96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB4222

 

Introduced 2/27/2009, by Rep. Arthur L. Turner

 

SYNOPSIS AS INTRODUCED:
 
New Act
720 ILCS 570/102   from Ch. 56 1/2, par. 1102
720 ILCS 570/410.5 new
720 ILCS 646/10
720 ILCS 646/70.5 new

    Creates the Substance Abuse and Crime Prevention Act. Amends the Illinois Controlled Substances Act and the Methamphetamine Control and Community Protection Act. Provides that any person convicted of a nonviolent drug possession offense shall receive probation; includes certain exceptions. Provides that as a condition of probation, the court shall require participation in and completion of an appropriate drug treatment program. Provides that the court may also impose as a condition of probation participation in vocational training, family counseling, literacy training, or community service, or a combination of those conditions. Provides that a court may not impose incarceration as an additional condition of probation. Provides that in addition to any fine assessed under other provisions of law, the trial judge may require any person convicted of a nonviolent drug possession offense who is reasonably able to do so to contribute to the cost of his or her own placement in a drug treatment program.


LRB096 04065 RLC 14103 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB4222 LRB096 04065 RLC 14103 b

1     AN ACT concerning substance abuse treatment.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 1. Short title. This Act may be cited as the
5 Substance Abuse and Crime Prevention Act.
 
6     Section 5. Findings and declarations. The People of the
7 State of Illinois hereby find and declare all of the following:
8         (1) Substance abuse treatment is a proven public safety
9     and health measure. Nonviolent, drug-dependent criminal
10     offenders who receive drug treatment are much less likely
11     to abuse drugs and commit future crimes, and are likelier
12     to live healthier, more stable, and more productive lives.
13         (2) Community safety and health are promoted, and
14     taxpayer dollars are saved, when nonviolent persons
15     convicted of drug possession or drug use are provided
16     appropriate community-based treatment instead of
17     incarceration.
18         (3) In 1996 Arizona voters, by a 2 to 1, margin passed
19     the Drug Medicalization, Prevention, and Control Act,
20     which diverted nonviolent drug offenders into drug
21     treatment and education services rather than
22     incarceration. According to a Report Card prepared by the
23     Arizona Supreme Court, the Arizona law is resulting in

 

 

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1     safer communities and more substance abusing probationers
2     in recovery, has already saved state taxpayers millions of
3     dollars, and is helping more than 75% of program
4     participants to remain drug free.
 
5     Section 10. Purpose and intent. The People of the State of
6 Illinois hereby declare their purpose and intent in enacting
7 this Act to be as follows:
8         (1) to divert from incarceration into community-based
9     substance abuse treatment programs nonviolent defendants,
10     probationers, and parolees charged with simple drug
11     possession or drug use offenses;
12         (2) to halt the wasteful expenditure of hundreds of
13     millions of dollars each year on the incarceration and
14     re-incarceration of nonviolent drug users who would be
15     better served by community-based treatment;
16         (3) to enhance public safety by reducing drug-related
17     crime and preserving jails and prison cells for serious and
18     violent offenders; and
19          (4) to improve public health by reducing drug abuse
20     and drug dependence through proven and effective drug
21     treatment strategies.
 
22     Section 105. The Illinois Controlled Substances Act is
23 amended by changing Section 102 and by adding Section 410.5 as
24 follows:
 

 

 

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1     (720 ILCS 570/102)  (from Ch. 56 1/2, par. 1102)
2     Sec. 102. Definitions. As used in this Act, unless the
3 context otherwise requires:
4     (a) "Addict" means any person who habitually uses any drug,
5 chemical, substance or dangerous drug other than alcohol so as
6 to endanger the public morals, health, safety or welfare or who
7 is so far addicted to the use of a dangerous drug or controlled
8 substance other than alcohol as to have lost the power of self
9 control with reference to his addiction.
10     (b) "Administer" means the direct application of a
11 controlled substance, whether by injection, inhalation,
12 ingestion, or any other means, to the body of a patient,
13 research subject, or animal (as defined by the Humane
14 Euthanasia in Animal Shelters Act) by:
15         (1) a practitioner (or, in his presence, by his
16     authorized agent),
17         (2) the patient or research subject at the lawful
18     direction of the practitioner, or
19         (3) a euthanasia technician as defined by the Humane
20     Euthanasia in Animal Shelters Act.
21     (c) "Agent" means an authorized person who acts on behalf
22 of or at the direction of a manufacturer, distributor, or
23 dispenser. It does not include a common or contract carrier,
24 public warehouseman or employee of the carrier or warehouseman.
25     (c-1) "Anabolic Steroids" means any drug or hormonal

 

 

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1 substance, chemically and pharmacologically related to
2 testosterone (other than estrogens, progestins, and
3 corticosteroids) that promotes muscle growth, and includes:
4             (i) boldenone,
5             (ii) chlorotestosterone,
6             (iii) chostebol,
7             (iv) dehydrochlormethyltestosterone,
8             (v) dihydrotestosterone,
9             (vi) drostanolone,
10             (vii) ethylestrenol,
11             (viii) fluoxymesterone,
12             (ix) formebulone,
13             (x) mesterolone,
14             (xi) methandienone,
15             (xii) methandranone,
16             (xiii) methandriol,
17             (xiv) methandrostenolone,
18             (xv) methenolone,
19             (xvi) methyltestosterone,
20             (xvii) mibolerone,
21             (xviii) nandrolone,
22             (xix) norethandrolone,
23             (xx) oxandrolone,
24             (xxi) oxymesterone,
25             (xxii) oxymetholone,
26             (xxiii) stanolone,

 

 

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1             (xxiv) stanozolol,
2             (xxv) testolactone,
3             (xxvi) testosterone,
4             (xxvii) trenbolone, and
5             (xxviii) any salt, ester, or isomer of a drug or
6         substance described or listed in this paragraph, if
7         that salt, ester, or isomer promotes muscle growth.
8     Any person who is otherwise lawfully in possession of an
9 anabolic steroid, or who otherwise lawfully manufactures,
10 distributes, dispenses, delivers, or possesses with intent to
11 deliver an anabolic steroid, which anabolic steroid is
12 expressly intended for and lawfully allowed to be administered
13 through implants to livestock or other nonhuman species, and
14 which is approved by the Secretary of Health and Human Services
15 for such administration, and which the person intends to
16 administer or have administered through such implants, shall
17 not be considered to be in unauthorized possession or to
18 unlawfully manufacture, distribute, dispense, deliver, or
19 possess with intent to deliver such anabolic steroid for
20 purposes of this Act.
21     (d) "Administration" means the Drug Enforcement
22 Administration, United States Department of Justice, or its
23 successor agency.
24     (e) "Control" means to add a drug or other substance, or
25 immediate precursor, to a Schedule under Article II of this Act
26 whether by transfer from another Schedule or otherwise.

