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1 | | (10) Article 36 of the Criminal Code of 2012 (seizure |
2 | | and forfeiture of vessels, vehicles, and aircraft); |
3 | | (11) Section 47-15 of the Criminal Code of 2012 |
4 | | (dumping garbage upon real property); |
5 | | (12) Article 124B of the Code of Criminal procedure |
6 | | (forfeiture); |
7 | | (13) Drug Asset Forfeiture Procedure Act; |
8 | | (14) Narcotics Profit Forfeiture Act; |
9 | | (15) Illinois Streetgang Terrorism Omnibus Prevention |
10 | | Act; and |
11 | | (16) Illinois Securities Law of 1953.
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12 | | Section 10. Reporting by law enforcement agency.
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13 | | (a) Each law enforcement agency that seizes property |
14 | | subject to reporting under this Act shall report the following |
15 | | information about property seized or forfeited under State law:
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16 | | (1) the name of the law enforcement agency that seized |
17 | | the property;
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18 | | (2) the date of the seizure;
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19 | | (3) the type of property seized, including a building, |
20 | | vehicle, boat, cash, negotiable security, or firearm, |
21 | | except reporting is not required for seizures of contraband |
22 | | including alcohol, gambling devices, drug paraphernalia, |
23 | | and controlled substances;
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24 | | (4) a description of the property seized and the |
25 | | estimated value of the property and if the property is a |
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1 | | conveyance, the description shall include the make, model, |
2 | | year, and vehicle identification number or serial number; |
3 | | and
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4 | | (5) the location where the seizure occurred.
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5 | | The filing requirement shall be met upon filing the form |
6 | | 4-64 with the State's Attorney's Office in the county where the |
7 | | forfeiture action is being commenced or with the Attorney |
8 | | General's Office if the forfeiture action is being commenced by |
9 | | that office, and the forwarding of the form 4-64 upon approval |
10 | | of the State's Attorney's Office or the Attorney General's |
11 | | Office to the Department of State Police Asset Forfeiture |
12 | | Section. With regard to seizures for which form 4-64 is not |
13 | | required to be filed, the filing requirement shall be met by |
14 | | the filing of an annual summary report with the Department of |
15 | | State Police no later than 60 days after December 31 of that |
16 | | year. |
17 | | (b) Each law enforcement agency, including a drug task |
18 | | force or Metropolitan Enforcement Group (MEG) unit, that |
19 | | receives proceeds from forfeitures subject to reporting under |
20 | | this Act shall file an annual report with the Department of |
21 | | State Police no later than 60 days after December 31 of that |
22 | | year. The format of the report shall be developed by the |
23 | | Department of State Police and shall be completed by the law |
24 | | enforcement agency. The report shall include, at a minimum, the |
25 | | amount of funds and other property distributed to the law |
26 | | enforcement agency by the Department of State Police, the |
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1 | | amount of funds expended by the law enforcement agency, and the |
2 | | category of expenditure, including:
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3 | | (1) crime, gang, or abuse prevention or intervention |
4 | | programs;
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5 | | (2) compensation or services for crime victims;
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6 | | (3) witness protection, informant fees, and controlled |
7 | | purchases of contraband;
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8 | | (4) salaries, overtime, and benefits, as permitted by |
9 | | law;
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10 | | (5) operating expenses, including but not limited to, |
11 | | capital expenditures for vehicles, firearms, equipment, |
12 | | computers, furniture, office supplies, postage, printing, |
13 | | membership fees paid to trade associations, and fees for |
14 | | professional services including auditing, court reporting, |
15 | | expert witnesses, and attorneys;
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16 | | (6) travel, meals, entertainment, conferences, |
17 | | training, and continuing education seminars;
and |
18 | | (7) other expenditures of forfeiture proceeds.
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19 | | (c) The Department of State Police shall establish and |
20 | | maintain on its official website a public database that |
21 | | includes annual aggregate data for each law enforcement agency |
22 | | that reports seizures of property under subsection (a) of this |
23 | | Section, that receives distributions of forfeiture proceeds |
24 | | subject to reporting under this Act, or reports expenditures |
25 | | under subsection (b) of this Section. This aggregate data shall |
26 | | include, for each law enforcement agency:
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1 | | (1) the total number of asset seizures reported by each |
2 | | law enforcement agency during the calendar year; |
3 | | (2) the monetary value of all currency or its |
4 | | equivalent seized by the law enforcement agency during the |
5 | | calendar year; |
6 | | (3) the number of conveyances seized by the law |
7 | | enforcement agency during the calendar year, and the |
8 | | aggregate estimated value; |
9 | | (4) the aggregate estimated value of all other property |
10 | | seized by the law enforcement agency during the calendar |
11 | | year; |
12 | | (5) the monetary value of distributions by the |
13 | | Department of State Police of forfeited currency or auction |
14 | | proceeds from forfeited property to the law enforcement |
15 | | agency during the calendar year; and |
16 | | (6) the total amount of the law enforcement agency's |
17 | | expenditures of forfeiture proceeds during the calendar |
18 | | year, categorized as provided under subsection (b) of this |
19 | | Section.
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20 | | The database shall not provide names, addresses, phone |
21 | | numbers, or other personally identifying information of owners |
22 | | or interest holders, persons, business entities, covert office |
23 | | locations, or business entities involved in the forfeiture |
24 | | action and shall not disclose the vehicle identification number |
25 | | or serial number of any conveyance.
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26 | | (d) The Department of State Police shall adopt rules to |
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1 | | administer the asset forfeiture program, including the |
2 | | categories of authorized expenditures consistent with the |
3 | | statutory guidelines for each of the included forfeiture |
4 | | statutes, the use of forfeited funds, other expenditure |
5 | | requirements, and the reporting of seizure and forfeiture |
6 | | information. The Department may adopt rules necessary to |
7 | | implement this Act through the use of emergency rulemaking |
8 | | under Section 5-45 of the Illinois Administrative Procedure Act |
9 | | for a period not to exceed 180 days after the effective date of |
10 | | this Act.
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11 | | (e) The Department of State Police shall have authority and |
12 | | oversight over all law enforcement agencies receiving |
13 | | forfeited funds from the Department. This authority shall |
14 | | include enforcement of rules and regulations adopted by the |
15 | | Department and sanctions for violations of any rules and |
16 | | regulations, including the withholding of distributions of |
17 | | forfeiture proceeds from the law enforcement agency in |
18 | | violation.
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19 | | (f) Upon application by a law enforcement agency to the |
20 | | Department of State Police, the reporting of a particular asset |
21 | | forfeited under this Section may be delayed if the asset in |
22 | | question was seized from a person who has become a confidential |
23 | | informant under the agency's confidential informant policy, or |
24 | | if the asset was seized as part of an ongoing investigation. |
25 | | This delayed reporting shall be granted by the Department of |
26 | | State Police for a maximum period of 6 months if the |
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1 | | confidential informant is still providing cooperation to law |
2 | | enforcement or the investigation is still ongoing, and at that |
3 | | time the asset shall be reported as required under this Act. |
4 | | (g) The Department of State Police shall on or before |
5 | | January 1, 2019, establish and implement the requirements of |
6 | | this Act.
In order to implement the reporting and public |
7 | | database requirements under this Act, the Department of State |
8 | | Police Asset Forfeiture Section requires a one-time upgrade of |
9 | | its information technology software and hardware. This |
10 | | one-time upgrade shall be funded by a temporary allocation of |
11 | | 5% of all forfeited currency and 5% of the auction proceeds |
12 | | from each forfeited asset, which are to be distributed after |
13 | | the effective date of this Act. The Department of State Police |
14 | | shall transfer these funds at the time of distribution to a |
15 | | separate fund established by the Department of State Police. |
16 | | Monies deposited in this fund shall be accounted for and shall |
17 | | be used only to pay for the actual one-time cost of purchasing |
18 | | and installing the hardware and software required to comply |
19 | | with this new reporting and public database requirement. Monies |
20 | | deposited in the fund shall not be subject to re-appropriation, |
21 | | reallocation, or redistribution for any other purpose. After |
22 | | sufficient funds are transferred to the fund to cover the |
23 | | actual one-time cost of purchasing and installing the hardware |
24 | | and software required to comply with this new reporting and |
25 | | public database requirement, no additional funds shall be |
26 | | transferred to the fund for any purpose. At the completion of |
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1 | | the one-time upgrade of the information technology hardware and |
2 | | software to comply with this new reporting and public database |
3 | | requirement, any remaining funds in the fund shall be returned |
4 | | to the participating agencies under the distribution |
5 | | requirements of the statutes from which the funds were |
6 | | transferred, and the fund shall no longer exist.
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7 | | (h)(1) The Department of State Police, in consultation with |
8 | | and subject to the approval of the Chief Procurement Officer, |
9 | | may procure a single contract or multiple contracts to |
10 | | implement the provisions of this Act. |
11 | | (2) A contract or contracts under this subsection (h) |
12 | | are not subject to the Illinois Procurement Code, except |
13 | | for Sections 20-60, 20-65, 20-70, and 20-160 and Article 50 |
14 | | of that Code, provided that the Chief Procurement Officer |
15 | | may, in writing with justification, waive any |
16 | | certification required under Article 50 of the Illinois |
17 | | Procurement Code. The provisions of this paragraph (2), |
18 | | other than this sentence, are inoperative on and after July |
19 | | 1, 2019.
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20 | | Section 15. Fund audits.
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21 | | (a) The Auditor General shall conduct as a part of its 2 |
22 | | year compliance audit, an audit of the State Asset Forfeiture |
23 | | Fund for compliance with the requirements of this Act. The |
24 | | audit shall include, but not be limited to, the following |
25 | | determinations:
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1 | | (1) if detailed records of all receipts and |
2 | | disbursements from the State Asset Forfeiture Fund are |
3 | | being maintained;
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4 | | (2) if administrative costs charged to the fund are |
5 | | adequately documented and are reasonable; and |
6 | | (3) if the procedures for making disbursements under |
7 | | the Act are adequate.
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8 | | (b) The Department of State Police, and any other entity or |
9 | | person that may have information relevant to the audit, shall |
10 | | cooperate fully and promptly with the Office of the Auditor |
11 | | General in conducting the audit. The Auditor General shall |
12 | | begin the audit during the next regular two year compliance |
13 | | audit of the Department of State Police and distribute the |
14 | | report upon completion under Section 3-14 of the Illinois State |
15 | | Auditing Act.
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16 | | Section 105. The Freedom of Information Act is amended by |
17 | | changing Section 7.5 as follows: |
18 | | (5 ILCS 140/7.5) |
19 | | Sec. 7.5. Statutory exemptions. To the extent provided for |
20 | | by the statutes referenced below, the following shall be exempt |
21 | | from inspection and copying: |
22 | | (a) All information determined to be confidential |
23 | | under Section 4002 of the Technology Advancement and |
24 | | Development Act. |
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1 | | (b) Library circulation and order records identifying |
2 | | library users with specific materials under the Library |
3 | | Records Confidentiality Act. |
4 | | (c) Applications, related documents, and medical |
5 | | records received by the Experimental Organ Transplantation |
6 | | Procedures Board and any and all documents or other records |
7 | | prepared by the Experimental Organ Transplantation |
8 | | Procedures Board or its staff relating to applications it |
9 | | has received. |
10 | | (d) Information and records held by the Department of |
11 | | Public Health and its authorized representatives relating |
12 | | to known or suspected cases of sexually transmissible |
13 | | disease or any information the disclosure of which is |
14 | | restricted under the Illinois Sexually Transmissible |
15 | | Disease Control Act. |
16 | | (e) Information the disclosure of which is exempted |
17 | | under Section 30 of the Radon Industry Licensing Act. |
18 | | (f) Firm performance evaluations under Section 55 of |
19 | | the Architectural, Engineering, and Land Surveying |
20 | | Qualifications Based Selection Act. |
21 | | (g) Information the disclosure of which is restricted |
22 | | and exempted under Section 50 of the Illinois Prepaid |
23 | | Tuition Act. |
24 | | (h) Information the disclosure of which is exempted |
25 | | under the State Officials and Employees Ethics Act, and |
26 | | records of any lawfully created State or local inspector |
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1 | | general's office that would be exempt if created or |
2 | | obtained by an Executive Inspector General's office under |
3 | | that Act. |
4 | | (i) Information contained in a local emergency energy |
5 | | plan submitted to a municipality in accordance with a local |
6 | | emergency energy plan ordinance that is adopted under |
7 | | Section 11-21.5-5 of the Illinois Municipal Code. |
8 | | (j) Information and data concerning the distribution |
9 | | of surcharge moneys collected and remitted by wireless |
10 | | carriers under the Wireless Emergency Telephone Safety |
11 | | Act. |
12 | | (k) Law enforcement officer identification information |
13 | | or driver identification information compiled by a law |
14 | | enforcement agency or the Department of Transportation |
15 | | under Section 11-212 of the Illinois Vehicle Code. |
16 | | (l) Records and information provided to a residential |
17 | | health care facility resident sexual assault and death |
18 | | review team or the Executive Council under the Abuse |
19 | | Prevention Review Team Act. |
20 | | (m) Information provided to the predatory lending |
21 | | database created pursuant to Article 3 of the Residential |
22 | | Real Property Disclosure Act, except to the extent |
23 | | authorized under that Article. |
24 | | (n) Defense budgets and petitions for certification of |
25 | | compensation and expenses for court appointed trial |
26 | | counsel as provided under Sections 10 and 15 of the Capital |
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1 | | Crimes Litigation Act. This subsection (n) shall apply |
2 | | until the conclusion of the trial of the case, even if the |
3 | | prosecution chooses not to pursue the death penalty prior |
4 | | to trial or sentencing. |
5 | | (o) Information that is prohibited from being |
6 | | disclosed under Section 4 of the Illinois Health and |
7 | | Hazardous Substances Registry Act. |
8 | | (p) Security portions of system safety program plans, |
9 | | investigation reports, surveys, schedules, lists, data, or |
10 | | information compiled, collected, or prepared by or for the |
11 | | Regional Transportation Authority under Section 2.11 of |
12 | | the Regional Transportation Authority Act or the St. Clair |
13 | | County Transit District under the Bi-State Transit Safety |
14 | | Act. |
15 | | (q) Information prohibited from being disclosed by the |
16 | | Personnel Records Review Act. |
17 | | (r) Information prohibited from being disclosed by the |
18 | | Illinois School Student Records Act. |
19 | | (s) Information the disclosure of which is restricted |
20 | | under Section 5-108 of the Public Utilities Act.
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21 | | (t) All identified or deidentified health information |
22 | | in the form of health data or medical records contained in, |
23 | | stored in, submitted to, transferred by, or released from |
24 | | the Illinois Health Information Exchange, and identified |
25 | | or deidentified health information in the form of health |
26 | | data and medical records of the Illinois Health Information |
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1 | | Exchange in the possession of the Illinois Health |
2 | | Information Exchange Authority due to its administration |
3 | | of the Illinois Health Information Exchange. The terms |
4 | | "identified" and "deidentified" shall be given the same |
5 | | meaning as in the Health Insurance Portability and |
6 | | Accountability Act of 1996, Public Law 104-191, or any |
7 | | subsequent amendments thereto, and any regulations |
8 | | promulgated thereunder. |
9 | | (u) Records and information provided to an independent |
10 | | team of experts under Brian's Law. |
11 | | (v) Names and information of people who have applied |
12 | | for or received Firearm Owner's Identification Cards under |
13 | | the Firearm Owners Identification Card Act or applied for |
14 | | or received a concealed carry license under the Firearm |
15 | | Concealed Carry Act, unless otherwise authorized by the |
16 | | Firearm Concealed Carry Act; and databases under the |
17 | | Firearm Concealed Carry Act, records of the Concealed Carry |
18 | | Licensing Review Board under the Firearm Concealed Carry |
19 | | Act, and law enforcement agency objections under the |
20 | | Firearm Concealed Carry Act. |
21 | | (w) Personally identifiable information which is |
22 | | exempted from disclosure under subsection (g) of Section |
23 | | 19.1 of the Toll Highway Act. |
24 | | (x) Information which is exempted from disclosure |
25 | | under Section 5-1014.3 of the Counties Code or Section |
26 | | 8-11-21 of the Illinois Municipal Code. |
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1 | | (y) Confidential information under the Adult |
2 | | Protective Services Act and its predecessor enabling |
3 | | statute, the Elder Abuse and Neglect Act, including |
4 | | information about the identity and administrative finding |
5 | | against any caregiver of a verified and substantiated |
6 | | decision of abuse, neglect, or financial exploitation of an |
7 | | eligible adult maintained in the Registry established |
8 | | under Section 7.5 of the Adult Protective Services Act. |
9 | | (z) Records and information provided to a fatality |
10 | | review team or the Illinois Fatality Review Team Advisory |
11 | | Council under Section 15 of the Adult Protective Services |
12 | | Act. |
13 | | (aa) Information which is exempted from disclosure |
14 | | under Section 2.37 of the Wildlife Code. |
15 | | (bb) Information which is or was prohibited from |
16 | | disclosure by the Juvenile Court Act of 1987. |
17 | | (cc) Recordings made under the Law Enforcement |
18 | | Officer-Worn Body Camera Act, except to the extent |
19 | | authorized under that Act. |
20 | | (dd) Information that is prohibited from being |
21 | | disclosed under Section 45 of the Condominium and Common |
22 | | Interest Community Ombudsperson Act. |
23 | | (ee) (dd) Information that is exempted from disclosure |
24 | | under Section 30.1 of the Pharmacy Practice Act. |
25 | | (ff) Information prohibited from disclosure under the |
26 | | Seizure and Forfeiture Reporting Act. |
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1 | | (Source: P.A. 98-49, eff. 7-1-13; 98-63, eff. 7-9-13; 98-756, |
2 | | eff. 7-16-14; 98-1039, eff. 8-25-14; 98-1045, eff. 8-25-14; |
3 | | 99-78, eff. 7-20-15; 99-298, eff. 8-6-15; 99-352, eff. 1-1-16; |
4 | | 99-642, eff. 7-28-16; 99-776, eff. 8-12-16; 99-863, eff. |
5 | | 8-19-16; revised 9-1-16.) |
6 | | Section 110. The Illinois Food, Drug and Cosmetic Act is |
7 | | amended by changing Section 3.23 as follows: |
8 | | (410 ILCS 620/3.23)
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9 | | Sec. 3.23. Legend drug prohibition. |
10 | | (a) In this Section: |
11 | | "Legend drug" means a drug limited by the Federal Food, |
12 | | Drug and Cosmetic Act to being dispensed by or upon a medical |
13 | | practitioner's prescription because the drug is: |
14 | | (1) habit forming; |
15 | | (2) toxic or having potential for harm; or |
16 | | (3) limited in use by the new drug application for the |
17 | | drug to use only under a medical practitioner's |
18 | | supervision. |
19 | | "Medical practitioner" means any person licensed to |
20 | | practice medicine in all its branches in the State. |
21 | | "Deliver" or "delivery" means the actual, constructive, or |
22 | | attempted transfer of possession of a legend drug, with or |
23 | | without consideration, whether or not there is an agency |
24 | | relationship. |
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1 | | "Manufacture" means the production, preparation, |
2 | | propagation, compounding, conversion, or processing of a |
3 | | legend drug, either directly or indirectly, by extraction from |
4 | | substances of natural origin, or independently by means of |
5 | | chemical synthesis, or by a combination of extraction and |
6 | | chemical synthesis, and includes any packaging or repackaging |
7 | | of the substance or labeling of its container. "Manufacture" |
8 | | does not include: |
9 | | (1) by an ultimate user, the preparation or compounding |
10 | | of a legend drug for his own use; or |
11 | | (2) by a medical practitioner, or his authorized agent |
12 | | under his supervision, the preparation, compounding, |
13 | | packaging, or labeling of a legend drug: |
14 | | (A) as an incident to his administering or |
15 | | dispensing of a legend drug in the course of his |
16 | | professional practice; or |
17 | | (B) as an incident to lawful research, teaching, or |
18 | | chemical analysis and not for sale. |
19 | | "Prescription" has the same meaning ascribed to it in |
20 | | Section 3 of the Pharmacy Practice Act. |
21 | | (b) It is unlawful for any person to knowingly manufacture |
22 | | or deliver or possess with the intent to manufacture or deliver |
23 | | a legend drug of 6 or more pills, tablets, capsules, or caplets |
24 | | or 30 ml or more of a legend drug in liquid form who is not |
25 | | licensed by applicable law to prescribe or dispense legend |
26 | | drugs or is not an employee of the licensee operating in the |
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1 | | normal course of business under the supervision of the |
2 | | licensee. Any person who violates this Section is guilty of a |
3 | | Class 3 felony, the fine for which shall not exceed $100,000. A |
4 | | person convicted of a second or subsequent violation of this |
5 | | Section is guilty of a Class 1 felony, the fine for which shall |
6 | | not exceed $250,000. |
7 | | (c) The following are subject to forfeiture: |
8 | | (1) (blank); all substances that have been |
9 | | manufactured, distributed, dispensed, or possessed in |
10 | | violation of this Act; |
11 | | (2) all raw materials, products, and equipment of any
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12 | | kind which are used, or intended for use in manufacturing,
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13 | | distributing, dispensing, administering, or possessing any |
14 | | substance in violation of this Section Act ; |
15 | | (3) all conveyances, including aircraft, vehicles, or
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16 | | vessels, which are used, or intended for use, to transport, |
17 | | or in any manner to facilitate the transportation, sale, |
18 | | receipt, possession, or concealment of any substance |
19 | | manufactured, distributed, dispensed, or possessed in |
20 | | violation of this Section or property described in |
21 | | paragraph items (1) and (2) of this subsection (c), but: |
22 | | (A) no conveyance used by any person as a common
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23 | | carrier in the transaction of business as a common |
24 | | carrier is subject to forfeiture under this Section |
25 | | unless it appears that the owner or other person in |
26 | | charge of the conveyance is a consenting party or privy |
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1 | | to the a violation of this Act ; |
2 | | (B) no conveyance is subject to forfeiture
under |
3 | | this Section by reason of any act or omission which the |
4 | | owner proves to have been committed or omitted without |
5 | | his knowledge or consent; and |
6 | | (C) a forfeiture of a conveyance encumbered by
a |
7 | | bona fide security interest is subject to the interest |
8 | | of the secured party if he neither had knowledge of nor |
9 | | consented to the act or omission; |
10 | | (4) all money, things of value, books, records, and
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11 | | research products and materials including formulas, |
12 | | microfilm, tapes, and data that are used, or intended to be |
13 | | used in violation of this Section Act ; |
14 | | (5) everything of value furnished, or intended to be
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15 | | furnished, in exchange for a substance in violation of this |
16 | | Section Act , all proceeds traceable to such an exchange, |
17 | | and all moneys, negotiable instruments, and securities |
18 | | used, or intended to be used, to commit or in any manner to |
19 | | facilitate any violation of this Section Act ; and |
20 | | (6) all real property, including any right, title,
and |
21 | | interest, including, but not limited to, any leasehold |
22 | | interest or the beneficial interest in a land trust, in the |
23 | | whole of any lot or tract of land and any appurtenances or |
24 | | improvements, which is used or intended to be used, in any |
25 | | manner or part, to commit, or in any manner to facilitate |
26 | | the commission of, any violation or act that constitutes a |
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1 | | violation of this Section 33.1 of this Act or that is the |
2 | | proceeds of any violation or act that constitutes a |
3 | | violation of this Section 33.1 of this Act . |
4 | | (d) Property subject to forfeiture under this Act may be |
5 | | seized under the Drug Asset Forfeiture Procedure Act. In the |
6 | | event of seizure, forfeiture proceedings shall be instituted |
7 | | under the Drug Asset Forfeiture Procedure Act. by the Director |
8 | | of the Department of State Police or any peace officer upon |
9 | | process or seizure warrant issued by any court having |
10 | | jurisdiction over the property. Seizure by the Director of the |
11 | | Department of State Police or any peace officer without process |
12 | | may be made: |
13 | | (1) if the seizure is incident to inspection under
an |
14 | | administrative inspection warrant; |
15 | | (2) if the property subject to seizure has been the
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16 | | subject of a prior judgment in favor of the State in a |
17 | | criminal proceeding, or in an injunction or forfeiture |
18 | | proceeding based upon this Act or the Drug Asset Forfeiture |
19 | | Procedure Act; |
20 | | (3) if there is probable cause to believe that the
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21 | | property is directly or indirectly dangerous to health or |
22 | | safety; |
23 | | (4) if there is probable cause to believe that the
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24 | | property is subject to forfeiture under this Act and the |
25 | | property is seized under circumstances in which a |
26 | | warrantless seizure or arrest would be reasonable; or |
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1 | | (5) in accordance with the Code of Criminal
Procedure |
2 | | of 1963. |
3 | | (e) Forfeiture under this Act is subject to an 8th |
4 | | amendment to the United States Constitution disproportionate |
5 | | penalties analysis as provided under Section 9.5 of the Drug |
6 | | Asset Forfeiture Procedure Act. In the event of seizure |
7 | | pursuant to subsection (c) of this Section, forfeiture |
8 | | proceedings shall be instituted in accordance with the Drug |
9 | | Asset Forfeiture Procedure Act. |
10 | | (f) With regard to possession of legend drug offenses only, |
11 | | a sum of currency with a value of less than $500 shall not be |
12 | | subject to forfeiture under this Act. For all other offenses |
13 | | under this Act, currency with a value of under $100 shall not |
14 | | be subject to forfeiture under this Act. Property taken or |
15 | | detained under this Section shall not be subject to replevin, |
16 | | but is deemed to be in the custody of the Director of the |
17 | | Department of State Police subject only to the order and |
18 | | judgments of the circuit court having jurisdiction over the |
19 | | forfeiture proceedings and the decisions of the State's |
20 | | Attorney under the Drug Asset Forfeiture Procedure Act. If |
21 | | property is seized under this Act, then the seizing agency |
22 | | shall promptly conduct an inventory of the seized property and |
23 | | estimate the property's value, and shall forward a copy of the |
24 | | inventory of seized property and the estimate of the property's |
25 | | value to the Director of the Department of State Police. Upon |
26 | | receiving notice of seizure, the Secretary may: |
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1 | | (1) place the property under seal; |
2 | | (2) remove the property to a place designated by the
|
3 | | Secretary; |
4 | | (3) keep the property in the possession of the
seizing |
5 | | agency; |
6 | | (4) remove the property to a storage area for
|
7 | | safekeeping or, if the property is a negotiable instrument |
8 | | or money and is not needed for evidentiary purposes, |
9 | | deposit it in an interest bearing account; |
10 | | (5) place the property under constructive seizure by
|
11 | | posting notice of pending forfeiture on it, by giving |
12 | | notice of pending forfeiture to its owners and interest |
13 | | holders, or by filing notice of pending forfeiture in any |
14 | | appropriate public record relating to the property; or |
15 | | (6) provide for another agency or custodian,
including |
16 | | an owner, secured party, or lienholder, to take custody of |
17 | | the property upon the terms and conditions set by the |
18 | | Director of the Department of State Police. |
19 | | (f-5) For felony offenses involving possession of legend |
20 | | drug only, no property shall be subject to forfeiture under |
21 | | this Act because of the possession of less than 2 single unit |
22 | | doses of a controlled substance. This exemption shall not apply |
23 | | in instances when the possessor, or another person at the |
24 | | direction of the possessor, is engaged in the destruction of |
25 | | any amount of a legend drug. The amount of a single unit dose |
26 | | shall be the State's burden to prove in their case in chief. |
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1 | | (g) If the Department suspends or revokes a registration, |
2 | | all legend drugs owned or possessed by the registrant at the |
3 | | time of suspension or the effective date of the revocation |
4 | | order may be placed under seal. No disposition may be made of |
5 | | substances under seal until the time for taking an appeal has |
6 | | elapsed or until all appeals have been concluded unless a |
7 | | court, upon application therefor, orders the sale of perishable |
8 | | substances and the deposit of the proceeds of the sale with the |
9 | | court. Upon a revocation rule becoming final, all substances |
10 | | are subject to seizure and forfeiture under the Drug Asset |
11 | | Forfeiture Procedure Act may be forfeited to the Department . |
12 | | (h) (Blank). If property is forfeited under this Act, then |
13 | | the Director of the Department of State Police must sell all |
14 | | such property unless such property is required by law to be |
15 | | destroyed or is harmful to the public, and shall distribute the |
16 | | proceeds of the sale, together with any moneys forfeited or |
17 | | seized, in accordance with subsection (i) of this Section. Upon |
18 | | the application of the seizing agency or prosecutor who was |
19 | | responsible for the investigation, arrest or arrests, and |
20 | | prosecution that led to the forfeiture, the Director of the |
21 | | Department of State Police may return any item of forfeited |
22 | | property to the seizing agency or prosecutor for official use |
23 | | in the enforcement of laws if the agency or prosecutor can |
24 | | demonstrate that the item requested would be useful to the |
25 | | agency or prosecutor in their enforcement efforts. If any |
26 | | forfeited conveyance, including an aircraft, vehicle, or |
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1 | | vessel, is returned to the seizing agency or prosecutor, then |
2 | | the conveyance may be used immediately in the enforcement of |
3 | | the criminal laws of the State. Upon disposal, all proceeds |
4 | | from the sale of the conveyance must be used for drug |
5 | | enforcement purposes. If any real property returned to the |
6 | | seizing agency is sold by the agency or its unit of government, |
7 | | then the proceeds of the sale shall be delivered to the |
8 | | Director of the Department of State Police and distributed in |
9 | | accordance with subsection (i) of this Section. |
10 | | (i) (Blank). All moneys and the sale proceeds of all other |
11 | | property forfeited and seized under this Act shall be |
12 | | distributed as follows: |
13 | | (1) 65% shall be distributed to the metropolitan
|
14 | | enforcement group, local, municipal, county, or State law |
15 | | enforcement agency or agencies which conducted or |
16 | | participated in the investigation resulting in the |
17 | | forfeiture. The distribution shall bear a reasonable |
18 | | relationship to the degree of direct participation of the |
19 | | law enforcement agency in the effort resulting in the |
20 | | forfeiture, taking into account the total value of the |
21 | | property forfeited and the total law enforcement effort |
22 | | with respect to the violation of the law upon which the |
23 | | forfeiture is based. Amounts distributed to the agency or |
24 | | agencies shall be used for the enforcement of laws. |
25 | | (2) 12.5% shall be distributed to the Office of
the |
26 | | State's Attorney of the county in which the prosecution |
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1 | | resulting in the forfeiture was instituted, deposited in a |
2 | | special fund in the county treasury and appropriated to the |
3 | | State's Attorney for use in the enforcement of laws. In |
4 | | counties over 3,000,000 population, 25% will be |
5 | | distributed to the Office of the State's Attorney for use |
6 | | in the enforcement of laws governing cannabis and |
7 | | controlled substances. If the prosecution is undertaken |
8 | | solely by the Attorney General, the portion provided |
9 | | hereunder shall be distributed to the Attorney General for |
10 | | use in the enforcement of laws. |
11 | | (3) 12.5% shall be distributed to the Office of the
|
12 | | State's Attorneys Appellate Prosecutor and deposited in a |
13 | | separate fund of that office to be used for additional |
14 | | expenses incurred in the investigation, prosecution and |
15 | | appeal of cases. The Office of the State's Attorneys |
16 | | Appellate Prosecutor shall not receive distribution from |
17 | | cases brought in counties with over 3,000,000 population. |
18 | | (4) 10% shall be retained by the Department of State
|
19 | | Police for expenses related to the administration and sale |
20 | | of seized and forfeited property. |
21 | | (j) Contraband, including legend drugs possessed without a |
22 | | prescription or other authorization under State or federal law, |
23 | | is not subject to forfeiture. No property right exists in |
24 | | contraband. Contraband is subject to seizure and shall be |
25 | | disposed of according to State law.
|
26 | | (Source: P.A. 96-573, eff. 8-18-09.) |
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1 | | Section 115. The Environmental Protection Act is amended by |
2 | | changing Section 44.1 as follows:
|
3 | | (415 ILCS 5/44.1) (from Ch. 111 1/2, par. 1044.1)
|
4 | | Sec. 44.1.
