SB3778 EngrossedLRB097 17712 RLC 62926 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 2. 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 21 14 days of the seizure, the State shall seek
9a preliminary determination from the circuit court as to
10whether there is probable cause that the property may be
11subject to forfeiture.
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, however if the review is not conducted
19simultaneously, the court's findings shall not constitute a
20collateral estoppel to the filing of criminal charges.
21    (d) The court may accept a finding of probable cause at a
22preliminary hearing following the filing of an information or
23complaint charging a related criminal offense or following the

 

 

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1return of indictment by a grand jury charging the related
2offense as sufficient evidence of probable cause as required
3under subsection (a).
4    (e) (Blank). Upon making a finding of probable cause as
5required under this Section, and after taking into account the
6respective interests of all known claimants to the property
7including 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 5. The Drug Asset Forfeiture Procedure Act is
15amended by changing Sections 3.5, 5, and 9 as follows:
 
16    (725 ILCS 150/3.5)
17    Sec. 3.5. Preliminary Review.
18    (a) Within 21 14 days of the seizure, the State shall seek
19a preliminary determination from the circuit court as to
20whether there is probable cause that the property may be
21subject to forfeiture.
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, however if the review is not conducted
5simultaneously, the court's findings shall not constitute a
6collateral estoppel to the filing of criminal charges.
7    (d) The court may accept a finding of probable cause at a
8preliminary hearing following the filing of an information or
9complaint charging a related criminal offense or following the
10return of indictment by a grand jury charging the related
11offense as sufficient evidence of probable cause as required
12under subsection (a).
13    (e) (Blank) Upon making a finding of probable cause as
14required under this Section, and after taking into account the
15respective interests of all known claimants to the property
16including 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    (725 ILCS 150/5)  (from Ch. 56 1/2, par. 1675)
24    Sec. 5. Notice to State's Attorney. The law enforcement
25agency seizing property for forfeiture under the Illinois

 

 

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1Controlled Substances Act, the Cannabis Control Act, or the
2Methamphetamine Control and Community Protection Act shall,
3within 52 days of seizure, notify the State's Attorney for the
4county in which an act or omission giving rise to the
5forfeiture occurred or in which the property was seized of the
6seizure of the property and the facts and circumstances giving
7rise to the seizure and shall provide the State's Attorney with
8the inventory of the property and its estimated value. For
9purposes of forfeiture proceedings pursuant to Sections 6 and 9
10of this Act, the notification to the State's Attorney shall
11only be perfected by the delivery of the Illinois State Police
12approved form 4-64. When the property seized for forfeiture is
13a vehicle, the law enforcement agency seizing the property
14shall immediately notify the Secretary of State that forfeiture
15proceedings are pending regarding such vehicle.
16(Source: P.A. 94-556, eff. 9-11-05.)
 
17    (725 ILCS 150/9)  (from Ch. 56 1/2, par. 1679)
18    Sec. 9. Judicial in rem procedures. If property seized
19under the provisions of the Illinois Controlled Substances Act,
20the Cannabis Control Act, or the Methamphetamine Control and
21Community Protection Act is non-real property that exceeds
22$150,000 $20,000 in value excluding the value of any
23conveyance, or is real property, or a claimant has filed a
24claim and a cost bond under subsection (C) of Section 6 of this
25Act, the following judicial in rem procedures shall apply:

 

 

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1    (A) If, after a review of the facts surrounding the
2seizure, the State's Attorney is of the opinion that the seized
3property is subject to forfeiture, then within 45 days of the
4receipt of notice of seizure by the seizing agency or the
5filing of the claim and cost bond, whichever is later, the
6State's Attorney shall institute judicial forfeiture
7proceedings by filing a verified complaint for forfeiture and,
8if the claimant has filed a claim and cost bond, by depositing
9the cost bond with the clerk of the court. When authorized by
10law, a forfeiture must be ordered by a court on an action in
11rem brought by a State's Attorney under a verified complaint
12for forfeiture.
13    (B) During the probable cause portion of the judicial in
14rem proceeding wherein the State presents its case-in-chief,
15the court must receive and consider, among other things, all
16relevant hearsay evidence and information. The laws of evidence
17relating to civil actions shall apply to all other portions of
18the judicial in rem proceeding.
19    (C) Only an owner of or interest holder in the property may
20file an answer asserting a claim against the property in the
21action in rem. For purposes of this Section, the owner or
22interest holder shall be referred to as claimant.
23    (D) The answer must be signed by the owner or interest
24holder under penalty of perjury and must set forth:
25        (i) the caption of the proceedings as set forth on the
26    notice of pending forfeiture and the name of the claimant;