 

 

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1     (f) "Controlled Substance" means a drug, substance, or
2 immediate precursor in the Schedules of Article II of this Act.
3     (g) "Counterfeit substance" means a controlled substance,
4 which, or the container or labeling of which, without
5 authorization bears the trademark, trade name, or other
6 identifying mark, imprint, number or device, or any likeness
7 thereof, of a manufacturer, distributor, or dispenser other
8 than the person who in fact manufactured, distributed, or
9 dispensed the substance.
10     (h) "Deliver" or "delivery" means the actual, constructive
11 or attempted transfer of possession of a controlled substance,
12 with or without consideration, whether or not there is an
13 agency relationship.
14     (i) "Department" means the Illinois Department of Human
15 Services (as successor to the Department of Alcoholism and
16 Substance Abuse) or its successor agency.
17     (j) "Department of State Police" means the Department of
18 State Police of the State of Illinois or its successor agency.
19     (k) "Department of Corrections" means the Department of
20 Corrections of the State of Illinois or its successor agency.
21     (l) "Department of Professional Regulation" means the
22 Department of Professional Regulation of the State of Illinois
23 or its successor agency.
24     (m) "Depressant" or "stimulant substance" means:
25         (1) a drug which contains any quantity of (i)
26     barbituric acid or any of the salts of barbituric acid

 

 

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1     which has been designated as habit forming under section
2     502 (d) of the Federal Food, Drug, and Cosmetic Act (21
3     U.S.C. 352 (d)); or
4         (2) a drug which contains any quantity of (i)
5     amphetamine or methamphetamine and any of their optical
6     isomers; (ii) any salt of amphetamine or methamphetamine or
7     any salt of an optical isomer of amphetamine; or (iii) any
8     substance which the Department, after investigation, has
9     found to be, and by rule designated as, habit forming
10     because of its depressant or stimulant effect on the
11     central nervous system; or
12         (3) lysergic acid diethylamide; or
13         (4) any drug which contains any quantity of a substance
14     which the Department, after investigation, has found to
15     have, and by rule designated as having, a potential for
16     abuse because of its depressant or stimulant effect on the
17     central nervous system or its hallucinogenic effect.
18     (n) (Blank).
19     (o) "Director" means the Director of the Department of
20 State Police or the Department of Professional Regulation or
21 his designated agents.
22     (p) "Dispense" means to deliver a controlled substance to
23 an ultimate user or research subject by or pursuant to the
24 lawful order of a prescriber, including the prescribing,
25 administering, packaging, labeling, or compounding necessary
26 to prepare the substance for that delivery.

 

 

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1     (q) "Dispenser" means a practitioner who dispenses.
2     (r) "Distribute" means to deliver, other than by
3 administering or dispensing, a controlled substance.
4     (s) "Distributor" means a person who distributes.
5     (t) "Drug" means (1) substances recognized as drugs in the
6 official United States Pharmacopoeia, Official Homeopathic
7 Pharmacopoeia of the United States, or official National
8 Formulary, or any supplement to any of them; (2) substances
9 intended for use in diagnosis, cure, mitigation, treatment, or
10 prevention of disease in man or animals; (3) substances (other
11 than food) intended to affect the structure of any function of
12 the body of man or animals and (4) substances intended for use
13 as a component of any article specified in clause (1), (2), or
14 (3) of this subsection. It does not include devices or their
15 components, parts, or accessories.
16     (t-3) "Drug treatment program" or "drug treatment" means a
17 community drug treatment program licensed by the Department of
18 Human Services under the Alcoholism and Other Drug Abuse and
19 Dependency Act, which may include one or more of the following:
20 outpatient treatment, half-way house treatment, narcotic
21 replacement therapy, drug education or prevention courses, or
22 limited inpatient or residential drug treatment as needed to
23 address special detoxification or relapse situations or severe
24 dependence. "Drug treatment program" or "drug treatment" does
25 not include drug treatment programs offered in a prison or jail
26 facility.

 

 

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1     (t-5) "Euthanasia agency" means an entity certified by the
2 Department of Professional Regulation for the purpose of animal
3 euthanasia that holds an animal control facility license or
4 animal shelter license under the Animal Welfare Act. A
5 euthanasia agency is authorized to purchase, store, possess,
6 and utilize Schedule II nonnarcotic and Schedule III
7 nonnarcotic drugs for the sole purpose of animal euthanasia.
8     (t-10) "Euthanasia drugs" means Schedule II or Schedule III
9 substances (nonnarcotic controlled substances) that are used
10 by a euthanasia agency for the purpose of animal euthanasia.
11     (u) "Good faith" means the prescribing or dispensing of a
12 controlled substance by a practitioner in the regular course of
13 professional treatment to or for any person who is under his
14 treatment for a pathology or condition other than that
15 individual's physical or psychological dependence upon or
16 addiction to a controlled substance, except as provided herein:
17 and application of the term to a pharmacist shall mean the
18 dispensing of a controlled substance pursuant to the
19 prescriber's order which in the professional judgment of the
20 pharmacist is lawful. The pharmacist shall be guided by
21 accepted professional standards including, but not limited to
22 the following, in making the judgment:
23         (1) lack of consistency of doctor-patient
24     relationship,
25         (2) frequency of prescriptions for same drug by one
26     prescriber for large numbers of patients,

 

 

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1         (3) quantities beyond those normally prescribed,
2         (4) unusual dosages,
3         (5) unusual geographic distances between patient,
4     pharmacist and prescriber,
5         (6) consistent prescribing of habit-forming drugs.
6     (u-1) "Home infusion services" means services provided by a
7 pharmacy in compounding solutions for direct administration to
8 a patient in a private residence, long-term care facility, or
9 hospice setting by means of parenteral, intravenous,
10 intramuscular, subcutaneous, or intraspinal infusion.
11     (v) "Immediate precursor" means a substance:
12         (1) which the Department has found to be and by rule
13     designated as being a principal compound used, or produced
14     primarily for use, in the manufacture of a controlled
15     substance;
16         (2) which is an immediate chemical intermediary used or
17     likely to be used in the manufacture of such controlled
18     substance; and
19         (3) the control of which is necessary to prevent,
20     curtail or limit the manufacture of such controlled
21     substance.
22     (w) "Instructional activities" means the acts of teaching,
23 educating or instructing by practitioners using controlled
24 substances within educational facilities approved by the State
25 Board of Education or its successor agency.
26     (x) "Local authorities" means a duly organized State,

 

 