(a) In addition to all other civil and criminal |
5 | | penalties
provided by law, any person convicted of a criminal |
6 | | violation of this Act
or the regulations adopted thereunder |
7 | | shall forfeit to the State
(1) an amount equal to the value of |
8 | | all profits earned, savings realized,
and benefits incurred as |
9 | | a direct or indirect result of such violation, and
(2) any |
10 | | vehicle or conveyance used in the perpetration of such |
11 | | violation,
except as provided in subsection (b).
|
12 | | (b) Forfeiture of conveyances shall be subject to the |
13 | | following exceptions:
|
14 | | (1) No conveyance used by any person as a common |
15 | | carrier in the
transaction of business as a common carrier |
16 | | is subject to forfeiture under
this Section unless it is |
17 | | proven that the owner or other person in charge of
the |
18 | | conveyance consented to or was privy to the covered |
19 | | violation.
|
20 | | (2) No conveyance is subject to forfeiture under this |
21 | | Section by reason
of any covered violation which the owner |
22 | | proves to have been committed
without his knowledge or |
23 | | consent.
|
24 | | (3) A forfeiture of a conveyance encumbered by a bona |
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1 | | fide security
interest is subject to the interest of the |
2 | | secured party if he neither had
knowledge of nor consented |
3 | | to the covered violation.
|
4 | | (c) Except as provided in subsection (d), all property |
5 | | subject to
forfeiture under this Section shall be seized |
6 | | pursuant to the order of a circuit court.
|
7 | | (d) Property subject to forfeiture under this Section may |
8 | | be seized by
the Director or any peace officer without process:
|
9 | | (1) if the seizure is incident to an inspection under |
10 | | an administrative
inspection warrant, or incident to the |
11 | | execution of a criminal search or arrest warrant;
|
12 | | (2) if the property subject to seizure has been the |
13 | | subject of a prior
judgment in favor of the State in a |
14 | | criminal proceeding, or in an
injunction or forfeiture |
15 | | proceeding based upon this Act; or
|
16 | | (3) if there is probable cause to believe that the |
17 | | property is directly
or indirectly dangerous to health or |
18 | | safety.
|
19 | | (e) Property taken or detained under this Section shall not |
20 | | be subject
to forcible entry and detainer or replevin, but is |
21 | | deemed to be in the
custody of the Director subject only to the |
22 | | order and judgments of the
circuit court having jurisdiction |
23 | | over the forfeiture proceedings. When
property is seized under |
24 | | this Act, the Director may:
|
25 | | (1) place the property under seal;
|
26 | | (2) secure the property or remove the property to a |
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1 | | place designated by him; or
|
2 | | (3) require the sheriff of the county in which the |
3 | | seizure occurs to
take custody of the property and secure |
4 | | or remove it to an appropriate
location for disposition in |
5 | | accordance with law.
|
6 | | (f) All amounts forfeited under item (1) of subsection (a) |
7 | | shall be
apportioned in the following manner:
|
8 | | (1) 40% shall be deposited in the Hazardous Waste Fund |
9 | | created in Section 22.2;
|
10 | | (2) 30% shall be paid to the office of the Attorney |
11 | | General or the
State's Attorney of the county in which the |
12 | | violation occurred, whichever
brought and prosecuted the |
13 | | action; and
|
14 | | (3) 30% shall be paid to the law enforcement agency |
15 | | which investigated the violation.
|
16 | | Any funds received under this subsection (f) shall be used |
17 | | solely for the
enforcement of the environmental protection laws |
18 | | of this State.
|
19 | | (g) When property is forfeited under this Section the court |
20 | | may order:
|
21 | | (1) that the property shall be made available for the |
22 | | official use of
the Agency, the Office of the Attorney |
23 | | General, the State's Attorney of the
county in which the |
24 | | violation occurred, or the law enforcement
agency which |
25 | | investigated the violation, to be used solely for the
|
26 | | enforcement of the environmental protection laws of this |
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1 | | State;
|
2 | | (2) the sheriff of the county in which the forfeiture |
3 | | occurs to
take custody of the property and remove it for |
4 | | disposition in accordance with law; or
|
5 | | (3) the sheriff of the county in which the forfeiture |
6 | | occurs to sell
that which is not required to be destroyed |
7 | | by law and which is not harmful
to the public. The proceeds |
8 | | of such sale shall be used for payment of all
proper |
9 | | expenses of the proceedings for forfeiture and sale, |
10 | | including
expenses of seizure, maintenance of custody, |
11 | | advertising and court costs,
and the balance, if any, shall |
12 | | be apportioned pursuant to subsection (f).
|
13 | | (h) Property seized or forfeited under this Section is |
14 | | subject to reporting under the Seizure and Forfeiture Reporting |
15 | | Act. |
16 | | (Source: P.A. 85-487.)
|
17 | | Section 120. The Herptiles-Herps Act is amended by changing |
18 | | Section 105-55 as follows: |
19 | | (510 ILCS 68/105-55)
|
20 | | Sec. 105-55. Illegal collecting devices; public nuisance. |
21 | | Every collecting device, including seines, nets, traps, |
22 | | pillowcases, bags, snake hooks or tongs, or any electrical |
23 | | device or any other devices including vehicles or conveyance, |
24 | | watercraft, or aircraft used or operated illegally or attempted |
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1 | | to be used or operated illegally by any person in taking, |
2 | | transporting, holding, or conveying any reptile or amphibian |
3 | | life or any part of reptile or amphibian life, contrary to this |
4 | | Act, including administrative rules, shall be deemed a public |
5 | | nuisance and therefore illegal and subject to seizure and |
6 | | confiscation by any authorized employee of the Department. Upon |
7 | | the seizure of this item, the Department shall take and hold |
8 | | the item until disposed of as provided in this Act. |
9 | | Upon the seizure of any device because of its illegal use, |
10 | | the officer or authorized employee of the Department making the |
11 | | seizure shall, as soon as reasonably possible, cause a |
12 | | complaint to be filed before the circuit court and a summons to |
13 | | be issued requiring the owner or person in possession of the |
14 | | property to appear in court and show cause why the device |
15 | | seized should not be forfeited to the State. Upon the return of |
16 | | the summons duly served or upon posting or publication of |
17 | | notice as provided in this Act, the court shall proceed to |
18 | | determine the question of the illegality of the use of the |
19 | | seized property. Upon judgment being entered that the property |
20 | | was illegally used, an order shall be entered providing for the |
21 | | forfeiture of the seized property to the State. The owner of |
22 | | the property may have a jury determine the illegality of its |
23 | | use and shall have the right of an appeal as in other civil |
24 | | cases. Confiscation or forfeiture shall not preclude or |
25 | | mitigate against prosecution and assessment of penalties |
26 | | provided in Article 90 of this Act. |
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1 | | Upon seizure of any property under circumstances |
2 | | supporting a reasonable belief that the property was abandoned, |
3 | | lost, stolen, or otherwise illegally possessed or used contrary |
4 | | to this Act, except property seized during a search or arrest, |
5 | | and ultimately returned, destroyed, or otherwise disposed of |
6 | | under order of a court in accordance with this Act, the |
7 | | authorized employee of the Department shall make reasonable |
8 | | inquiry and efforts to identify and notify the owner or other |
9 | | person entitled to possession of the property and shall return |
10 | | the property after the person provides reasonable and |
11 | | satisfactory proof of his or her ownership or right to |
12 | | possession and reimburses the Department for all reasonable |
13 | | expenses of custody. If the identity or location of the owner |
14 | | or other person entitled to possession of the property has not |
15 | | been ascertained within 6 months after the Department obtains |
16 | | possession, the Department shall effectuate the sale of the |
17 | | property for cash to the highest bidder at a public auction. |
18 | | The owner or other person entitled to possession of the |
19 | | property may claim and recover possession of the property at |
20 | | any time before its sale at public auction upon providing |
21 | | reasonable and satisfactory proof of ownership or right of |
22 | | possession and reimbursing the Department for all reasonable |
23 | | expenses of custody. |
24 | | Any property forfeited to the State by court order under |
25 | | this Section may be disposed of by public auction, except that |
26 | | any property that is the subject of a court order shall not be |
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1 | | disposed of pending appeal of the order. The proceeds of the |
2 | | sales at auction shall be deposited in the Wildlife and Fish |
3 | | Fund. |
4 | | The Department shall pay all costs of posting or |
5 | | publication of notices required by this Section. |
6 | | Property seized or forfeited under this Section is subject |
7 | | to reporting under the Seizure and Forfeiture Reporting Act.
|
8 | | (Source: P.A. 98-752, eff. 1-1-15 .) |
9 | | Section 125. The Fish and Aquatic Life Code is amended by |
10 | | changing Section 1-215 as follows:
|
11 | | (515 ILCS 5/1-215) (from Ch. 56, par. 1-215)
|
12 | | Sec. 1-215. Illegal fishing devices; public nuisance. |
13 | | Every fishing
device, including seines, nets, or traps, or any |
14 | | electrical device or any
other devices, including vehicles, |
15 | | watercraft, or aircraft, used or
operated illegally or |
16 | | attempted to be used or operated illegally by any
person in |
17 | | taking, transporting, holding, or conveying any aquatic life
|
18 | | contrary to this Code, including administrative rules, shall be |
19 | | deemed a
public nuisance and therefore illegal and subject to |
20 | | seizure and
confiscation by any authorized employee of the |
21 | | Department. Upon the
seizure of such an item the Department |
22 | | shall take and hold the item until
disposed of as provided in |
23 | | this Code.
|
24 | | Upon the seizure of any device because of its illegal use, |
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1 | | the officer
or authorized employee of the Department making the |
2 | | seizure shall, as soon
as reasonably possible, cause a |
3 | | complaint to be filed before the Circuit
Court and a summons to |
4 | | be issued requiring the owner or person in
possession of the |
5 | | property to appear in court and show cause why the
device |
6 | | seized should not be forfeited to the State. Upon the return of
|
7 | | the summons duly served or upon posting or publication of |
8 | | notice as provided
in this Code, the court shall proceed to |
9 | | determine the question of the
illegality of the use of the |
10 | | seized property. Upon judgment being entered
to the effect that |
11 | | the property was illegally used, an order shall be
entered |
12 | | providing for the forfeiture of the seized property to the |
13 | | State.
The owner of the property, however, may have a jury |
14 | | determine the
illegality of its use, and shall have the right |
15 | | of an appeal as in other
civil cases. Confiscation or |
16 | | forfeiture shall not preclude or mitigate
against prosecution |
17 | | and assessment of penalties provided in Section 20-35
of this |
18 | | Code.
|
19 | | Upon seizure of any property under circumstances |
20 | | supporting a
reasonable belief that the property was abandoned, |
21 | | lost, stolen, or
otherwise illegally possessed or used contrary |
22 | | to this
Code, except property seized during a search or arrest, |
23 | | and ultimately
returned, destroyed, or otherwise disposed of |
24 | | under order of a court
in accordance with this Code, the |
25 | | authorized employee of the Department
shall make reasonable |
26 | | inquiry and efforts to identify and notify the owner
or other |
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1 | | person entitled to possession of the property and shall return |
2 | | the
property after the person provides reasonable and |
3 | | satisfactory proof of
his or her ownership or right to |
4 | | possession and reimburses the Department
for all reasonable |
5 | | expenses of custody. If the identity or location of the
owner |
6 | | or other person entitled to possession of the property has not |
7 | | been
ascertained within 6 months after the Department obtains |
8 | | possession, the
Department shall effectuate the sale of the |
9 | | property for cash to the
highest bidder at a public auction. |
10 | | The owner or other person entitled to
possession of the |
11 | | property may claim and recover possession of the
property at |
12 | | any time before its sale at public auction upon providing
|
13 | | reasonable and satisfactory proof of ownership or right of |
14 | | possession and
reimbursing the Department for all reasonable |
15 | | expenses of custody.
|
16 | | Any property forfeited to the State by court order under |
17 | | this Section
may be disposed of by public auction, except that |
18 | | any property that is
the subject of a court order shall not be |
19 | | disposed of pending appeal
of the order. The proceeds of the |
20 | | sales at auction shall be deposited in
the Wildlife and Fish |
21 | | Fund.
|
22 | | The Department shall pay all costs of posting or |
23 | | publication of
notices required by this Section. |
24 | | Property seized or forfeited under this Section is subject |
25 | | to reporting under the Seizure and Forfeiture Reporting Act.
|
26 | | (Source: P.A. 87-833.)
|
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1 | | Section 130. The Wildlife Code is amended by changing |
2 | | Section 1.25 as follows:
|
3 | | (520 ILCS 5/1.25) (from Ch. 61, par. 1.25)
|
4 | | Sec. 1.25.
Every hunting or trapping device, vehicle or |
5 | | conveyance, when
used or operated illegally, or attempted to be |
6 | | used or operated illegally
by any person in taking, |
7 | | transporting, holding, or conveying any wild bird
or wild |
8 | | mammal, contrary to the provisions of this Act, including |
9 | | administrative
rules, is a public nuisance and subject to |
10 | | seizure and confiscation by
any authorized employee of the |
11 | | Department; upon the seizure of such item
the Department shall |
12 | | take and hold the same until disposed of as hereinafter |
13 | | provided.
|
14 | | Upon the seizure of any property as herein provided, the |
15 | | authorized employee
of the Department making such seizure shall |
16 | | forthwith cause a complaint
to be filed before the Circuit |
17 | | Court and a summons to be issued requiring
the person who |
18 | | illegally used or operated or attempted to use or operate
such |
19 | | property and the owner and person in possession of such |
20 | | property to
appear in court and show cause why the property |
21 | | seized should not be forfeited
to the State.
Upon the return of |
22 | | the summons duly served or other notice as herein provided,
the |
23 | | court shall proceed to determine the question of the illegality |
24 | | of the
use of the seized property and upon judgment being |
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1 | | entered to the effect
that such property was illegally used, an |
2 | | order may be entered providing
for the forfeiture of such |
3 | | seized property to the Department and shall thereupon
become |
4 | | the property of the Department; but the owner of such property |
5 | | may
have a jury determine the illegality of its use, and shall |
6 | | have the right
of an appeal, as in other cases. Such |
7 | | confiscation or forfeiture
shall not preclude or mitigate |
8 | | against prosecution and assessment of penalties
otherwise |
9 | | provided in this Act.
|
10 | | Upon seizure of any property under circumstances |
11 | | supporting a
reasonable belief that such property was |
12 | | abandoned, lost or stolen or
otherwise illegally possessed or |
13 | | used contrary to the provisions of this
Act, except property |
14 | | seized during a search or arrest, and ultimately
returned, |
15 | | destroyed, or otherwise disposed of pursuant to order of a |
16 | | court
in accordance with this Act, the authorized employee of |
17 | | the Department
shall make reasonable inquiry and efforts to |
18 | | identify and notify the owner
or other person entitled to |
19 | | possession thereof, and shall return the
property after such |
20 | | person provides reasonable and satisfactory proof of
his |
21 | | ownership or right to possession and reimburses the Department |
22 | | for all
reasonable expenses of such custody. If the identity or |
23 | | location of the
owner or other person entitled to possession of |
24 | | the property has not been
ascertained within 6 months after the |
25 | | Department obtains such possession,
the Department shall |
26 | | effectuate the sale of the property for cash to the
highest |
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1 | | bidder at a public auction. The owner or other person entitled |
2 | | to
possession of such property may claim and recover possession |
3 | | of the
property at any time before its sale at public auction, |
4 | | upon providing
reasonable and satisfactory proof of ownership |
5 | | or right of possession and
reimbursing the Department for all |
6 | | reasonable expenses of custody thereof.
|
7 | | Any property, including guns, forfeited to the State by |
8 | | court order pursuant
to this Section, may be disposed of by |
9 | | public auction, except
that any property which is the subject |
10 | | of such a court order shall not be
disposed of pending appeal |
11 | | of the order. The proceeds of the sales at auction
shall be |
12 | | deposited in the Wildlife and Fish Fund.
|
13 | | The Department shall pay all costs of notices required by |
14 | | this Section.
|
15 | | Property seized or forfeited under this Section is subject |
16 | | to reporting under the Seizure and Forfeiture Reporting Act. |
17 | | (Source: P.A. 85-152.)
|
18 | | Section 135. The Criminal Code of 2012 is amended by |
19 | | changing Sections 17-10.6, 28-5, 29B-1, 33G-6, 36-1, 36-1.5, |
20 | | 36-2, 36-3, and 47-15 and by adding Sections 36-1.1, 36-1.2, |
21 | | 36-1.3, 36-1.4, 36-2.1, 36-2.2, 36-2.5, 36-2.7, 36-3.1, 36-6, |
22 | | 36-7, and 36-9 as follows: |
23 | | (720 ILCS 5/17-10.6) |
24 | | Sec. 17-10.6. Financial institution fraud. |
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1 | | (a) Misappropriation of financial institution property. A |
2 | | person commits misappropriation of a financial institution's |
3 | | property whenever he or she knowingly obtains or exerts |
4 | | unauthorized control over any of the moneys, funds, credits, |
5 | | assets, securities, or other property owned by or under the |
6 | | custody or control of a financial institution, or under the |
7 | | custody or care of any agent, officer, director, or employee of |
8 | | such financial institution. |
9 | | (b) Commercial bribery of a financial institution. |
10 | | (1) A person commits commercial bribery of a financial |
11 | | institution when he or she knowingly confers or offers or |
12 | | agrees to confer any benefit upon any employee, agent, or |
13 | | fiduciary without the consent of the latter's employer or |
14 | | principal, with the intent to influence his or her conduct |
15 | | in relation to his or her employer's or principal's |
16 | | affairs. |
17 | | (2) An employee, agent, or fiduciary of a financial |
18 | | institution commits commercial bribery of a financial |
19 | | institution when, without the consent of his or her |
20 | | employer or principal, he or she knowingly solicits, |
21 | | accepts, or agrees to accept any benefit from another |
22 | | person upon an agreement or understanding that such benefit |
23 | | will influence his or her conduct in relation to his or her |
24 | | employer's or principal's affairs. |
25 | | (c) Financial institution fraud. A person commits |
26 | | financial institution fraud when he or she knowingly executes |
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1 | | or attempts to execute a scheme or artifice: |
2 | | (1) to defraud a financial institution; or |
3 | | (2) to obtain any of the moneys, funds, credits, |
4 | | assets, securities, or other property owned by or under the |
5 | | custody or control of a financial institution, by means of |
6 | | pretenses, representations, or promises he or she knows to |
7 | | be false. |
8 | | (d) Loan fraud. A person commits loan fraud when he or she |
9 | | knowingly, with intent to defraud, makes any false statement or |
10 | | report, or overvalues any land, property, or security, with the |
11 | | intent to influence in any way the action of a financial |
12 | | institution to act upon any application, advance, discount, |
13 | | purchase, purchase agreement, repurchase agreement, |
14 | | commitment, or loan, or any change or extension of any of the |
15 | | same, by renewal, deferment of action, or otherwise, or the |
16 | | acceptance, release, or substitution of security. |
17 | | (e) Concealment of collateral. A person commits |
18 | | concealment of collateral when he or she, with intent to |
19 | | defraud, knowingly conceals, removes, disposes of, or converts |
20 | | to the person's own use or to that of another any property |
21 | | mortgaged or pledged to or held by a financial institution. |
22 | | (f) Financial institution robbery. A person commits |
23 | | robbery when he or she knowingly, by force or threat of force, |
24 | | or by intimidation, takes, or attempts to take, from the person |
25 | | or presence of another, or obtains or attempts to obtain by |
26 | | extortion, any property or money or any other thing of value |
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1 | | belonging to, or in the care, custody, control, management, or |
2 | | possession of, a financial institution. |
3 | | (g) Conspiracy to commit a financial crime. |
4 | | (1) A person commits conspiracy to commit a financial |
5 | | crime when, with the intent that any violation of this |
6 | | Section be committed, he or she agrees with another person |
7 | | to the commission of that offense. |
8 | | (2) No person may be convicted of conspiracy to commit |
9 | | a financial crime unless an overt act or acts in |
10 | | furtherance of the agreement is alleged and proved to have |
11 | | been committed by that person or by a co-conspirator and |
12 | | the accused is a part of a common scheme or plan to engage |
13 | | in the unlawful activity. |
14 | | (3) It shall not be a defense to conspiracy to commit a |
15 | | financial crime that the person or persons with whom the |
16 | | accused is alleged to have conspired: |
17 | | (A) has not been prosecuted or convicted; |
18 | | (B) has been convicted of a different offense; |
19 | | (C) is not amenable to justice; |
20 | | (D) has been acquitted; or |
21 | | (E) lacked the capacity to commit the offense. |
22 | | (h) Continuing financial crimes enterprise. A person |
23 | | commits a continuing financial crimes enterprise when he or she |
24 | | knowingly, within an 18-month period, commits 3 or more |
25 | | separate offenses constituting any combination of the |
26 | | following: |
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1 | | (1) an offense under this Section; |
2 | | (2) a felony offense in violation of Section 16A-3 or |
3 | | subsection (a) of Section 16-25 or paragraph (4) or (5) of |
4 | | subsection (a) of Section 16-1 of this Code for the purpose |
5 | | of reselling or otherwise re-entering the merchandise in |
6 | | commerce, including conveying the merchandise to a |
7 | | merchant in exchange for anything of value; or |
8 | | (3) if involving a financial institution, any other |
9 | | felony offense under this Code. |
10 | | (i) Organizer of a continuing financial crimes enterprise. |
11 | | (1) A person commits being an organizer of a continuing |
12 | | financial crimes enterprise when he or she: |
13 | | (A) with the intent to commit any offense, agrees |
14 | | with another person to the commission of any |
15 | | combination of the following offenses on 3 or
more |
16 | | separate occasions within an 18-month period: |
17 | | (i) an offense under this Section; |
18 | | (ii) a felony offense in violation of Section |
19 | | 16A-3 or subsection (a) of Section 16-25 or |
20 | | paragraph (4) or (5) of subsection (a) of Section |
21 | | 16-1 of this Code for the purpose of reselling or |
22 | | otherwise re-entering the merchandise in commerce, |
23 | | including conveying the merchandise to a merchant |
24 | | in exchange for anything of value; or |
25 | | (iii) if involving a financial institution, |
26 | | any other felony offense under this Code; and |
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1 | | (B) with respect to the other persons within the |
2 | | conspiracy, occupies a position of organizer, |
3 | | supervisor, or financier or other position of |
4 | | management. |
5 | | (2) The person with whom the accused agreed to commit |
6 | | the 3 or more offenses under this Section, or, if involving |
7 | | a financial institution, any other felony offenses under |
8 | | this Code, need not be the same person or persons for each |
9 | | offense, as long as the accused was a part of the common |
10 | | scheme or plan to engage in each of the 3 or more alleged |
11 | | offenses. |
12 | | (j) Sentence. |
13 | | (1) Except as otherwise provided in this subsection, a |
14 | | violation of this Section, the full value of which: |
15 | | (A) does not exceed $500, is a Class A misdemeanor; |
16 | | (B) does not exceed $500, and the person has been |
17 | | previously convicted of a financial crime or any type |
18 | | of theft, robbery, armed robbery, burglary, |
19 | | residential burglary, possession of burglary tools, or |
20 | | home invasion, is guilty of a Class 4 felony; |
21 | | (C) exceeds $500 but does not exceed $10,000, is a |
22 | | Class 3 felony; |
23 | | (D) exceeds $10,000 but does not exceed $100,000, |
24 | | is a Class 2 felony; |
25 | | (E) exceeds $100,000 but does not exceed $500,000, |
26 | | is a Class 1 felony; |
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1 | | (F) exceeds $500,000 but does not exceed |
2 | | $1,000,000, is a Class 1 non-probationable felony; |
3 | | when a charge of financial crime, the full value of |
4 | | which exceeds $500,000 but does not exceed $1,000,000, |
5 | | is brought, the value of the financial crime involved |
6 | | is an element of the offense to be resolved by the |
7 | | trier of fact as either exceeding or not exceeding |
8 | | $500,000; |
9 | | (G) exceeds $1,000,000, is a Class X felony; when a |
10 | | charge of financial crime, the full value of which |
11 | | exceeds $1,000,000, is brought, the value of the |
12 | | financial crime involved is an element of the offense |
13 | | to be resolved by the trier of fact as either exceeding |
14 | | or not exceeding $1,000,000. |
15 | | (2) A violation of subsection (f) is a Class 1 felony. |
16 | | (3) A violation of subsection (h) is a Class 1 felony. |
17 | | (4) A violation for subsection (i) is a Class X felony. |
18 | | (k) A "financial crime" means an offense described in this |
19 | | Section. |
20 | | (l) Period of limitations. The period of limitations for |
21 | | prosecution of any offense defined in this Section begins at |
22 | | the time when the last act in furtherance of the offense is |
23 | | committed.
|
24 | | (m) Forfeiture. Any violation of subdivision (2) of |
25 | | subsection (h) or subdivision (i)(1)(A)(ii) shall be subject to |
26 | | the remedies, procedures, and forfeiture as set forth in |
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1 | | subsections (f) through (s) of Section 29B-1 of this Code. |
2 | | Property seized or forfeited under this Section is subject |
3 | | to reporting under the Seizure and Forfeiture Reporting Act. |
4 | | (Source: P.A. 96-1551, eff. 7-1-11; incorporates P.A. 96-1532, |
5 | | eff. 1-1-12, and 97-147, eff. 1-1-12; 97-1109, eff. 1-1-13.)
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6 | | (720 ILCS 5/28-5) (from Ch. 38, par. 28-5)
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7 | | Sec. 28-5. Seizure of gambling devices and gambling funds.
