Sen. Don Harmon

Filed: 11/3/2011

 

 


 

 


 
09700HB1927sam001LRB097 08502 RLC 59287 a

1
AMENDMENT TO HOUSE BILL 1927

2    AMENDMENT NO. ______. Amend House Bill 1927 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Criminal Code of 1961 is amended by
5changing Section 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

 

 

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

 

 

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

 

 

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

 

 

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1between the full market value and the amount of the cash
2security. If the conveyance is returned in a condition other
3than the condition in which it was released, the cash security
4shall be returned to the surety who posted the security minus
5the amount of the diminished value, and that amount shall be
6forfeited in the same manner as the conveyance subject to
7forfeiture. Additionally, the court may enter an order allowing
8any law enforcement agency in the State of Illinois to seize
9the conveyance wherever it may be found in the State to satisfy
10the judgment if the cash security was less than the full market
11value of the conveyance. Upon making a finding of probable
12cause as required under this Section, and after taking into
13account the respective interests of all known claimants to the
14property including the State, the circuit court shall enter a
15restraining order or injunction, or take other appropriate
16action, as necessary to ensure that the property is not removed
17from the court's jurisdiction and is not concealed, destroyed,
18or otherwise disposed of by the property owner or interest
19holder before a forfeiture hearing is conducted.
20(Source: P.A. 97-544, eff. 1-1-12.)
 
21    Section 10. The Drug Asset Forfeiture Procedure Act is
22amended by changing Section 3.5 as follows:
 
23    (725 ILCS 150/3.5)
24    Sec. 3.5. Preliminary Review.

 

 

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1    (a) Within 14 days of the seizure, the State shall seek a
2preliminary determination from the circuit court as to whether
3there is probable cause that the property may be subject to
4forfeiture.
5    (b) The rules of evidence shall not apply to any proceeding
6conducted under this Section.
7    (c) The court may conduct the review under subsection (a)
8simultaneously with a proceeding pursuant to Section 109-1 of
9the Code of Criminal Procedure of 1963 for a related criminal
10offense if a prosecution is commenced by information or
11complaint.
12    (d) The court may accept a finding of probable cause at a
13preliminary hearing following the filing of an information or
14complaint charging a related criminal offense or following the
15return of indictment by a grand jury charging the related
16offense as sufficient evidence of probable cause as required
17under subsection (a).
18    (e) Upon making a finding of probable cause as required
19under this Section, the circuit court shall order the property
20subject to the provisions of the applicable forfeiture Act held
21until the conclusion of any forfeiture proceeding.
22    For seizures of conveyances, within 7 days of a finding of
23probable cause under subsection (a), the registered owner or
24other claimant may file a motion in writing supported by sworn
25affidavits claiming that denial of the use of the conveyance
26during the pendency of the forfeiture proceedings creates a

 

 

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1substantial hardship. The court shall consider the following
2factors in determining whether a substantial hardship has been
3proven:
4        (1) the nature of the claimed hardship;
5        (2) the availability of public transportation or other
6    available means of transportation; and
7        (3) any available alternatives to alleviate the
8    hardship other than the return of the seized conveyance.
9    If the court determines that a substantial hardship has
10been proven, the court shall then balance the nature of the
11hardship against the State's interest in safeguarding the
12conveyance. If the court determines that the hardship outweighs
13the State's interest in safeguarding the conveyance, the court
14may temporarily release the conveyance to the registered owner
15or the registered owner's authorized designee, or both, until
16the conclusion of the forfeiture proceedings or for such
17shorter period as ordered by the court provided that the person
18to whom the conveyance is released provides proof of insurance
19and a valid driver's license and all State and local
20registrations for operation of the conveyance are current. The
21court shall place conditions on the conveyance limiting its use
22to the stated hardship and restricting the conveyance's use to
23only those individuals authorized to use the conveyance by the
24registered owner. The court shall revoke the order releasing
25the conveyance and order that the conveyance be reseized by law
26enforcement if the conditions of release are violated or if the

 

 

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1conveyance is used in the commission of any offense identified
2in subsection (a) of Section 6-205 of the Illinois Vehicle
3Code.
4    If the court orders the release of the conveyance during
5the pendency of the forfeiture proceedings, the registered
6owner or his or her authorized designee shall post a cash
7security with the Clerk of the Court as ordered by the court.
8The court shall consider the following factors in determining
9the amount of the cash security:
10        (A) the full market value of the conveyance;
11        (B) the nature of the hardship;
12        (C) the extent and length of the usage of the
13    conveyance; and
14        (D) such other conditions as the court deems necessary
15    to safeguard the conveyance.
16    If the conveyance is released, the court shall order that
17the registered owner or his or her designee safeguard the
18conveyance, not remove the conveyance from the jurisdiction,
19not conceal, destroy, or otherwise dispose of the conveyance,
20not encumber the conveyance, and not diminish the value of the
21conveyance in any way. The court shall also make a
22determination of the full market value of the conveyance prior
23to it being released based on a source or sources defined in 50
24Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
25     If the conveyance subject to forfeiture is released under
26this Section and is subsequently forfeited, the person to whom

 

 

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1the conveyance was released shall return the conveyance to the
2law enforcement agency that seized the conveyance within 7 days
3from the date of the declaration of forfeiture or order of
4forfeiture. If the conveyance is not returned within 7 days,
5the cash security shall be forfeited in the same manner as the
6conveyance subject to forfeiture. If the cash security was less
7than the full market value, a judgment shall be entered against
8the parties to whom the conveyance was released and the
9registered owner, jointly and severally, for the difference
10between the full market value and the amount of the cash
11security. If the conveyance is returned in a condition other
12than the condition in which it was released, the cash security
13shall be returned to the surety who posted the security minus
14the amount of the diminished value, and that amount shall be
15forfeited in the same manner as the conveyance subject to
16forfeiture. Additionally, the court may enter an order allowing
17any law enforcement agency in the State of Illinois to seize
18the conveyance wherever it may be found in the State to satisfy
19the judgment if the cash security was less than the full market
20value of the conveyance. Upon making a finding of probable
21cause as required under this Section, and after taking into
22account the respective interests of all known claimants to the
23property including the State, the circuit court shall enter a
24restraining order or injunction, or take other appropriate
25action, as necessary to ensure that the property is not removed
26from the court's jurisdiction and is not concealed, destroyed,

 

 

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1or otherwise disposed of by the property owner or interest
2holder before a forfeiture hearing is conducted.
3(Source: P.A. 97-544, eff. 1-1-12.)
 
4    Section 99. Effective date. This Act takes effect January
51, 2012.".