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1 County or Municipal peace unit or police force.
2     (y) "Look-alike substance" means a substance, other than a
3 controlled substance which (1) by overall dosage unit
4 appearance, including shape, color, size, markings or lack
5 thereof, taste, consistency, or any other identifying physical
6 characteristic of the substance, would lead a reasonable person
7 to believe that the substance is a controlled substance, or (2)
8 is expressly or impliedly represented to be a controlled
9 substance or is distributed under circumstances which would
10 lead a reasonable person to believe that the substance is a
11 controlled substance. For the purpose of determining whether
12 the representations made or the circumstances of the
13 distribution would lead a reasonable person to believe the
14 substance to be a controlled substance under this clause (2) of
15 subsection (y), the court or other authority may consider the
16 following factors in addition to any other factor that may be
17 relevant:
18         (a) statements made by the owner or person in control
19     of the substance concerning its nature, use or effect;
20         (b) statements made to the buyer or recipient that the
21     substance may be resold for profit;
22         (c) whether the substance is packaged in a manner
23     normally used for the illegal distribution of controlled
24     substances;
25         (d) whether the distribution or attempted distribution
26     included an exchange of or demand for money or other

 

 

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1     property as consideration, and whether the amount of the
2     consideration was substantially greater than the
3     reasonable retail market value of the substance.
4     Clause (1) of this subsection (y) shall not apply to a
5 noncontrolled substance in its finished dosage form that was
6 initially introduced into commerce prior to the initial
7 introduction into commerce of a controlled substance in its
8 finished dosage form which it may substantially resemble.
9     Nothing in this subsection (y) prohibits the dispensing or
10 distributing of noncontrolled substances by persons authorized
11 to dispense and distribute controlled substances under this
12 Act, provided that such action would be deemed to be carried
13 out in good faith under subsection (u) if the substances
14 involved were controlled substances.
15     Nothing in this subsection (y) or in this Act prohibits the
16 manufacture, preparation, propagation, compounding,
17 processing, packaging, advertising or distribution of a drug or
18 drugs by any person registered pursuant to Section 510 of the
19 Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360).
20     (y-1) "Mail-order pharmacy" means a pharmacy that is
21 located in a state of the United States, other than Illinois,
22 that delivers, dispenses or distributes, through the United
23 States Postal Service or other common carrier, to Illinois
24 residents, any substance which requires a prescription.
25     (z) "Manufacture" means the production, preparation,
26 propagation, compounding, conversion or processing of a

 

 

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1 controlled substance other than methamphetamine, either
2 directly or indirectly, by extraction from substances of
3 natural origin, or independently by means of chemical
4 synthesis, or by a combination of extraction and chemical
5 synthesis, and includes any packaging or repackaging of the
6 substance or labeling of its container, except that this term
7 does not include:
8         (1) by an ultimate user, the preparation or compounding
9     of a controlled substance for his own use; or
10         (2) by a practitioner, or his authorized agent under
11     his supervision, the preparation, compounding, packaging,
12     or labeling of a controlled substance:
13             (a) as an incident to his administering or
14         dispensing of a controlled substance in the course of
15         his professional practice; or
16             (b) as an incident to lawful research, teaching or
17         chemical analysis and not for sale.
18     (z-1) (Blank).
19     (z-5) "Misdemeanor not related to the use of drugs" means a
20 misdemeanor that does not involve: (i) the simple possession or
21 use of drugs or drug paraphernalia, (ii) being present where
22 drugs are used, (iii) failure to register as a drug offender,
23 or (iv) any similar activity.
24     (aa) "Narcotic drug" means any of the following, whether
25 produced directly or indirectly by extraction from substances
26 of natural origin, or independently by means of chemical

 

 

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1 synthesis, or by a combination of extraction and chemical
2 synthesis:
3         (1) opium and opiate, and any salt, compound,
4     derivative, or preparation of opium or opiate;
5         (2) any salt, compound, isomer, derivative, or
6     preparation thereof which is chemically equivalent or
7     identical with any of the substances referred to in clause
8     (1), but not including the isoquinoline alkaloids of opium;
9         (3) opium poppy and poppy straw;
10         (4) coca leaves and any salts, compound, isomer, salt
11     of an isomer, derivative, or preparation of coca leaves
12     including cocaine or ecgonine, and any salt, compound,
13     isomer, derivative, or preparation thereof which is
14     chemically equivalent or identical with any of these
15     substances, but not including decocainized coca leaves or
16     extractions of coca leaves which do not contain cocaine or
17     ecgonine (for the purpose of this paragraph, the term
18     "isomer" includes optical, positional and geometric
19     isomers).
20         (aa-5) "Nonviolent drug possession offense" means the
21     unlawful possession of any Schedule I, II, III, IV, or V
22     controlled substance under Section 402 or the unlawful
23     possession of methamphetamine under the Methamphetamine
24     Control and Community Protection Act. "Nonviolent drug
25     possession offense" does not include the manufacture or
26     delivery, or possession with intent to manufacture or

 

 

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1     deliver, of any controlled substance under Section 402 or
2     of methamphetamine under the Methamphetamine Control and
3     Community Protection Act.
4     (bb) "Nurse" means a registered nurse licensed under the
5 Nurse Practice Act.
6     (cc) (Blank).
7     (dd) "Opiate" means any substance having an addiction
8 forming or addiction sustaining liability similar to morphine
9 or being capable of conversion into a drug having addiction
10 forming or addiction sustaining liability.
11     (ee) "Opium poppy" means the plant of the species Papaver
12 somniferum L., except its seeds.
13     (ff) "Parole and Pardon Board" means the Parole and Pardon
14 Board of the State of Illinois or its successor agency.
15     (gg) "Person" means any individual, corporation,
16 mail-order pharmacy, government or governmental subdivision or
17 agency, business trust, estate, trust, partnership or
18 association, or any other entity.
19     (hh) "Pharmacist" means any person who holds a license or
20 certificate of registration as a registered pharmacist, a local
21 registered pharmacist or a registered assistant pharmacist
22 under the Pharmacy Practice Act.
23     (ii) "Pharmacy" means any store, ship or other place in
24 which pharmacy is authorized to be practiced under the Pharmacy
25 Practice Act.
26     (jj) "Poppy straw" means all parts, except the seeds, of

 

 

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1 the opium poppy, after mowing.
2     (kk) "Practitioner" means a physician licensed to practice
3 medicine in all its branches, dentist, optometrist,
4 podiatrist, veterinarian, scientific investigator, pharmacist,
5 physician assistant, advanced practice nurse, licensed
6 practical nurse, registered nurse, hospital, laboratory, or
7 pharmacy, or other person licensed, registered, or otherwise
8 lawfully permitted by the United States or this State to
9 distribute, dispense, conduct research with respect to,
10 administer or use in teaching or chemical analysis, a
11 controlled substance in the course of professional practice or
12 research.
13     (ll) "Pre-printed prescription" means a written
14 prescription upon which the designated drug has been indicated
15 prior to the time of issuance.
16     (mm) "Prescriber" means a physician licensed to practice
17 medicine in all its branches, dentist, optometrist, podiatrist
18 or veterinarian who issues a prescription, a physician
19 assistant who issues a prescription for a Schedule III, IV, or
20 V controlled substance in accordance with Section 303.05 and
21 the written guidelines required under Section 7.5 of the
22 Physician Assistant Practice Act of 1987, or an advanced
23 practice nurse with prescriptive authority delegated under
24 Section 65-40 of the Nurse Practice Act and in accordance with
25 Section 303.05 and a written collaborative agreement under
26 Section 65-35 of the Nurse Practice Act.