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8 | | (a) Every device designed for gambling which is incapable |
9 | | of lawful use
or every device used unlawfully for gambling |
10 | | shall be considered a
"gambling device", and shall be subject |
11 | | to seizure, confiscation and
destruction by the Department of |
12 | | State Police or by any municipal, or other
local authority, |
13 | | within whose jurisdiction the same may be found. As used
in |
14 | | this Section, a "gambling device" includes any slot machine, |
15 | | and
includes any machine or device constructed for the |
16 | | reception of money or
other thing of value and so constructed |
17 | | as to return, or to cause someone
to return, on chance to the |
18 | | player thereof money, property or a right to
receive money or |
19 | | property. With the exception of any device designed for
|
20 | | gambling which is incapable of lawful use, no gambling device |
21 | | shall be
forfeited or destroyed unless an individual with a |
22 | | property interest in
said device knows of the unlawful use of |
23 | | the device.
|
24 | | (b) Every gambling device shall be seized and forfeited to |
25 | | the county
wherein such seizure occurs. Any money or other |
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1 | | thing of value integrally
related to acts of gambling shall be |
2 | | seized and forfeited to the county
wherein such seizure occurs.
|
3 | | (c) If, within 60 days after any seizure pursuant to |
4 | | subparagraph
(b) of this Section, a person having any property |
5 | | interest in the seized
property is charged with an offense, the |
6 | | court which renders judgment
upon such charge shall, within 30 |
7 | | days after such judgment, conduct a
forfeiture hearing to |
8 | | determine whether such property was a gambling device
at the |
9 | | time of seizure. Such hearing shall be commenced by a written
|
10 | | petition by the State, including material allegations of fact, |
11 | | the name
and address of every person determined by the State to |
12 | | have any property
interest in the seized property, a |
13 | | representation that written notice of
the date, time and place |
14 | | of such hearing has been mailed to every such
person by |
15 | | certified mail at least 10 days before such date, and a
request |
16 | | for forfeiture. Every such person may appear as a party and
|
17 | | present evidence at such hearing. The quantum of proof required |
18 | | shall
be a preponderance of the evidence, and the burden of |
19 | | proof shall be on
the State. If the court determines that the |
20 | | seized property was
a gambling device at the time of seizure, |
21 | | an order of forfeiture and
disposition of the seized property |
22 | | shall be entered: a gambling device
shall be received by the |
23 | | State's Attorney, who shall effect its
destruction, except that |
24 | | valuable parts thereof may be liquidated and
the resultant |
25 | | money shall be deposited in the general fund of the county
|
26 | | wherein such seizure occurred; money and other things of value |
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1 | | shall be
received by the State's Attorney and, upon |
2 | | liquidation, shall be
deposited in the general fund of the |
3 | | county wherein such seizure
occurred. However, in the event |
4 | | that a defendant raises the defense
that the seized slot |
5 | | machine is an antique slot machine described in
subparagraph |
6 | | (b) (7) of Section 28-1 of this Code and therefore he is
exempt |
7 | | from the charge of a gambling activity participant, the seized
|
8 | | antique slot machine shall not be destroyed or otherwise |
9 | | altered until a
final determination is made by the Court as to |
10 | | whether it is such an
antique slot machine. Upon a final |
11 | | determination by the Court of this
question in favor of the |
12 | | defendant, such slot machine shall be
immediately returned to |
13 | | the defendant. Such order of forfeiture and
disposition shall, |
14 | | for the purposes of appeal, be a final order and
judgment in a |
15 | | civil proceeding.
|
16 | | (d) If a seizure pursuant to subparagraph (b) of this |
17 | | Section is not
followed by a charge pursuant to subparagraph |
18 | | (c) of this Section, or if
the prosecution of such charge is |
19 | | permanently terminated or indefinitely
discontinued without |
20 | | any judgment of conviction or acquittal (1) the
State's |
21 | | Attorney shall commence an in rem proceeding for the forfeiture
|
22 | | and destruction of a gambling device, or for the forfeiture and |
23 | | deposit
in the general fund of the county of any seized money |
24 | | or other things of
value, or both, in the circuit court and (2) |
25 | | any person having any
property interest in such seized gambling |
26 | | device, money or other thing
of value may commence separate |
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1 | | civil proceedings in the manner provided
by law.
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2 | | (e) Any gambling device displayed for sale to a riverboat |
3 | | gambling
operation or used to train occupational licensees of a |
4 | | riverboat gambling
operation as authorized under the Riverboat |
5 | | Gambling Act is exempt from
seizure under this Section.
|
6 | | (f) Any gambling equipment, devices and supplies provided |
7 | | by a licensed
supplier in accordance with the Riverboat |
8 | | Gambling Act which are removed
from the riverboat for repair |
9 | | are exempt from seizure under this Section.
|
10 | | (g) The following video gaming terminals are exempt from |
11 | | seizure under this Section: |
12 | | (1) Video gaming terminals for sale to a licensed |
13 | | distributor or operator under the Video Gaming Act. |
14 | | (2) Video gaming terminals used to train licensed |
15 | | technicians or licensed terminal handlers. |
16 | | (3) Video gaming terminals that are removed from a |
17 | | licensed establishment, licensed truck stop establishment,
|
18 | | licensed
fraternal establishment, or licensed veterans |
19 | | establishment for repair. |
20 | | (h) Property seized or forfeited under this Section is |
21 | | subject to reporting under the Seizure and Forfeiture Reporting |
22 | | Act. |
23 | | (Source: P.A. 98-31, eff. 6-24-13.)
|
24 | | (720 ILCS 5/29B-1) (from Ch. 38, par. 29B-1)
|
25 | | Sec. 29B-1. (a) A person commits the offense of money |
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1 | | laundering:
|
2 | | (1) when, knowing that the property involved in a |
3 | | financial transaction represents the proceeds of some form |
4 | | of unlawful activity, he or she conducts or attempts to |
5 | | conduct such a financial transaction which in fact involves |
6 | | criminally derived property: |
7 | | (A) with the intent to promote the carrying on of |
8 | | the unlawful activity from which the criminally |
9 | | derived property was obtained; or |
10 | | (B) where he or she knows or reasonably should know |
11 | | that the financial transaction is designed in whole or |
12 | | in part: |
13 | | (i) to conceal or disguise the nature, the |
14 | | location, the source, the ownership or the control |
15 | | of the criminally derived property; or |
16 | | (ii) to avoid a transaction reporting |
17 | | requirement under State law; or |
18 | | (1.5) when he or she transports, transmits, or |
19 | | transfers, or attempts to transport, transmit, or transfer |
20 | | a monetary instrument: |
21 | | (A) with the intent to promote the carrying on of |
22 | | the unlawful activity from which the criminally |
23 | | derived property was obtained; or |
24 | | (B) knowing, or having reason to know, that the |
25 | | financial transaction is designed in whole or in part: |
26 | | (i) to conceal or disguise the nature, the |
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1 | | location, the source, the ownership or the control |
2 | | of the criminally derived property; or |
3 | | (ii) to avoid a transaction reporting |
4 | | requirement under State law;
or
|
5 | | (2) when, with the intent to:
|
6 | | (A) promote the carrying on of a specified criminal |
7 | | activity as defined
in this Article; or
|
8 | | (B) conceal or disguise the nature, location, |
9 | | source, ownership, or
control of property believed to |
10 | | be the proceeds of a specified criminal
activity as |
11 | | defined by subdivision (b)(6); or |
12 | | (C) avoid a transaction reporting requirement |
13 | | under State law,
|
14 | | he or she conducts or attempts to conduct a financial |
15 | | transaction
involving property he or she believes to be the |
16 | | proceeds of specified criminal
activity as defined by |
17 | | subdivision (b)(6) or property used to conduct or
|
18 | | facilitate specified criminal activity as defined by |
19 | | subdivision (b)(6).
|
20 | | (b) As used in this Section:
|
21 | | (0.5) "Knowing that the property involved in a |
22 | | financial transaction represents the proceeds of some form |
23 | | of unlawful activity" means that the person knew the |
24 | | property involved in the transaction represented proceeds |
25 | | from some form, though not necessarily which form, of |
26 | | activity that constitutes a felony under State, federal, or |
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1 | | foreign law.
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2 | | (1) "Financial transaction" means a purchase, sale, |
3 | | loan, pledge, gift,
transfer, delivery or other |
4 | | disposition utilizing criminally derived property,
and |
5 | | with respect to financial institutions, includes a |
6 | | deposit, withdrawal,
transfer between accounts, exchange |
7 | | of currency, loan, extension of credit,
purchase or sale of |
8 | | any stock, bond, certificate of deposit or other monetary
|
9 | | instrument, use of safe deposit box, or any other payment, |
10 | | transfer or delivery by, through, or to a
financial |
11 | | institution.
For purposes of clause (a)(2) of this Section, |
12 | | the term "financial
transaction" also
means a transaction |
13 | | which without regard to whether the funds, monetary
|
14 | | instruments, or real or personal property involved in the |
15 | | transaction are
criminally derived, any transaction which |
16 | | in any way or degree: (1) involves
the movement of funds by |
17 | | wire or any other means; (2) involves one or more
monetary |
18 | | instruments; or (3) the transfer of title to any real or |
19 | | personal
property.
The receipt by an attorney of bona fide |
20 | | fees for the purpose
of legal representation is not a |
21 | | financial transaction for purposes of this
Section.
|
22 | | (2) "Financial institution" means any bank; saving and |
23 | | loan
association; trust company; agency or branch of a |
24 | | foreign bank in the
United States; currency exchange; |
25 | | credit union, mortgage banking
institution; pawnbroker; |
26 | | loan or finance company; operator of a credit card
system; |
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1 | | issuer, redeemer or cashier of travelers checks, checks or |
2 | | money
orders; dealer in precious metals, stones or jewels; |
3 | | broker or dealer in
securities or commodities; investment |
4 | | banker; or investment company.
|
5 | | (3) "Monetary instrument" means United States coins |
6 | | and currency;
coins and currency of a foreign country; |
7 | | travelers checks; personal checks,
bank checks, and money |
8 | | orders; investment securities; bearer
negotiable |
9 | | instruments; bearer investment securities; or bearer |
10 | | securities
and certificates of stock in such form that |
11 | | title thereto passes upon
delivery.
|
12 | | (4) "Criminally derived property" means: (A) any |
13 | | property, real or personal, constituting
or
derived from |
14 | | proceeds obtained, directly or indirectly, from activity |
15 | | that constitutes a felony under State, federal, or foreign |
16 | | law; or (B) any property
represented to be property |
17 | | constituting or derived from proceeds obtained,
directly |
18 | | or indirectly, from activity that constitutes a felony |
19 | | under State, federal, or foreign law.
|
20 | | (5) "Conduct" or "conducts" includes, in addition to |
21 | | its ordinary
meaning, initiating, concluding, or |
22 | | participating in initiating or concluding
a transaction.
|
23 | | (6) "Specified criminal activity" means any violation |
24 | | of Section 29D-15.1
(720 ILCS 5/29D-15.1) and any violation |
25 | | of Article 29D of this Code.
|
26 | | (7) "Director" means the Director of State Police or |
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1 | | his or her designated agents. |
2 | | (8) "Department" means the Department of State Police |
3 | | of the State of Illinois or its successor agency.
|
4 | | (9) "Transaction reporting requirement under State |
5 | | law" means any violation as defined under the Currency |
6 | | Reporting Act.
|
7 | | (c) Sentence.
|
8 | | (1) Laundering of criminally derived property of a |
9 | | value not exceeding
$10,000 is a Class 3 felony;
|
10 | | (2) Laundering of criminally derived property of a |
11 | | value exceeding
$10,000 but not exceeding $100,000 is a |
12 | | Class 2 felony;
|
13 | | (3) Laundering of criminally derived property of a |
14 | | value exceeding
$100,000 but not exceeding $500,000 is a |
15 | | Class 1 felony;
|
16 | | (4) Money laundering in violation of subsection (a)(2) |
17 | | of this Section
is a Class X felony;
|
18 | | (5) Laundering of criminally derived property of a |
19 | | value exceeding
$500,000 is a
Class 1 non-probationable |
20 | | felony;
|
21 | | (6) In a prosecution under clause (a)(1.5)(B)(ii) of |
22 | | this Section, the sentences are as follows: |
23 | | (A) Laundering of property of a value not exceeding |
24 | | $10,000 is a Class 3 felony; |
25 | | (B) Laundering of property of a value exceeding |
26 | | $10,000 but not exceeding $100,000 is a Class 2 felony; |
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1 | | (C) Laundering of property of a value exceeding |
2 | | $100,000 but not exceeding $500,000 is a Class 1 |
3 | | felony; |
4 | | (D) Laundering of property of a value exceeding |
5 | | $500,000 is a Class 1 non-probationable felony. |
6 | | (d) Evidence. In a prosecution under this Article, either |
7 | | party may introduce the following evidence pertaining to the |
8 | | issue of whether the property or proceeds were known to be some |
9 | | form of criminally derived property or from some form of |
10 | | unlawful activity: |
11 | | (1) A financial transaction was conducted or |
12 | | structured or attempted in violation of the reporting |
13 | | requirements of any State or federal law; or |
14 | | (2) A financial transaction was conducted or attempted |
15 | | with the use of a false or fictitious name or a forged |
16 | | instrument; or |
17 | | (3) A falsely altered or completed written instrument |
18 | | or a written instrument that contains any materially false |
19 | | personal identifying information was made, used, offered |
20 | | or presented, whether accepted or not, in connection with a |
21 | | financial transaction; or |
22 | | (4) A financial transaction was structured or |
23 | | attempted to be structured so as to falsely report the |
24 | | actual consideration or value of the transaction; or |
25 | | (5) A money transmitter, a person engaged in a trade or |
26 | | business or any employee of a money transmitter or a person |
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1 | | engaged in a trade or business, knows or reasonably should |
2 | | know that false personal identifying information has been |
3 | | presented and incorporates the false personal identifying |
4 | | information into any report or record; or |
5 | | (6) The criminally derived property is transported or |
6 | | possessed in a fashion inconsistent with the ordinary or |
7 | | usual means of transportation or possession of such |
8 | | property and where the property is discovered in the |
9 | | absence of any documentation or other indicia of legitimate |
10 | | origin or right to such property; or |
11 | | (7) A person pays or receives substantially less than |
12 | | face value for one or more monetary instruments; or |
13 | | (8) A person engages in a transaction involving one or |
14 | | more monetary instruments, where the physical condition or |
15 | | form of the monetary instrument or instruments makes it |
16 | | apparent that they are not the product of bona fide |
17 | | business or financial transactions. |
18 | | (e) Duty to enforce this Article. |
19 | | (1) It is the duty of the Department of State Police, |
20 | | and its agents, officers, and investigators, to enforce all |
21 | | provisions of this Article, except those specifically |
22 | | delegated, and to cooperate with all agencies charged with |
23 | | the enforcement of the laws of the United States, or of any |
24 | | state, relating to money laundering. Only an agent, |
25 | | officer, or investigator designated by the Director may be |
26 | | authorized in accordance with this Section to serve seizure |
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1 | | notices, warrants, subpoenas, and summonses under the |
2 | | authority of this State. |
3 | | (2) Any agent, officer, investigator, or peace officer |
4 | | designated by the Director may: (A) make seizure of |
5 | | property pursuant to the provisions of this Article; and |
6 | | (B) perform such other law enforcement duties as the |
7 | | Director designates. It is the duty of all State's |
8 | | Attorneys to prosecute violations of this Article and |
9 | | institute legal proceedings as authorized under this |
10 | | Article. |
11 | | (f) Protective orders. |
12 | | (1) Upon application of the State, the court may enter |
13 | | a restraining order or injunction, require the execution of |
14 | | a satisfactory performance bond, or take any other action |
15 | | to preserve the availability of property described in |
16 | | subsection (h) for forfeiture under this Article: |
17 | | (A) upon the filing of an indictment, information, |
18 | | or complaint charging a violation of this Article for |
19 | | which forfeiture may be ordered under this Article and |
20 | | alleging that the property with respect to which the |
21 | | order is sought would be subject to forfeiture under |
22 | | this Article; or
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23 | | (B) prior to the filing of such an indictment, |
24 | | information, or complaint, if, after notice to persons |
25 | | appearing to have an interest in the property and |
26 | | opportunity for a hearing, the court determines that: |
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1 | | (i) there is probable cause to believe that the |
2 | | State will prevail on the issue of forfeiture and |
3 | | that failure to enter the order will result in the |
4 | | property being destroyed, removed from the |
5 | | jurisdiction of the court, or otherwise made |
6 | | unavailable for forfeiture; and |
7 | | (ii) the need to preserve the availability of |
8 | | the property through the entry of the requested |
9 | | order outweighs the hardship on any party against |
10 | | whom the order is to be entered. |
11 | | Provided, however, that an order entered pursuant |
12 | | to subparagraph (B) shall be effective for not more |
13 | | than 90 days, unless extended by the court for good |
14 | | cause shown or unless an indictment, information, |
15 | | complaint, or administrative notice has been filed. |
16 | | (2) A temporary restraining order under this |
17 | | subsection may be entered upon application of the State |
18 | | without notice or opportunity for a hearing when an |
19 | | indictment, information, complaint, or administrative |
20 | | notice has not yet been filed with respect to the property, |
21 | | if the State demonstrates that there is probable cause to |
22 | | believe that the property with respect to which the order |
23 | | is sought would be subject to forfeiture under this Section |
24 | | and that provision of notice will jeopardize the |
25 | | availability of the property for forfeiture. Such a |
26 | | temporary order shall expire not more than 30 days after |
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1 | | the date on which it is entered, unless extended for good |
2 | | cause shown or unless the party against whom it is entered |
3 | | consents to an extension for a longer period. A hearing |
4 | | requested concerning an order entered under this paragraph |
5 | | shall be held at the earliest possible time and prior to |
6 | | the expiration of the temporary order. |
7 | | (3) The court may receive and consider, at a hearing |
8 | | held pursuant to this subsection (f), evidence and |
9 | | information that would be inadmissible under the Illinois |
10 | | rules of evidence.
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11 | | (4) Order to repatriate and deposit. |
12 | | (A) In general. Pursuant to its authority to enter |
13 | | a pretrial restraining order under this Section, the |
14 | | court may order a defendant to repatriate any property |
15 | | that may be seized and forfeited and to deposit that |
16 | | property pending trial with the Illinois State Police |
17 | | or another law enforcement agency designated by the |
18 | | Illinois State Police. |
19 | | (B) Failure to comply. Failure to comply with an |
20 | | order under this subsection (f) is punishable as a |
21 | | civil or criminal contempt of court.
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22 | | (g) Warrant of seizure. The State may request the issuance |
23 | | of a warrant authorizing the seizure of property described in |
24 | | subsection (h) in the same manner as provided for a search |
25 | | warrant. If the court determines that there is probable cause |
26 | | to believe that the property to be seized would be subject to |
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1 | | forfeiture, the court shall issue a warrant authorizing the |
2 | | seizure of such property. |
3 | | (h) Forfeiture. |
4 | | (1) The following are subject to forfeiture: |
5 | | (A) any property, real or personal, constituting, |
6 | | derived from, or traceable to any proceeds the person |
7 | | obtained directly or indirectly, as a result of a |
8 | | violation of this Article; |
9 | | (B) any of the person's property used, or intended |
10 | | to be used, in any manner or part, to commit, or to |
11 | | facilitate the commission of, a violation of this |
12 | | Article; |
13 | | (C) all conveyances, including aircraft, vehicles |
14 | | or vessels, which are used, or intended for use, to |
15 | | transport, or in any manner to facilitate the |
16 | | transportation, sale, receipt, possession, or |
17 | | concealment of property described in subparagraphs (A) |
18 | | and (B), but: |
19 | | (i) no conveyance used by any person as a |
20 | | common carrier in the transaction of business as a |
21 | | common carrier is subject to forfeiture under this |
22 | | Section unless it appears that the owner or other |
23 | | person in charge of the conveyance is a consenting |
24 | | party or privy to a violation of this Article; |
25 | | (ii) no conveyance is subject to forfeiture |
26 | | under this Section by reason of any act or omission |
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1 | | which the owner proves to have been committed or |
2 | | omitted without his or her knowledge or consent; |
3 | | (iii) a forfeiture of a conveyance encumbered |
4 | | by a bona fide security interest is subject to the |
5 | | interest of the secured party if he or she neither |
6 | | had knowledge of nor consented to the act or |
7 | | omission; |
8 | | (D) all real property, including any right, title, |
9 | | and interest (including, but not limited to, any |
10 | | leasehold interest or the beneficial interest in a land |
11 | | trust) in the whole of any lot or tract of land and any |
12 | | appurtenances or improvements, which is used or |
13 | | intended to be used, in any manner or part, to commit, |
14 | | or in any manner to facilitate the commission of, any |
15 | | violation of this Article or that is the proceeds of |
16 | | any violation or act that constitutes a violation of |
17 | | this Article.
