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Full Text of HB4929  97th General Assembly

HB4929eng 97TH GENERAL ASSEMBLY



 


 
HB4929 EngrossedLRB097 17469 RLC 62672 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 Drug Asset Forfeiture Procedure Act is
5amended by changing Sections 3.5, 5, and 9 as follows:
 
6    (725 ILCS 150/3.5)
7    Sec. 3.5. 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) Upon making a finding of probable cause as required
5under 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    (725 ILCS 150/5)  (from Ch. 56 1/2, par. 1675)
15    Sec. 5. Notice to State's Attorney. The law enforcement
16agency seizing property for forfeiture under the Illinois
17Controlled Substances Act, the Cannabis Control Act, or the
18Methamphetamine Control and Community Protection Act shall,
19within 52 days of seizure, notify the State's Attorney for the
20county in which an act or omission giving rise to the
21forfeiture occurred or in which the property was seized of the
22seizure of the property and the facts and circumstances giving
23rise to the seizure and shall provide the State's Attorney with
24the inventory of the property and its estimated value. For
25purposes of forfeiture proceedings pursuant to Sections 6 and 9

 

 

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1of this Act, the notification to the State's Attorney shall
2only be perfected by the delivery of the Illinois State Police
3approved form 4-64. When the property seized for forfeiture is
4a vehicle, the law enforcement agency seizing the property
5shall immediately notify the Secretary of State that forfeiture
6proceedings are pending regarding such vehicle.
7(Source: P.A. 94-556, eff. 9-11-05.)
 
8    (725 ILCS 150/9)  (from Ch. 56 1/2, par. 1679)
9    Sec. 9. Judicial in rem procedures. If property seized
10under the provisions of the Illinois Controlled Substances Act,
11the Cannabis Control Act, or the Methamphetamine Control and
12Community Protection Act is non-real property that exceeds
13$150,000 $20,000 in value excluding the value of any
14conveyance, or is real property, or a claimant has filed a
15claim and a cost bond under subsection (C) of Section 6 of this
16Act, the following judicial in rem procedures shall apply:
17    (A) If, after a review of the facts surrounding the
18seizure, the State's Attorney is of the opinion that the seized
19property is subject to forfeiture, then within 45 days of the
20receipt of notice of seizure by the seizing agency or the
21filing of the claim and cost bond, whichever is later, the
22State's Attorney shall institute judicial forfeiture
23proceedings by filing a verified complaint for forfeiture and,
24if the claimant has filed a claim and cost bond, by depositing
25the cost bond with the clerk of the court. When authorized by

 

 

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1law, a forfeiture must be ordered by a court on an action in
2rem brought by a State's Attorney under a verified complaint
3for forfeiture.
4    (B) During the probable cause portion of the judicial in
5rem proceeding wherein the State presents its case-in-chief,
6the court must receive and consider, among other things, all
7relevant hearsay evidence and information. The laws of evidence
8relating to civil actions shall apply to all other portions of
9the judicial in rem proceeding.
10    (C) Only an owner of or interest holder in the property may
11file an answer asserting a claim against the property in the
12action in rem. For purposes of this Section, the owner or
13interest holder shall be referred to as claimant.
14    (D) The answer must be signed by the owner or interest
15holder under penalty of perjury and must set forth:
16        (i) the caption of the proceedings as set forth on the
17    notice of pending forfeiture and the name of the claimant;
18        (ii) the address at which the claimant will accept
19    mail;
20        (iii) the nature and extent of the claimant's interest
21    in the property;
22        (iv) the date, identity of transferor, and
23    circumstances of the claimant's acquisition of the
24    interest in the property;
25        (v) the name and address of all other persons known to
26    have an interest in the property;

 

 

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1        (vi) the specific provisions of Section 8 of this Act
2    relied on in asserting it is not subject to forfeiture;
3        (vii) all essential facts supporting each assertion;
4    and
5        (viii) the precise relief sought.
6    (E) The answer must be filed with the court within 45 days
7after service of the civil in rem complaint.
8    (F) The hearing must be held within 60 days after filing of
9the answer unless continued for good cause.
10    (G) The State shall show the existence of probable cause
11for forfeiture of the property. If the State shows probable
12cause, the claimant has the burden of showing by a
13preponderance of the evidence that the claimant's interest in
14the property is not subject to forfeiture.
15    (H) If the State does not show existence of probable cause
16or a claimant has established by a preponderance of evidence
17that the claimant has an interest that is exempt under Section
188 of this Act, the court shall order the interest in the
19property returned or conveyed to the claimant and shall order
20all other property forfeited to the State. If the State does
21show existence of probable cause and the claimant does not
22establish by a preponderance of evidence that the claimant has
23an interest that is exempt under Section 8 of this Act, the
24court shall order all property forfeited to the State.
25    (I) A defendant convicted in any criminal proceeding is
26precluded from later denying the essential allegations of the

 

 

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1criminal offense of which the defendant was convicted in any
2proceeding under this Act regardless of the pendency of an
3appeal from that conviction. However, evidence of the pendency
4of an appeal is admissible.
5    (J) An acquittal or dismissal in a criminal proceeding
6shall not preclude civil proceedings under this Act; however,
7for good cause shown, on a motion by the State's Attorney, the
8court may stay civil forfeiture proceedings during the criminal
9trial for a related criminal indictment or information alleging
10a violation of the Illinois Controlled Substances Act, the
11Cannabis Control Act, or the Methamphetamine Control and
12Community Protection Act. Such a stay shall not be available
13pending an appeal. Property subject to forfeiture under the
14Illinois Controlled Substances Act, the Cannabis Control Act,
15or the Methamphetamine Control and Community Protection Act
16shall not be subject to return or release by a court exercising
17jurisdiction over a criminal case involving the seizure of such
18property unless such return or release is consented to by the
19State's Attorney.
20    (K) All property declared forfeited under this Act vests in
21this State on the commission of the conduct giving rise to
22forfeiture together with the proceeds of the property after
23that time. Any such property or proceeds subsequently
24transferred to any person remain subject to forfeiture and
25thereafter shall be ordered forfeited unless the transferee
26claims and establishes in a hearing under the provisions of

 

 

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1this Act that the transferee's interest is exempt under Section
28 of this Act.
3    (L) A civil action under this Act must be commenced within
45 years after the last conduct giving rise to forfeiture became
5known or should have become known or 5 years after the
6forfeitable property is discovered, whichever is later,
7excluding any time during which either the property or claimant
8is out of the State or in confinement or during which criminal
9proceedings relating to the same conduct are in progress.
10(Source: P.A. 94-556, eff. 9-11-05.)
 
11    Section 99. Effective date. This Act takes effect upon
12becoming law.