 

 

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1     (nn) "Prescription" means a lawful written, facsimile, or
2 verbal order of a physician licensed to practice medicine in
3 all its branches, dentist, podiatrist or veterinarian for any
4 controlled substance, of an optometrist for a Schedule III, IV,
5 or V controlled substance in accordance with Section 15.1 of
6 the Illinois Optometric Practice Act of 1987, of a physician
7 assistant for a Schedule III, IV, or V controlled substance in
8 accordance with Section 303.05 and the written guidelines
9 required under Section 7.5 of the Physician Assistant Practice
10 Act of 1987, or of an advanced practice nurse with prescriptive
11 authority delegated under Section 65-40 of the Nurse Practice
12 Act who issues a prescription for a Schedule III, IV, or V
13 controlled substance in accordance with Section 303.05 and a
14 written collaborative agreement under Section 65-35 of the
15 Nurse Practice Act.
16     (oo) "Production" or "produce" means manufacture,
17 planting, cultivating, growing, or harvesting of a controlled
18 substance other than methamphetamine.
19     (pp) "Registrant" means every person who is required to
20 register under Section 302 of this Act.
21     (qq) "Registry number" means the number assigned to each
22 person authorized to handle controlled substances under the
23 laws of the United States and of this State.
24     (rr) "State" includes the State of Illinois and any state,
25 district, commonwealth, territory, insular possession thereof,
26 and any area subject to the legal authority of the United

 

 

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1 States of America.
2     (rr-5) "Successful completion of treatment" means that a
3 defendant who has had drug treatment imposed as a condition of
4 probation has completed the prescribed course of drug treatment
5 and, as a result, there is reasonable cause to believe that the
6 defendant will not abuse controlled substances in the future.
7     (ss) "Ultimate user" means a person who lawfully possesses
8 a controlled substance for his own use or for the use of a
9 member of his household or for administering to an animal owned
10 by him or by a member of his household.
11     (tt) "Violent crime" has the meaning ascribed in paragraph
12 (c) of Section 3 of the Rights of Crime Victims and Witnesses
13 Act.
14 (Source: P.A. 94-556, eff. 9-11-05; 95-242, eff. 1-1-08;
15 95-639, eff. 10-5-07; 95-689, eff. 10-29-07; 95-876, eff.
16 8-21-08.)
 
17     (720 ILCS 570/410.5 new)
18     Sec. 410.5. Possession of controlled substances;
19 probation; exceptions.
20     (a) Conditions of probation. Notwithstanding any other
21 provision of law, and except as provided in the other
22 provisions of this Section, any person convicted of a
23 nonviolent drug possession offense shall receive probation. As
24 a condition of probation the court shall require participation
25 in and completion of an appropriate drug treatment program. The

 

 

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1 court may also impose as a condition of probation participation
2 in vocational training, family counseling, literacy training,
3 or community service, or a combination of those conditions. A
4 court may not impose incarceration as an additional condition
5 of probation. Aside from the limitations imposed in this
6 subsection, the trial court is not otherwise limited in the
7 type of probation conditions it may impose. In addition to any
8 fine assessed under other provisions of law, the trial judge
9 may require any person convicted of a nonviolent drug
10 possession offense who is reasonably able to do so to
11 contribute to the cost of his or her own placement in a drug
12 treatment program.
13     (b) Exclusions. Subsection (a) does not apply to:
14         (1) Any defendant who has previously been convicted of
15     one or more violent crimes, unless the nonviolent drug
16     possession offense occurred after a period of 5 years in
17     which the defendant remained free of both prison custody
18     and the commission of an offense that resulted in (A) a
19     felony conviction other than a nonviolent drug possession
20     offense or (B) a misdemeanor conviction involving physical
21     injury or the threat of physical injury to another person.
22         (2) Any defendant who, in addition to one or more
23     nonviolent drug possession offenses, has been convicted in
24     the same proceeding of a misdemeanor not related to the use
25     of drugs or any felony.
26         (3) Any defendant who:

 

 

HB4222 - 20 - LRB096 04065 RLC 14103 b

1             (A) While using a firearm, unlawfully possesses
2         any amount of (i) a substance containing either cocaine
3         base, cocaine, heroin, or methamphetamine, or (ii) a
4         liquid, non-liquid, plant substance, or hand-rolled
5         cigarette containing phencyclidine.
6             (B) While using a firearm, is unlawfully under the
7         influence of cocaine base, cocaine, heroin,
8         methamphetamine, or phencyclidine.
9         (4) Any defendant who refuses drug treatment as a
10     condition of probation.
11         (5) Any defendant who (A) has two separate convictions
12     for nonviolent drug possession offenses, (B) has
13     participated in two separate courses of drug treatment
14     pursuant to subsection (A), and (C) is found by the court,
15     by clear and convincing evidence, to be unamenable to any
16     and all forms of available drug treatment. Notwithstanding
17     any other provision of law, the trial court shall sentence
18     such defendants to 30 days in jail.
19     (c) Treatment.
20         (1) Within 7 days of an order imposing probation under
21     subsection (a), the probation department shall notify the
22     drug treatment provider designated to provide drug
23     treatment under subsection (a). Within 30 days of receiving
24     that notice, the treatment provider shall prepare a
25     treatment plan and forward it to the probation department.
26     On a quarterly basis after the defendant begins the drug

 

 

HB4222 - 21 - LRB096 04065 RLC 14103 b

1     treatment program, the treatment provider shall prepare
2     and forward a progress report to the probation department.
3          (2) If at any point during the course of drug
4     treatment the treatment provider notifies the probation
5     department that the defendant is unamenable to the drug
6     treatment being provided, but may be amenable to other drug
7     treatments or related programs, the probation department
8     may move the court to modify the terms of probation to
9     ensure that the defendant receives the alternative drug
10     treatment or program.
11         (3) If at any point during the course of drug treatment
12     the treatment provider notifies the probation department
13     that the defendant is unamenable to the drug treatment
14     provided and all other forms of drug treatment, the
15     probation department may move to revoke probation. At the
16     revocation hearing, unless the defendant proves by a
17     preponderance of the evidence that there is a drug
18     treatment program to which he is amenable, the court may
19     revoke probation.
20         (4) Drug treatment services provided under subsection
21     (a) as a required condition of probation may not exceed 12
22     months, except that additional aftercare services may be
23     required as a condition of probation for up to 6 months.
24     (d) Dismissal of charges upon successful completion of drug
25 treatment.
26         (1) At any time after completion of drug treatment, a

 

 

