Public Act 097-0680
 
HB1927 EnrolledLRB097 08502 RLC 48629 b

    AN ACT concerning criminal law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Criminal Code of 1961 is amended by changing
Section 36-1.5 as follows:
 
    (720 ILCS 5/36-1.5)
    Sec. 36-1.5. Preliminary Review.
    (a) Within 14 days of the seizure, the State shall seek a
preliminary determination from the circuit court as to whether
there is probable cause that the property may be subject to
forfeiture.
    (b) The rules of evidence shall not apply to any proceeding
conducted under this Section.
    (c) The court may conduct the review under subsection (a)
simultaneously with a proceeding pursuant to Section 109-1 of
the Code of Criminal Procedure of 1963 for a related criminal
offense if a prosecution is commenced by information or
complaint.
    (d) The court may accept a finding of probable cause at a
preliminary hearing following the filing of an information or
complaint charging a related criminal offense or following the
return of indictment by a grand jury charging the related
offense as sufficient evidence of probable cause as required
under subsection (a).
    (e) Upon making a finding of probable cause as required
under this Section, the circuit court shall order the property
subject to the provisions of the applicable forfeiture Act held
until the conclusion of any forfeiture proceeding.
    For seizures of conveyances, within 7 days of a finding of
probable cause under subsection (a), the registered owner or
other claimant may file a motion in writing supported by sworn
affidavits claiming that denial of the use of the conveyance
during the pendency of the forfeiture proceedings creates a
substantial hardship. The court shall consider the following
factors in determining whether a substantial hardship has been
proven:
        (1) the nature of the claimed hardship;
        (2) the availability of public transportation or other
    available means of transportation; and
        (3) any available alternatives to alleviate the
    hardship other than the return of the seized conveyance.
    If the court determines that a substantial hardship has
been proven, the court shall then balance the nature of the
hardship against the State's interest in safeguarding the
conveyance. If the court determines that the hardship outweighs
the State's interest in safeguarding the conveyance, the court
may temporarily release the conveyance to the registered owner
or the registered owner's authorized designee, or both, until
the conclusion of the forfeiture proceedings or for such
shorter period as ordered by the court provided that the person
to whom the conveyance is released provides proof of insurance
and a valid driver's license and all State and local
registrations for operation of the conveyance are current. The
court shall place conditions on the conveyance limiting its use
to the stated hardship and restricting the conveyance's use to
only those individuals authorized to use the conveyance by the
registered owner. The court shall revoke the order releasing
the conveyance and order that the conveyance be reseized by law
enforcement if the conditions of release are violated or if the
conveyance is used in the commission of any offense identified
in subsection (a) of Section 6-205 of the Illinois Vehicle
Code.
    If the court orders the release of the conveyance during
the pendency of the forfeiture proceedings, the registered
owner or his or her authorized designee shall post a cash
security with the Clerk of the Court as ordered by the court.
The court shall consider the following factors in determining
the amount of the cash security:
        (A) the full market value of the conveyance;
        (B) the nature of the hardship;
        (C) the extent and length of the usage of the
    conveyance; and
        (D) such other conditions as the court deems necessary
    to safeguard the conveyance.
    If the conveyance is released, the court shall order that
the registered owner or his or her designee safeguard the
conveyance, not remove the conveyance from the jurisdiction,
not conceal, destroy, or otherwise dispose of the conveyance,
not encumber the conveyance, and not diminish the value of the
conveyance in any way. The court shall also make a
determination of the full market value of the conveyance prior
to it being released based on a source or sources defined in 50
Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
    If the conveyance subject to forfeiture is released under
this Section and is subsequently forfeited, the person to whom
the conveyance was released shall return the conveyance to the
law enforcement agency that seized the conveyance within 7 days
from the date of the declaration of forfeiture or order of
forfeiture. If the conveyance is not returned within 7 days,
the cash security shall be forfeited in the same manner as the
conveyance subject to forfeiture. If the cash security was less
than the full market value, a judgment shall be entered against
the parties to whom the conveyance was released and the
registered owner, jointly and severally, for the difference
between the full market value and the amount of the cash
security. If the conveyance is returned in a condition other
than the condition in which it was released, the cash security
shall be returned to the surety who posted the security minus
the amount of the diminished value, and that amount shall be
forfeited in the same manner as the conveyance subject to
forfeiture. Additionally, the court may enter an order allowing
any law enforcement agency in the State of Illinois to seize
the conveyance wherever it may be found in the State to satisfy
the judgment if the cash security was less than the full market
value of the conveyance. Upon making a finding of probable
cause as required under this Section, and after taking into
account the respective interests of all known claimants to the
property including the State, the circuit court shall enter a
restraining order or injunction, or take other appropriate
action, as necessary to ensure that the property is not removed
from the court's jurisdiction and is not concealed, destroyed,
or otherwise disposed of by the property owner or interest
holder before a forfeiture hearing is conducted.
(Source: P.A. 97-544, eff. 1-1-12.)
 
