Public Act 098-1020
 
HB5523 EnrolledLRB098 17373 RLC 52471 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 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