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Public Act 093-0394


 

Public Act 93-0394 of the 93rd General Assembly


Public Act 93-0394

SB211 Enrolled                       LRB093 03803 RLC 03838 b

    AN ACT in relation to 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
adding Section 17-1b as follows:

    (720 ILCS 5/17-1b new)
    Sec.  17-lb.  State's  Attorney's  bad  check   diversion
program.
    (a)  In this Section:
    "Offender"  means  a  person  charged  with,  or for whom
probable cause exists to charge the  person  with,  deceptive
practices.
    "Pretrial  diversion"  means the decision of a prosecutor
to refer an offender to a diversion program on condition that
the criminal charges against the offender will  be  dismissed
after  a  specified  period  of time, or the case will not be
charged, if the offender successfully completes the program.
    "Restitution" means all amounts payable to  a  victim  of
deceptive  practices  under  the  bad check diversion program
created under this Section, including the amount of the check
and any transaction fees payable to a victim as set forth  in
subsection (g) but does not include amounts recoverable under
Section  3-806  of  the  Uniform  Commercial Code and Section
17-1a of this Code.

    (b)  A State's Attorney may  create  within  his  or  her
office  a bad check diversion program for offenders who agree
to  voluntarily  participate  in  the  program   instead   of
undergoing  prosecution.  The program may be conducted by the
State's Attorney or by a private entity under  contract  with
the  State's Attorney. If the State's Attorney contracts with
a private entity to perform any  services  in  operating  the
program,  the  entity  shall  operate  under the supervision,
direction, and control of the State's Attorney.  Any  private
entity  providing  services  under  this  Section  is  not  a
"collection  agency"  as  that  term  is  defined  under  the
Collection Agency Act.
    (c)  If  an offender is referred to the State's Attorney,
the State's Attorney may determine whether  the  offender  is
appropriate  for  acceptance  in  the  program.  The  State's
Attorney   may   consider,   but  shall  not  be  limited  to
consideration of, the following factors:
         (1)  the amount of  the  check  that  was  drawn  or
    passed;
         (2)  prior referrals of the offender to the program;
         (3)  whether  other  charges  of deceptive practices
    are pending against the offender;
         (4)  the evidence presented to the State's  Attorney
    regarding the facts and circumstances of the incident;
         (5)  the offender's criminal history; and
         (6)  the  reason  the  check  was  dishonored by the
    financial institution.
    (d)  The bad  check  diversion  program  may  require  an
offender to do one or more of the following:
         (i)  pay  for,  at  his  or  her  own  expense,  and
    successfully  complete  an  educational class held by the
    State's Attorney or a private entity under contract  with
    the State's Attorney;
         (ii)  make full restitution for the offense;
         (iii)  pay  a  per-check  administrative  fee as set
    forth in this Section.
    (e)  If an offender  is  diverted  to  the  program,  the
State's  Attorney shall agree in writing not to prosecute the
offender upon the offender's  successful  completion  of  the
program  conditions.  The  State's  Attorney's  agreement  to
divert  the offender shall specify the offenses that will not
be prosecuted by  identifying  the  checks  involved  in  the
transactions.
    (f)  The   State's  Attorney,  or  private  entity  under
contract with the State's Attorney, may collect a fee from an
offender  diverted  to  the  State's  Attorney's  bad   check
diversion  program.  This  fee  may  be  deposited  in a bank
account maintained by the State's Attorney for the purpose of
depositing fees and paying the expenses of the  program.  The
State's Attorney may require that the fee be paid directly to
a  private  entity  that  administers  the  program  under  a
contract  with  the  State's  Attorney.  The  amount  of  the
administrative  fees  collected by the State's Attorney under
the program may not exceed $35 per check.  The  county  board
may, however, by ordinance, increase the fees allowed by this
Section  if  the  increase is justified by an acceptable cost
study showing that the fees allowed by this Section  are  not
sufficient to cover the cost of providing the service.
         (g) (1)  The  private  entity  shall  be required to
    maintain  adequate   general   liability   insurance   of
    $1,000,000  per  occurrence  as well as adequate coverage
    for potential loss resulting  from  employee  dishonesty.
    The State's Attorney may require a surety bond payable to
    the State's Attorney if in the State's Attorney's opinion
    it   is   determined  that  the  private  entity  is  not
    adequately insured or funded.
         (2)  (A) Each private entity  that  has  a  contract
    with   the  State's  Attorney  to  conduct  a  bad  check
    diversion program shall at all times maintain a  separate
    bank  account  in  which  all  moneys  received  from the
    offenders  participating  in   the   program   shall   be
    deposited, referred to as a  "Trust Account", except that
    negotiable instruments received may be forwarded directly
    to  a  victim  of the deceptive practice committed by the
    offender if that procedure is provided for by  a  writing
    executed  by  the  victim.  Moneys  received  shall be so
    deposited within 5 business days  after  posting  to  the
    private   entity's  books  of  account.  There  shall  be
    sufficient funds in the trust account at all times to pay
    the victims the amount due them.
              (B) The trust account shall be established in a
         bank,  savings  and  loan  association,   or   other
         recognized  depository  which  is federally or State
         insured or otherwise secured as defined by rule.  If
         the  account is interest bearing, the private entity
         shall pay to the victim interest earned on funds  on
         deposit after the 60th day.
              (C)  Each private entity shall keep on file the
         name of the bank, savings and loan  association,  or
         other  recognized  depository  in  which  each trust
         account  is  maintained,  the  name  of  each  trust
         account, and the names of the persons authorized  to
         withdraw   funds  from  each  account.  The  private
         entity, within 30 days of the time of  a  change  of
         depository  or person authorized to make withdrawal,
         shall update its files to reflect  that  change.  An
         examination  and  audit  of a private entity's trust
         accounts may be  made by the State's Attorney as the
         State's Attorney deems appropriate. A trust  account
         financial  report  shall  be  submitted  annually on
         forms acceptable to the State's Attorney.
         (3) The  State's  Attorney  may  cancel  a  contract
    entered into with a private entity under this Section for
    any one or any combination of the following causes:
              (A)  Conviction  of  the  private entity or the
         principals of the private entity of any crime  under
