Full Text of HB4929 97th General Assembly
HB4929ham001 97TH GENERAL ASSEMBLY | Rep. Dennis M. Reboletti Filed: 3/8/2012
| | 09700HB4929ham001 | | LRB097 17469 RLC 67385 a |
|
| 1 | | AMENDMENT TO HOUSE BILL 4929
| 2 | | AMENDMENT NO. ______. Amend House Bill 4929 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Drug Asset Forfeiture Procedure Act is | 5 | | amended 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 | 9 | | a preliminary determination from the circuit court as to | 10 | | whether there is probable cause that the property may be | 11 | | subject to forfeiture. | 12 | | (b) The rules of evidence shall not apply to any proceeding | 13 | | conducted under this Section. | 14 | | (c) The court may conduct the review under subsection (a) | 15 | | simultaneously with a proceeding pursuant to Section 109-1 of | 16 | | the Code of Criminal Procedure of 1963 for a related criminal |
| | | 09700HB4929ham001 | - 2 - | LRB097 17469 RLC 67385 a |
|
| 1 | | offense if a prosecution is commenced by information or | 2 | | complaint , however if the review is not conducted | 3 | | simultaneously, the court's findings shall not constitute a | 4 | | collateral estoppel to the filing of criminal charges . | 5 | | (d) The court may accept a finding of probable cause at a | 6 | | preliminary hearing following the filing of an information or | 7 | | complaint charging a related criminal offense or following the | 8 | | return of indictment by a grand jury charging the related | 9 | | offense as sufficient evidence of probable cause as required | 10 | | under subsection (a). | 11 | | (e) Upon making a finding of probable cause as required | 12 | | under this Section, and after taking into account the | 13 | | respective interests of all known claimants to the property | 14 | | including the State, the circuit court shall enter a | 15 | | restraining order or injunction, or take other appropriate | 16 | | action, as necessary to ensure that the property is not removed | 17 | | from the court's jurisdiction and is not concealed, destroyed, | 18 | | or otherwise disposed of by the property owner or interest | 19 | | holder 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 | 23 | | agency
seizing property for forfeiture under the Illinois | 24 | | Controlled
Substances Act, the Cannabis Control Act, or the | 25 | | Methamphetamine Control and Community Protection Act shall,
|
| | | 09700HB4929ham001 | - 3 - | LRB097 17469 RLC 67385 a |
|
| 1 | | within 52 days of seizure, notify the State's Attorney for the | 2 | | county in
which an act or omission giving rise to the | 3 | | forfeiture occurred or in which
the property was seized of the | 4 | | seizure of the property and the facts and
circumstances giving | 5 | | rise to the seizure and shall provide the State's
Attorney with | 6 | | the inventory of the property and its estimated value. For | 7 | | purposes of forfeiture proceedings pursuant to Sections 6 and 9 | 8 | | of this Act, the notification to the State's Attorney shall | 9 | | only be perfected by the delivery of the Illinois State Police | 10 | | approved form 4-64. When
the property seized for forfeiture is | 11 | | a vehicle, the law enforcement agency
seizing the property | 12 | | shall immediately notify the Secretary of State that
forfeiture | 13 | | proceedings 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 | 17 | | under the
provisions of the Illinois Controlled Substances Act, | 18 | | the Cannabis Control
Act, or the Methamphetamine Control and | 19 | | Community Protection Act is non-real property that exceeds | 20 | | $150,000 $20,000 in value excluding the value
of any | 21 | | conveyance, or is real property, or a claimant has filed a | 22 | | claim and
a cost bond under subsection (C) of Section 6 of this | 23 | | Act, the following
judicial in rem procedures shall apply:
| 24 | | (A) If, after a review of the facts surrounding the | 25 | | seizure, the State's
Attorney is of the opinion that the seized |
| | | 09700HB4929ham001 | - 4 - | LRB097 17469 RLC 67385 a |
|
| 1 | | property is subject to
forfeiture, then within 45 days of the | 2 | | receipt of notice of seizure by the
seizing agency or the | 3 | | filing of the claim and cost bond, whichever is
later, the | 4 | | State's Attorney shall institute judicial forfeiture | 5 | | proceedings
by filing a verified complaint for forfeiture and, | 6 | | if the claimant has
filed a claim and cost bond, by depositing | 7 | | the cost bond with the clerk of
the court. When authorized by | 8 | | law, a forfeiture must be ordered by a court
on an action in | 9 | | rem brought by a State's Attorney under a verified
complaint | 10 | | for forfeiture.
