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91_SB0109
LRB9101139RCks
1 AN ACT to amend the Criminal Code of 1961 by adding
2 Article 16G.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Criminal Code of 1961 is amended by
6 adding Article 16G as follows:
7 (720 ILCS 5/Art. 16G heading new)
8 ARTICLE 16G
9 FINANCIAL IDENTITY THEFT AND ASSET FORFEITURE LAW
10 (720 ILCS 5/16G-1 new)
11 Sec. 16G-1. Short title. This Article may be cited as the
12 Financial Identity Theft and Asset Forfeiture Law.
13 (720 ILCS 5/16G-5 new)
14 Sec. 16G-5. Legislative declaration.
15 (a) It is the public policy of this State that the
16 substantial burden placed upon the economy of this State as a
17 result of the rising incidence of financial identity theft
18 and the negative effect of this crime on the People of this
19 State and its victims is a matter of grave concern to the
20 People of this State who have the right to be protected in
21 their health, safety, and welfare from the effects of this
22 crime, and therefore financial identity theft shall be
23 identified and dealt with swiftly and appropriately
24 considering the onerous nature of the crime.
25 (b) The widespread availability and unauthorized access
26 to personal identification information have led and will lead
27 to a substantial increase in identity theft related crimes.
28 (720 ILCS 5/16G-10 new)
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1 Sec. 16G-10. Definitions. In this Article unless the
2 context otherwise requires:
3 (a) "Personal identification document" means a birth
4 certificate, a drivers license, a State identification card,
5 a public, government, or private employment identification
6 card, a social security card, a firearm owner's
7 identification card, a credit card, a debit card, or a
8 passport issued to or on behalf of a person other than the
9 offender, or any such document made or altered in a manner
10 that it purports to have been made on behalf of or issued to
11 another person or by the authority of one who did not give
12 that authority.
13 (b) "Personal identifying information" means any of the
14 following information:
15 (1) A person's name;
16 (2) A person's address:
17 (3) A person's telephone number;
18 (4) A person's drivers license number or State of
19 Illinois identification card as assigned by the Secretary
20 of State of the State of Illinois or a similar agency of
21 another state;
22 (5) A person's social security number;
23 (6) A person's public, private, or government
24 employer, place of employment, or employment
25 identification number;
26 (7) The maiden name of a person's mother;
27 (8) The number assigned to a person's depository
28 account, savings account, or brokerage account;
29 (9) The number assigned to a person's credit or
30 debit card, commonly known as a "Visa Card", "Master
31 Card", "American Express Card", "Discover Card", or other
32 similar cards whether issued by a financial institution,
33 corporation, or business entity;
34 (10) Personal identification numbers;
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1 (11) Electronic identification numbers;
2 (12) Digital signals;
3 (13) Any other numbers or information which can be
4 used to access a person's financial resources.
5 (720 ILCS 5/16G-15 new)
6 Sec. 16G-15. Financial identity theft.
7 (a) A person commits the offense of financial identity
8 theft when he or she knowingly uses any personal identifying
9 information or personal identification document of another
10 person to obtain credit, money, goods, services, or other
11 property in the name of the other person, without the written
12 authorization of the other person and knowingly representing
13 that he or she is the other person or is acting with the
14 authorization of the other person.
15 (b) Knowledge shall be determined by an evaluation of
16 all circumstances surrounding the use of the other person's
17 identifying information or document.
18 (c) When a charge of financial identity theft of credit,
19 money, goods, services, or other property exceeding a
20 specified value is brought the value of the credit, money,
21 goods, services, or other property is an element of the
22 offense to be resolved by the trier of fact as either
23 exceeding or not exceeding the specified value.
24 (d) Sentence.
25 (1) Financial identity theft of credit, money,
26 goods, services, or other property not exceeding $300 in
27 value is a Class A misdemeanor. A person who has been
28 previously convicted of financial identity theft of less
29 than $300 who is convicted of a second or subsequent
30 offense of financial identity theft of less than $300 is
31 guilty of a Class 4 felony. A person who has been
32 convicted of financial identity theft of less than $300
33 who has been previously convicted of any type of theft,
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1 robbery, armed robbery, burglary, residential burglary,
2 possession of burglary tools, home invasion, home repair
3 fraud, aggravated home repair fraud, or financial
4 exploitation of an elderly or disabled person is guilty
5 of a Class 4 felony. When a person has any such prior
6 conviction, the information or indictment charging that
7 person shall state the prior conviction so as to give
8 notice of the State's intention to treat the charge as a
9 felony. The fact of the prior conviction is not an
10 element of the offense and may not be disclosed to the
11 jury during trial unless otherwise permitted by issues
12 properly raised during the trial.
13 (2) Financial identity theft of credit, money,
14 goods, services, or other property exceeding $300 and not
15 exceeding $2,000 in value is a Class 4 felony.
16 (3) Financial identity theft of credit, money,
17 goods, services, or other property exceeding $2,000 and
18 not exceeding $10,000 in value is a Class 3 felony.
