Public Act 095-0041
 		





HB0239 Enrolled
LRB095 04650 RLC 24708 b






    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 changing 
Section 17-1b as follows:
 



    (720 ILCS 5/17-1b)



    Sec. 17-lb. State's Attorney's bad check diversion 
program. 

    (a) In this Section:

    "Offender" means a person charged with, or for whom 
probable cause
exists to charge the person with, deceptive 
practices.

    "Pretrial diversion" means the decision of a prosecutor to 
refer an
offender to a diversion program on condition that the 
criminal charges against
the offender will be dismissed after a 
specified period of time, or the case
will not be charged, if 
the offender successfully completes the program.

    "Restitution" means all amounts payable to a victim of 
deceptive practices
under the bad check diversion program 
created under this Section, including
the amount of the check 
and any transaction fees payable to a victim as set
forth in 
subsection (g)
but does not include amounts
recoverable under 
Section 3-806 of the Uniform Commercial Code and Section
17-1a 
of this Code.

    (b) A State's Attorney may create within his or her office 
a bad check
diversion program for offenders who agree to 
voluntarily participate in the
program instead of undergoing 
prosecution. The program may be conducted by the
State's 
Attorney or by a private entity under contract with the State's

Attorney. If the State's Attorney contracts with a private 
entity to perform
any services in operating the program, the 
entity shall operate under the
supervision, direction, and 
control of the State's Attorney. Any private entity
providing 
services under this Section is not a "collection agency" as 
that
term is defined under the Collection Agency Act.

    (c) If an offender is referred to the State's Attorney, the 
State's
Attorney may determine whether the offender is 
appropriate for acceptance in
the
program. The State's Attorney 
may consider, but shall not be limited to
consideration of, the

following factors:


        (1) the amount of the check that was drawn or passed;


        (2) prior referrals of the offender to the program;


        (3) whether other charges of deceptive practices are 
    pending
against the offender;


        (4) the evidence presented to the State's Attorney 
    regarding the
facts and circumstances of the incident;


        (5) the offender's criminal history; and


        (6) the reason the check was dishonored by the 
    financial
institution.

    (d) The bad check diversion program may require an offender 
to do one or
more of the following:


        (i) pay for, at his or her own expense, and 
    successfully
complete an educational class held by the 
    State's Attorney or a private
entity under contract with 
    the State's Attorney;


        (ii) make full restitution for the offense;


        (iii) pay a per-check administrative fee as set forth 
    in this
Section.

    (e) If an offender is diverted to the program, the State's 
Attorney shall
agree in writing not to prosecute the offender 
upon the offender's successful
completion of the program 
conditions. The State's Attorney's agreement to
divert the 
offender shall specify the
offenses that will not be prosecuted 
by identifying the checks involved in the
transactions.

    (f) The State's Attorney, or private entity under contract 
with the
State's Attorney, may collect a fee from an offender 
diverted to the State's
Attorney's bad check diversion program. 
This fee may be deposited in a
bank account maintained by the 
State's Attorney for the purpose of
depositing fees and paying 
the expenses of the program or for use in the enforcement and 
prosecution of criminal laws. The State's
Attorney may require 
that the fee be paid directly to a private entity that

administers the program under a contract with the State's 
Attorney.
The amount of the administrative fees collected by 
the State's Attorney
under the program may not exceed $35 per 
check. The county board may,
however, by ordinance, increase 
the fees allowed by this Section if the
increase is justified 
by an acceptable cost study showing that the fees
allowed by 
this Section are not sufficient to cover the cost of providing 
the
service.


    (g)  (1) The private entity shall be required to maintain 
    adequate
general
liability insurance of $1,000,000 per 
    occurrence as well as adequate
coverage for potential loss 
    resulting from employee dishonesty.  The State's
Attorney 
    may require a surety bond payable to the State's Attorney 
    if in the
State's Attorney's opinion it is determined that 
    the private entity is not
adequately insured or funded.