| 11 | | (B) During the probable cause portion of the judicial in | 12 | | rem
proceeding wherein the State presents its case-in-chief, | 13 | | the court must
receive and consider, among other things, all | 14 | | relevant hearsay evidence and
information. The laws of evidence | 15 | | relating to civil actions shall apply to
all other portions of | 16 | | the judicial in rem proceeding.
| 17 | | (C) Only an owner of or interest holder in the property may | 18 | | file an
answer asserting a claim against the property in the | 19 | | action in rem. For
purposes of this Section, the owner or | 20 | | interest holder shall be referred
to as claimant.
| 21 | | (D) The answer must be signed by the owner or interest | 22 | | holder 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;
|
| | | 09700HB4929ham001 | - 5 - | LRB097 17469 RLC 67385 a |
|
| 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 | 14 | | after service
of the civil in rem complaint.
| 15 | | (F) The hearing must be held within 60 days after filing of | 16 | | the answer
unless continued for good cause.
| 17 | | (G) The State shall show the existence of probable cause | 18 | | for forfeiture
of the property. If the State shows probable | 19 | | cause, the claimant has the
burden of showing by a | 20 | | preponderance of the evidence that the claimant's
interest in | 21 | | the property is not subject to forfeiture.
| 22 | | (H) If the State does not show existence of probable cause | 23 | | or a claimant
has established by a preponderance of evidence | 24 | | that the claimant has an
interest that is exempt under Section | 25 | | 8 of this Act, the court shall order
the interest in the | 26 | | property returned or conveyed to the claimant and shall
order |
| | | 09700HB4929ham001 | - 6 - | LRB097 17469 RLC 67385 a |
|
| 1 | | all other property forfeited to the State. If the State does | 2 | | show
existence of probable cause and the claimant does not | 3 | | establish by a
preponderance of evidence that the claimant has | 4 | | an interest that is exempt
under Section 8 of this Act, the | 5 | | court shall order all property forfeited
to the State.
| 6 | | (I) A defendant convicted in any criminal proceeding is | 7 | | precluded from
later denying the essential allegations of the | 8 | | criminal offense of which
the defendant was convicted in any | 9 | | proceeding under this Act
regardless of the pendency of an | 10 | | appeal from that conviction. However,
evidence of the pendency | 11 | | of an appeal is admissible.
| 12 | | (J) An acquittal or dismissal in a criminal proceeding | 13 | | shall not
preclude civil proceedings under this Act; however, | 14 | | for good cause shown,
on a motion by the State's Attorney, the | 15 | | court may stay civil forfeiture
proceedings during the criminal | 16 | | trial for a related criminal indictment or
information alleging | 17 | | a violation of the Illinois Controlled Substances Act,
the | 18 | | Cannabis Control Act, or the Methamphetamine Control and | 19 | | Community Protection Act. Such a stay shall not be available | 20 | | pending an
appeal. Property subject to forfeiture under the | 21 | | Illinois Controlled
Substances Act, the Cannabis Control Act, | 22 | | or the Methamphetamine Control and Community Protection Act | 23 | | shall not be subject to return
or release by a court exercising | 24 | | jurisdiction over a criminal case
involving the seizure of such | 25 | | property unless such return or release is
consented to by the | 26 | | State's Attorney.
|
| | | 09700HB4929ham001 | - 7 - | LRB097 17469 RLC 67385 a |
|
| 1 | | (K) All property declared forfeited under this Act vests in | 2 | | this State
on the commission of the conduct giving rise to | 3 | | forfeiture together with
the proceeds of the property after | 4 | | that time. Any such property or
proceeds subsequently | 5 | | transferred to any person remain subject to
forfeiture and | 6 | | thereafter shall be ordered forfeited unless the transferee
| 7 | | claims and establishes in a hearing under the provisions of | 8 | | this Act that
the transferee's interest is exempt under Section | 9 | | 8 of this Act.
| 10 | | (L) A civil action under this Act must be commenced within | 11 | | 5 years
after the last conduct giving rise to forfeiture became | 12 | | known or should
have become known or 5 years after the | 13 | | forfeitable property is
discovered, whichever is later, | 14 | | excluding any time during which either the
property or claimant | 15 | | is out of the State or in confinement or during which
criminal | 16 | | proceedings 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 | 19 | | becoming law.".
|
|