         the laws of any U.S. jurisdiction which is a felony,
         a  misdemeanor  an  essential  element  of  which is
         dishonesty, or of any crime which  directly  relates
         to the practice of the profession.
              (B)  A  determination  that  the private entity
         has engaged in conduct prohibited in item (4).
         (4)  The State's Attorney may determine whether  the
    private  entity  has  engaged in the following prohibited
    conduct:
              (A)  Using  or  threatening  to  use  force  or
         violence to cause physical harm to an offender,  his
         or her family, or his or her property.
              (B)  Threatening  the  seizure,  attachment, or
         sale of an offender's property where such action can
         only  be  taken  pursuant  to  court  order  without
         disclosing  that   prior   court   proceedings   are
         required.
              (C)  Disclosing   or   threatening  to disclose
         information  adversely   affecting   an   offender's
         reputation  for  creditworthiness with knowledge the
         information is false.
              (D)  Initiating  or  threatening  to   initiate
         communication  with  an  offender's  employer unless
         there has been a  default  of  the  payment  of  the
         obligation  for at least 30 days and at least 5 days
         prior written notice, to the last known  address  of
         the  offender,  of the intention to communicate with
         the employer has been given to the employee,  except
         as expressly permitted by law or court order.
              (E)  Communicating  with  the  offender  or any
         member of the offender's family at such  a  time  of
         day   or   night  and  with  such  frequency  as  to
         constitute harassment of the offender or any  member
         of  the  offender's  family.   For  purposes of this
         clause (E) the following  conduct  shall  constitute
         harassment:
              (i)  Communicating  with  the  offender  or any
         member of his or her family at any unusual  time  or
         place  or  a  time or place known or which should be
         known to be inconvenient to the  offender.   In  the
         absence   of   knowledge  of  circumstances  to  the
         contrary, a private entity  shall  assume  that  the
         convenient time for communicating with a consumer is
         after 8 o'clock a.m. and before 9 o'clock p.m. local
         time at the offender's residence.
              (ii)  The  threat of publication or publication
         of a list of offenders who allegedly refuse  to  pay
         restitution, except by the State's Attorney.
              (iii)    The   threat   of   advertisement   or
         advertisement for sale of any restitution to  coerce
         payment of the restitution.
              (iv)  Causing  a  telephone to ring or engaging
         any person in telephone conversation  repeatedly  or
         continuously  with intent to annoy, abuse, or harass
         any person at the called number.
              (v)  Using   profane,   obscene   or    abusive
         language   in communicating with an offender, his or
         her family, or others.
              (vi) Disclosing  or  threatening   to  disclose
         information  relating  to  a  offender's case to any
         other person except the victim and  appropriate  law
         enforcement personnel.
              (vii)  Disclosing  or threatening  to  disclose
         information  concerning  the  alleged  criminal  act
         which the private  entity  knows  to  be  reasonably
         disputed by the offender without disclosing the fact
         that the offender disputes the accusation.
              (viii)  Engaging   in  any  conduct  which  the
         State's Attorney finds was intended to cause and did
         cause mental or physical illness to the offender  or
         his or her family.
              (ix)  Attempting  or  threatening  to enforce a
         right or remedy with knowledge  or  reason  to  know
         that the right or remedy does not exist.
              (x)  Except   as   authorized  by  the  State's
         Attorney, using  any  form  of  communication  which
         simulates  legal  or judicial process or which gives
         the  appearance  of  being  authorized,  issued   or
         approved  by a governmental agency or official or by
         an attorney at law when it is not.
              (xi)  Using  any  badge,  uniform,   or   other
         indicia  of  any  governmental  agency  or official,
         except as  authorized  by  law  or  by  the  State's
         Attorney.
              (xii)  Except  as  authorized  by  the  State's
         Attorney,  conducting  business under any name or in
         any  manner  which  suggests  or  implies  that  the
         private entity is bonded if such private entity   is
         or  is  a  branch  of  or  is  affiliated  with  any
         governmental  agency or court if such private entity
         is not.
              (xiii)  Misrepresenting  the  amount   of   the
         restitution alleged to be owed.
              (xiv)  Except  as  authorized  by  the  State's
         Attorney,  representing that an existing restitution
         amount  may  be  increased  by   the   addition   of
         attorney's  fees,  investigation  fees, or any other
         fees or charges when those fees or charges  may  not
         legally be added to the existing restitution.
              (xv)  Except   as  authorized  by  the  State's
         Attorney, representing that the private entity is an
         attorney at law or an agent for an attorney  if  the
         entity is not.
              (xvi)  Collecting  or attempting to collect any
         interest or other charge or fee  in  excess  of  the
         actual  restitution  or claim unless the interest or
         other charge or fee is expressly authorized  by  the
         State's   Attorney,   who   shall   determine   what
         constitutes a reasonable collection fee.
              (xvii)    Communicating   or   threatening   to
         communicate with an offender when the private entity
         is informed in  writing  by  an  attorney  that  the
         attorney  represents  the  offender  concerning  the
         claim,  unless  authorized  by  the attorney. If the
         attorney fails to respond within a reasonable period
         of time, the private entity may communicate with the
         offender. The private entity  may  communicate  with
         the offender when the attorney gives his consent.
              (xviii)  Engaging  in  dishonorable, unethical,
         or unprofessional conduct of a character  likely  to
         deceive, defraud, or harm the public.
         (5)  The  State's  Attorney shall audit the accounts
    of the  bad  check  diversion  program  after  notice  in
    writing to the private entity.
         (6)  Any  information  obtained  by a private entity
    that has a contract with the State's Attorney to  conduct
    a bad check diversion program is confidential information
    between  the  State's Attorney and the private entity and
    may not be sold or used for any other purpose but may  be
    shared  with other authorized law enforcement agencies as
    determined by the State's Attorney.