 

 

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1        (ii) the address at which the claimant will accept
2    mail;
3        (iii) the nature and extent of the claimant's interest
4    in the property;
5        (iv) the date, identity of transferor, and
6    circumstances of the claimant's acquisition of the
7    interest in the property;
8        (v) the name and address of all other persons known to
9    have an interest in the property;
10        (vi) the specific provisions of Section 8 of this Act
11    relied on in asserting it is not subject to forfeiture;
12        (vii) all essential facts supporting each assertion;
13    and
14        (viii) the precise relief sought.
15    (E) The answer must be filed with the court within 45 days
16after service of the civil in rem complaint.
17    (F) The hearing must be held within 60 days after filing of
18the answer unless continued for good cause.
19    (G) The State shall show the existence of probable cause
20for forfeiture of the property. If the State shows probable
21cause, the claimant has the burden of showing by a
22preponderance of the evidence that the claimant's interest in
23the property is not subject to forfeiture.
24    (H) If the State does not show existence of probable cause
25or a claimant has established by a preponderance of evidence
26that the claimant has an interest that is exempt under Section

 

 

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18 of this Act, the court shall order the interest in the
2property returned or conveyed to the claimant and shall order
3all other property forfeited to the State. If the State does
4show existence of probable cause and the claimant does not
5establish by a preponderance of evidence that the claimant has
6an interest that is exempt under Section 8 of this Act, the
7court shall order all property forfeited to the State.
8    (I) A defendant convicted in any criminal proceeding is
9precluded from later denying the essential allegations of the
10criminal offense of which the defendant was convicted in any
11proceeding under this Act regardless of the pendency of an
12appeal from that conviction. However, evidence of the pendency
13of an appeal is admissible.
14    (J) An acquittal or dismissal in a criminal proceeding
15shall not preclude civil proceedings under this Act; however,
16for good cause shown, on a motion by the State's Attorney, the
17court may stay civil forfeiture proceedings during the criminal
18trial for a related criminal indictment or information alleging
19a violation of the Illinois Controlled Substances Act, the
20Cannabis Control Act, or the Methamphetamine Control and
21Community Protection Act. Such a stay shall not be available
22pending an appeal. Property subject to forfeiture under the
23Illinois Controlled Substances Act, the Cannabis Control Act,
24or the Methamphetamine Control and Community Protection Act
25shall not be subject to return or release by a court exercising
26jurisdiction over a criminal case involving the seizure of such

 

 

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1property unless such return or release is consented to by the
2State's Attorney.
3    (K) All property declared forfeited under this Act vests in
4this State on the commission of the conduct giving rise to
5forfeiture together with the proceeds of the property after
6that time. Any such property or proceeds subsequently
7transferred to any person remain subject to forfeiture and
8thereafter shall be ordered forfeited unless the transferee
9claims and establishes in a hearing under the provisions of
10this Act that the transferee's interest is exempt under Section
118 of this Act.
12    (L) A civil action under this Act must be commenced within
135 years after the last conduct giving rise to forfeiture became
14known or should have become known or 5 years after the
15forfeitable property is discovered, whichever is later,
16excluding any time during which either the property or claimant
17is out of the State or in confinement or during which criminal
18proceedings relating to the same conduct are in progress.
19(Source: P.A. 94-556, eff. 9-11-05.)
 
20    Section 99. Effective date. This Act takes effect upon
21becoming law.