HB1927 EnrolledLRB097 08502 RLC 48629 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 1961 is amended by changing
5Section 36-1.5 as follows:
 
6    (720 ILCS 5/36-1.5)
7    Sec. 36-1.5. Preliminary Review.
8    (a) Within 14 days of the seizure, the State shall seek a
9preliminary determination from the circuit court as to whether
10there is probable cause that the property may be subject to
11forfeiture.
12    (b) The rules of evidence shall not apply to any proceeding
13conducted under this Section.
14    (c) The court may conduct the review under subsection (a)
15simultaneously with a proceeding pursuant to Section 109-1 of
16the Code of Criminal Procedure of 1963 for a related criminal
17offense if a prosecution is commenced by information or
18complaint.
19    (d) The court may accept a finding of probable cause at a
20preliminary hearing following the filing of an information or
21complaint charging a related criminal offense or following the
22return of indictment by a grand jury charging the related
23offense as sufficient evidence of probable cause as required

 

 

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1under subsection (a).
2    (e) Upon making a finding of probable cause as required
3under this Section, the circuit court shall order the property
4subject to the provisions of the applicable forfeiture Act held
5until the conclusion of any forfeiture proceeding.
6    For seizures of conveyances, within 7 days of a finding of
7probable cause under subsection (a), the registered owner or
8other claimant may file a motion in writing supported by sworn
9affidavits claiming that denial of the use of the conveyance
10during the pendency of the forfeiture proceedings creates a
11substantial hardship. The court shall consider the following
12factors in determining whether a substantial hardship has been
13proven:
14        (1) the nature of the claimed hardship;
15        (2) the availability of public transportation or other
16    available means of transportation; and
17        (3) any available alternatives to alleviate the
18    hardship other than the return of the seized conveyance.
19    If the court determines that a substantial hardship has
20been proven, the court shall then balance the nature of the
21hardship against the State's interest in safeguarding the
22conveyance. If the court determines that the hardship outweighs
23the State's interest in safeguarding the conveyance, the court
24may temporarily release the conveyance to the registered owner
25or the registered owner's authorized designee, or both, until
26the conclusion of the forfeiture proceedings or for such

 

 

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1shorter period as ordered by the court provided that the person
2to whom the conveyance is released provides proof of insurance
3and a valid driver's license and all State and local
4registrations for operation of the conveyance are current. The
5court shall place conditions on the conveyance limiting its use
6to the stated hardship and restricting the conveyance's use to
7only those individuals authorized to use the conveyance by the
8registered owner. The court shall revoke the order releasing
9the conveyance and order that the conveyance be reseized by law
10enforcement if the conditions of release are violated or if the
11conveyance is used in the commission of any offense identified
12in subsection (a) of Section 6-205 of the Illinois Vehicle
13Code.
14    If the court orders the release of the conveyance during
15the pendency of the forfeiture proceedings, the registered
16owner or his or her authorized designee shall post a cash
17security with the Clerk of the Court as ordered by the court.
18The court shall consider the following factors in determining
19the amount of the cash security:
20        (A) the full market value of the conveyance;
21        (B) the nature of the hardship;
22        (C) the extent and length of the usage of the
23    conveyance; and
24        (D) such other conditions as the court deems necessary
25    to safeguard the conveyance.
26    If the conveyance is released, the court shall order that

 

 

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1the registered owner or his or her designee safeguard the
2conveyance, not remove the conveyance from the jurisdiction,
3not conceal, destroy, or otherwise dispose of the conveyance,
4not encumber the conveyance, and not diminish the value of the
5conveyance in any way. The court shall also make a
6determination of the full market value of the conveyance prior
7to it being released based on a source or sources defined in 50
8Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
9    If the conveyance subject to forfeiture is released under
10this Section and is subsequently forfeited, the person to whom
11the conveyance was released shall return the conveyance to the
12law enforcement agency that seized the conveyance within 7 days
13from the date of the declaration of forfeiture or order of
14forfeiture. If the conveyance is not returned within 7 days,
15the cash security shall be forfeited in the same manner as the
16conveyance subject to forfeiture. If the cash security was less
17than the full market value, a judgment shall be entered against
18the parties to whom the conveyance was released and the
19registered owner, jointly and severally, for the difference
20between the full market value and the amount of the cash
21security. If the conveyance is returned in a condition other
22than the condition in which it was released, the cash security
23shall be returned to the surety who posted the security minus
24the amount of the diminished value, and that amount shall be
25forfeited in the same manner as the conveyance subject to
26forfeiture. Additionally, the court may enter an order allowing

 

 

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1any law enforcement agency in the State of Illinois to seize
2the conveyance wherever it may be found in the State to satisfy
3the judgment if the cash security was less than the full market
4value of the conveyance. Upon making a finding of probable
5cause as required under this Section, and after taking into
6account the respective interests of all known claimants to the
7property including the State, the circuit court shall enter a
8restraining order or injunction, or take other appropriate
9action, as necessary to ensure that the property is not removed
10from the court's jurisdiction and is not concealed, destroyed,
11or otherwise disposed of by the property owner or interest
12holder before a forfeiture hearing is conducted.
13(Source: P.A. 97-544, eff. 1-1-12.)
 