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18 | | (2) Property subject to forfeiture under this Article |
19 | | may be seized by the Director or any peace officer upon |
20 | | process or seizure warrant issued by any court having |
21 | | jurisdiction over the property. Seizure by the Director or |
22 | | any peace officer without process may be made: |
23 | | (A) if the seizure is incident to a seizure |
24 | | warrant; |
25 | | (B) if the property subject to seizure has been the |
26 | | subject of a prior judgment in favor of the State in a |
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1 | | criminal proceeding, or in an injunction or forfeiture |
2 | | proceeding based upon this Article; |
3 | | (C) if there is probable cause to believe that the |
4 | | property is directly or indirectly dangerous to health |
5 | | or safety; |
6 | | (D) if there is probable cause to believe that the |
7 | | property is subject to forfeiture under this Article |
8 | | and the property is seized under circumstances in which |
9 | | a warrantless seizure or arrest would be reasonable; or |
10 | | (E) in accordance with the Code of Criminal |
11 | | Procedure of 1963. |
12 | | (3) In the event of seizure pursuant to paragraph (2), |
13 | | forfeiture proceedings shall be instituted in accordance |
14 | | with subsections (i) through (r). |
15 | | (4) Property taken or detained under this Section shall |
16 | | not be subject to replevin, but is deemed to be in the |
17 | | custody of the Director subject only to the order and |
18 | | judgments of the circuit court having jurisdiction over the |
19 | | forfeiture proceedings and the decisions of the State's |
20 | | Attorney under this Article. When property is seized under |
21 | | this Article, the seizing agency shall promptly conduct an |
22 | | inventory of the seized property and estimate the |
23 | | property's value and shall forward a copy of the inventory |
24 | | of seized property and the estimate of the property's value |
25 | | to the Director. Upon receiving notice of seizure, the |
26 | | Director may: |
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1 | | (A) place the property under seal; |
2 | | (B) remove the property to a place designated by |
3 | | the Director; |
4 | | (C) keep the property in the possession of the |
5 | | seizing agency; |
6 | | (D) remove the property to a storage area for |
7 | | safekeeping or, if the property is a negotiable |
8 | | instrument or money and is not needed for evidentiary |
9 | | purposes, deposit it in an interest bearing account; |
10 | | (E) place the property under constructive seizure |
11 | | by posting notice of pending forfeiture on it, by |
12 | | giving notice of pending forfeiture to its owners and |
13 | | interest holders, or by filing notice of pending |
14 | | forfeiture in any appropriate public record relating |
15 | | to the property; or |
16 | | (F) provide for another agency or custodian, |
17 | | including an owner, secured party, or lienholder, to |
18 | | take custody of the property upon the terms and |
19 | | conditions set by the Director. |
20 | | (5) When property is forfeited under this Article, the |
21 | | Director shall sell all such property unless such property |
22 | | is required by law to be destroyed or is harmful to the |
23 | | public, and shall distribute the proceeds of the sale, |
24 | | together with any moneys forfeited or seized, in accordance |
25 | | with paragraph (6). However, upon the application of the |
26 | | seizing agency or prosecutor who was responsible for the |
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1 | | investigation, arrest or arrests and prosecution which |
2 | | lead to the forfeiture, the Director may return any item of |
3 | | forfeited property to the seizing agency or prosecutor for |
4 | | official use in the enforcement of laws, if the agency or |
5 | | prosecutor can demonstrate that the item requested would be |
6 | | useful to the agency or prosecutor in its enforcement |
7 | | efforts. When any real property returned to the seizing |
8 | | agency is sold by the agency or its unit of government, the |
9 | | proceeds of the sale shall be delivered to the Director and |
10 | | distributed in accordance with paragraph (6). |
11 | | (6) All monies and the sale proceeds of all other |
12 | | property forfeited and seized under this Article shall be |
13 | | distributed as follows: |
14 | | (A) 65% shall be distributed to the metropolitan |
15 | | enforcement group, local, municipal, county, or State |
16 | | law enforcement agency or agencies which conducted or |
17 | | participated in the investigation resulting in the |
18 | | forfeiture. The distribution shall bear a reasonable |
19 | | relationship to the degree of direct participation of |
20 | | the law enforcement agency in the effort resulting in |
21 | | the forfeiture, taking into account the total value of |
22 | | the property forfeited and the total law enforcement |
23 | | effort with respect to the violation of the law upon |
24 | | which the forfeiture is based. Amounts distributed to |
25 | | the agency or agencies shall be used for the |
26 | | enforcement of laws. |
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1 | | (B)(i) 12.5% shall be distributed to the Office of |
2 | | the State's Attorney of the county in which the |
3 | | prosecution resulting in the forfeiture was |
4 | | instituted, deposited in a special fund in the county |
5 | | treasury and appropriated to the State's Attorney for |
6 | | use in the enforcement of laws. In counties over |
7 | | 3,000,000 population, 25% shall be distributed to the |
8 | | Office of the State's Attorney for use in the |
9 | | enforcement of laws. If the prosecution is undertaken |
10 | | solely by the Attorney General, the portion provided |
11 | | hereunder shall be distributed to the Attorney General |
12 | | for use in the enforcement of laws. |
13 | | (ii) 12.5% shall be distributed to the Office of |
14 | | the State's Attorneys Appellate Prosecutor and |
15 | | deposited in the Narcotics Profit Forfeiture Fund of |
16 | | that office to be used for additional expenses incurred |
17 | | in the investigation, prosecution and appeal of cases |
18 | | arising under laws. The Office of the State's Attorneys |
19 | | Appellate Prosecutor shall not receive distribution |
20 | | from cases brought in counties with over 3,000,000 |
21 | | population. |
22 | | (C) 10% shall be retained by the Department of |
23 | | State Police for expenses related to the |
24 | | administration and sale of seized and forfeited |
25 | | property. |
26 | | Moneys and the sale proceeds distributed to the |
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1 | | Department of State Police under this Article shall be |
2 | | deposited in the Money Laundering Asset Recovery Fund |
3 | | created in the State treasury and shall be used by the |
4 | | Department of State Police for State law enforcement |
5 | | purposes. |
6 | | (7) All moneys and sale proceeds of property forfeited |
7 | | and seized under this Article and distributed according to |
8 | | paragraph (6) may also be used to purchase opioid |
9 | | antagonists as defined in Section 5-23 of the Alcoholism |
10 | | and Other Drug Abuse and Dependency Act. |
11 | | (7.5) Preliminary Review. |
12 | | (A) Within 14 days of the seizure, the State shall |
13 | | seek a preliminary determination from the circuit |
14 | | court as to whether there is probable cause that the |
15 | | property may be subject to forfeiture. |
16 | | (B) The rules of evidence shall not apply to any |
17 | | proceeding conducted under this Section. |
18 | | (C) The court may conduct the review under |
19 | | subparagraph (A) of this paragraph (7.5) |
20 | | simultaneously with a proceeding under Section 109-1 |
21 | | of the Code of Criminal Procedure of 1963 for a related |
22 | | criminal offense if a prosecution is commenced by |
23 | | information or complaint. |
24 | | (D) The court may accept a finding of probable |
25 | | cause at a preliminary hearing following the filing of |
26 | | an information or complaint charging a related |
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1 | | criminal offense or following the return of indictment |
2 | | by a grand jury charging the related offense as |
3 | | sufficient evidence of probable cause as required |
4 | | under subparagraph (A) of this paragraph (7.5). |
5 | | (E) Upon a finding of probable cause as required |
6 | | under this Section, the circuit court shall order the |
7 | | property subject to the applicable forfeiture Act held |
8 | | until the conclusion of any forfeiture proceeding. |
9 | | (i) Notice to owner or interest holder. |
10 | | (1) The first attempted service shall be commenced |
11 | | within 28 days of the latter of filing of the verified |
12 | | claim or the receipt of the notice from seizing agency by |
13 | | form 4-64. A complaint for forfeiture or a notice of |
14 | | pending forfeiture shall be served on a claimant if the |
15 | | owner's or interest holder's name and current address are |
16 | | known, then by either: (i) personal service or; (ii) |
17 | | mailing a copy of the notice by certified mail, return |
18 | | receipt requested and first class mail, to that address. If |
19 | | no signed return receipt is received by the State's |
20 | | Attorney within 28 days of mailing or no communication from |
21 | | the owner or interest holder is received by the State's |
22 | | Attorney documenting actual notice by the parties, the |
23 | | State's Attorney shall, within a reasonable period of time, |
24 | | mail a second copy of the notice by certified mail, return |
25 | | receipt requested and first class mail, to that address. If |
26 | | no signed return receipt is received by the State's |
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1 | | Attorney within 28 days of the second mailing, or no |
2 | | communication from the owner or interest holder is received |
3 | | by the State's Attorney documenting actual notice by the |
4 | | parties, the State's Attorney shall have 60 days to attempt |
5 | | to personally serve the notice by personal service, |
6 | | including substitute service by leaving a copy at the usual |
7 | | place of abode with some person of the family or a person |
8 | | residing there, of the age of 13 years or upwards. If after |
9 | | 3 attempts at service in this manner, and no service of the |
10 | | notice is accomplished, the notice shall be posted in a |
11 | | conspicuous manner at this address and service shall be |
12 | | made by the posting. The attempts at service and the |
13 | | posting if required, shall be documented by the person |
14 | | attempting service and the documentation shall be made part |
15 | | of a return of service returned to the State's Attorney. |
16 | | The State's Attorney may utilize any Sheriff or Deputy |
17 | | Sheriff, a peace officer, a private process server or |
18 | | investigator, or an employee, agent, or investigator of the |
19 | | State's Attorney's Office to attempt service without |
20 | | seeking leave of court. After the procedures listed are |
21 | | followed, service shall be effective on the owner or |
22 | | interest holder on the date of receipt by the State's |
23 | | Attorney of a returned return receipt requested, or on the |
24 | | date of receipt of a communication from an owner or |
25 | | interest holder documenting actual notice, whichever is |
26 | | first in time, or on the date of the last act performed by |
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1 | | the State's Attorney in attempting personal service. For |
2 | | purposes of notice under this Section, if a person has been |
3 | | arrested for the conduct giving rise to the forfeiture, the |
4 | | address provided to the arresting agency at the time of |
5 | | arrest shall be deemed to be that person's known address. |
6 | | Provided, however, if an owner or interest holder's address |
7 | | changes prior to the effective date of the notice of |
8 | | pending forfeiture, the owner or interest holder shall |
9 | | promptly notify the seizing agency of the change in address |
10 | | or, if the owner or interest holder's address changes |
11 | | subsequent to the effective date of the notice of pending |
12 | | forfeiture, the owner or interest holder shall promptly |
13 | | notify the State's Attorney of the change in address. If |
14 | | the property seized is a conveyance, notice shall also be |
15 | | directed to the address reflected in the office of the |
16 | | agency or official in which title or interest to the |
17 | | conveyance is required by law to be recorded. Whenever |
18 | | notice of pending forfeiture or service of an in rem |
19 | | complaint is required under the provisions of this Article, |
20 | | such notice or service shall be given as follows: |
21 | | (A) (Blank); If the owner's or interest holder's |
22 | | name and current address are known, then by either |
23 | | personal service or mailing a copy of the notice by |
24 | | certified mail, return receipt requested, to that |
25 | | address. For purposes of notice under this Section, if |
26 | | a person has been arrested for the conduct giving rise |
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1 | | to the forfeiture, then the address provided to the |
2 | | arresting agency at the time of arrest shall be deemed |
3 | | to be that person's known address. Provided, however, |
4 | | if an owner or interest holder's address changes prior |
5 | | to the effective date of the notice of pending |
6 | | forfeiture, the owner or interest holder shall |
7 | | promptly notify the seizing agency of the change in |
8 | | address or, if the owner or interest holder's address |
9 | | changes subsequent to the effective date of the notice |
10 | | of pending forfeiture, the owner or interest holder |
11 | | shall promptly notify the State's Attorney of the |
12 | | change in address; or |
13 | | (A-5) If the owner's or interest holder's address |
14 | | is not known, and is not on record as provided in |
15 | | paragraph (1), service by publication for 3 successive |
16 | | weeks in a newspaper of general circulation in the |
17 | | county in which the seizure occurred shall suffice for |
18 | | service requirements. |
19 | | (A-10) Notice to any business entity, corporation, |
20 | | LLC, LLP, or partnership shall be complete by a single |
21 | | mailing of a copy of the notice by certified mail, |
22 | | return receipt requested and first class mail, to that |
23 | | address. This notice is complete regardless of the |
24 | | return of a signed "return receipt requested". |
25 | | (A-15) Notice to a person whose address is not |
26 | | within the State shall be completed by a single mailing |
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1 | | of a copy of the notice by certified mail, return |
2 | | receipt requested and first class
mail to that address. |
3 | | This notice is complete regardless of the return of a |
4 | | signed "return receipt requested". |
5 | | (A-20) Notice to a person whose address is not |
6 | | within the United States shall be completed by a single |
7 | | mailing of a copy of the notice by certified mail, |
8 | | return receipt requested and first class mail to that |
9 | | address. This notice is complete regardless of the |
10 | | return of a signed "return receipt requested". If |
11 | | certified mail is not available in the foreign country |
12 | | where the person has an address, notice shall proceed |
13 | | by paragraph (A-15) publication requirements. |
14 | | (A-25) A person who the State's Attorney |
15 | | reasonably should know is incarcerated within this |
16 | | State, shall also include, mailing a copy of the notice |
17 | | by certified mail, return receipt requested and first |
18 | | class mail, to the address of the detention facility |
19 | | with the inmate's name clearly marked on the envelope. |
20 | | After a claimant files a verified claim with the |
21 | | State's Attorney and provides an address at which they |
22 | | will accept service, the complaint shall be served and |
23 | | notice shall be complete upon the mailing of the |
24 | | complaint to the claimant at the address the claimant |
25 | | provided via certified mail, return receipt requested |
26 | | and first class mail. No return receipt card need be |
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1 | | received, or any other attempts at service need be made |
2 | | to comply with service and notice requirements under |
3 | | this Section. This certified mailing, return receipt |
4 | | requested shall be proof of service of the complaint on |
5 | | the claimant. If notice is to be shown by actual notice |
6 | | from communication with a claimant, then the State's |
7 | | Attorney shall file an affidavit as proof of service |
8 | | providing details of the communication which shall be |
9 | | accepted as proof of service by the court. |
10 | | (B) If the property seized is a conveyance, to the |
11 | | address reflected in the office of the agency or |
12 | | official in which title or interest to the conveyance |
13 | | is required by law to be recorded, then by mailing a |
14 | | copy of the notice by certified mail, return receipt |
15 | | requested, to that address; or |
16 | | (C) (Blank). If the owner's or interest holder's |
17 | | address is not known, and is not on record as provided |
18 | | in paragraph (B), then by publication for 3 successive |
19 | | weeks in a newspaper of general circulation in the |
20 | | county in which the seizure occurred. |
21 | | (2) Notice served under this Article is effective upon |
22 | | personal service, the last date of publication, or the |
23 | | mailing of written notice, whichever is earlier. |
24 | | (j) Notice to State's Attorney. The law enforcement agency |
25 | | seizing property for forfeiture under this Article shall, |
26 | | within 60 90 days after seizure, notify the State's Attorney |
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1 | | for the county, either where an act or omission giving rise to |
2 | | the forfeiture occurred or where the property was seized, of |
3 | | the seizure of the property and the facts and circumstances |
4 | | giving rise to the seizure and shall provide the State's |
5 | | Attorney with the inventory of the property and its estimated |
6 | | value. When the property seized for forfeiture is a vehicle, |
7 | | the law enforcement agency seizing the property shall |
8 | | immediately notify the Secretary of State that forfeiture |
9 | | proceedings are pending regarding such vehicle. This notice |
10 | | shall be by the form 4-64. |
11 | | (k) Non-judicial forfeiture. If non-real property that |
12 | | exceeds $20,000 in value excluding the value of any conveyance, |
13 | | or if real property is seized under the provisions of this |
14 | | Article, the State's Attorney shall institute judicial in rem |
15 | | forfeiture proceedings as described in subsection (l) of this |
16 | | Section within 28 45 days from receipt of notice of seizure |
17 | | from the seizing agency under subsection (j) of this Section. |
18 | | However, if non-real property that does not exceed $20,000 in |
19 | | value excluding the value of any conveyance is seized, the |
20 | | following procedure shall be used: |
21 | | (1) If, after review of the facts surrounding the |
22 | | seizure, the State's Attorney is of the opinion that the |
23 | | seized property is subject to forfeiture, then within 45 |
24 | | days after the receipt of notice of seizure from the |
25 | | seizing agency, the State's Attorney shall cause notice of |
26 | | pending forfeiture to be given to the owner of the property |
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1 | | and all known interest holders of the property in |
2 | | accordance with subsection (i) of this Section. |
3 | | (2) The notice of pending forfeiture must include a |
4 | | description of the property, the estimated value of the |
5 | | property, the date and place of seizure, the conduct giving |
6 | | rise to forfeiture or the violation of law alleged, and a |
7 | | summary of procedures and procedural rights applicable to |
8 | | the forfeiture action. |
9 | | (3)(A) Any person claiming an interest in property |
10 | | which is the subject of notice under paragraph (1) of this |
11 | | subsection (k), must, in order to preserve any rights or |
12 | | claims to the property, within 45 days after the effective |
13 | | date of notice as described in subsection (i) of this |
14 | | Section, file a verified claim with the State's Attorney |
15 | | expressing his or her interest in the property. The claim |
16 | | must set forth: |
17 | | (i) the caption of the proceedings as set forth on |
18 | | the notice of pending forfeiture and the name of the |
19 | | claimant; |
20 | | (ii) the address at which the claimant will accept |
21 | | mail; |
22 | | (iii) the nature and extent of the claimant's |
23 | | interest in the property; |
24 | | (iv) the date, identity of the transferor, and |
25 | | circumstances of the claimant's acquisition of the |
26 | | interest in the property;
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1 | | (v) the name and address of all other persons known |
2 | | to have an interest in the property; |
3 | | (vi) the specific provision of law relied on in |
4 | | asserting the property is not subject to forfeiture; |
5 | | (vii) all essential facts supporting each |
6 | | assertion; and |
7 | | (viii) the relief sought. |
8 | | (B) If a claimant files the claim and deposits with the |
9 | | State's Attorney a cost bond, in the form of a cashier's |
10 | | check payable to the clerk of the court, in the sum of 10% |
11 | | of the reasonable value of the property as alleged by the |
12 | | State's Attorney or the sum of $100, whichever is greater, |
13 | | upon condition that, in the case of forfeiture, the |
14 | | claimant must pay all costs and expenses of forfeiture |
15 | | proceedings , then the State's Attorney shall institute |
16 | | judicial in rem forfeiture proceedings and deposit the cost |
17 | | bond with the clerk of the court as described in subsection |
18 | | (l) of this Section within 45 days after receipt of the |
19 | | claim and cost bond. In lieu of a cost bond, a person |
20 | | claiming interest in the seized property may file, under |
21 | | penalty of perjury, an indigency affidavit which has been |
22 | | approved by a circuit court judge . |
23 | | (C) (Blank). If none of the seized property is |
24 | | forfeited in the judicial in rem proceeding, the clerk of |
25 | | the court shall return to the claimant, unless the court |
26 | | orders otherwise, 90% of the sum which has been deposited |
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1 | | and shall retain as costs 10% of the money deposited. If |
2 | | any of the seized property is forfeited under the judicial |
3 | | forfeiture proceeding, the clerk of the court shall |
4 | | transfer 90% of the sum which has been deposited to the |
5 | | State's Attorney prosecuting the civil forfeiture to be |
6 | | applied to the costs of prosecution and the clerk shall |
7 | | retain as costs 10% of the sum deposited. |
8 | | (4) If no claim is filed or bond given within the 45 |
9 | | day period as described in paragraph (3) of this subsection |
10 | | (k), the State's Attorney shall declare the property |
11 | | forfeited and shall promptly notify the owner and all known |
12 | | interest holders of the property and the Director of State |
13 | | Police of the declaration of forfeiture and the Director |
14 | | shall dispose of the property in accordance with law. |
15 | | (l) Judicial in rem procedures. If property seized under |
16 | | the provisions of this Article is non-real property that |
17 | | exceeds $20,000 in value excluding the value of any conveyance, |
18 | | or is real property, or a claimant has filed a claim and a cost |
19 | | bond under paragraph (3) of subsection (k) of this Section, the |
20 | | following judicial in rem procedures shall apply: |
21 | | (1) If, after a review of the facts surrounding the |
22 | | seizure, the State's Attorney is of the opinion that the |
23 | | seized property is subject to forfeiture, then within 28 45 |
24 | | days of the receipt of notice of seizure by the seizing |
25 | | agency or the filing of the claim and cost bond , whichever |
26 | | is later, the State's Attorney shall institute judicial |
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1 | | forfeiture proceedings by filing a verified complaint for |
2 | | forfeiture and, if the claimant has filed a claim and cost |
3 | | bond, by depositing the cost bond with the clerk of the |
4 | | court . When authorized by law, a forfeiture must be ordered |
5 | | by a court on an action in rem brought by a State's |
6 | | Attorney under a verified complaint for forfeiture. |
7 | | (1.5) A complaint of forfeiture shall include: |
8 | | (i) a description of the property seized; |
9 | | (ii) the date and place of seizure of the property; |
10 | | (iii) the name and address of the law enforcement |
11 | | agency making the seizure; and |
12 | | (iv) the specific statutory and factual grounds |
13 | | for the seizure. |
14 | | (1.10) The complaint shall be served upon the person |
15 | | from whom the property was seized and all persons known or |
16 | | reasonably believed by the State to claim an interest in |
17 | | the property, as provided in subsection (i) of this |
18 | | Section. The complaint shall be accompanied by the |
19 | | following written notice: |
20 | | "This is a civil court proceeding subject to the Code |
21 | | of Civil Procedure. You received this Complaint of |
22 | | Forfeiture because the State's Attorney's office has |
23 | | brought a legal action seeking forfeiture of your seized |
24 | | property. This complaint starts the court process where the |
25 | | State seeks to prove that your property should be forfeited |
26 | | and not returned to you. This process is also your |
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1 | | opportunity to try to prove to a judge that you should get |
2 | | your property back. The complaint lists the date, time, and |
3 | | location of your first court date. You must appear in court |
4 | | on that day, or you may lose the case automatically. You |
5 | | must also file an appearance and answer. If you are unable |
6 | | to pay the appearance fee, you may qualify to have the fee |
7 | | waived. If there is a criminal case related to the seizure |
8 | | of your property, your case may be set for trial after the |
9 | | criminal case has been resolved. Before trial, the judge |
10 | | may allow discovery, where the State can ask you to respond |
11 | | in writing to questions and give them certain documents, |
12 | | and you can make similar requests of the State. The trial |
13 | | is your opportunity to explain what happened when your |
14 | | property was seized and why you should get the property |
15 | | back." |
16 | | (2) The laws of evidence relating to civil actions |
17 | | shall apply to proceedings under this Article with the |
18 | | following exception. The parties shall be allowed to use, |
19 | | and the court shall receive and consider all relevant |
20 | | hearsay evidence which relates to evidentiary foundation, |
21 | | chain of custody, business records, recordings, laboratory |
22 | | analysis, laboratory reports, and relevant hearsay related |
23 | | to the use of technology in the investigation which |
24 | | resulted in the seizure of property which is now subject to |
25 | | this forfeiture action. During the probable cause portion |
26 | | of the judicial in rem proceeding wherein the State |
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1 | | presents its case-in-chief, the court must receive and |
2 | | consider, among other things, all relevant hearsay |
3 | | evidence and information. The laws of evidence relating to |
4 | | civil actions apply to all other portions of the judicial |
5 | | in rem proceeding. |
6 | | (3) Only an owner of or interest holder in the property |
7 | | may file an answer asserting a claim against the property |
8 | | in the action in rem. For purposes of this Section, the |
9 | | owner or interest holder shall be referred to as claimant. |
10 | | Upon motion of the State, the court shall first hold a |
11 | | hearing, wherein any claimant must establish by a |
12 | | preponderance of the evidence, that he or she has a lawful, |
13 | | legitimate ownership interest in the property and that it |
14 | | was obtained through a lawful source. |
15 | | (4) The answer must be signed by the owner or interest |
16 | | holder under penalty of perjury and must set forth: |
17 | | (A) the caption of the proceedings as set forth on |
18 | | the notice of pending forfeiture and the name of the |
19 | | claimant; |
20 | | (B) the address at which the claimant will accept |
21 | | mail; |
22 | | (C) the nature and extent of the claimant's |
23 | | interest in the property; |
24 | | (D) the date, identity of transferor, and |
25 | | circumstances of the claimant's acquisition of the |
26 | | interest in the property; |
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1 | | (E) the name and address of all other persons known |
2 | | to have an interest in the property; |
3 | | (F) all essential facts supporting each assertion; |
4 | | and |
5 | | (G) the precise relief sought ; and .
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6 | | (H) the answer shall follow the rules under the |
7 | | Code of Civil Procedure. |
8 | | (5) The answer must be filed with the court within 45 |
9 | | days after service of the civil in rem complaint. |
10 | | (6) The hearing must be held within 60 days after |
11 | | filing of the answer unless continued for good cause.
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12 | | (7) At the judicial in rem proceeding, in the State's |
13 | | case in chief, the State shall show by a preponderance of |
14 | | the evidence that the property is subject to forfeiture. If |
15 | | the State makes such a showing, the claimant shall have the |
16 | | burden of production to set forth evidence that the |
17 | | property is not related to the alleged factual basis of the |
18 | | forfeiture. After this production of evidence, the State |
19 | | shall maintain the burden of proof to overcome this |
20 | | assertion. A claimant shall provide the State notice of its |
21 | | intent to allege that the currency or its equivalent is not |
22 | | related to the alleged factual basis of the forfeiture and |
23 | | why.
As to conveyances, at the judicial in rem proceeding, |
24 | | in their case in chief, the State shall show by a |
25 | | preponderance of the evidence, that (1) the property is |
26 | | subject to forfeiture; and (2) at least one of the |
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1 | | following: |
2 | | (i) that the claimant was legally accountable for |
3 | | the conduct giving rise to the forfeiture; |
4 | | (ii) that the claimant knew or reasonably should |
5 | | have known of the conduct giving rise to the |
6 | | forfeiture; |
7 | | (iii) that the claimant knew or reasonable should |
8 | | have known that the conduct giving rise to the |
9 | | forfeiture was likely to occur; |
10 | | (iv) that the claimant held the property for the |
11 | | benefit of, or as nominee for, any person whose conduct |
12 | | gave rise to its forfeiture; |
13 | | (v) that if the claimant acquired their interest |
14 | | through any person engaging in any of the conduct |
15 | | described above or conduct giving rise to the |
16 | | forfeiture; |
17 | | (1) the claimant did not acquire it as a bona |
18 | | fide purchaser for value; or |
19 | | (2) the claimant acquired the interest under |
20 | | the circumstances that they reasonably should have |
21 | | known the property was derived from, or used in, |
22 | | the conduct giving rise to the forfeiture; or |
23 | | (vii) that the claimant is not the true owner of |
24 | | the property that is subject to forfeiture. The State |
25 | | shall show the existence of probable cause for |
26 | | forfeiture of the property. If the State shows probable |
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1 | | cause, the claimant has the burden of showing by a |
2 | | preponderance of the evidence that the claimant's |
3 | | interest in the property is not subject to forfeiture.
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4 | | (8) If the State does not meet its burden to show that |
5 | | the property is subject to forfeiture show existence of |
6 | | probable cause , the court shall order the interest in the |
7 | | property returned or conveyed to the claimant and shall |
8 | | order all other property forfeited to the State. If the |
9 | | State does meet its burden to show that the property is |
10 | | subject to forfeiture If the State does show existence of |
11 | | probable cause , the court shall order all property |
12 | | forfeited to the State. |
13 | | (9) A defendant convicted in any criminal proceeding is |
14 | | precluded from later denying the essential allegations of |
15 | | the criminal offense of which the defendant was convicted |
16 | | in any proceeding under this Article regardless of the |
17 | | pendency of an appeal from that conviction. However, |
18 | | evidence of the pendency of an appeal is admissible. |
19 | | (10) On An acquittal or dismissal in a criminal |
20 | | proceeding does not preclude civil proceedings under this |
21 | | Article; however, for good cause shown, on a motion by the |
22 | | the parties State's Attorney , the court may stay civil |
23 | | forfeiture proceedings during the criminal trial for a |
24 | | related criminal indictment or information alleging a |
25 | | money laundering violation. Such a stay shall not be |
26 | | available pending an appeal. Property subject to |
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1 | | forfeiture under this Article shall not be subject to |
2 | | return or release by a court exercising jurisdiction over a |
3 | | criminal case involving the seizure of such property unless |
4 | | such return or release is consented to by the State's |
5 | | Attorney. |
6 | | Notwithstanding any other provision of this Section, |
7 | | the State's burden of proof at the trial of the forfeiture |
8 | | action shall be by clear and convincing evidence if: (1) a |
9 | | finding of not guilty is entered as to all counts and all |
10 | | defendants in a criminal proceeding relating to the conduct |
11 | | giving rise to the forfeiture action; or (2) the State |
12 | | receives an adverse finding at a preliminary hearing and |
13 | | fails to secure an indictment in a criminal proceeding |
14 | | relating to the factual allegations of the forfeiture |
15 | | action. |
16 | | (11) All property declared forfeited under this |
17 | | Article vests in this State on the commission of the |
18 | | conduct giving rise to forfeiture together with the |
19 | | proceeds of the property after that time. Except as |
20 | | otherwise provided in this Article, title to any Any such |
21 | | property or proceeds subsequently transferred to any |
22 | | person remain subject to forfeiture and thereafter shall be |
23 | | ordered forfeited unless the person to whom the property |
24 | | was transferred makes an appropriate claim and has his or |
25 | | her claim adjudicated at the judicial in rem hearing . |
26 | | (12) A civil action under this Article must be |
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1 | | commenced within 5 years after the last conduct giving rise |
2 | | to forfeiture became known or should have become known or 5 |
3 | | years after the forfeitable property is discovered, |
4 | | whichever is later, excluding any time during which either |
5 | | the property or claimant is out of the State or in |
6 | | confinement or during which criminal proceedings relating |
7 | | to the same conduct are in progress. |
8 | | (m) Stay of time periods. If property is seized for |
9 | | evidence and for forfeiture, the time periods for instituting |
10 | | judicial and non-judicial forfeiture proceedings shall not |
11 | | begin until the property is no longer necessary for evidence. |
12 | | (n) Settlement of claims. Notwithstanding other provisions |
13 | | of this Article, the State's Attorney and a claimant of seized |
14 | | property may enter into an agreed-upon settlement concerning |
15 | | the seized property in such an amount and upon such terms as |
16 | | are set out in writing in a settlement agreement. All proceeds |
17 | | from a settlement agreement shall be tendered to the Department |
18 | | of State Police and distributed under paragraph (6) of |
19 | | subsection (h) of this Section. |
20 | | (o) Property constituting attorney fees. Nothing in this |
21 | | Article applies to property which constitutes reasonable bona |
22 | | fide attorney's fees paid to an attorney for services rendered |
23 | | or to be rendered in the forfeiture proceeding or criminal |
24 | | proceeding relating directly thereto where such property was |
25 | | paid before its seizure, before the issuance of any seizure |
26 | | warrant or court order prohibiting transfer of the property and |
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1 | | where the attorney, at the time he or she received the property |
2 | | did not know that it was property subject to forfeiture under |
3 | | this Article. |
4 | | (p) Construction. It is the intent of the General Assembly |
5 | | that the forfeiture provisions of this Article be liberally |
6 | | construed so as to effect their remedial purpose. The |
7 | | forfeiture of property and other remedies hereunder shall be |
8 | | considered to be in addition to, and not exclusive of, any |
9 | | sentence or other remedy provided by law. |
10 | | (q) Judicial review. If property has been declared |
11 | | forfeited under subsection (k) of this Section, any person who |
12 | | has an interest in the property declared forfeited may, within |
13 | | 30 days after the effective date of the notice of the |
14 | | declaration of forfeiture, file a claim and cost bond as |
15 | | described in paragraph (3) of subsection (k) of this Section. |
16 | | If a claim and cost bond is filed under this Section, then the |
17 | | procedures described in subsection (l) of this Section apply. |
18 | | (r) (Blank). Burden of proof of exemption or exception. It |
19 | | is not necessary for the State to negate any exemption or |
20 | | exception in this Article in any complaint, information, |
21 | | indictment or other pleading or in any trial, hearing, or other |
22 | | proceeding under this Article. The burden of proof of any |
23 | | exemption or exception is upon the person claiming it. |
24 | | (s) Review of administrative decisions.
All administrative |
25 | | findings, rulings, final determinations, findings, and |
26 | | conclusions of the State's Attorney's Office under this Article |
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1 | | are final and conclusive decisions of the matters involved. Any |
2 | | person aggrieved by the decision may obtain review of the |
3 | | decision pursuant to the provisions of the Administrative |
4 | | Review Law and the rules adopted pursuant to that Law. Pending |
5 | | final decision on such review, the administrative acts, orders, |
6 | | and rulings of the State's Attorney's Office remain in full |
7 | | force and effect unless modified or suspended by order of court |
8 | | pending final judicial decision. Pending final decision on such |
9 | | review, the acts, orders, and rulings of the State's Attorney's |
10 | | Office remain in full force and effect, unless stayed by order |
11 | | of court. However, no stay of any decision of the |
12 | | administrative agency shall issue unless the person aggrieved |
13 | | by the decision establishes by a preponderance of the evidence |
14 | | that good cause exists for the stay. In determining good cause, |
15 | | the court shall find that the aggrieved party has established a |
16 | | substantial likelihood of prevailing on the merits and that |
17 | | granting the stay will not have an injurious effect on the |
18 | | general public.