19 (4) Financial identity theft of credit, money,
20 goods, services, or other property exceeding $10,000 and
21 not exceeding $100,000 in value is a Class 2 felony.
22 (5) Financial identity theft of credit, money,
23 goods, services, or other property exceeding $100,000 in
24 value is a Class 1 felony.
25 (720 ILCS 5/16G-20 new)
26 Sec. 16G-20. Aggravated financial identity theft.
27 (a) A person commits the offense of aggravated financial
28 identity theft when he or she commits the offense of
29 financial identity theft as set forth in subsection (a) of
30 Section 16G-15 against a person 60 years of age or older or a
31 disabled person as defined in Section 16-1.3 of this Code.
32 (b) Knowledge shall be determined by an evaluation of
33 all circumstances surrounding the use of the other person's
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1 identifying information or document.
2 (c) When a charge of aggravated financial identity theft
3 of credit, money, goods, services, or other property
4 exceeding a specified value is brought the value of the
5 credit, money, goods, services, or other property is an
6 element of the offense to be resolved by the trier of fact as
7 either exceeding or not exceeding the specified value.
8 (d) A defense to aggravated financial identity theft
9 does not exist merely because the accused reasonably believed
10 the victim to be a person less than 60 years of age.
11 (e) Sentence.
12 (1) Aggravated financial identity theft of credit,
13 money, goods, services, or other property not exceeding
14 $300 in value is a Class 4 felony.
15 (2) Aggravated financial identity theft of credit,
16 money, goods, services, or other property exceeding $300
17 and not exceeding $10,000 in value is a Class 3 felony.
18 (3) Aggravated financial identity theft of credit,
19 money, goods, services, or other property exceeding
20 $10,000 in value and not exceeding $100,000 in value is a
21 Class 2 felony.
22 (4) Aggravated financial identity theft of credit,
23 money, goods, services, or other property exceeding
24 $100,000 in value is a Class 1 felony.
25 (5) A person who has been previously convicted of
26 aggravated financial identity theft regardless of the
27 value of the property involved who is convicted of a
28 second or subsequent offense of aggravated financial
29 identity theft regardless of the value of the property
30 involved is guilty of a Class X felony.
31 (720 ILCS 5/16G-25 new)
32 Sec. 16G-25. Offenders interest in the property. It is no
33 defense to a charge of aggravated financial identity theft or
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1 financial identity theft that the offender has an interest in
2 the credit, money, goods, services, or other property
3 obtained in the name of the other person.
4 (720 ILCS 5/16G-30 new)
5 Sec. 16G-30. Forfeiture.
6 (a) Any person who commits the offense of financial
7 identity theft or aggravated financial identity theft as set
8 forth in Section 16G-15 or 16G-20 shall forfeit, according to
9 the provisions of this Section, any moneys, profits, or
10 proceeds and any interest or property that the sentencing
11 court determines he or she has acquired or maintained,
12 directly or indirectly, in whole or in part, as a result of
13 the offense. The person shall also forfeit any interest in,
14 security, claim against, or contractual right of any kind
15 that affords him or her a source of influence over any
16 enterprise that he or she has established, operated,
17 controlled, conducted or participated in conducting, if his
18 or her relationship to or connection with any such thing or
19 activity directly or indirectly, in whole or in part, is
20 traceable to any item or benefit that he or she has obtained
21 or acquired through financial identity theft or aggravated
22 financial identity theft. Proceedings instituted under this
23 Section shall be subject to and conducted in accordance with
24 the following procedures:
25 (1) The sentencing court shall, upon petition by
26 the prosecuting agency, whether it is the Attorney
27 General or a State's Attorney, at any time following
28 sentencing, conduct a hearing to determine whether any
29 property or property interest is subject to forfeiture
30 under this Section. At the forfeiture hearing the People
31 of the State of Illinois have the burden of establishing,
32 by a preponderance of the evidence, that the property or
33 property interests are subject to forfeiture.
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1 (2) In any action brought by the People of the
2 State of Illinois under this Section, the circuit courts
3 of Illinois have jurisdiction to enter such restraining
4 orders, injunctions or prohibitions, or to take any other
5 action in connection with any real, personal, or mixed
6 property or other interest subject to forfeiture, as they
7 consider proper.
8 (3) In any action brought by the People of the
9 State of Illinois under this Section, in which any
10 restraining order, injunction, or prohibition or any
11 other action in connection with any property or interest
12 subject to forfeiture under this Section is sought, the
13 circuit court presiding over the trial of the person or
14 persons charged with financial identity theft or
15 aggravated financial identity theft shall first determine
16 whether there is probable cause to believe that the
17 person or persons so charged have committed the offense
18 of financial identity theft or aggravated financial
19 identity theft and whether the property or interest is
20 subject to forfeiture under this Section. In order to
21 make this determination, before entering any such order,
22 the court shall conduct a hearing without a jury, in
23 which the People shall establish: (i) probable cause that
24 the person or persons so charged have committed the
25 offense of financial identity theft or aggravated
26 financial identity theft, and (ii) probable cause that
27 any property or interest may be subject to forfeiture
28 under this Section. The hearing may be conducted
29 simultaneously with a preliminary hearing if the
30 prosecution is commenced by information or complaint, or
31 by motion of the people at any stage in the proceedings.