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1     defendant may petition the sentencing court for dismissal
2     of the charges. If the court finds that the defendant
3     successfully completed drug treatment and substantially
4     complied with the conditions of probation, the conviction
5     on which the probation was based shall be set aside and the
6     court shall dismiss the indictment or information against
7     the defendant. In addition, the arrest on which the
8     conviction was based shall be deemed to have never
9     occurred. Except as provided in subdivisions (2) and (3) of
10     this subsection (d), the defendant shall thereafter be
11     released from all penalties and disabilities resulting
12     from the offense of which he or she has been convicted.
13         (2) Dismissal of an indictment or information pursuant
14     to subdivision (1) of this subsection (d) does not permit a
15     person to own, possess, or have in his or her custody or
16     control any firearm capable of being concealed upon the
17     person or prevent his or her conviction for any offense
18     under Article 24 of the Criminal Code of 1961.
19         (3) Except as provided in this Section, after an
20     indictment or information is dismissed pursuant to
21     subdivision (1) of this subsection (d), the defendant may
22     indicate in response to any question concerning his or her
23     prior criminal record that he or she was not arrested or
24     convicted for the offense. Except as provided in this
25     Section, a record pertaining to an arrest or conviction
26     resulting in successful completion of a drug treatment

 

 

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1     program under this Section shall not, without the
2     defendant's consent, be used in any way that could result
3     in the denial of any employment, benefit, license, or
4     certificate. Regardless of his or her successful
5     completion of drug treatment, the arrest and conviction on
6     which the probation was based may be recorded by the
7     Department of State Police and disclosed in response to any
8     peace officer application request or any law enforcement
9     inquiry. Dismissal of an information or indictment under
10     this Section does not relieve a defendant of the obligation
11     to disclose the arrest and conviction in response to any
12     direct question contained in any questionnaire or
13     application for public office, for a position as a peace
14     officer as defined in Section 2-13 of the Criminal Code of
15     1961, for licensure by any State or local agency, for
16     contracting with the Division of State Lottery of the
17     Illinois Department of Revenue, or for purposes of serving
18     on a jury.
19     (e) Violation of probation.
20     (1) If probation is revoked pursuant to the provisions of
21 this subsection, the defendant may be incarcerated pursuant to
22 otherwise applicable law without regard to the provisions of
23 this Section.
24     (2) Non-drug-related probation violations. Where a
25 defendant receives probation under subsection (a) and violates
26 that probation, either by being arrested for an offense that is

 

 

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1 not a nonviolent drug possession offense, or by violating a
2 non-drug-related condition of probation, and the State moves to
3 revoke probation, the court shall conduct a hearing to
4 determine whether probation shall be revoked. The court may
5 modify or revoke probation if the alleged violation is proved.
6     (3) Drug-related probation violations.
7         (A) When a defendant receives probation under
8     subsection (a) and violates that probation, either by being
9     arrested for a non-violent drug possession offense or by
10     violating a drug-related condition of probation, and the
11     State moves to revoke probation, the court shall conduct a
12     hearing to determine whether probation shall be revoked.
13     The trial court shall revoke probation if the alleged
14     probation violation is proved and the State proves by a
15     preponderance of the evidence that the defendant poses a
16     danger to the safety of others. If the court does not
17     revoke probation, it may intensify or alter the drug
18     treatment plan.
19         (B) When a defendant receives probation under
20     subsection (a) and for the second time violates that
21     probation, either by being arrested for a non-violent drug
22     possession offense or by violating a drug-related
23     condition of probation, and the State moves for a second
24     time to revoke probation, the court shall conduct a hearing
25     to determine whether probation shall be revoked. The trial
26     court shall revoke probation if the alleged probation

 

 

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1     violation is proved and the State proves by a preponderance
2     of the evidence either that the defendant poses a danger to
3     the safety of others or is unamenable to drug treatment.
4         If the court does not revoke probation, it may
5     intensify or alter the drug treatment plan.
6         (C) When a defendant receives probation under
7     subsection (a) and for the third time violates that
8     probation, either by being arrested for a non-violent drug
9     possession offense or by violating a drug-related
10     condition of probation, and the State moves for a third
11     time to revoke probation, the court shall conduct a hearing
12     to determine whether probation shall be revoked. If the
13     alleged probation violation is proved, defendant is not
14     eligible for continued probation under subsection (a).
15         (D) When a defendant on probation on the effective date
16     of this amendatory Act of the 96th General Assembly for a
17     non-violent drug possession offense violates that
18     probation, either by being arrested for a non-violent drug
19     possession offense or by violating a drug-related
20     condition of probation, and the State moves to revoke
21     probation, the court shall conduct a hearing to determine
22     if probation shall be revoked. The trial court shall revoke
23     probation if the alleged probation violation is proved and
24     the State proves by a preponderance of the evidence that
25     the defendant poses a danger to the safety of others. If
26     the court does not revoke probation, it may modify

 

 

HB4222 - 26 - LRB096 04065 RLC 14103 b

1     probation and impose as an additional condition
2     participation in a drug treatment program.
3         (E) When a defendant on probation on the effective date
4     of this amendatory Act of the 96th General Assembly for a
5     non-violent drug possession offense violates that
6     probation a second time, either by being arrested for a
7     non-violent drug possession offense or by violating a
8     drug-related condition of probation, and the State moves
9     for a second time to revoke probation, the court shall
10     conduct a hearing to determine whether probation shall be
11     revoked. The trial court shall revoke probation if the
12     alleged probation violation is proved and the State proves
13     by a preponderance of the evidence either that the
14     defendant poses a danger to the safety of others or is
15     unamenable to drug treatment. If the court does not revoke
16     probation, it may modify probation and impose as an
17     additional condition participation in a drug treatment
18     program.
19         (F) When a defendant on probation on the effective date
20     of this amendatory Act of the 96th General Assembly for a
21     non-violent drug offense violates that probation a third
22     time either by being arrested for a non-violent drug
23     possession offense, or by violating a drug-related
24     condition of probation, and the State moves for a third
25     time to revoke probation, the court shall conduct a hearing
26     to determine whether probation shall be revoked. If the

 

 

HB4222 - 27 - LRB096 04065 RLC 14103 b

1     alleged probation violation is proved, the defendant is not
2     eligible for continued probation under subsection (a).
3     (G) In determining whether a defendant is unamenable to
4 drug treatment, the court may consider, to the extent relevant,
5 whether the defendant:
6             (1) has committed a serious violation of rules at
7         the drug treatment program,
8             (2) has repeatedly committed violations of program
9         rules that inhibit the defendant's ability to function
10         in the program, or
11             (3) has continually refused to participate in the
12         program or asked to be removed from the program.
 