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19 | | (t) Actual physical seizure of real property subject to |
20 | | forfeiture under this Act requires the issuance of a seizure |
21 | | warrant. Nothing in this Section prohibits the constructive |
22 | | seizure of real property through the filing of a complaint for |
23 | | forfeiture in circuit court and the recording of a lis pendens |
24 | | against the real property which is subject to forfeiture |
25 | | without any hearing, warrant application, or judicial |
26 | | approval. |
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1 | | (u) Property which is forfeited shall be subject to an 8th |
2 | | amendment to the United States Constitution disproportionate |
3 | | penalties analysis and the property forfeiture may be denied in |
4 | | whole or in part if the court finds that the forfeiture would |
5 | | constitute an excessive fine in violation of the 8th amendment |
6 | | as interpreted by case law. |
7 | | (v) If property is ordered forfeited under this Section |
8 | | from a claimant who held title to the property in joint tenancy |
9 | | or tenancy in common with another claimant, the court shall |
10 | | determine the amount of each owner's interest in the property |
11 | | according to principles of property law. |
12 | | (w) A claimant or a party interested in personal property |
13 | | contained within a seized conveyance may file a request with |
14 | | the State's Attorney in a non-judicial forfeiture action, or a |
15 | | motion with the court in a judicial forfeiture action for the |
16 | | return of any personal property contained within a conveyance |
17 | | which is seized under this Article. The return of personal |
18 | | property shall not be unreasonably withheld if the personal |
19 | | property is not mechanically or electrically coupled to the |
20 | | conveyance, needed for evidentiary purposes, or otherwise |
21 | | contraband. Any law enforcement agency that returns property |
22 | | under a court order under this Section shall not be liable to |
23 | | any person who claims ownership to the property if it is |
24 | | returned to an improper party. |
25 | | (x) Innocent owner hearing. |
26 | | (1) After a complaint for forfeiture has been filed and |
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1 | | all claimants have appeared and answered, a claimant may |
2 | | file a motion with the court for an innocent owner hearing |
3 | | prior to trial. This motion shall be made and supported by |
4 | | sworn affidavit and shall assert the following along with |
5 | | specific facts which support each assertion: |
6 | | (i) that the claimant filing the motion is the true |
7 | | owner of the conveyance as interpreted by case law; |
8 | | (ii) that the claimant was not legally accountable |
9 | | for the conduct giving rise to the forfeiture or |
10 | | acquiesced in the conduct; |
11 | | (iii) that the claimant did not solicit, conspire, |
12 | | or attempt to commit the conduct giving rise to the |
13 | | forfeiture; |
14 | | (iv) that the claimant did not know or did not have |
15 | | reason to know that the conduct giving rise to the |
16 | | forfeiture was likely to occur; and |
17 | | (v) that the claimant did not hold the property for |
18 | | the benefit of, or as nominee for any person whose |
19 | | conduct gave rise to its forfeiture or if the owner or |
20 | | interest holder acquired the interest through any |
21 | | person, the owner or interest holder did not acquire it |
22 | | as a bona fide purchaser for value or acquired the |
23 | | interest without knowledge of the seizure of the |
24 | | property for forfeiture. |
25 | | (2) The claimant shall include specific facts which |
26 | | support these assertions in their motion. |
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1 | | (3) Upon this filing, a hearing may only be conducted |
2 | | after the parties have been given the opportunity to |
3 | | conduct limited discovery as to the ownership and control |
4 | | of the property, the claimant's knowledge, or any matter |
5 | | relevant to the issues raised or facts alleged in the |
6 | | claimant's motion. Discovery shall be limited to the |
7 | | People's requests in these areas but may proceed by any |
8 | | means allowed in the Code of Civil Procedure. |
9 | | (i) After discovery is complete and the court has |
10 | | allowed for sufficient time to review and investigate |
11 | | the discovery responses, the court shall conduct a |
12 | | hearing. At the hearing, the fact that the conveyance |
13 | | is subject to forfeiture shall not be at issue. The |
14 | | court shall only hear evidence relating to the issue of |
15 | | innocent ownership. |
16 | | (ii) At the hearing on the motion, it shall be the |
17 | | burden of the claimant to prove each of the assertions |
18 | | listed in paragraph (1) of this subsection (x) by a |
19 | | preponderance of the evidence. |
20 | | (iii) If a claimant meets his burden of proof, the |
21 | | court shall grant the motion and order the property |
22 | | returned to the claimant. If the claimant fails to meet |
23 | | his or her burden of proof then the court shall deny |
24 | | the motion. |
25 | | (y) No property shall be forfeited under this Section from |
26 | | a person who, without actual or constructive notice that the |
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1 | | property was the subject of forfeiture proceedings, obtained |
2 | | possession of the property as a bona fide purchaser for value. |
3 | | A person who purports to affect transfer of property after |
4 | | receiving actual or constructive notice that the property is |
5 | | subject to seizure or forfeiture is guilty of contempt of |
6 | | court, and shall be liable to the State for a penalty in the |
7 | | amount of the fair market value of the property. |
8 | | (z) Forfeiture proceedings under this Section shall be |
9 | | subject to the Code of Civil Procedure and the rules of |
10 | | evidence relating to civil actions. |
11 | | (aa) Return of property, damages, and costs. |
12 | | (1) The law enforcement agency that holds custody of |
13 | | property seized for forfeiture shall deliver property |
14 | | ordered by the court to be returned or conveyed to the |
15 | | claimant within a reasonable time not to exceed 7 days, |
16 | | unless the order is stayed by the trial court or a |
17 | | reviewing court pending an appeal, motion to reconsider, or |
18 | | other reason. |
19 | | (2) The law enforcement agency that holds custody of |
20 | | property is responsible for any damages, storage fees, and |
21 | | related costs applicable to property returned. The |
22 | | claimant shall not be subject to any charges by the State |
23 | | for storage of the property or expenses incurred in the |
24 | | preservation of the property. Charges for the towing of a |
25 | | conveyance shall be borne by the claimant unless the |
26 | | conveyance was towed for the sole reason of seizure for |
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1 | | forfeiture. This Section does not prohibit the imposition |
2 | | of any fees or costs by a home rule unit of local |
3 | | government related to the impoundment of a conveyance under |
4 | | an ordinance enacted by the unit of government. |
5 | | (3) A law enforcement agency shall not retain forfeited |
6 | | property for its own use or transfer the property to any |
7 | | person or entity, except as provided under this Section. A |
8 | | law enforcement agency may apply in writing to the Director |
9 | | of State Police to request that a forfeited property be |
10 | | awarded to the agency for a specifically articulated |
11 | | official law enforcement use in an investigation. The |
12 | | Director of State Police shall provide a written |
13 | | justification in each instance detailing the reasons why |
14 | | the forfeited property was placed into official use and the |
15 | | justification shall be retained for a period of not less |
16 | | than 3 years. |
17 | | (bb) The changes made to this Section by this amendatory |
18 | | Act of the 100th General Assembly are subject to Sections 2 and |
19 | | 4 of the Statute on Statutes. |
20 | | (Source: P.A. 99-480, eff. 9-9-15.)
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21 | | (720 ILCS 5/33G-6) |
22 | | (Section scheduled to be repealed on June 11, 2017) |
23 | | Sec. 33G-6. Remedial proceedings, procedures, and |
24 | | forfeiture. Under this Article: |
25 | | (a) The circuit court shall have jurisdiction to prevent |
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1 | | and restrain violations of this Article by issuing appropriate |
2 | | orders, including: |
3 | | (1) ordering any person to disgorge illicit proceeds |
4 | | obtained by a violation of this Article or divest himself |
5 | | or herself of any interest, direct or indirect, in any |
6 | | enterprise or real or personal property of any character, |
7 | | including money, obtained, directly or indirectly, by a |
8 | | violation of this Article; |
9 | | (2) imposing reasonable restrictions on the future |
10 | | activities or investments of any person or enterprise, |
11 | | including prohibiting any person or enterprise from |
12 | | engaging in the same type of endeavor as the person or |
13 | | enterprise engaged in, that violated this Article; or |
14 | | (3) ordering dissolution or reorganization of any |
15 | | enterprise, making due provision for the rights of innocent |
16 | | persons. |
17 | | (b) Any violation of this Article is subject to the |
18 | | remedies, procedures, and forfeiture as set forth in |
19 | | subsections (f) through (s) of Section 29B-1 of this Code. |
20 | | (c) Property seized or forfeited under this Article is |
21 | | subject to reporting under the Seizure and Forfeiture Reporting |
22 | | Act.
|
23 | | (Source: P.A. 97-686, eff. 6-11-12.)
|
24 | | (720 ILCS 5/36-1) (from Ch. 38, par. 36-1)
|
25 | | Sec. 36-1. Property subject to forfeiture Seizure . |
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1 | | (a) Any vessel or watercraft, vehicle, or aircraft is |
2 | | subject to forfeiture under this Article may be seized and |
3 | | impounded by the law enforcement agency if the vessel or |
4 | | watercraft, vehicle, or aircraft is used with the knowledge
and |
5 | | consent of the owner in the commission of or in the attempt to |
6 | | commit as
defined in Section 8-4 of this Code: |
7 | | (1) an offense prohibited by Section 9-1 (first degree |
8 | | murder), Section
9-3 (involuntary manslaughter and |
9 | | reckless homicide), Section
10-2 (aggravated kidnaping), |
10 | | Section 11-1.20 (criminal sexual assault), Section 11-1.30 |
11 | | (aggravated criminal sexual assault), Section 11-1.40 |
12 | | (predatory criminal sexual assault of a child), subsection |
13 | | (a) of Section 11-1.50 (criminal sexual abuse), subsection |
14 | | (a), (c), or (d) of Section 11-1.60 (aggravated criminal |
15 | | sexual abuse), Section 11-6 (indecent solicitation of a |
16 | | child), Section 11-14.4 (promoting juvenile prostitution |
17 | | except for keeping a place of juvenile prostitution), |
18 | | Section 11-20.1 (child pornography), paragraph (a)(1), |
19 | | (a)(2), (a)(4), (b)(1), (b)(2), (e)(1), (e)(2), (e)(3), |
20 | | (e)(4), (e)(5), (e)(6), or (e)(7) of Section 12-3.05 |
21 | | (aggravated battery), Section
12-7.3 (stalking), Section |
22 | | 12-7.4 (aggravated stalking), Section
16-1 (theft if the |
23 | | theft is of precious metal or of scrap metal), subdivision |
24 | | (f)(2) or (f)(3) of Section 16-25 (retail theft), Section |
25 | | 18-2 (armed robbery), Section 19-1 (burglary), Section |
26 | | 19-2 (possession of burglary tools), Section 19-3 |
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1 | | (residential burglary), Section 20-1 (arson; residential |
2 | | arson; place of worship arson), Section 20-2 (possession of |
3 | | explosives or explosive or incendiary devices), |
4 | | subdivision (a)(6) or (a)(7) of Section 24-1 (unlawful use |
5 | | of weapons), Section
24-1.2 (aggravated discharge of a |
6 | | firearm), Section
24-1.2-5 (aggravated discharge of a |
7 | | machine gun or a firearm equipped with a device designed or |
8 | | used for silencing the report of a firearm), Section
24-1.5 |
9 | | (reckless discharge of a firearm), Section 28-1 |
10 | | (gambling), or Section 29D-15.2 (possession of a deadly |
11 | | substance) of this Code; |
12 | | (2) an offense prohibited by Section 21, 22, 23, 24 or |
13 | | 26 of the Cigarette Tax
Act if the vessel or watercraft, |
14 | | vehicle, or aircraft contains more than 10 cartons of
such |
15 | | cigarettes; |
16 | | (3) an offense prohibited by Section 28, 29, or 30 of |
17 | | the Cigarette Use Tax Act if
the vessel or watercraft, |
18 | | vehicle, or aircraft contains more than 10 cartons of such
|
19 | | cigarettes; |
20 | | (4) an offense prohibited by Section 44 of the |
21 | | Environmental Protection Act; |
22 | | (5) an offense prohibited by
Section 11-204.1
of the |
23 | | Illinois Vehicle Code (aggravated fleeing or attempting to |
24 | | elude a peace officer); |
25 | | (6) an offense prohibited by Section 11-501 of the |
26 | | Illinois Vehicle Code (driving while under the influence of |
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1 | | alcohol or other drug or drugs, intoxicating compound or |
2 | | compounds or any combination thereof) or a similar |
3 | | provision of a local ordinance, and: |
4 | | (A) during a period in which his
or her driving |
5 | | privileges are revoked or suspended if
the revocation |
6 | | or suspension was for: |
7 | | (i) Section 11-501 (driving under the |
8 | | influence of alcohol or other drug or drugs, |
9 | | intoxicating compound or compounds or any
|
10 | | combination thereof), |
11 | | (ii) Section 11-501.1 (statutory summary |
12 | | suspension or revocation), |
13 | | (iii) paragraph (b) of Section
11-401 (motor |
14 | | vehicle accidents involving death or personal |
15 | | injuries), or |
16 | | (iv) reckless homicide as defined in Section |
17 | | 9-3
of this Code; |
18 | | (B) has been previously convicted of reckless |
19 | | homicide or a similar provision of a law of another |
20 | | state relating to reckless homicide in which the person |
21 | | was determined to have been under the influence of |
22 | | alcohol, other drug or drugs, or intoxicating compound |
23 | | or compounds as an element of the offense or the person |
24 | | has previously been convicted of committing a |
25 | | violation of
driving under the influence of alcohol or |
26 | | other drug or drugs, intoxicating compound or |
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1 | | compounds or any
combination thereof and was involved |
2 | | in a motor vehicle accident that resulted in death, |
3 | | great bodily harm, or permanent disability or |
4 | | disfigurement to another, when the violation was a |
5 | | proximate cause of the death or injuries; |
6 | | (C) the person committed a violation of driving |
7 | | under the influence of alcohol or other drug or drugs, |
8 | | intoxicating compound or compounds or any
combination |
9 | | thereof under Section 11-501 of the Illinois Vehicle |
10 | | Code or a similar provision for the third or subsequent
|
11 | | time; |
12 | | (D) he
or she did not possess a valid driver's |
13 | | license or permit or a valid restricted driving permit |
14 | | or a valid judicial driving permit or a valid |
15 | | monitoring device driving permit; or |
16 | | (E) he or she knew or should have known that the |
17 | | vehicle he or she was driving was not covered by a |
18 | | liability insurance policy; |
19 | | (7) an offense described in subsection (g) of Section |
20 | | 6-303 of the
Illinois Vehicle Code; |
21 | | (8) an offense described in subsection (e) of
Section |
22 | | 6-101 of the Illinois Vehicle Code; or |
23 | | (9)(A) operating a watercraft under the influence of |
24 | | alcohol, other drug or drugs, intoxicating compound or |
25 | | compounds, or combination thereof under Section 5-16 of the |
26 | | Boat Registration and Safety Act during a period in which |
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1 | | his or her privileges to operate a watercraft are revoked |
2 | | or suspended and the revocation or suspension was for |
3 | | operating a watercraft under the influence of alcohol, |
4 | | other drug or drugs, intoxicating compound or compounds, or |
5 | | combination thereof; (B) operating a watercraft under the |
6 | | influence of alcohol, other drug or drugs, intoxicating |
7 | | compound or compounds, or combination thereof and has been |
8 | | previously convicted of reckless homicide or a similar |
9 | | provision of a law in another state relating to reckless |
10 | | homicide in which the person was determined to have been |
11 | | under the influence of alcohol, other drug or drugs, |
12 | | intoxicating compound or compounds, or combination thereof |
13 | | as an element of the offense or the person has previously |
14 | | been convicted of committing a violation of operating a |
15 | | watercraft under the influence of alcohol, other drug or |
16 | | drugs, intoxicating compound or compounds, or combination |
17 | | thereof and was involved in an accident that resulted in |
18 | | death, great bodily harm, or permanent disability or |
19 | | disfigurement to another, when the violation was a |
20 | | proximate cause of the death or injuries; or (C) the person |
21 | | committed a violation of operating a watercraft under the |
22 | | influence of alcohol, other drug or drugs, intoxicating |
23 | | compound or compounds, or combination thereof under |
24 | | Section 5-16 of the Boat Registration and Safety Act or a |
25 | | similar provision for the third or subsequent time.
|
26 | | (b) In addition, any mobile or portable equipment used in |
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1 | | the commission of an
act which is in violation of Section 7g of |
2 | | the Metropolitan Water Reclamation
District Act shall be |
3 | | subject to seizure and forfeiture under the same
procedures |
4 | | provided in this Article for the seizure and forfeiture of |
5 | | vessels or watercraft,
vehicles, and aircraft, and any such |
6 | | equipment shall be deemed a vessel or watercraft, vehicle,
or |
7 | | aircraft for purposes of this Article.
|
8 | | (c) In addition, when a person discharges a firearm at |
9 | | another individual from a vehicle with
the knowledge and |
10 | | consent of the owner of the vehicle and with the intent to
|
11 | | cause death or great bodily harm to that individual and as a |
12 | | result causes
death or great bodily harm to that individual, |
13 | | the vehicle shall be subject to
seizure and forfeiture under |
14 | | the same procedures provided in this Article for
the seizure |
15 | | and forfeiture of vehicles used in violations of clauses (1), |
16 | | (2), (3), or (4) of subsection (a) of this Section.
|
17 | | (d) If the spouse of the owner of a vehicle seized for
an |
18 | | offense described in subsection (g) of Section 6-303 of the
|
19 | | Illinois Vehicle Code,
a violation of
subdivision (d)(1)(A), |
20 | | (d)(1)(D), (d)(1)(G), (d)(1)(H), or (d)(1)(I)
of Section |
21 | | 11-501 of the Illinois Vehicle
Code, or Section 9-3 of this
|
22 | | Code makes a showing
that the seized vehicle is the only source |
23 | | of transportation and it is
determined that the financial |
24 | | hardship to the family as a result of the seizure
outweighs the |
25 | | benefit to the State from the seizure, the vehicle may be
|
26 | | forfeited to the spouse or family member and the title to the |
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1 | | vehicle shall be
transferred to the spouse or family member who |
2 | | is properly licensed and who
requires the use of the vehicle |
3 | | for employment or family transportation
purposes. A written |
4 | | declaration of forfeiture of a vehicle under this
Section shall |
5 | | be sufficient cause for the title to be transferred to the |
6 | | spouse
or family member. The provisions of this paragraph shall |
7 | | apply only to one
forfeiture per vehicle. If the vehicle is the |
8 | | subject of a subsequent
forfeiture proceeding by virtue of a |
9 | | subsequent conviction of either spouse or
the family member, |
10 | | the spouse or family member to whom the vehicle was
forfeited |
11 | | under the first forfeiture proceeding may not utilize the
|
12 | | provisions of this paragraph in another forfeiture proceeding. |
13 | | If the owner of
the vehicle seized owns more than one vehicle,
|
14 | | the procedure set out in this paragraph may be used for only |
15 | | one vehicle.
|
16 | | (e) In addition, property subject to forfeiture declared |
17 | | contraband under Section 40 of the Illinois Streetgang
|
18 | | Terrorism Omnibus Prevention Act may be seized and forfeited |
19 | | under this
Article.
|
20 | | (Source: P.A. 98-699, eff. 1-1-15; 98-1020, eff. 8-22-14; |
21 | | 99-78, eff. 7-20-15.) |
22 | | (720 ILCS 5/36-1.1 new) |
23 | | Sec. 36-1.1. Seizure. |
24 | | (a) Any property subject to forfeiture under this Article |
25 | | may be seized and impounded by the Director of State Police or |
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1 | | any peace officer upon process or seizure warrant issued by any |
2 | | court having jurisdiction over the property. |
3 | | (b) Any property subject to forfeiture under this Article |
4 | | may be seized and impounded by the Director of State Police or |
5 | | any peace officer without process if there is probable cause to |
6 | | believe that the property is subject to forfeiture under |
7 | | Section 36-1 of this Article and the property is seized under |
8 | | circumstances in which a warrantless seizure or arrest would be |
9 | | reasonable. |
10 | | (c) If the seized property is a conveyance, an |
11 | | investigation shall be made by the law enforcement agency as to |
12 | | any person whose right, title, interest, or lien is of record |
13 | | in the office of the agency or official in which title or |
14 | | interest to the conveyance is required by law to be recorded. |
15 | | (d) After seizure under this Section, notice shall be given |
16 | | to all known interest holders that forfeiture proceedings, |
17 | | including a preliminary review, may be instituted and the |
18 | | proceedings may be instituted under this Article. |
19 | | (720 ILCS 5/36-1.2 new) |
20 | | Sec. 36-1.2. Receipt for seized property. If a law |
21 | | enforcement officer seizes property for forfeiture under this |
22 | | Article, the officer shall provide an itemized receipt to the |
23 | | person possessing the property or, in the absence of a person |
24 | | to whom the receipt could be given, shall leave the receipt in |
25 | | the place where the property was found, if possible. |
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1 | | (720 ILCS 5/36-1.3 new) |
2 | | Sec. 36-1.3. Safekeeping of seized property pending |
3 | | disposition. |
4 | | (a) Property seized under this Article is deemed to be in |
5 | | the custody of the Director of State Police subject only to the |
6 | | order and judgments of the circuit court having jurisdiction |
7 | | over the forfeiture proceedings and the decisions of the |
8 | | State's Attorney under this Article. |
9 | | (b) If property is seized under this Article, the seizing |
10 | | agency shall promptly conduct an inventory of the seized |
11 | | property and estimate the property's value, and shall forward a |
12 | | copy of the inventory of seized property and the estimate of |
13 | | the property's value to the Director of State Police. Upon |
14 | | receiving notice of seizure, the Director of State Police may: |
15 | | (1) place the property under seal; |
16 | | (2) remove the property to a place designated by the |
17 | | Director of State Police; |
18 | | (3) keep the property in the possession of the seizing |
19 | | agency; |
20 | | (4) remove the property to a storage area for |
21 | | safekeeping; or |
22 | | (5) place the property under constructive seizure by |
23 | | posting notice of pending forfeiture on it, by giving |
24 | | notice of pending forfeiture to its owners and interest |
25 | | holders, or by filing notice of pending forfeiture in any |
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1 | | appropriate public record relating to the property; or |
2 | | (6) provide for another agency or custodian, including |
3 | | an owner, secured party, or lienholder, to take custody of |
4 | | the property upon the terms and conditions set by the |
5 | | seizing agency. |
6 | | (c) The seizing agency shall exercise ordinary care to |
7 | | protect the subject of the forfeiture from negligent loss, |
8 | | damage, or destruction. |
9 | | (d) Property seized or forfeited under this Article is |
10 | | subject to reporting under the Seizure and Forfeiture Reporting |
11 | | Act. |
12 | | (720 ILCS 5/36-1.4 new) |
13 | | Sec. 36-1.4. Notice to State's Attorney. The law |
14 | | enforcement agency seizing property for forfeiture under this |
15 | | Article shall, as soon as practicable but not later than 28 |
16 | | days after the seizure, notify the State's Attorney for the |
17 | | county in which an act or omission giving rise to the seizure |
18 | | occurred or in which the property was seized and the facts and |
19 | | circumstances giving rise to the seizure, and shall provide the |
20 | | State's Attorney with the inventory of the property and its |
21 | | estimated value. The notice shall be by the delivery of the |
22 | | form 4-64. If the property seized for forfeiture is a vehicle, |
23 | | the law enforcement agency seizing the property shall |
24 | | immediately notify the Secretary of State that forfeiture |
25 | | proceedings are pending regarding the vehicle. |
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1 | | (720 ILCS 5/36-1.5) |
2 | | Sec. 36-1.5. Preliminary review. |
3 | | (a) Within 14 days of the seizure, the State's Attorney in |
4 | | the county in which the seizure occurred shall seek a |
5 | | preliminary determination from the circuit court as to whether |
6 | | there is probable cause that the property may be subject to |
7 | | forfeiture. |
8 | | (b) The rules of evidence shall not apply to any proceeding |
9 | | conducted under this Section. |
10 | | (c) The court may conduct the review under subsection (a) |
11 | | simultaneously with a proceeding pursuant to Section 109-1 of |
12 | | the Code of Criminal Procedure of 1963 for a related criminal |
13 | | offense if a prosecution is commenced by information or |
14 | | complaint. |
15 | | (d) The court may accept a finding of probable cause at a |
16 | | preliminary hearing following the filing of an information or |
17 | | complaint charging a related criminal offense or following the |
18 | | return of indictment by a grand jury charging the related |
19 | | offense as sufficient evidence of probable cause as required |
20 | | under subsection (a). |
21 | | (e) Upon making a finding of probable cause as required |
22 | | under this Section, the circuit court shall order the property |
23 | | subject to the provisions of the applicable forfeiture Act held |
24 | | until the conclusion of any forfeiture proceeding. |
25 | | For seizures of conveyances, within 28 7 days of a finding |
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1 | | of probable cause under subsection (a), the registered owner or |
2 | | other claimant may file a motion in writing supported by sworn |
3 | | affidavits claiming that denial of the use of the conveyance |
4 | | during the pendency of the forfeiture proceedings creates a |
5 | | substantial hardship and alleges facts showing that the delay |
6 | | was not due to his or her culpable negligence . The court shall |
7 | | consider the following factors in determining whether a |
8 | | substantial hardship has been proven: |
9 | | (1) the nature of the claimed hardship; |
10 | | (2) the availability of public transportation or other |
11 | | available means of transportation; and |
12 | | (3) any available alternatives to alleviate the |
13 | | hardship other than the return of the seized conveyance. |
14 | | If the court determines that a substantial hardship has |
15 | | been proven, the court shall then balance the nature of the |
16 | | hardship against the State's interest in safeguarding the |
17 | | conveyance. If the court determines that the hardship outweighs |
18 | | the State's interest in safeguarding the conveyance, the court |
19 | | may temporarily release the conveyance to the registered owner |
20 | | or the registered owner's authorized designee, or both, until |
21 | | the conclusion of the forfeiture proceedings or for such |
22 | | shorter period as ordered by the court provided that the person |
23 | | to whom the conveyance is released provides proof of insurance |
24 | | and a valid driver's license and all State and local |
25 | | registrations for operation of the conveyance are current. The |
26 | | court shall place conditions on the conveyance limiting its use |
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1 | | to the stated hardship and providing transportation for |
2 | | employment, religious purposes, medical needs, child care, and |
3 | | restricting the conveyance's use to only those individuals |
4 | | authorized to use the conveyance by the registered owner. The |
5 | | use of the vehicle shall be further restricted to exclude all |
6 | | recreational and entertainment purposes. The court may order |
7 | | additional restrictions it deems reasonable and just on its own |
8 | | motion or on motion of the People. The court shall revoke the |
9 | | order releasing the conveyance and order that the conveyance be |
10 | | reseized by law enforcement if the conditions of release are |
11 | | violated or if the conveyance is used in the commission of any |
12 | | offense identified in subsection (a) of Section 6-205 of the |
13 | | Illinois Vehicle Code. |
14 | | If the court orders the release of the conveyance during |
15 | | the pendency of the forfeiture proceedings, the court may order |
16 | | the registered owner or his or her authorized designee to shall |
17 | | post a cash security with the Clerk of the Court as ordered by |
18 | | the court. If cash security is ordered, the The court shall |
19 | | consider the following factors in determining the amount of the |
20 | | cash security: |
21 | | (A) the full market value of the conveyance; |
22 | | (B) the nature of the hardship; |
23 | | (C) the extent and length of the usage of the |
24 | | conveyance; and |
25 | | (D) the ability of the owner or designee to pay; and |
26 | | such other conditions as the court deems necessary to |
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1 | | safeguard the conveyance. |
2 | | (E) other conditions as the court deems necessary to |
3 | | safeguard the conveyance. |
4 | | If the conveyance is released, the court shall order that |
5 | | the registered owner or his or her designee safeguard the |
6 | | conveyance, not remove the conveyance from the jurisdiction, |
7 | | not conceal, destroy, or otherwise dispose of the conveyance, |
8 | | not encumber the conveyance, and not diminish the value of the |
9 | | conveyance in any way. The court shall also make a |
10 | | determination of the full market value of the conveyance prior |
11 | | to it being released based on a source or sources defined in 50 |
12 | | Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). |
13 | | If the conveyance subject to forfeiture is released under |
14 | | this Section and is subsequently forfeited, the person to whom |
15 | | the conveyance was released shall return the conveyance to the |
16 | | law enforcement agency that seized the conveyance within 7 days |
17 | | from the date of the declaration of forfeiture or order of |
18 | | forfeiture. If the conveyance is not returned within 7 days, |
19 | | the cash security shall be forfeited in the same manner as the |
20 | | conveyance subject to forfeiture. If the cash security was less |
21 | | than the full market value, a judgment shall be entered against |
22 | | the parties to whom the conveyance was released and the |
23 | | registered owner, jointly and severally, for the difference |
24 | | between the full market value and the amount of the cash |
25 | | security. If the conveyance is returned in a condition other |
26 | | than the condition in which it was released, the cash security |
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1 | | shall be returned to the surety who posted the security minus |
2 | | the amount of the diminished value, and that amount shall be |
3 | | forfeited in the same manner as the conveyance subject to |
4 | | forfeiture. Additionally, the court may enter an order allowing |
5 | | any law enforcement agency in the State of Illinois to seize |
6 | | the conveyance wherever it may be found in the State to satisfy |
7 | | the judgment if the cash security was less than the full market |
8 | | value of the conveyance.
|
9 | | (Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12; |
10 | | 98-1020, eff. 8-22-14.)
|
11 | | (720 ILCS 5/36-2) (from Ch. 38, par. 36-2)
|
12 | | Sec. 36-2. Complaint Action for forfeiture. |
13 | | (a) If the The State's Attorney in the county in which such |
14 | | seizure occurs
if he or she finds that the alleged violation of |
15 | | law giving rise to the seizure forfeiture was incurred without |
16 | | willful negligence
or without any intention on the part of the |
17 | | owner of the vessel or watercraft, vehicle
or aircraft or any |
18 | | person whose right, title or interest is of record as
described |
19 | | in Section 36-1 of this Article , to violate the law, or finds |
20 | | the existence of
such mitigating circumstances as to justify |
21 | | remission of the forfeiture, he or she
may cause the law |
22 | | enforcement agency having custody of the property to return the |
23 | | property to the owner within a reasonable time not to exceed 7 |
24 | | days to remit the same upon such terms and conditions
as the |
25 | | State's Attorney deems reasonable and just . The State's |
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1 | | Attorney
shall exercise his or her discretion under this |
2 | | subsection (a) the foregoing provision of this
Section 36-2(a) |
3 | | prior to or promptly after the preliminary review under Section |
4 | | 36-1.5. |
5 | | (b) If , after review of the facts surrounding the seizure, |
6 | | the State's Attorney is of the opinion that the seized property |
7 | | is subject to forfeiture and the State's Attorney does not |
8 | | cause the forfeiture to
be remitted under subsection (a) of |
9 | | this Section, he or she shall forthwith bring an action for |
10 | | forfeiture in the
Circuit Court within whose jurisdiction the |
11 | | seizure and confiscation has
taken place by filing a verified |
12 | | complaint of forfeiture in the circuit court within whose |
13 | | jurisdiction the seizure occurred, or within whose |
14 | | jurisdiction an act or omission giving rise to the seizure |
15 | | occurred, subject to Supreme Court Rule 187. The complaint |
16 | | shall be filed as soon as practicable but not less than 28 days |
17 | | after a finding of probable cause at a preliminary review under |
18 | | Section 36-1.5 of this Article. A complaint of forfeiture shall |
19 | | include: |
20 | | (1) a description of the property seized; |
21 | | (2) the date and place of seizure of the property; |
22 | | (3) the name and address of the law enforcement agency |
23 | | making the seizure; and |
24 | | (4) the specific statutory and factual grounds for the |
25 | | seizure. |
26 | | The complaint shall be served upon each person whose right, |
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1 | | title, or interest is of record in the office of the Secretary |
2 | | of State, the Secretary of Transportation, the Administrator of |
3 | | the Federal Aviation Agency, or any other department of this |
4 | | State, or any other state of the United States if the vessel or |
5 | | watercraft, vehicle, or aircraft is required to be so |
6 | | registered, as the case may be, the person from whom the |
7 | | property was seized, and all persons known or reasonably |
8 | | believed by the State to claim an interest in the property, as |
9 | | provided in this Article. The complaint shall be accompanied by |
10 | | the following written notice: |
11 | | "This is a civil court proceeding subject to the Code of |
12 | | Civil Procedure. You received this Complaint of Forfeiture |
13 | | because the State's Attorney's office has brought a legal |
14 | | action seeking forfeiture of your seized property. This |
15 | | complaint starts the court process where the State seeks to |
16 | | prove that your property should be forfeited and not returned |
17 | | to you. This process is also your opportunity to try to prove |
18 | | to a judge that you should get your property back. The |
19 | | complaint lists the date, time, and location of your first |
20 | | court date. You must appear in court on that day, or you may |
21 | | lose the case automatically. You must also file an appearance |
22 | | and answer. If you are unable to pay the appearance fee, you |
23 | | may qualify to have the fee waived. If there is a criminal case |
24 | | related to the seizure of your property, your case may be set |
25 | | for trial after the criminal case has been resolved. Before |
26 | | trial, the judge may allow discovery, where the State can ask |
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1 | | you to respond in writing to questions and give them certain |
2 | | documents, and you can make similar requests of the State. The |
3 | | trial is your opportunity to explain what happened when your |
4 | | property was seized and why you should get the property back." . |
5 | | The State's Attorney shall give notice of seizure and the |
6 | | forfeiture proceeding to each person according to the following |
7 | | method: upon each person whose right, title, or interest is of |
8 | | record in the office of the Secretary of State, the Secretary |
9 | | of Transportation, the Administrator of the Federal Aviation |
10 | | Agency, or any other department of this State, or any other |
11 | | state of the United States if the vessel or watercraft, |
12 | | vehicle, or aircraft is required to be so registered, as the |
13 | | case may be, by delivering the notice and complaint in open |
14 | | court or by certified mail to the address as given upon the |
15 | | records of the Secretary of State, the Division of Aeronautics |
16 | | of the Department of Transportation, the Capital Development |
17 | | Board, or any other department of this State or the United |
18 | | States if the vessel or watercraft, vehicle, or aircraft is |
19 | | required to be so registered. |
20 | | (c) (Blank). The owner of the seized vessel or watercraft, |
21 | | vehicle, or aircraft or any person
whose right, title, or |
22 | | interest is of record as described in Section
36-1, may within |
23 | | 20 days after delivery in open court or the mailing of such |
24 | | notice file a
verified answer to the Complaint and may appear |
25 | | at the hearing on the
action for forfeiture. |
26 | | (d) (Blank). The State shall show at such hearing by a
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1 | | preponderance of the evidence, that such vessel or watercraft, |
2 | | vehicle, or aircraft was
used in the commission of an offense |
3 | | described in Section 36-1. |
4 | | (e) (Blank). The
owner of such vessel or watercraft, |
5 | | vehicle, or aircraft or any person whose right,
title, or |
6 | | interest is of record as described in Section 36-1, may show
by |
7 | | a preponderance of the evidence that he did not know, and did |
8 | | not
have reason to know, that the vessel or watercraft, |
9 | | vehicle, or aircraft was to be used
in the commission of such |
10 | | an offense or that any of the exceptions set
forth in Section |
11 | | 36-3 are applicable. |
12 | | (f) (Blank). Unless the State shall make such
showing, the |
13 | | Court shall order such vessel or watercraft, vehicle, or |
14 | | aircraft released
to the owner. Where the State has made such |
15 | | showing, the Court may order
the vessel or watercraft, vehicle, |
16 | | or aircraft destroyed or may order it forfeited to
any local, |
17 | | municipal or county law enforcement agency, or the Department
|
18 | | of State Police or the Department of Revenue of
the State of |
19 | | Illinois.
|
20 | | (g) (Blank). A copy of the order shall be filed with the |
21 | | law enforcement agency, and with each Federal or State office
|
22 | | or agency with which such vessel or watercraft, vehicle, or |
23 | | aircraft is required to be
registered. Such order, when filed, |
24 | | constitutes authority for the
issuance of clear title to such |
25 | | vessel or watercraft, vehicle, or aircraft, to the
department |
26 | | or agency to whom it is delivered or any purchaser thereof.
