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Full Text of HB4929  97th General Assembly

HB4929ham001 97TH GENERAL ASSEMBLY

Rep. Dennis M. Reboletti

Filed: 3/8/2012

 

 


 

 


 
09700HB4929ham001LRB097 17469 RLC 67385 a

1
AMENDMENT TO HOUSE BILL 4929

2    AMENDMENT NO. ______. Amend House Bill 4929 by replacing
3everything after the enacting clause with the following:
 
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

 

 

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1offense if a prosecution is commenced by information or
2complaint, however if the review is not conducted
3simultaneously, the court's findings shall not constitute a
4collateral estoppel to the filing of criminal charges.
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, and after taking into account the
13respective interests of all known claimants to the property
14including 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    (725 ILCS 150/5)  (from Ch. 56 1/2, par. 1675)
22    Sec. 5. Notice to State's Attorney. The law enforcement
23agency seizing property for forfeiture under the Illinois
24Controlled Substances Act, the Cannabis Control Act, or the
25Methamphetamine Control and Community Protection Act shall,

 

 

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

 

 

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

 

 

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

 

 

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1all other property forfeited to the State. If the State does
2show existence of probable cause and the claimant does not
3establish by a preponderance of evidence that the claimant has
4an interest that is exempt under Section 8 of this Act, the
5court shall order all property forfeited to the State.
6    (I) A defendant convicted in any criminal proceeding is
7precluded from later denying the essential allegations of the
8criminal offense of which the defendant was convicted in any
9proceeding under this Act regardless of the pendency of an
10appeal from that conviction. However, evidence of the pendency
11of an appeal is admissible.
12    (J) An acquittal or dismissal in a criminal proceeding
13shall not preclude civil proceedings under this Act; however,
14for good cause shown, on a motion by the State's Attorney, the
15court may stay civil forfeiture proceedings during the criminal
16trial for a related criminal indictment or information alleging
17a violation of the Illinois Controlled Substances Act, the
18Cannabis Control Act, or the Methamphetamine Control and
19Community Protection Act. Such a stay shall not be available
20pending an appeal. Property subject to forfeiture under the
21Illinois Controlled Substances Act, the Cannabis Control Act,
22or the Methamphetamine Control and Community Protection Act
23shall not be subject to return or release by a court exercising
24jurisdiction over a criminal case involving the seizure of such
25property unless such return or release is consented to by the
26State's Attorney.

 

 

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1    (K) All property declared forfeited under this Act vests in
2this State on the commission of the conduct giving rise to
3forfeiture together with the proceeds of the property after
4that time. Any such property or proceeds subsequently
5transferred to any person remain subject to forfeiture and
6thereafter shall be ordered forfeited unless the transferee
7claims and establishes in a hearing under the provisions of
8this Act that the transferee's interest is exempt under Section
98 of this Act.
10    (L) A civil action under this Act must be commenced within
115 years after the last conduct giving rise to forfeiture became
12known or should have become known or 5 years after the
13forfeitable property is discovered, whichever is later,
14excluding any time during which either the property or claimant
15is out of the State or in confinement or during which criminal
16proceedings relating to the same conduct are in progress.
17(Source: P.A. 94-556, eff. 9-11-05.)
 
18    Section 99. Effective date. This Act takes effect upon
19becoming law.".