13     Section 110. The Methamphetamine Control and Community
14 Protection Act is amended by changing Section 10 and by adding
15 Section 70.5 as follows:
 
16     (720 ILCS 646/10)
17     Sec. 10. Definitions. As used in this Act:
18     "Anhydrous ammonia" has the meaning provided in subsection
19 (d) of Section 3 of the Illinois Fertilizer Act of 1961.
20     "Anhydrous ammonia equipment" means all items used to
21 store, hold, contain, handle, transfer, transport, or apply
22 anhydrous ammonia for lawful purposes.
23     "Booby trap" means any device designed to cause physical
24 injury when triggered by an act of a person approaching,

 

 

HB4222 - 28 - LRB096 04065 RLC 14103 b

1 entering, or moving through a structure, a vehicle, or any
2 location where methamphetamine has been manufactured, is being
3 manufactured, or is intended to be manufactured.
4     "Deliver" or "delivery" has the meaning provided in
5 subsection (h) of Section 102 of the Illinois Controlled
6 Substances Act.
7     "Director" means the Director of State Police or the
8 Director's designated agents.
9     "Dispose" or "disposal" means to abandon, discharge,
10 release, deposit, inject, dump, spill, leak, or place
11 methamphetamine waste onto or into any land, water, or well of
12 any type so that the waste has the potential to enter the
13 environment, be emitted into the air, or be discharged into the
14 soil or any waters, including groundwater.
15     "Drug treatment program" or "drug treatment" means a
16 community drug treatment program licensed by the Department of
17 Human Services under the Alcoholism and Other Drug Abuse and
18 Dependency Act, which may include one or more of the following:
19 outpatient treatment, half-way house treatment, narcotic
20 replacement therapy, drug education or prevention courses, or
21 limited inpatient or residential drug treatment as needed to
22 address special detoxification or relapse situations or severe
23 dependence. "Drug treatment program" or "drug treatment" does
24 not include drug treatment programs offered in a prison or jail
25 facility.
26     "Emergency response" means the act of collecting evidence,

 

 

HB4222 - 29 - LRB096 04065 RLC 14103 b

1 securing a methamphetamine laboratory site, methamphetamine
2 waste site or other methamphetamine-related site and cleaning
3 up the site, whether these actions are performed by public
4 entities or private contractors paid by public entities.
5     "Emergency service provider" means a local, State, or
6 federal peace officer, firefighter, emergency medical
7 technician-ambulance, emergency medical
8 technician-intermediate, emergency medical
9 technician-paramedic, ambulance driver, or other medical or
10 first aid personnel rendering aid, or any agent or designee of
11 the foregoing.
12     "Finished methamphetamine" means methamphetamine in a form
13 commonly used for personal consumption.
14     "Firearm" has the meaning provided in Section 1.1 of the
15 Firearm Owners Identification Card Act.
16     "Manufacture" means to produce, prepare, compound,
17 convert, process, synthesize, concentrate, purify, separate,
18 extract, or package any methamphetamine, methamphetamine
19 precursor, methamphetamine manufacturing catalyst,
20 methamphetamine manufacturing reagent, methamphetamine
21 manufacturing solvent, or any substance containing any of the
22 foregoing.
23     "Methamphetamine" means the chemical methamphetamine (a
24 Schedule II controlled substance under the Illinois Controlled
25 Substances Act) or any salt, optical isomer, salt of optical
26 isomer, or analog thereof, with the exception of

 

 

HB4222 - 30 - LRB096 04065 RLC 14103 b

1 3,4-Methylenedioxymethamphetamine (MDMA) or any other
2 scheduled substance with a separate listing under the Illinois
3 Controlled Substances Act.
4     "Methamphetamine manufacturing catalyst" means any
5 substance that has been used, is being used, or is intended to
6 be used to activate, accelerate, extend, or improve a chemical
7 reaction involved in the manufacture of methamphetamine.
8     "Methamphetamine manufacturing environment" means a
9 structure or vehicle in which:
10         (1) methamphetamine is being or has been manufactured;
11         (2) chemicals that are being used, have been used, or
12     are intended to be used to manufacture methamphetamine are
13     stored;
14         (3) methamphetamine manufacturing materials that have
15     been used to manufacture methamphetamine are stored; or
16         (4) methamphetamine manufacturing waste is stored.
17     "Methamphetamine manufacturing material" means any
18 methamphetamine precursor, substance containing any
19 methamphetamine precursor, methamphetamine manufacturing
20 catalyst, substance containing any methamphetamine
21 manufacturing catalyst, methamphetamine manufacturing reagent,
22 substance containing any methamphetamine manufacturing
23 reagent, methamphetamine manufacturing solvent, substance
24 containing any methamphetamine manufacturing solvent, or any
25 other chemical, substance, ingredient, equipment, apparatus,
26 or item that is being used, has been used, or is intended to be

 

 

HB4222 - 31 - LRB096 04065 RLC 14103 b

1 used in the manufacture of methamphetamine.
2     "Methamphetamine manufacturing reagent" means any
3 substance other than a methamphetamine manufacturing catalyst
4 that has been used, is being used, or is intended to be used to
5 react with and chemically alter any methamphetamine precursor.
6     "Methamphetamine manufacturing solvent" means any
7 substance that has been used, is being used, or is intended to
8 be used as a medium in which any methamphetamine precursor,
9 methamphetamine manufacturing catalyst, methamphetamine
10 manufacturing reagent, or any substance containing any of the
11 foregoing is dissolved, diluted, or washed during any part of
12 the methamphetamine manufacturing process.
13     "Methamphetamine manufacturing waste" means any chemical,
14 substance, ingredient, equipment, apparatus, or item that is
15 left over from, results from, or is produced by the process of
16 manufacturing methamphetamine, other than finished
17 methamphetamine.
18     "Methamphetamine precursor" means ephedrine,
19 pseudoephedrine, benzyl methyl ketone, methyl benzyl ketone,
20 phenylacetone, phenyl-2-propanone, P2P, or any salt, optical
21 isomer, or salt of an optical isomer of any of these chemicals.
22     "Multi-unit dwelling" means a unified structure used or
23 intended for use as a habitation, home, or residence that
24 contains 2 or more condominiums, apartments, hotel rooms, motel
25 rooms, or other living units.
26     "Misdemeanor not related to the use of drugs" means a

 

 

HB4222 - 32 - LRB096 04065 RLC 14103 b

1 misdemeanor that does not involve: (i) the simple possession or
2 use of drugs or drug paraphernalia, (ii) being present where
3 drugs are used, (iii) failure to register as a drug offender,
4 or (iv) any similar activity.
5     "Nonviolent drug possession offense" means the unlawful
6 possession of methamphetamine under this Act or of any Schedule
7 I, II, III, IV, or V controlled substance under Section 402 of
8 the Illinois Controlled Substances Act. "Nonviolent drug
9 possession offense" does not include the manufacture or
10 delivery, or possession with intent to manufacture or deliver,
11 of methamphetamine under this Act or of any controlled
12 substance under Section 402 of the Illinois Controlled
13 Substances Act.
14     "Package" means an item marked for retail sale that is not
15 designed to be further broken down or subdivided for the
16 purpose of retail sale.
17     "Participate" or "participation" in the manufacture of
18 methamphetamine means to produce, prepare, compound, convert,
19 process, synthesize, concentrate, purify, separate, extract,
20 or package any methamphetamine, methamphetamine precursor,
21 methamphetamine manufacturing catalyst, methamphetamine
22 manufacturing reagent, methamphetamine manufacturing solvent,
23 or any substance containing any of the foregoing, or to assist
24 in any of these actions, or to attempt to take any of these
25 actions, regardless of whether this action or these actions
26 result in the production of finished methamphetamine.