The |
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1 | | law enforcement agency shall comply promptly with instructions |
2 | | to remit received
from the State's Attorney or Attorney General |
3 | | in accordance with
Sections 36-2(a) or 36-3.
|
4 | | (h) (Blank). The proceeds of any sale at public auction |
5 | | pursuant to Section
36-2 of this Act, after payment of all |
6 | | liens and deduction of the
reasonable charges and expenses |
7 | | incurred by the State's Attorney's Office shall be paid to the |
8 | | law enforcement agency having seized the vehicle for |
9 | | forfeiture.
|
10 | | (Source: P.A. 98-699, eff. 1-1-15; 98-1020, eff. 8-22-14; |
11 | | 99-78, eff. 7-20-15.)
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12 | | (720 ILCS 5/36-2.1 new) |
13 | | Sec. 36-2.1. Notice to Owner or Interest Holder.
The first |
14 | | attempted service shall be commenced within 28 days of the |
15 | | receipt of the notice from the seizing agency by the form 4-64. |
16 | | If the property seized is a conveyance, notice shall also be |
17 | | directed to the address reflected in the office of the agency |
18 | | or official in which title or interest to the conveyance is |
19 | | required by law to be recorded. A complaint for forfeiture |
20 | | shall be served upon the property owner or interest holder in |
21 | | the following manner: |
22 | | (1) If the owner's or interest holder's name and |
23 | | current address are known, then by either: |
24 | | (A) personal service; or |
25 | | (B) mailing a copy of the notice by certified mail, |
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1 | | return receipt requested and first class mail, to that |
2 | | address. |
3 | | (i) If notice is sent by certified mail and no |
4 | | signed return receipt is received by the State's |
5 | | Attorney within 28 days of mailing, and no |
6 | | communication from the owner or interest holder is |
7 | | received by the State's Attorney documenting |
8 | | actual notice by said parties, the State's |
9 | | Attorney shall, within a reasonable period of |
10 | | time, mail a second copy of the notice by certified |
11 | | mail, return receipt requested and first class |
12 | | mail, to that address. |
13 | | (ii) If no signed return receipt is received by |
14 | | the State's Attorney within 28 days of the second |
15 | | attempt at service by certified mail, and no |
16 | | communication from the owner or interest holder is |
17 | | received by the State's Attorney documenting |
18 | | actual notice by said parties, the State's |
19 | | Attorney shall have 60 days to attempt to serve the |
20 | | notice by personal service, which also includes |
21 | | substitute service by leaving a copy at the usual |
22 | | place of abode, with some person of the family or a |
23 | | person residing there, of the age of 13 years or |
24 | | upwards. If after 3 attempts at service in this |
25 | | manner, no service of the notice is accomplished, |
26 | | then the notice shall be posted in a conspicuous |
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1 | | manner at this address and service shall be made by |
2 | | the posting. |
3 | | The attempts at service and the posting if |
4 | | required, shall be documented by the person attempting |
5 | | service and said documentation shall be made part of a |
6 | | return of service returned to the State's Attorney. |
7 | | The State's Attorney may utilize a Sheriff or |
8 | | Deputy Sheriff, any peace officer, a private process |
9 | | server or investigator, or any employee, agent, or |
10 | | investigator of the State's Attorney's office to |
11 | | attempt service without seeking leave of court. |
12 | | After the procedures are followed, service shall |
13 | | be effective on an owner or interest holder on the date |
14 | | of receipt by the State's Attorney of a returned return |
15 | | receipt requested, or on the date of receipt of a |
16 | | communication from an owner or interest holder |
17 | | documenting actual notice, whichever is first in time, |
18 | | or on the date of the last act performed by the State's |
19 | | Attorney in attempting personal service under item |
20 | | (ii) of this paragraph (1). If notice is to be shown by |
21 | | actual notice from communication with a claimant, then |
22 | | the State's Attorney shall file an affidavit providing |
23 | | details of the communication, which shall be accepted |
24 | | as sufficient proof of service by the court. |
25 | | For purposes of notice under this Section, if a |
26 | | person has been arrested for the conduct giving rise to |
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1 | | the forfeiture, the address provided to the arresting |
2 | | agency at the time of arrest shall be deemed to be that |
3 | | person's known address. Provided, however, if an owner |
4 | | or interest holder's address changes prior to the |
5 | | effective date of the complaint for forfeiture, the |
6 | | owner or interest holder shall promptly notify the |
7 | | seizing agency of the change in address or, if the |
8 | | owner or interest holder's address changes subsequent |
9 | | to the effective date of the notice of pending |
10 | | forfeiture, the owner or interest holder shall |
11 | | promptly notify the State's Attorney of the change in |
12 | | address; or if the property seized is a conveyance, to |
13 | | the address reflected in the office of the agency or |
14 | | official in which title or interest to the conveyance |
15 | | is required by law to be recorded. |
16 | | (2) If the owner's or interest holder's address is not |
17 | | known, and is not on record, then notice shall be served by |
18 | | publication for 3 successive weeks in a newspaper of |
19 | | general circulation in the county in which the seizure |
20 | | occurred. |
21 | | (3) Notice to any business entity, corporation, LLC, |
22 | | LLP, or partnership shall be complete by a single mailing |
23 | | of a copy of the notice by certified mail, return receipt |
24 | | requested and first class mail, to that address. This |
25 | | notice is complete regardless of the return of a signed |
26 | | "return receipt requested". |
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1 | | (4) Notice to a person whose address is not within the |
2 | | State shall be complete by a single mailing of a copy of |
3 | | the notice by certified mail, return receipt requested and |
4 | | first class mail, to that address. This notice is complete |
5 | | regardless of the return of a signed "return receipt |
6 | | requested". |
7 | | (5) Notice to a person whose address is not within the |
8 | | United States shall be complete by a single mailing of a |
9 | | copy of the notice by certified mail, return receipt |
10 | | requested and first class mail, to that address. This |
11 | | notice shall be complete regardless of the return of a |
12 | | signed "return receipt requested". If certified mail is not |
13 | | available in the foreign country where the person has an |
14 | | address, then notice shall proceed by publication under |
15 | | paragraph (2) of this Section. |
16 | | (6) Notice to any person whom the State's Attorney |
17 | | reasonably should know is incarcerated within the State |
18 | | shall also include the mailing a copy of the notice by |
19 | | certified mail, return receipt requested and first class |
20 | | mail, to the address of the detention facility with the |
21 | | inmate's name clearly marked on the envelope. |
22 | | (720 ILCS 5/36-2.2 new) |
23 | | Sec. 36-2.2. Replevin prohibited; return of personal |
24 | | property inside seized conveyance. |
25 | | (a) Property seized under this Article shall not be subject |
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1 | | to replevin, but is deemed to be in the custody of the Director |
2 | | of State Police subject only to the order and judgments of the |
3 | | circuit court having jurisdiction over the forfeiture |
4 | | proceedings and the decisions of the State's Attorney. |
5 | | (b) A claimant or a party interested in personal property |
6 | | contained within a seized conveyance may file a motion with the |
7 | | court in a judicial forfeiture action for the return of any |
8 | | personal property contained within a conveyance seized under |
9 | | this Article. The return of personal property shall not be |
10 | | unreasonably withheld if the personal property is not |
11 | | mechanically or electrically coupled to the conveyance, needed |
12 | | for evidentiary purposes, or otherwise contraband. A law |
13 | | enforcement agency that returns property under a court order |
14 | | under this Section shall not be liable to any person who claims |
15 | | ownership to the property if the property is returned to an |
16 | | improper party. |
17 | | (720 ILCS 5/36-2.5 new) |
18 | | Sec. 36-2.5. Judicial in rem procedures. |
19 | | (a) The laws of evidence relating to civil actions shall |
20 | | apply to judicial in rem proceedings under this Article. |
21 | | (b) Only an owner of or interest holder in the property may |
22 | | file an answer asserting a claim against the property in the |
23 | | action in rem. For purposes of this Section, the owner or |
24 | | interest holder shall be referred to as claimant. A person not |
25 | | named in the forfeiture complaint who claims to have an |
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1 | | interest in the property may petition to intervene as a |
2 | | claimant under Section 2-408 of the Code of Civil Procedure. |
3 | | (c) The answer shall be filed with the court within 45 days |
4 | | after service of the civil in rem complaint. |
5 | | (d) The trial shall be held within 60 days after filing of |
6 | | the answer unless continued for good cause. |
7 | | (e) In its case in chief, the State shall show by a |
8 | | preponderance of the evidence that: |
9 | | (1) the property is subject to forfeiture; and |
10 | | (2) at least one of the following: |
11 | | (i) the claimant knew or should have known that the |
12 | | conduct was likely to occur; or |
13 | | (ii) the claimant is not the true owner of the |
14 | | property that is subject to forfeiture. |
15 | | In any forfeiture case under this Article, a claimant may |
16 | | present evidence to overcome evidence presented by the State |
17 | | that the property is subject to forfeiture. |
18 | | (f) Notwithstanding any other provision of this Section, |
19 | | the State's burden of proof at the trial of the forfeiture |
20 | | action shall be by clear and convincing evidence if: |
21 | | (1) a finding of not guilty is entered as to all counts |
22 | | and all defendants in a criminal proceeding relating to the |
23 | | conduct giving rise to the forfeiture action; or |
24 | | (2) the State receives an adverse finding at a |
25 | | preliminary hearing and fails to secure an indictment in a |
26 | | criminal proceeding related to the factual allegations of |
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1 | | the forfeiture action. |
2 | | (g) If the State does not meet its burden of proof, the |
3 | | court shall order the interest in the property returned or |
4 | | conveyed to the claimant and shall order all other property in |
5 | | which the State does meet its burden of proof forfeited to the |
6 | | State. If the State does meet its burden of proof, the court |
7 | | shall order all property forfeited to the State. |
8 | | (h) A defendant convicted in any criminal proceeding is |
9 | | precluded from later denying the essential allegations of the |
10 | | criminal offense of which the defendant was convicted in any |
11 | | proceeding under this Article regardless of the pendency of an |
12 | | appeal from that conviction. However, evidence of the pendency |
13 | | of an appeal is admissible. |
14 | | (i) An acquittal or dismissal in a criminal proceeding |
15 | | shall not preclude civil proceedings under this Act; however, |
16 | | for good cause shown, on a motion by either party, the court |
17 | | may stay civil forfeiture proceedings during the criminal trial |
18 | | for a related criminal indictment or information alleging a |
19 | | violation of law authorizing forfeiture under Section 36-1 of |
20 | | this Article. |
21 | | (j) Title to all property declared forfeited under this Act |
22 | | vests in this State on the commission of the conduct giving |
23 | | rise to forfeiture together with the proceeds of the property |
24 | | after that time. Except as otherwise provided in this Article, |
25 | | any property or proceeds subsequently transferred to any person |
26 | | remain subject to forfeiture unless a person to whom the |
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1 | | property was transferred makes an appropriate claim under or |
2 | | has their claim adjudicated at the judicial in rem hearing. |
3 | | (k) No property shall be forfeited under this Article from |
4 | | a person who, without actual or constructive notice that the |
5 | | property was the subject of forfeiture proceedings, obtained |
6 | | possession of the property as a bona fide purchaser for value. |
7 | | A person who purports to transfer property after receiving |
8 | | actual or constructive notice that the property is subject to |
9 | | seizure or forfeiture is guilty of contempt of court, and shall |
10 | | be liable to the State for a penalty in the amount of the fair |
11 | | market value of the property. |
12 | | (l) A civil action under this Article shall be commenced |
13 | | within 5 years after the last conduct giving rise to forfeiture |
14 | | became known or should have become known or 5 years after the |
15 | | forfeitable property is discovered, whichever is later, |
16 | | excluding any time during which either the property or claimant |
17 | | is out of the State or in confinement or during which criminal |
18 | | proceedings relating to the same conduct are in progress. |
19 | | (m) If property is ordered forfeited under this Article |
20 | | from a claimant who held title to the property in joint tenancy |
21 | | or tenancy in common with another claimant, the court shall |
22 | | determine the amount of each owner's interest in the property |
23 | | according to principles of property law. |
24 | | (720 ILCS 5/36-2.7 new) |
25 | | Sec. 36-2.7. Innocent owner hearing. |
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1 | | (a) After a complaint for forfeiture has been filed and all |
2 | | claimants have appeared and answered, a claimant may file a |
3 | | motion with the court for an innocent owner hearing prior to |
4 | | trial. This motion shall be made and supported by sworn |
5 | | affidavit and shall assert the following along with specific |
6 | | facts which support each assertion: |
7 | | (1) that the claimant filing the motion is the true |
8 | | owner of the conveyance as interpreted by case law; and |
9 | | (2) that the claimant did not know or did not have |
10 | | reason to know the conduct giving rise to the forfeiture |
11 | | was likely to occur. |
12 | | (b) The claimant shall include specific facts which support |
13 | | these assertions in their motion. |
14 | | (c) Upon the filing, a hearing may only be conducted after |
15 | | the parties have been given the opportunity to conduct limited |
16 | | discovery as to the ownership and control of the property, the |
17 | | claimant's knowledge, or any matter relevant to the issues |
18 | | raised or facts alleged in the claimant's motion. Discovery |
19 | | shall be limited to the People's requests in these areas but |
20 | | may proceed by any means allowed in the Code of Civil |
21 | | Procedure. |
22 | | (d) After discovery is complete and the court has allowed |
23 | | for sufficient time to review and investigate the discovery |
24 | | responses, the court shall conduct a hearing. At the hearing, |
25 | | the fact that the conveyance is subject to forfeiture shall not |
26 | | be at issue. The court shall only hear evidence relating to the |
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1 | | issue of innocent ownership. |
2 | | (e) At the hearing on the motion, the claimant shall bear |
3 | | the burden of proving each of the assertions listed in |
4 | | subsection (a) of this Section by a preponderance of the |
5 | | evidence. |
6 | | (f) If a claimant meets their burden of proof, the court |
7 | | shall grant the motion and order the conveyance returned to the |
8 | | claimant. If the claimant fails to meet their burden of proof, |
9 | | the court shall deny the motion and the forfeiture case shall |
10 | | proceed according to the Rules of Civil Procedure.
|
11 | | (720 ILCS 5/36-3) (from Ch. 38, par. 36-3)
|
12 | | Sec. 36-3. Exemptions from Exceptions to forfeiture.
|
13 | | (a) No vessel or watercraft, vehicle, or aircraft used by |
14 | | any person as a common
carrier in the transaction of business |
15 | | as such common carrier may be
forfeited under the provisions of |
16 | | Section 36-2 unless the State proves by a preponderance of the |
17 | | evidence it appears that (1)
in the case of a railway car or |
18 | | engine, the owner, or (2) in the case of
any other such vessel |
19 | | or watercraft, vehicle or aircraft, the owner or the master of |
20 | | such
vessel or watercraft or the owner or conductor, driver, |
21 | | pilot, or other person in charge
of such vehicle or aircraft |
22 | | was at the time of the alleged illegal act a
consenting party |
23 | | or privy thereto.
|
24 | | (b) No vessel or watercraft, vehicle, or aircraft shall be |
25 | | forfeited under the
provisions of Section 36-2 of this Article |
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1 | | by reason of any act or omission established by
the owner |
2 | | thereof to have been committed or omitted by any person other
|
3 | | than such owner while such vessel or watercraft, vehicle, or |
4 | | aircraft was unlawfully in
the possession of a person who |
5 | | acquired possession thereof in violation of
the criminal laws |
6 | | of the United States, or of any state.
|
7 | | (Source: P.A. 98-699, eff. 1-1-15 .)
|
8 | | (720 ILCS 5/36-3.1 new) |
9 | | Sec. 36-3.1. Proportionality. Property forfeited under |
10 | | this Article shall be subject to an 8th Amendment to the United |
11 | | States Constitution disproportionate penalties analysis, and |
12 | | the property forfeiture may be denied in whole or in part if |
13 | | the court finds that the forfeiture would constitute an |
14 | | excessive fine in violation of the 8th Amendment to the United |
15 | | States Constitution, as interpreted by case law. |
16 | | (720 ILCS 5/36-6 new) |
17 | | Sec. 36-6. Return of property, damages and costs. |
18 | | (a) The law enforcement agency that holds custody of |
19 | | property seized for forfeiture shall return to the claimant, |
20 | | within a reasonable period of time not to exceed 7 days unless |
21 | | the order is stayed by the trial court or a reviewing court |
22 | | pending an appeal, motion to reconsider, or other reason after |
23 | | the court orders the property to be returned or conveyed to the |
24 | | claimant: |
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1 | | (1) property ordered by the court to be conveyed or |
2 | | returned to the claimant; and |
3 | | (2) property ordered by the court to be conveyed or |
4 | | returned to the claimant under subsection (d) of Section |
5 | | 36-3.1 of this Article. |
6 | | (b) The law enforcement agency that holds custody of |
7 | | property seized under this Article is responsible for any |
8 | | damages, storage fees, and related costs applicable to property |
9 | | returned to a claimant under this Article. The claimant shall |
10 | | not be subject to any charges by the
State for storage of the |
11 | | property or expenses incurred in the preservation of the |
12 | | property. Charges for the towing of a conveyance shall be borne |
13 | | by the claimant unless the conveyance was towed for the sole |
14 | | reason of seizure for forfeiture. This subsection does not |
15 | | prohibit the imposition of any fees or costs by a home rule |
16 | | unit of local government related to the impoundment of a |
17 | | conveyance under an ordinance enacted by the unit of |
18 | | government. |
19 | | (720 ILCS 5/36-7 new) |
20 | | Sec. 36-7. Distribution of proceeds; selling or retaining |
21 | | seized property prohibited. |
22 | | (a) Except as otherwise provided in this Section, the court |
23 | | shall order that property forfeited under this Article be |
24 | | delivered to the Department of State Police within 60 days. |
25 | | (b) The Department of State Police or its designee shall |
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1 | | dispose of all property at public auction and shall distribute |
2 | | the proceeds of the sale, together with any moneys forfeited or |
3 | | seized, under subsection (c) of this Section. |
4 | | (c) All monies and the sale proceeds of all other property |
5 | | forfeited and seized under this Act shall be distributed as |
6 | | follows: |
7 | | (1) 65% shall be distributed to the drug task force, |
8 | | metropolitan enforcement group, local, municipal, county, |
9 | | or state law enforcement agency or agencies which conducted |
10 | | or participated in the investigation resulting in the |
11 | | forfeiture. The distribution shall bear a reasonable |
12 | | relationship to the degree of direct participation of the |
13 | | law enforcement agency in the effort resulting in the |
14 | | forfeiture, taking into account the total value of the |
15 | | property forfeited and the total law enforcement effort |
16 | | with respect to the violation of the law upon which the |
17 | | forfeiture is based. Amounts distributed to the agency or |
18 | | agencies shall be used, at the discretion of the agency, |
19 | | for the enforcement of criminal laws; or for public |
20 | | education in the community or schools in the prevention or |
21 | | detection of the abuse of drugs or alcohol; or for security |
22 | | cameras used for the prevention or detection of violence, |
23 | | except that amounts distributed to the Secretary of State |
24 | | shall be deposited into the Secretary of State Evidence |
25 | | Fund to be used as provided in Section 2-115 of the |
26 | | Illinois Vehicle Code. |
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1 | | Any local, municipal, or county law enforcement agency |
2 | | entitled to receive a monetary distribution of forfeiture |
3 | | proceeds may share those forfeiture proceeds pursuant to |
4 | | the terms of an intergovernmental agreement with a |
5 | | municipality that has a population in excess of 20,000 if: |
6 | | (A) the receiving agency has entered into an |
7 | | intergovernmental agreement with the municipality to |
8 | | provide police services; |
9 | | (B) the intergovernmental agreement for police |
10 | | services provides for consideration in an amount of not |
11 | | less than $1,000,000 per year; |
12 | | (C) the seizure took place within the geographical |
13 | | limits of the municipality; and |
14 | | (D) the funds are used only for the enforcement of |
15 | | criminal laws; for public education in the community or |
16 | | schools in the prevention or detection of the abuse of |
17 | | drugs or alcohol; or for security cameras used for the |
18 | | prevention or detection of violence or the
|
19 | | establishment of a municipal police force, including |
20 | | the training of officers, construction of a police |
21 | | station, the purchase of law enforcement equipment, or |
22 | | vehicles. |
23 | | (2) 12.5% shall be distributed to the Office of the |
24 | | State's Attorney of the county in which the prosecution |
25 | | resulting in the forfeiture was instituted, deposited in a |
26 | | special fund in the county treasury and appropriated to the |
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1 | | State's Attorney for use, at the discretion of the State's |
2 | | Attorney, in the enforcement of criminal laws; or for |
3 | | public education in the community or schools in the |
4 | | prevention or detection of the abuse of drugs or alcohol; |
5 | | or at the discretion of the State's Attorney, in addition |
6 | | to other authorized purposes, to make grants to local |
7 | | substance abuse treatment facilities and half-way houses. |
8 | | In counties over 3,000,000 population, 25% will be |
9 | | distributed to the Office of the State's Attorney for use, |
10 | | at the discretion of the State's Attorney, in the |
11 | | enforcement of criminal laws; or for public education in |
12 | | the community or schools in the prevention or detection of |
13 | | the abuse of drugs or alcohol; or at the discretion of the |
14 | | State's Attorney, in addition to other authorized |
15 | | purposes, to make grants to local substance abuse treatment |
16 | | facilities and half-way houses. If the prosecution is |
17 | | undertaken solely by the Attorney General, the portion |
18 | | provided shall be distributed to the Attorney General for |
19 | | use in the enforcement of criminal laws governing cannabis |
20 | | and controlled substances or for public education in the |
21 | | community or schools in the prevention or detection of the |
22 | | abuse of drugs or alcohol. |
23 | | 12.5% shall be distributed to the Office of the State's |
24 | | Attorneys Appellate Prosecutor and shall be used at the |
25 | | discretion of the State's Attorneys Appellate Prosecutor |
26 | | for additional expenses incurred in the investigation, |
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1 | | prosecution and appeal of cases arising in the enforcement |
2 | | of criminal laws; or for public education in the community |
3 | | or schools in the prevention or detection of the abuse of |
4 | | drugs or alcohol. The Office of the State's Attorneys |
5 | | Appellate Prosecutor shall not receive distribution from |
6 | | cases brought in counties with over 3,000,000 population. |
7 | | (3) 10% shall be retained by the Department of State |
8 | | Police for expenses related to the administration and sale |
9 | | of seized and forfeited property. |
10 | | (d) A law enforcement agency shall not retain forfeited |
11 | | property for its own use or transfer the property to any person |
12 | | or entity, except as provided under this Section. A law |
13 | | enforcement agency may apply in writing to the Director of |
14 | | State Police to request that a forfeited property be awarded to |
15 | | the agency for a specifically articulated official law |
16 | | enforcement use in an investigation. The Director of State |
17 | | Police shall provide a written justification in each instance |
18 | | detailing the reasons why the forfeited property was placed |
19 | | into official use, and the justification shall be retained for |
20 | | a period of not less than 3 years. |
21 | | (720 ILCS 5/36-9 new) |
22 | | Sec. 36-9. Reporting. Property seized or forfeited under |
23 | | this Article is subject to reporting under the Seizure and |
24 | | Forfeiture Reporting Act.
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1 | | (720 ILCS 5/47-15)
|
2 | | Sec. 47-15. Dumping garbage upon real property.
|
3 | | (a) It is unlawful for a person to dump, deposit, or place |
4 | | garbage,
rubbish, trash, or refuse upon real property not owned |
5 | | by
that person without the consent of the owner or person in |
6 | | possession of the
real property.
|
7 | | (b) A person who violates this Section is liable to the |
8 | | owner or person in
possession of the real property on which the |
9 | | garbage, rubbish,
trash, or refuse is dumped, deposited, or |
10 | | placed for the reasonable costs
incurred by the owner or person |
11 | | in possession for cleaning up and properly
disposing of the |
12 | | garbage, rubbish, trash, or refuse, and for
reasonable |
13 | | attorneys' fees.
|
14 | | (c) A person violating this Section is guilty of a Class B |
15 | | misdemeanor for
which the court must impose a minimum fine of |
16 | | $500. A
second conviction for an offense committed after the |
17 | | first conviction is a
Class A misdemeanor for which the court |
18 | | must impose a minimum fine of $500.
A third or subsequent |
19 | | violation, committed after a second
conviction, is a Class 4 |
20 | | felony for which the court must impose a minimum
fine of $500.
|
21 | | A person who violates this Section and who has an equity |
22 | | interest in a motor
vehicle used in violation of this Section |
23 | | is presumed to have the financial
resources to pay the minimum |
24 | | fine not exceeding his or her equity interest in
the vehicle.
|
25 | | Personal property used by a person in
violation of this Section |
26 | | shall on the third or subsequent conviction of the
person be |
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1 | | forfeited to the county where the violation occurred and |
2 | | disposed of
at a public sale. Before the forfeiture, the court |
3 | | shall conduct a hearing to
determine whether property is |
4 | | subject to forfeiture under this Section. At the
forfeiture |
5 | | hearing the State has the burden of establishing by a |
6 | | preponderance
of the evidence that property is subject to |
7 | | forfeiture under this Section. Property seized or forfeited |
8 | | under this Section is subject to reporting under the Seizure |
9 | | and Forfeiture Reporting Act.
|
10 | | (d) The statutory minimum fine required by subsection (c) |
11 | | is not subject
to reduction or suspension unless the defendant |
12 | | is indigent.