        (2)  (A) Each private entity that has a contract with 
        the State's
Attorney to conduct a bad check diversion 
        program shall at all times
maintain a separate bank 
        account in which all moneys received from the
offenders 
        participating in the program shall be deposited, 
        referred to as a
"Trust Account", except that 
        negotiable instruments received may be
forwarded 
        directly to a victim of the deceptive practice 
        committed by the
offender if that procedure is provided 
        for by a writing executed by the
victim. Moneys 
        received shall be so deposited within 5 business days

        after posting to the private entity's books of account.

        There shall be sufficient funds in the trust account at 
        all times to
pay the victims the amount due them.


            (B) The trust account shall be established in a 
        bank, savings and
loan association, or other 
        recognized depository which is federally or
State 
        insured or otherwise secured as defined by rule. If the 
        account is
interest bearing, the private entity shall 
        pay to the victim interest
earned on funds on deposit 
        after the 60th day.


            (C) Each private entity shall keep on file the name 
        of the bank,
savings and loan association, or other 
        recognized depository in which
each trust account is 
        maintained, the name of each trust account, and
the 
        names of the persons authorized to withdraw funds from 
        each account.
The private entity, within 30 days of the 
        time of a change of
depository or person authorized to 
        make withdrawal, shall update its
files to reflect that 
        change.
An examination and audit of a private entity's 
        trust accounts may be
made by the State's Attorney as 
        the State's Attorney deems appropriate.
A trust 
        account financial report shall be submitted annually 
        on
forms acceptable to the State's Attorney.


        (3) The State's Attorney may cancel a contract entered 
    into
with a
private entity under this Section for any one 
    or any
combination of the following causes:


            (A) Conviction of the private entity or the 
        principals of
the private entity of any crime under the 
        laws of any U.S. jurisdiction
which is a felony, a 
        misdemeanor an essential element of which is

        dishonesty, or of any crime which directly relates to 
        the practice
of the profession.


            (B) A determination that the private entity has 
        engaged in conduct
prohibited in item (4).


        (4) The State's Attorney may determine whether the 
    private entity has
engaged in the following prohibited 
    conduct:


            (A) Using or threatening to use force or violence 
        to cause
physical harm to an offender, his or her 
        family, or his or her property.


            (B) Threatening the seizure, attachment, or sale 
        of an offender's
property where such action can only be 
        taken pursuant to court order
without disclosing that 
        prior court proceedings are required.


            (C) Disclosing  or  threatening  to disclose 
        information
adversely affecting an offender's 
        reputation for creditworthiness with
knowledge the 
        information is false.


            (D) Initiating or threatening to initiate 
        communication with
an offender's employer unless there 
        has been a default of the payment
of the obligation for 
        at least 30 days and at least 5 days prior
written 
        notice, to the last known address of the offender, of 
        the
intention to communicate with the employer has been 
        given to the
employee, except as expressly permitted by 
        law or court order.


            (E) Communicating with the offender or any member 
        of the
offender's family at such a time of day or night 
        and with such
frequency as to constitute harassment of 
        the offender or any member of
the offender's family.  
        For purposes of this clause (E) the following
conduct 
        shall constitute harassment:


                (i) Communicating with the offender or any 
            member of his or
her family at any unusual time or 
            place or a time
or place known or which should be 
            known to be inconvenient to
the offender.  In the 
            absence of knowledge of circumstances to
the 
            contrary, a private entity shall assume that the 
            convenient
time for communicating with a consumer 
            is after 8 o'clock a.m.
and before 9 o'clock p.m. 
            local time at the offender's residence.


                (ii) The threat of publication or publication 
            of a list of
offenders who allegedly refuse to pay 
            restitution, except by the State's
Attorney.


                (iii) The threat of advertisement or 
            advertisement for sale
of any restitution to 
            coerce payment of the restitution.


                (iv) Causing a telephone to ring or engaging 
            any person in
telephone conversation repeatedly or 
            continuously with intent
to annoy, abuse, or 
            harass any person at the called number.


                (v) Using  profane,  obscene  or  abusive  language  
            in
communicating with an offender, his or her 
            family, or others.


                (vi) Disclosing  or  threatening  to disclose 
            information
relating to a offender's case to any 
            other person except
the victim and appropriate law 
            enforcement personnel.