    (h)  The  State's  Attorney,  or  private  entity   under
contract   with  the  State's  Attorney,  shall  recover,  in
addition to the face amount of the dishonored check or draft,
a transaction fee to defray the costs and  expenses  incurred
by  a victim who received a dishonored check that was made or
delivered by the offender. The face amount of the  dishonored
check  or  draft and the transaction fee shall be paid by the
State's Attorney or private entity under  contract  with  the
State's  Attorney  to  the  victim  as  restitution  for  the
offense.  The  amount of the transaction fee must not exceed:
$25 if the face amount of the check or draft does not  exceed
$100; $30 if the face amount of the check or draft is greater
than $100 but does not exceed $250; $35 if the face amount of
the  check  or draft is greater than $250 but does not exceed
$500; $40 if the face amount of the check or draft is greater
than $500 but does not exceed $1,000; and  $50  if  the  face
amount of the check or draft is greater than $1,000.

    (i)  The  offender,  if  aggrieved  by  an  action of the
private entity contracted to operate a  bad  check  diversion
program,  may  submit a grievance to the State's Attorney who
may then resolve the grievance. The private entity must  give
notice  to  the  offender  that  the  grievance  procedure is
available. The grievance procedure shall  be  established  by
the State's Attorney.

    Section  99.  Effective  date. This Act takes effect upon
becoming law.

Effective Date: 7/29/2003