If the defendant files a motion with the court |
13 | | asserting his or her inability
to pay the mandatory fine |
14 | | required by this Section, the court must set a
hearing on the |
15 | | motion before sentencing. The court must require an affidavit
|
16 | | signed by the defendant containing sufficient information to |
17 | | ascertain the
assets and liabilities of the defendant. If the |
18 | | court determines that the
defendant is indigent, the court must |
19 | | require that the defendant choose
either to pay the minimum |
20 | | fine of $500 or to perform 100 hours of community
service.
|
21 | | (Source: P.A. 90-655, eff. 7-30-98; 91-409, eff. 1-1-00.)
|
22 | | (720 ILCS 5/36-1a rep.)
|
23 | | (720 ILCS 5/36-5 rep.) |
24 | | Section 140. The Criminal Code of 2012 is amended by |
25 | | repealing Sections 36-1a and 36-5. |
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1 | | Section 145. The Cannabis Control Act is amended by |
2 | | changing Section 12 as follows:
|
3 | | (720 ILCS 550/12) (from Ch. 56 1/2, par. 712)
|
4 | | Sec. 12. (a) The following are subject to forfeiture:
|
5 | | (1) (blank); all substances containing cannabis which |
6 | | have been produced,
manufactured, delivered, or possessed |
7 | | in violation of this Act;
|
8 | | (2) all raw materials, products and equipment of any |
9 | | kind which are
produced, delivered, or possessed in |
10 | | connection with any substance
containing cannabis in a |
11 | | felony violation of this Act;
|
12 | | (3) all conveyances, including aircraft, vehicles or |
13 | | vessels, which
are used, or intended for use, to transport, |
14 | | or in any manner to
facilitate the transportation, sale, |
15 | | receipt, possession, or
concealment of any substance |
16 | | containing cannabis or property described in paragraph (1) |
17 | | or (2) of this subsection (a) that constitutes
a felony |
18 | | violation of the Act, but:
|
19 | | (i) no conveyance used by any person as a common |
20 | | carrier in the
transaction of business as a common |
21 | | carrier is subject to forfeiture
under this Section |
22 | | unless it appears that the owner or other person in
|
23 | | charge of the conveyance is a consenting party or privy |
24 | | to the a violation
of this Act ;
|
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1 | | (ii) no conveyance is subject to forfeiture under |
2 | | this Section by
reason of any act or omission which the |
3 | | owner proves to have been
committed or omitted without |
4 | | his knowledge or consent;
|
5 | | (iii) a forfeiture of a conveyance encumbered by a |
6 | | bona fide
security interest is subject to the interest |
7 | | of the secured party if he
neither had knowledge of nor |
8 | | consented to the act or omission;
|
9 | | (4) all money, things of value, books, records, and |
10 | | research
products and materials including formulas, |
11 | | microfilm, tapes, and data
which are used, or intended for |
12 | | use in a felony violation of this Act;
|
13 | | (5) everything of value furnished or intended to be |
14 | | furnished by any
person in exchange for a substance in |
15 | | violation of this Act, all proceeds
traceable to such an |
16 | | exchange, and all moneys, negotiable instruments, and
|
17 | | securities used, or intended to be used, to commit or in |
18 | | any manner to
facilitate any felony violation of this Act;
|
19 | | (6) all real property, including any right, title, and |
20 | | interest including, but not limited to, any leasehold |
21 | | interest or the beneficial interest to a land trust, in the |
22 | | whole of any lot or tract of land and any appurtenances or |
23 | | improvements, that is used or intended to be used to |
24 | | facilitate the manufacture, distribution, sale, receipt, |
25 | | or concealment of a substance containing cannabis or |
26 | | property described in paragraph (1) or (2) of this |
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1 | | subsection (a) that constitutes a felony violation of this |
2 | | Act involving more than 2,000 grams of a substance |
3 | | containing cannabis or that is the proceeds of any felony |
4 | | violation of this Act. |
5 | | (b) Property subject to forfeiture under this Act may be |
6 | | seized under the Drug Asset Forfeiture Procedure Act. In the |
7 | | event of seizure, forfeiture proceedings shall be instituted |
8 | | under the Drug Asset Forfeiture Procedure Act. by
the Director |
9 | | or any peace officer upon process or seizure warrant issued by
|
10 | | any court having jurisdiction over the property. Seizure by the |
11 | | Director
or any peace officer without process may be made:
|
12 | | (1) if the property subject to seizure has been the |
13 | | subject of a
prior judgment in favor of the State in a |
14 | | criminal proceeding or
in an injunction or forfeiture |
15 | | proceeding based upon this Act or the Drug
Asset Forfeiture |
16 | | Procedure Act;
|
17 | | (2) if there is probable cause to believe that the |
18 | | property is
directly or indirectly dangerous to health or |
19 | | safety;
|
20 | | (3) if there is probable cause to believe that the |
21 | | property is subject
to forfeiture under this Act and the |
22 | | property is seized under
circumstances in which a |
23 | | warrantless seizure or arrest would be reasonable; or
|
24 | | (4) in accordance with the Code of Criminal Procedure |
25 | | of 1963.
|
26 | | (c) Forfeiture under this Act is subject to subject to an |
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1 | | 8th amendment to the United States Constitution |
2 | | disproportionate penalties analysis as provided under Section |
3 | | 9.5 of the Drug Asset Forfeiture Procedure Act. In the event of |
4 | | seizure pursuant to subsection (b), notice shall be given |
5 | | forthwith to all known interest holders that forfeiture
|
6 | | proceedings, including a preliminary review, shall be |
7 | | instituted in accordance with the
Drug Asset Forfeiture |
8 | | Procedure Act and such proceedings shall thereafter be |
9 | | instituted in accordance with that Act. Upon a showing of good |
10 | | cause, the notice required for a preliminary review under this |
11 | | Section may be postponed.
|
12 | | (c-1) With regard to possession of cannabis offenses only, |
13 | | a sum of currency with a value of less than $500 shall not be |
14 | | subject to forfeiture under this Act. For all other offenses |
15 | | under this Act, a sum of currency with a value of less than |
16 | | $100 shall not be subject to forfeiture under this Act. In |
17 | | seizures of currency in excess of these amounts, this Section |
18 | | shall not create an exemption for these amounts. In the event |
19 | | the State's Attorney is of the opinion that real property is |
20 | | subject to forfeiture under this Act, forfeiture proceedings |
21 | | shall be instituted in accordance with the Drug Asset |
22 | | Forfeiture Procedure Act. The exemptions from forfeiture |
23 | | provisions of Section 8 of the Drug Asset Forfeiture Procedure |
24 | | Act are applicable. |
25 | | (d) (Blank). Property taken or detained under this Section |
26 | | shall not be
subject to replevin, but is deemed to be in the |
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1 | | custody of the Director
subject only to the order and judgments |
2 | | of the circuit court having
jurisdiction over the forfeiture |
3 | | proceedings and the decisions of the
State's Attorney under the |
4 | | Drug Asset Forfeiture Procedure Act. When
property is seized |
5 | | under this Act, the seizing agency shall promptly
conduct an |
6 | | inventory of the seized property, estimate the property's |
7 | | value,
and shall forward a copy of the inventory of seized |
8 | | property and the
estimate of the property's value to the |
9 | | Director. Upon receiving notice of
seizure, the Director may:
|
10 | | (1) place the property under seal;
|
11 | | (2) remove the property to a place designated by him;
|
12 | | (3) keep the property in the possession of the seizing |
13 | | agency;
|
14 | | (4) remove the property to a storage area for |
15 | | safekeeping or, if the
property is a negotiable instrument |
16 | | or money and is not needed for
evidentiary purposes, |
17 | | deposit it in an interest bearing account;
|
18 | | (5) place the property under constructive seizure by |
19 | | posting notice of
pending forfeiture on it, by giving |
20 | | notice of pending forfeiture to its
owners and interest |
21 | | holders, or by filing notice of pending forfeiture in
any |
22 | | appropriate public record relating to the property; or
|
23 | | (6) provide for another agency or custodian, including |
24 | | an owner, secured
party, or lienholder, to take custody of |
25 | | the property upon the terms and
conditions set by the |
26 | | Director.
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1 | | (e) (Blank). No disposition may be made of property under |
2 | | seal until the time
for taking an appeal has elapsed or until |
3 | | all appeals have been
concluded unless a court, upon |
4 | | application therefor, orders the sale of
perishable substances |
5 | | and the deposit of the proceeds of the sale with
the court.
|
6 | | (f) (Blank). When property is forfeited under this Act the |
7 | | Director shall
sell all such property unless such property is |
8 | | required by law to be
destroyed or is harmful to the public, |
9 | | and shall distribute the proceeds of
the sale, together with |
10 | | any moneys forfeited or seized, in accordance
with subsection |
11 | | (g). However, upon the application of the seizing agency or
|
12 | | prosecutor who was responsible for the investigation, arrest or |
13 | | arrests and
prosecution which lead to the forfeiture, the |
14 | | Director may return any item
of forfeited property to the |
15 | | seizing agency or prosecutor for official use
in the |
16 | | enforcement of laws relating to cannabis or controlled |
17 | | substances,
if the agency or prosecutor can demonstrate that |
18 | | the item requested would
be useful to the agency or prosecutor |
19 | | in their enforcement efforts. When any forfeited conveyance, |
20 | | including an aircraft, vehicle, or vessel, is returned to the |
21 | | seizing agency or prosecutor, the conveyance may be used |
22 | | immediately in the enforcement of the criminal laws of this |
23 | | State. Upon disposal, all proceeds from the sale of the |
24 | | conveyance must be used for drug enforcement purposes. When
any |
25 | | real property returned to the seizing agency is sold by the |
26 | | agency or
its unit of government, the proceeds of the sale |
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1 | | shall be delivered to the
Director and distributed in |
2 | | accordance with subsection (g).
|
3 | | (g) (Blank). All monies and the sale proceeds of all other |
4 | | property forfeited and
seized under this Act shall be |
5 | | distributed as follows:
|
6 | | (1)(i) 65% shall be distributed to the metropolitan |
7 | | enforcement group,
local, municipal, county, or state law |
8 | | enforcement agency or agencies which
conducted or |
9 | | participated in the investigation resulting in the |
10 | | forfeiture.
The distribution shall bear a reasonable |
11 | | relationship to the degree of
direct participation of the |
12 | | law enforcement agency in the effort resulting
in the |
13 | | forfeiture, taking into account the total value of the |
14 | | property
forfeited and the total law enforcement effort |
15 | | with respect to the
violation of the law upon which the |
16 | | forfeiture is based.
Amounts distributed to the agency or |
17 | | agencies shall be used for the
enforcement of laws |
18 | | governing cannabis and controlled substances; for public |
19 | | education in the community or schools in the
prevention or |
20 | | detection of the abuse of drugs or
alcohol; or for security |
21 | | cameras used for the prevention or detection of violence, |
22 | | except
that amounts distributed to the Secretary of State |
23 | | shall be deposited into
the Secretary of State Evidence |
24 | | Fund to be used as provided in Section
2-115 of the |
25 | | Illinois Vehicle Code.
|
26 | | (ii) Any local, municipal, or county law enforcement |
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1 | | agency entitled to receive a monetary distribution of |
2 | | forfeiture proceeds may share those forfeiture proceeds |
3 | | pursuant to the terms of an intergovernmental agreement |
4 | | with a municipality that has a population in excess of |
5 | | 20,000 if: |
6 | | (I) the receiving agency has entered into an |
7 | | intergovernmental agreement with the municipality to |
8 | | provide police services; |
9 | | (II) the intergovernmental agreement for police |
10 | | services provides for consideration in an amount of not |
11 | | less than $1,000,000 per year; |
12 | | (III) the seizure took place within the |
13 | | geographical limits of the municipality; and |
14 | | (IV) the funds are used only for the enforcement
of |
15 | | laws governing cannabis and controlled substances; for |
16 | | public education in the community or schools in the
|
17 | | prevention or detection of the abuse of drugs or
|
18 | | alcohol; or
for security cameras used for the |
19 | | prevention or detection
of violence or the |
20 | | establishment of a municipal police
force, including |
21 | | the training of officers, construction of
a police |
22 | | station, the purchase of law enforcement
equipment, or |
23 | | vehicles. |
24 | | (2)(i) 12.5% shall be distributed to the Office of the |
25 | | State's
Attorney of the county in which the prosecution |
26 | | resulting in the forfeiture
was instituted, deposited in a |
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1 | | special fund in the county treasury and
appropriated to the |
2 | | State's Attorney for use in the enforcement of laws
|
3 | | governing cannabis and controlled substances; for public |
4 | | education in the community or schools in the
prevention or |
5 | | detection of the abuse of drugs or
alcohol; or at the |
6 | | discretion of the State's Attorney, in addition to other |
7 | | authorized purposes, to make grants to local substance |
8 | | abuse treatment facilities and half-way houses. In |
9 | | counties over 3,000,000
population, 25% will be |
10 | | distributed to the Office of the State's Attorney for use |
11 | | in the
enforcement of laws governing cannabis and |
12 | | controlled substances; for public education in the |
13 | | community or schools in the
prevention or detection of the |
14 | | abuse of drugs or
alcohol; or at the discretion of the |
15 | | State's Attorney, in addition to other authorized |
16 | | purposes, to make grants to local substance abuse treatment |
17 | | facilities and half-way houses. If the
prosecution is |
18 | | undertaken solely by the Attorney General, the portion
|
19 | | provided hereunder shall be distributed to the Attorney |
20 | | General for use in
the enforcement of laws governing |
21 | | cannabis and controlled substances.
|
22 | | (ii) 12.5% shall be distributed to the Office of the |
23 | | State's Attorneys
Appellate Prosecutor and deposited in |
24 | | the Narcotics Profit Forfeiture Fund
of that Office to be |
25 | | used for additional expenses incurred in the
|
26 | | investigation, prosecution and appeal of cases arising |
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1 | | under laws governing
cannabis and controlled substances or |
2 | | for public education in the community or schools in the
|
3 | | prevention or detection of the abuse of drugs or
alcohol. |
4 | | The Office of the State's Attorneys
Appellate Prosecutor |
5 | | shall not receive distribution from cases brought in
|
6 | | counties with over 3,000,000 population.
|
7 | | (3) 10% shall be retained by the Department of State |
8 | | Police for expenses
related to the administration and sale |
9 | | of seized and forfeited property.
|
10 | | (h) Contraband, including cannabis possessed without |
11 | | authorization under State or federal law, is not subject to |
12 | | forfeiture. No property right exists in contraband. Contraband |
13 | | is subject to seizure and shall be disposed of according to |
14 | | State law. |
15 | | (Source: P.A. 99-686, eff. 7-29-16.)
|
16 | | Section 150. The Illinois Controlled Substances Act is |
17 | | amended by changing Section 505 as follows:
|
18 | | (720 ILCS 570/505) (from Ch. 56 1/2, par. 1505)
|
19 | | Sec. 505. (a) The following are subject to forfeiture:
|
20 | | (1) (blank); all substances which have been |
21 | | manufactured, distributed,
dispensed, or possessed in |
22 | | violation of this Act;
|
23 | | (2) all raw materials, products and equipment of any |
24 | | kind which are
used, or intended for use in manufacturing, |
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1 | | distributing, dispensing,
administering or possessing any |
2 | | substance in violation of this Act;
|
3 | | (3) all conveyances, including aircraft, vehicles or |
4 | | vessels, which are
used, or intended for use, to transport, |
5 | | or in any manner to facilitate
the transportation, sale, |
6 | | receipt, possession, or concealment of substances |
7 | | manufactured, distributed, dispensed, or possessed in |
8 | | violation of this Act, or property
described in paragraphs |
9 | | (1) and (2) of this subsection (a) , but:
|
10 | | (i) no conveyance used by any person as a common |
11 | | carrier in the
transaction of business as a common |
12 | | carrier is subject to forfeiture under
this Section |
13 | | unless it appears that the owner or other person in |
14 | | charge of
the conveyance is a consenting party or privy |
15 | | to a violation of this Act;
|
16 | | (ii) no conveyance is subject to forfeiture under |
17 | | this Section by reason
of any act or omission which the |
18 | | owner proves to have been committed or
omitted without |
19 | | his or her knowledge or consent;
|
20 | | (iii) a forfeiture of a conveyance encumbered by a |
21 | | bona fide security
interest is subject to the interest |
22 | | of the secured party if he or she neither had
knowledge |
23 | | of nor consented to the act or omission;
|
24 | | (4) all money, things of value, books, records, and |
25 | | research
products and materials including formulas, |
26 | | microfilm, tapes, and data which
are used, or intended to |
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1 | | be used in violation of this Act;
|
2 | | (5) everything of value furnished, or intended to be |
3 | | furnished, in
exchange for a substance in violation of this |
4 | | Act, all proceeds traceable
to such an exchange, and all |
5 | | moneys, negotiable instruments, and securities
used, or |
6 | | intended to be used, to commit or in any manner to |
7 | | facilitate
any violation of this Act;
|
8 | | (6) all real property, including any right, title, and |
9 | | interest
(including, but not limited to, any leasehold |
10 | | interest or the beneficial
interest in a land trust) in the |
11 | | whole of any lot or tract of land and any
appurtenances or |
12 | | improvements, which is used or intended to be used, in any
|
13 | | manner or part, to commit, or in any manner to facilitate |
14 | | the commission
of, any violation or act that constitutes a |
15 | | violation of Section 401 or 405
of this Act or that is the |
16 | | proceeds of any violation or act that
constitutes a |
17 | | violation of Section 401 or 405 of this Act.
|
18 | | (b) Property subject to forfeiture under this Act may be |
19 | | seized under the Drug Asset Forfeiture Procedure Act. In the |
20 | | event of seizure, forfeiture proceedings shall be instituted |
21 | | under the Drug Asset Forfeiture Procedure Act. seized by the
|
22 | | Director or any peace officer upon process or seizure warrant |
23 | | issued by
any court having jurisdiction over the property. |
24 | | Seizure by the Director
or any peace officer without process |
25 | | may be made:
|
26 | | (1) if the seizure is incident to inspection under an |
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1 | | administrative
inspection warrant;
|
2 | | (2) if the property subject to seizure has been the |
3 | | subject of a prior
judgment in favor of the State in a |
4 | | criminal proceeding, or in an injunction
or forfeiture |
5 | | proceeding based upon this Act or the Drug Asset Forfeiture
|
6 | | Procedure Act;
|
7 | | (3) if there is probable cause to believe that the |
8 | | property is directly
or indirectly dangerous to health or |
9 | | safety;
|
10 | | (4) if there is probable cause to believe that the |
11 | | property is subject
to forfeiture under this Act and the |
12 | | property is seized under
circumstances in which a |
13 | | warrantless seizure or arrest would be reasonable; or
|
14 | | (5) in accordance with the Code of Criminal Procedure |
15 | | of 1963.
|
16 | | (c) Forfeiture under this Act is subject to subject to an |
17 | | 8th amendment to the United States Constitution |
18 | | disproportionate penalties analysis as provided under Section |
19 | | 9.5 of the Drug Asset Forfeiture Procedure Act. In the event of |
20 | | seizure pursuant to subsection (b), notice shall be given |
21 | | forthwith to all known interest holders that forfeiture
|
22 | | proceedings, including a preliminary review, shall be |
23 | | instituted in accordance with the Drug
Asset Forfeiture |
24 | | Procedure Act and such proceedings shall thereafter be |
25 | | instituted in accordance with that Act. Upon a showing of good |
26 | | cause, the notice required for a preliminary review under this |
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1 | | Section may be postponed.
|
2 | | (d) With regard to possession of controlled substances |
3 | | offenses only, a sum of currency with a value of less than $500 |
4 | | shall not be subject to forfeiture under this Act. For all |
5 | | other offenses under this Act, currency with a value of under |
6 | | $100 shall not be subject to forfeiture under this Act. |
7 | | Property taken or detained under this Section shall not be |
8 | | subject
to replevin, but is deemed to be in the custody of the |
9 | | Director subject
only to the order and judgments of the circuit |
10 | | court having jurisdiction over
the forfeiture proceedings and |
11 | | the decisions of the State's Attorney
under the Drug Asset |
12 | | Forfeiture Procedure Act. When property is seized
under this |
13 | | Act, the seizing agency shall promptly conduct an inventory of
|
14 | | the seized property and estimate the property's value, and |
15 | | shall forward a
copy of the inventory of seized property and |
16 | | the estimate of the property's
value to the Director. Upon |
17 | | receiving notice of seizure, the Director may:
|
18 | | (1) place the property under seal;
|
19 | | (2) remove the property to a place designated by the |
20 | | Director;
|
21 | | (3) keep the property in the possession of the seizing |
22 | | agency;
|
23 | | (4) remove the property to a storage area for |
24 | | safekeeping or, if the
property is a negotiable instrument |
25 | | or money and is not needed for
evidentiary purposes, |
26 | | deposit it in an interest bearing account;
|
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1 | | (5) place the property under constructive seizure by |
2 | | posting notice of
pending forfeiture on it, by giving |
3 | | notice of pending forfeiture to its
owners and interest |
4 | | holders, or by filing notice of pending forfeiture in
any |
5 | | appropriate public record relating to the property; or
|
6 | | (6) provide for another agency or custodian, including |
7 | | an owner, secured
party, or lienholder, to take custody of |
8 | | the property upon the terms and
conditions set by the |
9 | | Director.
|
10 | | (d-5) For felony offenses involving possession of |
11 | | controlled substances only, no property shall be subject to |
12 | | forfeiture under this Act because of the possession of less |
13 | | than 2 single unit doses of a controlled substance. This |
14 | | exemption shall not apply in instances when the possessor, or |
15 | | another person at the direction of the possessor, engaged in |
16 | | the destruction of any amount of a controlled substance. The |
17 | | amount of a single unit dose shall be the State's burden to |
18 | | prove in their case in chief. |
19 | | (e) If the Department of Financial and Professional |
20 | | Regulation suspends or revokes
a registration, all controlled |
21 | | substances owned or possessed by the
registrant at the time of |
22 | | suspension or the effective date of the
revocation order may be |
23 | | placed under seal by the Director. No disposition may be made |
24 | | of
substances under seal until the time for taking an appeal |
25 | | has elapsed or
until all appeals have been concluded unless a |
26 | | court, upon application
therefor, orders the sale of perishable |
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|
1 | | substances and the deposit of the
proceeds of the sale with the |
2 | | court. Upon a suspension or revocation order becoming final,
|
3 | | all substances are subject to seizure and forfeiture under the |
4 | | Drug Asset Forfeiture Procedure Act may be forfeited to the |
5 | | Illinois State Police .
|
6 | | (f) (Blank). When property is forfeited under this Act the |
7 | | Director shall
sell all such property unless such property is |
8 | | required by law to be
destroyed or is harmful to the public, |
9 | | and shall distribute the proceeds of
the sale, together with |
10 | | any moneys forfeited or seized, in accordance
with subsection |
11 | | (g). However, upon the application of the seizing agency or
|
12 | | prosecutor who was responsible for the investigation, arrest or |
13 | | arrests and
prosecution which lead to the forfeiture, the |
14 | | Director may return any item
of forfeited property to the |
15 | | seizing agency or prosecutor for official use
in the |
16 | | enforcement of laws relating to cannabis or controlled |
17 | | substances,
if the agency or prosecutor can demonstrate that |
18 | | the item requested would
be useful to the agency or prosecutor |
19 | | in their enforcement efforts. When any forfeited conveyance, |
20 | | including an aircraft, vehicle, or vessel, is returned to the |
21 | | seizing agency or prosecutor, the conveyance may be used |
22 | | immediately in the enforcement of the criminal laws of this |
23 | | State. Upon disposal, all proceeds from the sale of the |
24 | | conveyance must be used for drug enforcement purposes. When
any |
25 | | real property returned to the seizing agency is sold by the |
26 | | agency or
its unit of government, the proceeds of the sale |
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1 | | shall be delivered to the
Director and distributed in |
2 | | accordance with subsection (g).
|
3 | | (g) (Blank). All monies and the sale proceeds of all other |
4 | | property forfeited and
seized under this Act shall be |
5 | | distributed as follows:
|
6 | | (1)(i) 65% shall be distributed to the metropolitan |
7 | | enforcement group,
local, municipal, county, or state law |
8 | | enforcement agency or agencies which
conducted or |
9 | | participated in the investigation resulting in the |
10 | | forfeiture.
The distribution shall bear a reasonable |
11 | | relationship to the degree of
direct participation of the |
12 | | law enforcement agency in the effort resulting
in the |
13 | | forfeiture, taking into account the total value of the |
14 | | property
forfeited and the total law enforcement effort |
15 | | with respect to the
violation of the law upon which the |
16 | | forfeiture is based.