 

 

HB4222 - 33 - LRB096 04065 RLC 14103 b

1     "Person with a disability" means a person who suffers from
2 a permanent physical or mental impairment resulting from
3 disease, injury, functional disorder, or congenital condition
4 which renders the person incapable of adequately providing for
5 his or her own health and personal care.
6     "Procure" means to purchase, steal, gather, or otherwise
7 obtain, by legal or illegal means, or to cause another to take
8 such action.
9     "Second or subsequent offense" means an offense under this
10 Act committed by an offender who previously committed an
11 offense under this Act, the Illinois Controlled Substances Act,
12 the Cannabis Control Act, or another Act of this State, another
13 state, or the United States relating to methamphetamine,
14 cannabis, or any other controlled substance.
15     "Standard dosage form", as used in relation to any
16 methamphetamine precursor, means that the methamphetamine
17 precursor is contained in a pill, tablet, capsule, caplet, gel
18 cap, or liquid cap that has been manufactured by a lawful
19 entity and contains a standard quantity of methamphetamine
20 precursor.
21     "Successful completion of treatment" means that a
22 defendant who has had drug treatment imposed as a condition of
23 probation has completed the prescribed course of drug treatment
24 and, as a result, there is reasonable cause to believe that the
25 defendant will not abuse controlled substances in the future.
26     "Unauthorized container", as used in relation to anhydrous

 

 

HB4222 - 34 - LRB096 04065 RLC 14103 b

1 ammonia, means any container that is not designed for the
2 specific and sole purpose of holding, storing, transporting, or
3 applying anhydrous ammonia. "Unauthorized container" includes,
4 but is not limited to, any propane tank, fire extinguisher,
5 oxygen cylinder, gasoline can, food or beverage cooler, or
6 compressed gas cylinder used in dispensing fountain drinks.
7 "Unauthorized container" does not encompass anhydrous ammonia
8 manufacturing plants, refrigeration systems where anhydrous
9 ammonia is used solely as a refrigerant, anhydrous ammonia
10 transportation pipelines, anhydrous ammonia tankers, or
11 anhydrous ammonia barges.
12     "Violent crime" has the meaning ascribed in paragraph (c)
13 of Section 3 of the Rights of Crime Victims and Witnesses Act.
14 (Source: P.A. 94-556, eff. 9-11-05.)
 
15     (720 ILCS 646/70.5 new)
16     Sec. 70.5. Possession of methamphetamine; probation;
17 exceptions.
18     (a) Conditions of probation. Notwithstanding any other
19 provision of law, and except as provided in the other
20 provisions of this Section, any person convicted of a
21 nonviolent drug possession offense shall receive probation. As
22 a condition of probation the court shall require participation
23 in and completion of an appropriate drug treatment program. The
24 court may also impose as a condition of probation participation
25 in vocational training, family counseling, literacy training,

 

 

HB4222 - 35 - LRB096 04065 RLC 14103 b

1 or community service, or a combination of those conditions. A
2 court may not impose incarceration as an additional condition
3 of probation. Aside from the limitations imposed in this
4 subsection, the trial court is not otherwise limited in the
5 type of probation conditions it may impose. In addition to any
6 fine assessed under other provisions of law, the trial judge
7 may require any person convicted of a nonviolent drug
8 possession offense who is reasonably able to do so to
9 contribute to the cost of his or her own placement in a drug
10 treatment program.
11     (b) Exclusions. Subsection (a) does not apply to:
12         (1) Any defendant who has previously been convicted of
13     one or more violent crimes, unless the nonviolent drug
14     possession offense occurred after a period of 5 years in
15     which the defendant remained free of both prison custody
16     and the commission of an offense that resulted in (A) a
17     felony conviction other than a nonviolent drug possession
18     offense or (B) a misdemeanor conviction involving physical
19     injury or the threat of physical injury to another person.
20         (2) Any defendant who, in addition to one or more
21     nonviolent drug possession offenses, has been convicted in
22     the same proceeding of a misdemeanor not related to the use
23     of drugs or any felony.
24         (3) Any defendant who:
25             (A) While using a firearm, unlawfully possesses
26         any amount of (i) a substance containing either cocaine

 

 

HB4222 - 36 - LRB096 04065 RLC 14103 b

1         base, cocaine, heroin, or methamphetamine, or (ii) a
2         liquid, non-liquid, plant substance, or hand-rolled
3         cigarette containing phencyclidine.
4             (B) While using a firearm, is unlawfully under the
5         influence of cocaine base, cocaine, heroin,
6         methamphetamine, or phencyclidine.
7         (4) Any defendant who refuses drug treatment as a
8     condition of probation.
9         (5) Any defendant who (A) has two separate convictions
10     for nonviolent drug possession offenses, (B) has
11     participated in two separate courses of drug treatment
12     pursuant to subsection (A), and (C) is found by the court,
13     by clear and convincing evidence, to be unamenable to any
14     and all forms of available drug treatment. Notwithstanding
15     any other provision of law, the trial court shall sentence
16     such defendants to 30 days in jail.
17     (c) Treatment.
18         (1) Within 7 days of an order imposing probation under
19     subsection (a), the probation department shall notify the
20     drug treatment provider designated to provide drug
21     treatment under subsection (a). Within 30 days of receiving
22     that notice, the treatment provider shall prepare a
23     treatment plan and forward it to the probation department.
24     On a quarterly basis after the defendant begins the drug
25     treatment program, the treatment provider shall prepare
26     and forward a progress report to the probation department.