32 The court may enter a finding of probable cause at a
33 preliminary hearing following the filing of an
34 information charging an offense of financial identity
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1 theft or aggravated financial identity theft or the
2 return of an indictment by a grand jury charging the
3 offense of financial identity theft or aggravated
4 financial identity theft as sufficient evidence of
5 probable cause for purposes of this Section. Upon such a
6 finding, the circuit court shall enter the restraining
7 order, injunction or prohibition, or shall take such
8 other action in connection with any such property or
9 other interest subject to forfeiture under this Section
10 as is necessary to insure that the property is not
11 removed from the jurisdiction of the court, concealed,
12 destroyed or otherwise disposed of by the owner or holder
13 of that property or interest before a forfeiture hearing
14 under this Section. The Attorney General or State's
15 Attorney shall file a certified copy of the restraining
16 order, injunction, or other prohibition with the recorder
17 or registrar of titles of each county where any such
18 property of the defendant may be located. No such
19 injunction, restraining order, or other prohibition shall
20 affect the rights of any bona fide purchaser, mortgagee,
21 judgment creditor, or other lienholder arising before the
22 date of the filing. The court may, at any time, upon
23 verified petition by the defendant, conduct a hearing to
24 release all or portions of any property or interest that
25 the court previously determined to be subject to
26 forfeiture or subject to any restraining order,
27 injunction, prohibition, or other action. The court may
28 release the property to the defendant for good cause
29 shown and within the sound discretion of the court.
30 (4) Upon conviction of a person under Section
31 16G-15 or 16G-20, the court shall authorize the Attorney
32 General or State's Attorney to seize and sell all
33 property or other interest declared forfeited under this
34 Article, unless the property is required by law to be
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1 destroyed or is harmful to the public. The court may
2 order the Attorney General or State's Attorney to
3 segregate funds from the proceeds of the sale sufficient:
4 (i) to satisfy any order of restitution as the court may
5 deem appropriate; (ii) to satisfy any legal right, title,
6 or interest that the court deems superior to any right,
7 title, or interest of the defendant at the time of the
8 commission of the acts which gave rise to forfeiture
9 under this Section; or (iii) to satisfy any bona fide
10 purchaser for value of the right, title, or interest in
11 the property who was without reasonable notice that the
12 property was subject to forfeiture. Following the entry
13 of an order of forfeiture, the Attorney General or
14 State's Attorney shall publish notice of the order and
15 his or her intent to dispose of the property. Within the
16 30 days following publication, any person may petition
17 the court to adjudicate the validity of his or her
18 alleged interest in the property.
19 (b) After the deduction of all requisite expenses of
20 administration and sale, the Attorney General or State's
21 Attorney shall distribute the proceeds of the sale, along
22 with any moneys forfeited or seized, as follows:
23 (1) 50% shall be distributed to the unit of
24 local government whose officers or employees
25 conducted the investigation into financial identity
26 theft or aggravated financial identity theft and
27 caused the arrest or arrests and prosecution leading
28 to the forfeiture. Amounts distributed to units of
29 local government shall be used for training or
30 enforcement purposes relating to detection,
31 investigation, or prosecution of financial crimes,
32 including financial identity theft or aggravated
33 financial identity theft. In the event, however,
34 that the investigation, arrest or arrests and
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1 prosecution leading to the forfeiture were
2 undertaken solely by a State agency, the portion
3 provided under this paragraph (1) shall be paid into
4 the State Police Services Fund to be used for
5 training or enforcement purposes relating to
6 detection, investigation, or prosecution of
7 financial crimes, including financial identity theft
8 or aggravated financial identity theft.
9 (2) 50% shall be distributed to the county in
10 which the prosecution and petition for forfeiture
11 resulting in the forfeiture were instituted by the
12 State's Attorney, and deposited in a special fund in
13 the county treasury and appropriated to the State's
14 Attorney for use in training or enforcement purposes
15 relating to detection, investigation or prosecution
16 of financial crimes, including financial identity
17 theft or aggravated financial identity theft. When a
18 prosecution and petition for forfeiture resulting in
19 the forfeiture has been maintained by the Attorney
20 General, 50% of the proceeds shall be paid into
21 Attorney General's Financial Crime Prevention Fund.
22 When the Attorney General and the State's Attorney
23 have participated jointly in any part of the
24 proceedings, 25% of the proceeds forfeited shall be
25 paid to the county in which the prosecution and
26 petition for forfeiture resulting in the forfeiture
27 occurred, and 25% shall be paid to the Attorney
28 General's Financial Crime Prevention Fund to be used
29 for the purposes stated in this paragraph (2).
30 Section 99. Effective date. This Act takes effect upon
31 becoming law.