14    Section 10. The Drug Asset Forfeiture Procedure Act is
15amended by changing Section 3.5 as follows:
 
16    (725 ILCS 150/3.5)
17    Sec. 3.5. Preliminary Review.
18    (a) Within 14 days of the seizure, the State shall seek a
19preliminary determination from the circuit court as to whether
20there is probable cause that the property may be subject to
21forfeiture.
22    (b) The rules of evidence shall not apply to any proceeding
23conducted under this Section.
24    (c) The court may conduct the review under subsection (a)

 

 

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1simultaneously with a proceeding pursuant to Section 109-1 of
2the Code of Criminal Procedure of 1963 for a related criminal
3offense if a prosecution is commenced by information or
4complaint.
5    (d) The court may accept a finding of probable cause at a
6preliminary hearing following the filing of an information or
7complaint charging a related criminal offense or following the
8return of indictment by a grand jury charging the related
9offense as sufficient evidence of probable cause as required
10under subsection (a).
11    (e) Upon making a finding of probable cause as required
12under this Section, the circuit court shall order the property
13subject to the provisions of the applicable forfeiture Act held
14until the conclusion of any forfeiture proceeding.
15    For seizures of conveyances, within 7 days of a finding of
16probable cause under subsection (a), the registered owner or
17other claimant may file a motion in writing supported by sworn
18affidavits claiming that denial of the use of the conveyance
19during the pendency of the forfeiture proceedings creates a
20substantial hardship. The court shall consider the following
21factors in determining whether a substantial hardship has been
22proven:
23        (1) the nature of the claimed hardship;
24        (2) the availability of public transportation or other
25    available means of transportation; and
26        (3) any available alternatives to alleviate the

 

 

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1    hardship other than the return of the seized conveyance.
2    If the court determines that a substantial hardship has
3been proven, the court shall then balance the nature of the
4hardship against the State's interest in safeguarding the
5conveyance. If the court determines that the hardship outweighs
6the State's interest in safeguarding the conveyance, the court
7may temporarily release the conveyance to the registered owner
8or the registered owner's authorized designee, or both, until
9the conclusion of the forfeiture proceedings or for such
10shorter period as ordered by the court provided that the person
11to whom the conveyance is released provides proof of insurance
12and a valid driver's license and all State and local
13registrations for operation of the conveyance are current. The
14court shall place conditions on the conveyance limiting its use
15to the stated hardship and restricting the conveyance's use to
16only those individuals authorized to use the conveyance by the
17registered owner. The court shall revoke the order releasing
18the conveyance and order that the conveyance be reseized by law
19enforcement if the conditions of release are violated or if the
20conveyance is used in the commission of any offense identified
21in subsection (a) of Section 6-205 of the Illinois Vehicle
22Code.
23    If the court orders the release of the conveyance during
24the pendency of the forfeiture proceedings, the registered
25owner or his or her authorized designee shall post a cash
26security with the Clerk of the Court as ordered by the court.

 

 

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1The court shall consider the following factors in determining
2the amount of the cash security:
3        (A) the full market value of the conveyance;
4        (B) the nature of the hardship;
5        (C) the extent and length of the usage of the
6    conveyance; and
7        (D) such other conditions as the court deems necessary
8    to safeguard the conveyance.
9    If the conveyance is released, the court shall order that
10the registered owner or his or her designee safeguard the
11conveyance, not remove the conveyance from the jurisdiction,
12not conceal, destroy, or otherwise dispose of the conveyance,
13not encumber the conveyance, and not diminish the value of the
14conveyance in any way. The court shall also make a
15determination of the full market value of the conveyance prior
16to it being released based on a source or sources defined in 50
17Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
18     If the conveyance subject to forfeiture is released under
19this Section and is subsequently forfeited, the person to whom
20the conveyance was released shall return the conveyance to the
21law enforcement agency that seized the conveyance within 7 days
22from the date of the declaration of forfeiture or order of
23forfeiture. If the conveyance is not returned within 7 days,
24the cash security shall be forfeited in the same manner as the
25conveyance subject to forfeiture. If the cash security was less
26than the full market value, a judgment shall be entered against

 

 

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1the parties to whom the conveyance was released and the
2registered owner, jointly and severally, for the difference
3between the full market value and the amount of the cash
4security. If the conveyance is returned in a condition other
5than the condition in which it was released, the cash security
6shall be returned to the surety who posted the security minus
7the amount of the diminished value, and that amount shall be
8forfeited in the same manner as the conveyance subject to
9forfeiture. Additionally, the court may enter an order allowing
10any law enforcement agency in the State of Illinois to seize
11the conveyance wherever it may be found in the State to satisfy
12the judgment if the cash security was less than the full market
13value of the conveyance. Upon making a finding of probable
14cause as required under this Section, and after taking into
15account the respective interests of all known claimants to the
16property including the State, the circuit court shall enter a
17restraining order or injunction, or take other appropriate
18action, as necessary to ensure that the property is not removed
19from the court's jurisdiction and is not concealed, destroyed,
20or otherwise disposed of by the property owner or interest
21holder before a forfeiture hearing is conducted.
22(Source: P.A. 97-544, eff. 1-1-12.)
 
23    Section 99. Effective date. This Act takes effect January
241, 2012.