    Section 10. The Drug Asset Forfeiture Procedure Act is
amended by changing Section 3.5 as follows:
 
    (725 ILCS 150/3.5)
    Sec. 3.5. Preliminary Review.
    (a) Within 14 days of the seizure, the State shall seek a
preliminary determination from the circuit court as to whether
there is probable cause that the property may be subject to
forfeiture.
    (b) The rules of evidence shall not apply to any proceeding
conducted under this Section.
    (c) The court may conduct the review under subsection (a)
simultaneously with a proceeding pursuant to Section 109-1 of
the Code of Criminal Procedure of 1963 for a related criminal
offense if a prosecution is commenced by information or
complaint.
    (d) The court may accept a finding of probable cause at a
preliminary hearing following the filing of an information or
complaint charging a related criminal offense or following the
return of indictment by a grand jury charging the related
offense as sufficient evidence of probable cause as required
under subsection (a).
    (e) Upon making a finding of probable cause as required
under this Section, the circuit court shall order the property
subject to the provisions of the applicable forfeiture Act held
until the conclusion of any forfeiture proceeding.
    For seizures of conveyances, within 7 days of a finding of
probable cause under subsection (a), the registered owner or
other claimant may file a motion in writing supported by sworn
affidavits claiming that denial of the use of the conveyance
during the pendency of the forfeiture proceedings creates a
substantial hardship. The court shall consider the following
factors in determining whether a substantial hardship has been
proven:
        (1) the nature of the claimed hardship;
        (2) the availability of public transportation or other
    available means of transportation; and
        (3) any available alternatives to alleviate the
    hardship other than the return of the seized conveyance.
    If the court determines that a substantial hardship has
been proven, the court shall then balance the nature of the
hardship against the State's interest in safeguarding the
conveyance. If the court determines that the hardship outweighs
the State's interest in safeguarding the conveyance, the court
may temporarily release the conveyance to the registered owner
or the registered owner's authorized designee, or both, until
the conclusion of the forfeiture proceedings or for such
shorter period as ordered by the court provided that the person
to whom the conveyance is released provides proof of insurance
and a valid driver's license and all State and local
registrations for operation of the conveyance are current. The
court shall place conditions on the conveyance limiting its use
to the stated hardship and restricting the conveyance's use to
only those individuals authorized to use the conveyance by the
registered owner. The court shall revoke the order releasing
the conveyance and order that the conveyance be reseized by law
enforcement if the conditions of release are violated or if the
conveyance is used in the commission of any offense identified
in subsection (a) of Section 6-205 of the Illinois Vehicle
Code.
    If the court orders the release of the conveyance during
the pendency of the forfeiture proceedings, the registered
owner or his or her authorized designee shall post a cash
security with the Clerk of the Court as ordered by the court.
The court shall consider the following factors in determining
the amount of the cash security:
        (A) the full market value of the conveyance;
        (B) the nature of the hardship;
        (C) the extent and length of the usage of the
    conveyance; and
        (D) such other conditions as the court deems necessary
    to safeguard the conveyance.
    If the conveyance is released, the court shall order that
the registered owner or his or her designee safeguard the
conveyance, not remove the conveyance from the jurisdiction,
not conceal, destroy, or otherwise dispose of the conveyance,
not encumber the conveyance, and not diminish the value of the
conveyance in any way. The court shall also make a
determination of the full market value of the conveyance prior
to it being released based on a source or sources defined in 50
Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
     If the conveyance subject to forfeiture is released under
this Section and is subsequently forfeited, the person to whom
the conveyance was released shall return the conveyance to the
law enforcement agency that seized the conveyance within 7 days
from the date of the declaration of forfeiture or order of
forfeiture. If the conveyance is not returned within 7 days,
the cash security shall be forfeited in the same manner as the
conveyance subject to forfeiture. If the cash security was less
than the full market value, a judgment shall be entered against
the parties to whom the conveyance was released and the
registered owner, jointly and severally, for the difference
between the full market value and the amount of the cash
security. If the conveyance is returned in a condition other
than the condition in which it was released, the cash security
shall be returned to the surety who posted the security minus
the amount of the diminished value, and that amount shall be
forfeited in the same manner as the conveyance subject to
forfeiture. Additionally, the court may enter an order allowing
any law enforcement agency in the State of Illinois to seize
the conveyance wherever it may be found in the State to satisfy
the judgment if the cash security was less than the full market
value of the conveyance. Upon making a finding of probable
cause as required under this Section, and after taking into
account the respective interests of all known claimants to the
property including the State, the circuit court shall enter a
restraining order or injunction, or take other appropriate
action, as necessary to ensure that the property is not removed
from the court's jurisdiction and is not concealed, destroyed,
or otherwise disposed of by the property owner or interest
holder before a forfeiture hearing is conducted.
(Source: P.A. 97-544, eff. 1-1-12.)
 
    Section 99. Effective date. This Act takes effect January
1, 2012.