 

 

HB4222 - 37 - LRB096 04065 RLC 14103 b

1         (2) If at any point during the course of drug treatment
2     the treatment provider notifies the probation department
3     that the defendant is unamenable to the drug treatment
4     being provided, but may be amenable to other drug
5     treatments or related programs, the probation department
6     may move the court to modify the terms of probation to
7     ensure that the defendant receives the alternative drug
8     treatment or program.
9         (3) If at any point during the course of drug treatment
10     the treatment provider notifies the probation department
11     that the defendant is unamenable to the drug treatment
12     provided and all other forms of drug treatment, the
13     probation department may move to revoke probation. At the
14     revocation hearing, unless the defendant proves by a
15     preponderance of the evidence that there is a drug
16     treatment program to which he is amenable, the court may
17     revoke probation.
18         (4) Drug treatment services provided under subsection
19     (a) as a required condition of probation may not exceed 12
20     months, except that additional aftercare services may be
21     required as a condition of probation for up to 6 months.
22     (d) Dismissal of charges upon successful completion of drug
23 treatment.
24         (1) At any time after completion of drug treatment, a
25     defendant may petition the sentencing court for dismissal
26     of the charges. If the court finds that the defendant

 

 

HB4222 - 38 - LRB096 04065 RLC 14103 b

1     successfully completed drug treatment and substantially
2     complied with the conditions of probation, the conviction
3     on which the probation was based shall be set aside and the
4     court shall dismiss the indictment or information against
5     the defendant. In addition, the arrest on which the
6     conviction was based shall be deemed to have never
7     occurred. Except as provided in subdivisions (2) and (3) of
8     this subsection (d), the defendant shall thereafter be
9     released from all penalties and disabilities resulting
10     from the offense of which he or she has been convicted.
11         (2) Dismissal of an indictment or information pursuant
12     to subdivision (1) of this subsection (d) does not permit a
13     person to own, possess, or have in his or her custody or
14     control any firearm capable of being concealed upon the
15     person or prevent his or her conviction for any offense
16     under Article 24 of the Criminal Code of 1961.
17         (3) Except as provided in this Section, after an
18     indictment or information is dismissed pursuant to
19     subdivision (1) of this subsection (d), the defendant may
20     indicate in response to any question concerning his or her
21     prior criminal record that he or she was not arrested or
22     convicted for the offense. Except as provided in this
23     Section, a record pertaining to an arrest or conviction
24     resulting in successful completion of a drug treatment
25     program under this Section shall not, without the
26     defendant's consent, be used in any way that could result

 

 

HB4222 - 39 - LRB096 04065 RLC 14103 b

1     in the denial of any employment, benefit, license, or
2     certificate. Regardless of his or her successful
3     completion of drug treatment, the arrest and conviction on
4     which the probation was based may be recorded by the
5     Department of State Police and disclosed in response to any
6     peace officer application request or any law enforcement
7     inquiry. Dismissal of an information or indictment under
8     this Section does not relieve a defendant of the obligation
9     to disclose the arrest and conviction in response to any
10     direct question contained in any questionnaire or
11     application for public office, for a position as a peace
12     officer as defined in Section 2-13 of the Criminal Code of
13     1961, for licensure by any State or local agency, for
14     contracting with the Division of State Lottery of the
15     Illinois Department of Revenue, or for purposes of serving
16     on a jury.
17     (e) Violation of probation.
18     (1) If probation is revoked pursuant to the provisions of
19 this subsection, the defendant may be incarcerated pursuant to
20 otherwise applicable law without regard to the provisions of
21 this Section.
22     (2) Non-drug-related probation violations. Where a
23 defendant receives probation under subsection (a) and violates
24 that probation, either by being arrested for an offense that is
25 not a nonviolent drug possession offense, or by violating a
26 non-drug-related condition of probation, and the State moves to

 

 

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1 revoke probation, the court shall conduct a hearing to
2 determine whether probation shall be revoked. The court may
3 modify or revoke probation if the alleged violation is proved.
4     (3) Drug-related probation violations.
5         (A) When a defendant receives probation under
6     subsection (a) and violates that probation, either by being
7     arrested for a non-violent drug possession offense or by
8     violating a drug-related condition of probation, and the
9     State moves to revoke probation, the court shall conduct a
10     hearing to determine whether probation shall be revoked.
11     The trial court shall revoke probation if the alleged
12     probation violation is proved and the State proves by a
13     preponderance of the evidence that the defendant poses a
14     danger to the safety of others. If the court does not
15     revoke probation, it may intensify or alter the drug
16     treatment plan.
17         (B) When a defendant receives probation under
18     subsection (a) and for the second time violates that
19     probation, either by being arrested for a non-violent drug
20     possession offense or by violating a drug-related
21     condition of probation, and the State moves for a second
22     time to revoke probation, the court shall conduct a hearing
23     to determine whether probation shall be revoked. The trial
24     court shall revoke probation if the alleged probation
25     violation is proved and the State proves by a preponderance
26     of the evidence either that the defendant poses a danger to

 

 

HB4222 - 41 - LRB096 04065 RLC 14103 b

1     the safety of others or is unamenable to drug treatment.
2         If the court does not revoke probation, it may
3     intensify or alter the drug treatment plan.
4         (C) When a defendant receives probation under
5     subsection (a) and for the third time violates that
6     probation, either by being arrested for a non-violent drug
7     possession offense or by violating a drug-related
8     condition of probation, and the State moves for a third
9     time to revoke probation, the court shall conduct a hearing
10     to determine whether probation shall be revoked. If the
11     alleged probation violation is proved, defendant is not
12     eligible for continued probation under subsection (a).
13         (D) When a defendant on probation on the effective date
14     of this amendatory Act of the 96th General Assembly for a
15     non-violent drug possession offense violates that
16     probation, either by being arrested for a non-violent drug
17     possession offense or by violating a drug-related
18     condition of probation, and the State moves to revoke
19     probation, the court shall conduct a hearing to determine
20     if probation shall be revoked. The trial court shall revoke
21     probation if the alleged probation violation is proved and
22     the State proves by a preponderance of the evidence that
23     the defendant poses a danger to the safety of others. If
24     the court does not revoke probation, it may modify
25     probation and impose as an additional condition
26     participation in a drug treatment program.

 

 

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1         (E) When a defendant on probation on the effective date
2     of this amendatory Act of the 96th General Assembly for a
3     non-violent drug possession offense violates that
4     probation a second time, either by being arrested for a
5     non-violent drug possession offense or by violating a
6     drug-related condition of probation, and the State moves
7     for a second time to revoke probation, the court shall
8     conduct a hearing to determine whether probation shall be
9     revoked. The trial court shall revoke probation if the
10     alleged probation violation is proved and the State proves
11     by a preponderance of the evidence either that the
12     defendant poses a danger to the safety of others or is
13     unamenable to drug treatment. If the court does not revoke
14     probation, it may modify probation and impose as an
15     additional condition participation in a drug treatment
16     program.
17         (F) When a defendant on probation on the effective date
18     of this amendatory Act of the 96th General Assembly for a
19     non-violent drug offense violates that probation a third
20     time either by being arrested for a non-violent drug
21     possession offense, or by violating a drug-related
22     condition of probation, and the State moves for a third
23     time to revoke probation, the court shall conduct a hearing
24     to determine whether probation shall be revoked. If the
25     alleged probation violation is proved, the defendant is not
26     eligible for continued probation under subsection (a).

 

 

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1     (G) In determining whether a defendant is unamenable to
2 drug treatment, the court may consider, to the extent relevant,
3 whether the defendant:
4             (1) has committed a serious violation of rules at
5         the drug treatment program,
6             (2) has repeatedly committed violations of program
7         rules that inhibit the defendant's ability to function
8         in the program, or
9             (3) has continually refused to participate in the
10         program or asked to be removed from the program.