or great bodily harm to that individual, | the vehicle shall be subject to
seizure and forfeiture under | the same procedures provided in this Article for
the seizure | and forfeiture of vehicles used in violations of clauses (1), |
| (2), (3), or (4) of subsection (a) (a), (b),
(c), or (d) of | this Section.
| (d) If the spouse of the owner of a vehicle seized for
an | offense described in subsection (g) of Section 6-303 of the
| Illinois Vehicle Code,
a violation of
subdivision (d)(1)(A), | (d)(1)(D), (d)(1)(G), (d)(1)(H), or (d)(1)(I)
of Section | 11-501 of the Illinois Vehicle
Code, or Section 9-3 of this
| Code makes a showing
that the seized vehicle is the only source | of transportation and it is
determined that the financial | hardship to the family as a result of the seizure
outweighs the | benefit to the State from the seizure, the vehicle may be
| forfeited to the spouse or family member and the title to the | vehicle shall be
transferred to the spouse or family member who | is properly licensed and who
requires the use of the vehicle | for employment or family transportation
purposes. A written | declaration of forfeiture of a vehicle under this
Section shall | be sufficient cause for the title to be transferred to the | spouse
or family member. The provisions of this paragraph shall | apply only to one
forfeiture per vehicle. If the vehicle is the | subject of a subsequent
forfeiture proceeding by virtue of a | subsequent conviction of either spouse or
the family member, | the spouse or family member to whom the vehicle was
forfeited | under the first forfeiture proceeding may not utilize the
| provisions of this paragraph in another forfeiture proceeding. | If the owner of
the vehicle seized owns more than one vehicle,
| the procedure set out in this paragraph may be used for only |
| one vehicle.
| (e) In addition, property Property declared contraband | under Section 40 of the Illinois Streetgang
Terrorism Omnibus | Prevention Act may be seized and forfeited under this
Article.
| (Source: P.A. 96-313, eff. 1-1-10; 96-710, eff. 1-1-10; | 96-1000, eff. 7-2-10; 96-1267, eff. 7-26-10; 96-1289, eff. | 1-1-11; 96-1551, Article 1, Section 960, eff. 7-1-11; 96-1551, | Article 2, Section 1035, eff. 7-1-11; 97-333, eff. 8-12-11; | 97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)
| (720 ILCS 5/36-1.5) | 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 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.)
| (720 ILCS 5/36-2) (from Ch. 38, par. 36-2)
| 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 such forfeiture was | incurred without willful negligence
or without any intention on | the part of the owner of the vessel, 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 sheriff 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 notice is given in accordance with
| Section 36-1. | (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, 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, vehicle, or aircraft is required | to be so registered the forfeiture
proceeding by mailing a copy | of the Complaint in the forfeiture
proceeding to the persons, | and upon the manner, set forth in Section
36-1. | (c) The owner of the seized vessel, 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, vehicle, or aircraft was
| used in the commission of an offense described in Section 36-1. | (e) The
owner of such vessel, 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, 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, vehicle, or aircraft released
to the | owner. Where the State has made such showing, the Court may | order
the vessel, vehicle, or aircraft destroyed or ; may order | it forfeited delivered 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;
or may order it | sold at
public auction.
| (g) (b) A copy of the order shall be filed with the law | enforcement agency, sheriff of the
county in which the seizure | occurs and with each Federal or State office
or agency with | which such vessel, vehicle, or aircraft is required to be
| registered. Such order, when filed, constitutes authority for | the
issuance of clear title to such vessel, vehicle, or | aircraft, or boat to the
department or agency to whom it is | delivered or any purchaser thereof.
The law enforcement agency | sheriff 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) (c) 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 sheriff in storing and
selling | such vehicle, shall be paid to into the law enforcement agency | having seized the vehicle for forfeiture general fund of the | county
of seizure.
| (Source: P.A. 84-25.)
| (720 ILCS 5/36-5) | Sec. 36-5. The law enforcement agency, county or sheriff | not liable for stored forfeited vehicle. A law enforcement | agency, county, sheriff, law enforcement officer or employee of | the law enforcement agency or deputy sheriff, or employee of | the county sheriff shall not be civilly or criminally liable | for any damage to a forfeited vehicle stored with a commercial | vehicle safety relocator.
| (Source: P.A. 96-1274, eff. 7-26-10.)
| Section 99. Effective date. This Act takes effect upon | becoming law.
|
Effective Date: 8/22/2014
|
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