                (vii) Disclosing or threatening  to  disclose  
            information
concerning the alleged criminal act 
            which the private entity knows to
be reasonably 
            disputed by the offender without disclosing the 
            fact
that the offender disputes the accusation.


                (viii) Engaging in any conduct which the 
            State's Attorney finds was
intended to cause and 
            did cause mental or physical illness to the

            offender or his or her family.


                (ix) Attempting or threatening to enforce a 
            right or remedy
with knowledge or reason to know 
            that the right or remedy does not
exist.


                (x) Except as authorized by the State's 
            Attorney, using any form of
communication which 
            simulates legal or
judicial process or which gives 
            the appearance of being authorized,
issued or 
            approved by a governmental agency or official or by 
            an
attorney at law when it is not.


                (xi) Using any badge,
uniform, or other 
            indicia of any
governmental agency or official, 
            except as authorized by law or by the State's

            Attorney.


                (xii) Except as authorized by the State's 
            Attorney, conducting
business
under any name or in 
            any manner which
suggests or implies that the 
            private entity is bonded if such
private entity  is 
            or is a branch of or is affiliated with any

            governmental agency or court if such private 
            entity is not.


                (xiii) Misrepresenting the amount of the 
            restitution alleged
to be owed.


                (xiv) Except as authorized by the State's 
            Attorney, representing that
an
existing 
            restitution amount may be increased
by
the 
            addition of attorney's fees, investigation fees, 
            or any other
fees or charges when those fees or 
            charges may not legally be added
to the existing 
            restitution.


                (xv) Except as authorized by the State's 
            Attorney, representing that
the
private entity is 
            an attorney at
law or an agent for an attorney if 
            the entity is not.


                (xvi) Collecting or attempting to collect any 
            interest or other
charge or fee in excess of the 
            actual restitution or claim unless the
interest or 
            other charge or fee is expressly authorized by the

            State's Attorney, who shall
determine what 
            constitutes a reasonable collection fee.


                (xvii) Communicating or threatening to 
            communicate with an offender
when the private 
            entity is informed in writing by an attorney that

            the attorney represents the offender concerning 
            the claim, unless
authorized by the attorney. If 
            the attorney fails to respond within
a reasonable 
            period of time, the private entity may communicate 
            with the
offender. The private entity may 
            communicate with the offender when the
attorney 
            gives his consent.


                (xviii) Engaging in dishonorable, unethical, 
            or unprofessional
conduct of a character likely to 
            deceive, defraud, or harm the
public.


        (5) The State's Attorney shall audit the accounts of 
    the bad check
diversion
program after notice in writing to 
    the private entity.


        (6) Any information obtained by a private entity that 
    has a contract with
the State's Attorney to conduct a bad 
    check diversion program is confidential
information 
    between the State's Attorney and the private entity and may 
    not
be sold or used for any other purpose but may be shared 
    with other authorized
law enforcement agencies as 
    determined by the State's Attorney.

    (h) The State's Attorney, or private entity under contract 
with the
State's Attorney, shall recover, in addition to the 
face amount of the
dishonored check or draft, a transaction fee 
to defray the costs and expenses
incurred by a victim who 
received a dishonored check that was made or
delivered by the 
offender. The face amount of the dishonored check or draft and

the transaction fee shall be paid by the State's Attorney or 
private entity
under contract with the State's Attorney to the 
victim as
restitution for the offense. The amount of the 
transaction fee must not
exceed: $25 if the face amount of the 
check or draft does not exceed $100;
$30 if the face amount of 
the check or draft is greater than $100 but does not
exceed 
$250; $35 if the face amount of the check or draft is greater 
than
$250 but does not exceed $500; $40 if the face amount of 
the
check or draft is greater than $500 but does not exceed 
$1,000; and $50 if the
face amount of the check or draft is 
greater than $1,000.

    (i) The offender, if aggrieved by an action of the private

entity contracted to operate a bad check diversion program, may 
submit a
grievance to
the State's Attorney who may then resolve 
the grievance. The private entity
must give notice to the 
offender that the grievance procedure is available. The

grievance procedure shall be established by the State's 
Attorney.

(Source: P.A. 93-394, eff. 7-29-03.)






Effective Date:  1/1/2008