Amounts distributed to the agency or |
17 | | agencies shall be used for the
enforcement of laws |
18 | | governing cannabis and controlled substances; for public |
19 | | education in the community or schools in the
prevention or |
20 | | detection of the abuse of drugs or
alcohol; or for security |
21 | | cameras used for the prevention or detection of violence, |
22 | | except that
amounts distributed to the Secretary of State |
23 | | shall be deposited into the
Secretary of State Evidence |
24 | | Fund to be used as provided in Section 2-115 of the
|
25 | | Illinois Vehicle Code.
|
26 | | (ii) Any local, municipal, or county law enforcement |
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| | HB0303 Enrolled | - 145 - | LRB100 05313 RLC 15324 b |
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|
1 | | agency entitled to receive a monetary distribution of |
2 | | forfeiture proceeds may share those forfeiture proceeds |
3 | | pursuant to the terms of an intergovernmental agreement |
4 | | with a municipality that has a population in excess of |
5 | | 20,000 if: |
6 | | (I) the receiving agency has entered into an |
7 | | intergovernmental agreement with the municipality to |
8 | | provide police services; |
9 | | (II) the intergovernmental agreement for police |
10 | | services provides for consideration in an amount of not |
11 | | less than $1,000,000 per year; |
12 | | (III) the seizure took place within the |
13 | | geographical limits of the municipality; and |
14 | | (IV) the funds are used only for the enforcement
of |
15 | | laws governing cannabis and controlled substances; for |
16 | | public education in the community or schools in the
|
17 | | prevention or detection of the abuse of drugs or
|
18 | | alcohol; or
for security cameras used for the |
19 | | prevention or detection
of violence or the |
20 | | establishment of a municipal police
force, including |
21 | | the training of officers, construction of
a police |
22 | | station, the purchase of law enforcement
equipment, or |
23 | | vehicles. |
24 | | (2)(i) 12.5% shall be distributed to the Office of the |
25 | | State's
Attorney of the county in which the prosecution |
26 | | resulting in the forfeiture
was instituted, deposited in a |
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| | HB0303 Enrolled | - 146 - | LRB100 05313 RLC 15324 b |
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|
1 | | special fund in the county treasury and
appropriated to the |
2 | | State's Attorney for use in the enforcement of laws
|
3 | | governing cannabis and controlled substances; for public |
4 | | education in the community or schools in the
prevention or |
5 | | detection of the abuse of drugs or
alcohol; or at the |
6 | | discretion of the State's Attorney, in addition to other |
7 | | authorized purposes, to make grants to local substance |
8 | | abuse treatment facilities and half-way houses. In |
9 | | counties over 3,000,000
population, 25% will be |
10 | | distributed to the Office of the State's Attorney for
use |
11 | | in the
enforcement of laws governing cannabis and |
12 | | controlled substances; for public education in the |
13 | | community or schools in the
prevention or detection of the |
14 | | abuse of drugs or
alcohol; or at the discretion of the |
15 | | State's Attorney, in addition to other authorized |
16 | | purposes, to make grants to local substance abuse treatment |
17 | | facilities and half-way houses. If the
prosecution is |
18 | | undertaken solely by the Attorney General, the portion
|
19 | | provided hereunder shall be distributed to the Attorney |
20 | | General for use in
the enforcement of laws governing |
21 | | cannabis and controlled substances or
for public education |
22 | | in the community or schools in the
prevention or detection |
23 | | of the abuse of drugs or
alcohol.
|
24 | | (ii) 12.5% shall be distributed to the Office of the |
25 | | State's Attorneys
Appellate Prosecutor and deposited in |
26 | | the Narcotics Profit Forfeiture Fund
of that office to be |
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| | HB0303 Enrolled | - 147 - | LRB100 05313 RLC 15324 b |
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|
1 | | used for additional expenses incurred in the
|
2 | | investigation, prosecution and appeal of cases arising |
3 | | under laws governing
cannabis and controlled substances or
|
4 | | for public education in the community or schools in the
|
5 | | prevention or detection of the abuse of drugs or
alcohol. |
6 | | The Office of the State's Attorneys
Appellate Prosecutor |
7 | | shall not receive distribution from cases brought in
|
8 | | counties with over 3,000,000 population.
|
9 | | (3) 10% shall be retained by the Department of State |
10 | | Police for expenses
related to the administration and sale |
11 | | of seized and forfeited property.
|
12 | | (h) (Blank). Species of plants from which controlled |
13 | | substances in Schedules I
and II may be derived which have been |
14 | | planted or cultivated in violation of
this Act, or of which the |
15 | | owners or cultivators are unknown, or which are
wild growths, |
16 | | may be seized and summarily forfeited to the State. The
|
17 | | failure, upon demand by the Director or any peace officer, of |
18 | | the person in
occupancy or in control of land or premises upon |
19 | | which the species of
plants are growing or being stored, to |
20 | | produce registration, or proof that
he or she is the holder |
21 | | thereof, constitutes authority for the seizure and
forfeiture |
22 | | of the plants.
|
23 | | (i) Contraband, including controlled substances possessed |
24 | | without authorization under State or federal law, is not |
25 | | subject to forfeiture. No property right exists in contraband. |
26 | | Contraband is subject to seizure and shall be disposed of |
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|
1 | | according to State law. |
2 | | (Source: P.A. 99-686, eff. 7-29-16.)
|
3 | | Section 155. The Methamphetamine Control and Community |
4 | | Protection Act is amended by changing Section 85 as follows: |
5 | | (720 ILCS 646/85)
|
6 | | Sec. 85. Forfeiture. |
7 | | (a) The following are subject to forfeiture:
|
8 | | (1) (blank); all substances containing methamphetamine |
9 | | which have
been produced, manufactured, delivered, or |
10 | | possessed in violation of this Act;
|
11 | | (2) all methamphetamine manufacturing materials which |
12 | | have
been produced, delivered, or possessed in connection |
13 | | with any substance containing methamphetamine in violation |
14 | | of this Act;
|
15 | | (3) all conveyances, including aircraft, vehicles or
|
16 | | vessels, which are used, or intended for use, to transport, |
17 | | or in any manner to facilitate the transportation, sale, |
18 | | receipt, possession, or concealment of any substance |
19 | | containing methamphetamine or property described in |
20 | | paragraph (1) or (2) of this subsection (a) that |
21 | | constitutes a felony violation of the Act, but:
|
22 | | (i) no conveyance used by any person as a common
|
23 | | carrier in the transaction of business as a common |
24 | | carrier is subject to forfeiture under this Section |
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| | HB0303 Enrolled | - 149 - | LRB100 05313 RLC 15324 b |
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|
1 | | unless it appears that the owner or other person in |
2 | | charge of the conveyance is a consenting party or privy |
3 | | to the a violation of this Act ;
|
4 | | (ii) no conveyance is subject to forfeiture
under |
5 | | this Section by reason of any act or omission which the |
6 | | owner proves to have been committed or omitted without |
7 | | his or her knowledge or consent;
|
8 | | (iii) a forfeiture of a conveyance encumbered by
a |
9 | | bona fide security interest is subject to the interest |
10 | | of the secured party if he or she neither had knowledge |
11 | | of nor consented to the act or omission;
|
12 | | (4) all money, things of value, books, records, and
|
13 | | research products and materials including formulas, |
14 | | microfilm, tapes, and data which are used, or intended for |
15 | | use in a felony violation of this Act;
|
16 | | (5) everything of value furnished or intended to be
|
17 | | furnished by any person in exchange for a substance in |
18 | | violation of this Act, all proceeds traceable to such an |
19 | | exchange, and all moneys, negotiable instruments, and |
20 | | securities used, or intended to be used, to commit or in |
21 | | any manner to facilitate any felony violation of this Act.
|
22 | | (6) all real property, including any right, title, and |
23 | | interest (including, but not limited to, any leasehold |
24 | | interest or the beneficial interest in a land trust) in the |
25 | | whole of any lot or tract of land and any appurtenances or |
26 | | improvements, which is used, or intended to be used, in any |
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1 | | manner or part, to commit, or in any manner to facilitate |
2 | | the commission of, any violation or act that constitutes a |
3 | | violation of this Act or that is the proceeds of any |
4 | | violation or act that constitutes a violation of this Act.
|
5 | | (b) Property subject to forfeiture under this Act may be |
6 | | seized under the Drug Asset Forfeiture Procedure Act. In the |
7 | | event of seizure, forfeiture proceedings shall be instituted |
8 | | under the Drug Asset Forfeiture Procedure Act. by the Director |
9 | | or any peace officer upon process or seizure warrant issued by |
10 | | any court having jurisdiction over the property. Seizure by the |
11 | | Director or any peace officer without process may be made:
|
12 | | (1) if the property subject to seizure has been the
|
13 | | subject of a prior judgment in favor of the State in a |
14 | | criminal proceeding or in an injunction or forfeiture |
15 | | proceeding based upon this Act or the Drug Asset Forfeiture |
16 | | Procedure Act;
|
17 | | (2) if there is probable cause to believe that the
|
18 | | property is directly or indirectly dangerous to health or |
19 | | safety;
|
20 | | (3) if there is probable cause to believe that the
|
21 | | property is subject to forfeiture under this Act and the |
22 | | property is seized under circumstances in which a |
23 | | warrantless seizure or arrest would be reasonable; or
|
24 | | (4) in accordance with the Code of Criminal
Procedure |
25 | | of 1963.
|
26 | | (c) Forfeiture under this Act is subject to subject to an |
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| | HB0303 Enrolled | - 151 - | LRB100 05313 RLC 15324 b |
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|
1 | | 8th amendment to the United States Constitution |
2 | | disproportionate penalties analysis as provided under Section |
3 | | 9.5 of the Drug Asset Forfeiture Procedure Act. In the event of |
4 | | seizure pursuant to subsection (b), notice shall be given |
5 | | forthwith to all known interest holders that forfeiture |
6 | | proceedings, including a preliminary review, shall be |
7 | | instituted in accordance with the Drug Asset Forfeiture |
8 | | Procedure Act and such proceedings shall thereafter be |
9 | | instituted in accordance with that Act. Upon a showing of good |
10 | | cause, the notice required for a preliminary review under this |
11 | | Section may be postponed.
|
12 | | (d) With regard to possession of methamphetamine offenses |
13 | | only, a sum of currency with a value of less than $500 shall |
14 | | not be subject to forfeiture under this Act. For all other |
15 | | offenses under this Act, currency with a value of under $100 |
16 | | shall not be subject to forfeiture under this Act. Property |
17 | | taken or detained under this Section is not subject to |
18 | | replevin, but is deemed to be in the custody of the Director |
19 | | subject only to the order and judgments of the circuit court |
20 | | having jurisdiction over the forfeiture proceedings and the |
21 | | decisions of the State's Attorney under the Drug Asset |
22 | | Forfeiture Procedure Act. When property is seized under this |
23 | | Act, the seizing agency shall promptly conduct an inventory of |
24 | | the seized property, estimate the property's value, and forward |
25 | | a copy of the inventory of seized property and the estimate of |
26 | | the property's value to the Director. Upon receiving notice of |
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| | HB0303 Enrolled | - 152 - | LRB100 05313 RLC 15324 b |
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|
1 | | seizure, the Director may:
|
2 | | (1) place the property under seal;
|
3 | | (2) remove the property to a place designated by him or |
4 | | her;
|
5 | | (3) keep the property in the possession of the
seizing |
6 | | agency;
|
7 | | (4) remove the property to a storage area for
|
8 | | safekeeping or, if the property is a negotiable instrument |
9 | | or money and is not needed for evidentiary purposes, |
10 | | deposit it in an interest bearing account;
|
11 | | (5) place the property under constructive seizure by
|
12 | | posting notice of pending forfeiture on it, by giving |
13 | | notice of pending forfeiture to its owners and interest |
14 | | holders, or by filing notice of pending forfeiture in any |
15 | | appropriate public record relating to the property; or
|
16 | | (6) provide for another agency or custodian,
including |
17 | | an owner, secured party, or lienholder, to take custody of |
18 | | the property upon the terms and conditions set by the |
19 | | Director.
|
20 | | (e) For felony offenses involving possession of a substance |
21 | | containing methamphetamine only, no property shall be subject |
22 | | to forfeiture under this Act because of the possession of less |
23 | | than 2 single unit doses of a substance. This exemption shall |
24 | | not apply in instances when the possessor, or another person at |
25 | | the direction of the possessor, is engaged in the destruction |
26 | | of any amount of a substance containing methamphetamine. The |
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|
1 | | amount of a single unit dose shall be the State's burden to |
2 | | prove in their case in chief. No disposition may be made of |
3 | | property under seal until the time for taking an appeal has |
4 | | elapsed or until all appeals have been concluded unless a |
5 | | court, upon application therefor, orders the sale of perishable |
6 | | substances and the deposit of the proceeds of the sale with the |
7 | | court.
|
8 | | (f) (Blank). When property is forfeited under this Act, the |
9 | | Director shall sell the property unless the property is |
10 | | required by law to be destroyed or is harmful to the public, |
11 | | and shall distribute the proceeds of the sale, together with |
12 | | any moneys forfeited or seized, in accordance with subsection |
13 | | (g). However, upon the application of the seizing agency or |
14 | | prosecutor who was responsible for the investigation, arrest or |
15 | | arrests and prosecution which lead to the forfeiture, the |
16 | | Director may return any item of forfeited property to the |
17 | | seizing agency or prosecutor for official use in the |
18 | | enforcement of laws relating to methamphetamine, cannabis, or |
19 | | controlled substances, if the agency or prosecutor |
20 | | demonstrates that the item requested would be useful to the |
21 | | agency or prosecutor in their enforcement efforts. When any |
22 | | forfeited conveyance, including an aircraft, vehicle, or |
23 | | vessel, is returned to the seizing agency or prosecutor, the |
24 | | conveyance may be used immediately in the enforcement of the |
25 | | criminal laws of this State. Upon disposal, all proceeds from |
26 | | the sale of the conveyance must be used for drug enforcement |
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| | HB0303 Enrolled | - 154 - | LRB100 05313 RLC 15324 b |
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|
1 | | purposes. When any real property returned to the seizing agency |
2 | | is sold by the agency or its unit of government, the proceeds |
3 | | of the sale shall be delivered to the Director and distributed |
4 | | in accordance with subsection (g).
|
5 | | (g) (Blank). All moneys and the sale proceeds of all other |
6 | | property forfeited and seized under this Act shall be |
7 | | distributed as follows:
|
8 | | (1)(i) 65% shall be distributed to the metropolitan
|
9 | | enforcement group, local, municipal, county, or State law |
10 | | enforcement agency or agencies which conducted or |
11 | | participated in the investigation resulting in the |
12 | | forfeiture. The distribution shall bear a reasonable |
13 | | relationship to the degree of direct participation of the |
14 | | law enforcement agency in the effort resulting in the |
15 | | forfeiture, taking into account the total value of the |
16 | | property forfeited and the total law enforcement effort |
17 | | with respect to the violation of the law upon which the |
18 | | forfeiture is based. Amounts distributed to the agency or |
19 | | agencies shall be used for the enforcement of laws |
20 | | governing methamphetamine, cannabis, and controlled |
21 | | substances; for public education in the community or |
22 | | schools in the
prevention or detection of the abuse of |
23 | | drugs or
alcohol; or for security cameras used for the |
24 | | prevention or detection of violence, except that amounts |
25 | | distributed to the Secretary of State shall be deposited |
26 | | into the Secretary of State Evidence Fund to be used as |
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| | HB0303 Enrolled | - 155 - | LRB100 05313 RLC 15324 b |
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|
1 | | provided in Section 2-115 of the Illinois Vehicle Code.
|
2 | | (ii) Any local, municipal, or county law enforcement |
3 | | agency entitled to receive a monetary distribution of |
4 | | forfeiture proceeds may share those forfeiture proceeds |
5 | | pursuant to the terms of an intergovernmental agreement |
6 | | with a municipality that has a population in excess of |
7 | | 20,000 if: |
8 | | (I) the receiving agency has entered into an |
9 | | intergovernmental agreement with the municipality to |
10 | | provide police services; |
11 | | (II) the intergovernmental agreement for police |
12 | | services provides for consideration in an amount of not |
13 | | less than $1,000,000 per year; |
14 | | (III) the seizure took place within the |
15 | | geographical limits of the municipality; and |
16 | | (IV) the funds are used only for the enforcement
of |
17 | | laws governing cannabis and controlled substances; for |
18 | | public education in the community or schools in the
|
19 | | prevention or detection of the abuse of drugs or
|
20 | | alcohol; or
for security cameras used for the |
21 | | prevention or detection
of violence or the |
22 | | establishment of a municipal police
force, including |
23 | | the training of officers, construction of
a police |
24 | | station, the purchase of law enforcement
equipment, or |
25 | | vehicles. |
26 | | (2)(i) 12.5% shall be distributed to the Office of
the |
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| | HB0303 Enrolled | - 156 - | LRB100 05313 RLC 15324 b |
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|
1 | | State's Attorney of the county in which the prosecution |
2 | | resulting in the forfeiture was instituted, deposited in a |
3 | | special fund in the county treasury and appropriated to the |
4 | | State's Attorney for use in the enforcement of laws |
5 | | governing methamphetamine, cannabis, and controlled |
6 | | substances; for public education in the community or |
7 | | schools in the
prevention or detection of the abuse of |
8 | | drugs or
alcohol; or at the discretion of the State's |
9 | | Attorney, in addition to other authorized purposes, to make |
10 | | grants to local substance abuse treatment facilities and |
11 | | half-way houses. In counties with a population over |
12 | | 3,000,000, 25% shall be distributed to the Office of the |
13 | | State's Attorney for use in the enforcement of laws |
14 | | governing methamphetamine, cannabis, and controlled |
15 | | substances; for public education in the community or |
16 | | schools in the
prevention or detection of the abuse of |
17 | | drugs or
alcohol; or at the discretion of the State's |
18 | | Attorney, in addition to other authorized purposes, to make |
19 | | grants to local substance abuse treatment facilities and |
20 | | half-way houses. If the prosecution is undertaken solely by |
21 | | the Attorney General, the portion provided hereunder shall |
22 | | be distributed to the Attorney General for use in the |
23 | | enforcement of laws governing methamphetamine, cannabis, |
24 | | and controlled substances or for public education in the |
25 | | community or schools in the
prevention or detection of the |
26 | | abuse of drugs or
alcohol.
|
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| | HB0303 Enrolled | - 157 - | LRB100 05313 RLC 15324 b |
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|
1 | | (ii) 12.5% shall be distributed to the Office of
the |
2 | | State's Attorneys Appellate Prosecutor and deposited in |
3 | | the Narcotics Profit Forfeiture Fund of that Office to be |
4 | | used for additional expenses incurred in the |
5 | | investigation, prosecution and appeal of cases arising |
6 | | under laws governing methamphetamine, cannabis, and |
7 | | controlled substances or for public education in the |
8 | | community or schools in the
prevention or detection of the |
9 | | abuse of drugs or
alcohol. The Office of the State's |
10 | | Attorneys Appellate Prosecutor shall not receive |
11 | | distribution from cases brought in counties with a |
12 | | population over 3,000,000.
|
13 | | (3) 10% shall be retained by the Department of State
|
14 | | Police for expenses related to the administration and sale |
15 | | of seized and forfeited property.
|
16 | | (h) Contraband, including methamphetamine or any |
17 | | controlled substance possessed without authorization under |
18 | | State or federal law, is not subject to forfeiture. No property |
19 | | right exists in contraband. Contraband is subject to seizure |
20 | | and shall be disposed of according to State law. |
21 | | (Source: P.A. 99-686, eff. 7-29-16.) |
22 | | Section 160. The Code of Criminal Procedure of 1963 is |
23 | | amended by changing Sections 124B-710 and 124B-715 and by |
24 | | adding Section 124B-195 as follows: |
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1 | | (725 ILCS 5/124B-195 new) |
2 | | Sec. 124B-195. Reporting. Property seized or forfeited |
3 | | under this Article is subject to reporting under the Seizure |
4 | | and Forfeiture Reporting Act. |
5 | | (725 ILCS 5/124B-710) |
6 | | Sec. 124B-710. Sale of forfeited property by Director of |
7 | | State Police ; return to seizing agency or prosecutor . |
8 | | (a) The court shall authorize the Director of State Police |
9 | | to seize any property declared forfeited under this Article on |
10 | | terms and conditions the court deems proper. |
11 | | (b) When property is forfeited under this Part 700, the |
12 | | Director of State Police shall sell the property unless the |
13 | | property is required by law to be destroyed or is harmful to |
14 | | the public. The Director shall distribute the proceeds of the |
15 | | sale, together with any moneys forfeited or seized, in |
16 | | accordance with Section 124B-715. |
17 | | (c) (Blank). On the application of the seizing agency or |
18 | | prosecutor who was responsible for the investigation, arrest, |
19 | | and prosecution that lead to the forfeiture, however, the |
20 | | Director may return any item of forfeited property to the |
21 | | seizing agency or prosecutor for official use in the |
22 | | enforcement of laws relating to Article 17B or Section 17-6.3 |
23 | | of the Criminal Code of 1961 or the Criminal Code of 2012 if |
24 | | the agency or prosecutor can demonstrate that the item |
25 | | requested would be useful to the agency or prosecutor in their |
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1 | | enforcement efforts. When any real property returned to the |
2 | | seizing agency is sold by the agency or its unit of government, |
3 | | the proceeds of the sale shall be delivered to the Director and |
4 | | distributed in accordance with Section 124B-715.
|
5 | | (Source: P.A. 96-712, eff. 1-1-10; 97-1108, eff. 1-1-13; |
6 | | 97-1150, eff. 1-25-13.) |
7 | | (725 ILCS 5/124B-715)
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8 | | Sec. 124B-715. Distribution of all other property and sale |
9 | | proceeds. All moneys and the sale proceeds of all property |
10 | | forfeited and seized under this Part 700 and not returned to a |
11 | | seizing agency or prosecutor under subsection (c) of Section |
12 | | 124B-705 shall be distributed to the Special Supplemental Food |
13 | | Program for Women, Infants and Children (WIC) program |
14 | | administered by the Illinois Department of Human Services.
|
15 | | (Source: P.A. 96-712, eff. 1-1-10.) |
16 | | (725 ILCS 5/124B-1030 rep.) |
17 | | Section 165. The Code of Criminal Procedure of 1963 is |
18 | | amended by repealing Section 124B-1030. |
19 | | Section 170. The Drug Asset Forfeiture Procedure Act is |
20 | | amended by changing Sections 3.5, 4, 5, 6, 7, 8, 9, 11, and 14 |
21 | | and by adding Sections 3.1, 3.2, 3.3, 5.1, 9.1, 9.5, 15, 17, |
22 | | and 20 as follows: |
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1 | | (725 ILCS 150/3.1 new) |
2 | | Sec. 3.1. Seizure. |
3 | | (a) Actual physical seizure of real property subject to |
4 | | forfeiture under this Act requires the issuance of a seizure |
5 | | warrant. Nothing in this Section prohibits the constructive |
6 | | seizure of real property through the filing of a complaint for |
7 | | forfeiture in circuit court and the recording of a lis pendens |
8 | | against the real property without a hearing, warrant |
9 | | application, or judicial approval. |
10 | | (b) Personal property subject to forfeiture under the |
11 | | Illinois Controlled Substances Act, the Cannabis Control Act, |
12 | | the Illinois Food, Drug and Cosmetic Act, or the |
13 | | Methamphetamine Control and Community Protection Act may be |
14 | | seized by the Director of State Police or any peace officer |
15 | | upon process or seizure warrant issued by any court having |
16 | | jurisdiction over the property. |
17 | | (c) Personal property subject to forfeiture under the |
18 | | Illinois Controlled Substances Act, the Cannabis Control Act, |
19 | | the Illinois Food, Drug and Cosmetic Act, or the |
20 | | Methamphetamine Control and Community Protection Act may be |
21 | | seized by the Director of State Police or any peace officer |
22 | | without process: |
23 | | (1) if the seizure is incident to inspection under an |
24 | | administrative inspection warrant; |
25 | | (2) if the property subject to seizure has been the |
26 | | subject of a prior judgment in favor of the State in a |
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1 | | criminal proceeding or in an injunction or forfeiture |
2 | | proceeding based upon this Act; |
3 | | (3) if there is probable cause to believe that the |
4 | | property is directly or indirectly dangerous to health or |
5 | | safety; |
6 | | (4) if there is probable cause to believe that the |
7 | | property is subject to forfeiture under the Illinois |
8 | | Controlled Substances Act, the Cannabis Control Act, the |
9 | | Illinois Food, Drug and Cosmetic Act, or the |
10 | | Methamphetamine Control and Community Protection Act, and |
11 | | the property is seized under circumstances in which a |
12 | | warrantless seizure or arrest would be reasonable; or |
13 | | (5) under the Code of Criminal Procedure of 1963. |
14 | | (d) If a conveyance is seized under this Act, an |
15 | | investigation shall be made by the law enforcement agency as to |
16 | | any person whose right, title, interest, or lien is of record |
17 | | in the office of the agency or official in which title or |
18 | | interest to the conveyance is required by law to be recorded. |
19 | | (e) After seizure under this Section, notice shall be given |
20 | | to all known interest holders that forfeiture proceedings, |
21 | | including a preliminary review, may be instituted and the |
22 | | proceedings may be instituted under this Act. Upon a showing of |
23 | | good cause related to an ongoing investigation, the notice |
24 | | required for a preliminary review under this Section may be |
25 | | postponed. |
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1 | | (725 ILCS 150/3.2 new) |
2 | | Sec. 3.2. Receipt for seized property. If a law enforcement |
3 | | officer seizes property that is subject to forfeiture, the |
4 | | officer shall provide an itemized receipt to the person |
5 | | possessing the property or, in the absence of a person to whom |
6 | | the receipt could be given, shall leave the receipt in the |
7 | | place where the property was found, if possible. |
8 | | (725 ILCS 150/3.3 new) |
9 | | Sec. 3.3. Safekeeping of seized property pending |
10 | | disposition. |
11 | | (a) Property seized under this Act is deemed to be in the |
12 | | custody of the Director of State Police subject only to the |
13 | | order and judgments of the circuit court having jurisdiction |
14 | | over the forfeiture proceedings and the decisions of the |
15 | | State's Attorney under this Act. |
16 | | (b) If property is seized under this Act, the seizing |
17 | | agency shall promptly conduct an inventory of the seized |
18 | | property and estimate the property's value, and shall forward a |
19 | | copy of the inventory of seized property and the estimate of |
20 | | the property's value to the Director of State Police. Upon |
21 | | receiving notice of seizure, the Director of State Police may: |
22 | | (1) place the property under seal; |
23 | | (2) remove the property to a place designated by the |
24 | | seizing agency; |
25 | | (3) keep the property in the possession of the Director |
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1 | | of State Police; |
2 | | (4) remove the property to a storage area for |
3 | | safekeeping; or |
4 | | (5) place the property under constructive seizure by |
5 | | posting notice of pending forfeiture on it, by giving |
6 | | notice of pending forfeiture to its owners and interest |
7 | | holders, or by filing notice of pending forfeiture in any |
8 | | appropriate public record relating to the property; or |
9 | | (6) provide for another agency or custodian, including |
10 | | an owner, secured party, or lienholder, to take custody of |
11 | | the property upon the terms and conditions set by the |
12 | | seizing agency. |
13 | | (c) The seizing agency is required to exercise ordinary |
14 | | care to protect the seized property from negligent loss, |
15 | | damage, or destruction. |
16 | | (725 ILCS 150/3.5) |
17 | | Sec. 3.5. Preliminary Review. |
18 | | (a) Within 14 days of the seizure, the State shall seek a |
19 | | preliminary determination from the circuit court as to whether |
20 | | there is probable cause that the property may be subject to |
21 | | forfeiture. |
22 | | (b) The rules of evidence shall not apply to any proceeding |
23 | | conducted under this Section. |
24 | | (c) The court may conduct the review under subsection (a) |
25 | | simultaneously with a proceeding pursuant to Section 109-1 of |
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1 | | the Code of Criminal Procedure of 1963 for a related criminal |
2 | | offense if a prosecution is commenced by information or |
3 | | complaint. |
4 | | (d) The court may accept a finding of probable cause at a |
5 | | preliminary hearing following the filing of an information or |
6 | | complaint charging a related criminal offense or following the |
7 | | return of indictment by a grand jury charging the related |
8 | | offense as sufficient evidence of probable cause as required |
9 | | under subsection (a). |
10 | | (e) Upon making a finding of probable cause as required |
11 | | under this Section, the circuit court shall order the property |
12 | | subject to the provisions of the applicable forfeiture Act held |
13 | | until the conclusion of any forfeiture proceeding. |
14 | | For seizures of conveyances, within 28 days after within 7 |
15 | | days of a finding of probable cause under subsection (a), the |
16 | | registered owner or other claimant may file a motion in writing |
17 | | supported by sworn affidavits claiming that denial of the use |
18 | | of the conveyance during the pendency of the forfeiture |
19 | | proceedings creates a substantial hardship and alleges facts |
20 | | showing that the delay was not due to his or her culpable |
21 | | negligence . The court shall consider the following factors in |
22 | | determining whether a substantial hardship has been proven: |
23 | | (1) the nature of the claimed hardship; |
24 | | (2) the availability of public transportation or other |
25 | | available means of transportation; and |
26 | | (3) any available alternatives to alleviate the |
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1 | | hardship other than the return of the seized conveyance. |
2 | | If the court determines that a substantial hardship has |
3 | | been proven, the court shall then balance the nature of the |
4 | | hardship against the State's interest in safeguarding the |
5 | | conveyance. If the court determines that the hardship outweighs |
6 | | the State's interest in safeguarding the conveyance, the court |
7 | | may temporarily release the conveyance to the registered owner |
8 | | or the registered owner's authorized designee, or both, until |
9 | | the conclusion of the forfeiture proceedings or for such |
10 | | shorter period as ordered by the court provided that the person |
11 | | to whom the conveyance is released provides proof of insurance |
12 | | and a valid driver's license and all State and local |
13 | | registrations for operation of the conveyance are current. The |
14 | | court shall place conditions on the conveyance limiting its use |
15 | | to the stated hardship and providing transportation for |
16 | | employment, religious purposes, medical needs, child care, and |
17 | | obtaining food, and restricting the conveyance's use to only |
18 | | those individuals authorized to use the conveyance by the |
19 | | registered owner. The use of the vehicle shall be further |
20 | | restricted to exclude all recreational and entertainment |
21 | | purposes. The court may order any additional restrictions it |
22 | | deems reasonable and just on its own motion or on motion of the |
23 | | People. The court shall revoke the order releasing the |
24 | | conveyance and order that the conveyance be reseized by law |
25 | | enforcement if the conditions of release are violated or if the |
26 | | conveyance is used in the commission of any offense identified |
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1 | | in subsection (a) of Section 6-205 of the Illinois Vehicle |
2 | | Code. |
3 | | If the court orders the release of the conveyance during |
4 | | the pendency of the forfeiture proceedings, the court may order |
5 | | the registered owner or his or her authorized designee to shall |
6 | | post a cash security with the Clerk of the Court as ordered by |
7 | | the court. If cash security is ordered, the The court shall |
8 | | consider the following factors in determining the amount of the |
9 | | cash security: |
10 | | (A) the full market value of the conveyance; |
11 | | (B) the nature of the hardship; |
12 | | (C) the extent and length of the usage of the |
13 | | conveyance; and |
14 | | (D) the ability of the owner or designee to pay; and |
15 | | such other conditions as the court deems necessary to |
16 | | safeguard the conveyance. |
17 | | (E) other conditions as the court deems necessary to |
18 | | safeguard the conveyance. |
19 | | If the conveyance is released, the court shall order that |
20 | | the registered owner or his or her designee safeguard the |
21 | | conveyance, not remove the conveyance from the jurisdiction, |
22 | | not conceal, destroy, or otherwise dispose of the conveyance, |
23 | | not encumber the conveyance, and not diminish the value of the |
24 | | conveyance in any way. The court shall also make a |
25 | | determination of the full market value of the conveyance prior |
26 | | to it being released based on a source or sources defined in 50 |
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1 | | Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). |
2 | | If the conveyance subject to forfeiture is released under |
3 | | this Section and is subsequently forfeited, the person to whom |
4 | | the conveyance was released shall return the conveyance to the |
5 | | law enforcement agency that seized the conveyance within 7 days |
6 | | from the date of the declaration of forfeiture or order of |
7 | | forfeiture. If the conveyance is not returned within 7 days, |
8 | | the cash security shall be forfeited in the same manner as the |
9 | | conveyance subject to forfeiture. If the cash security was less |
10 | | than the full market value, a judgment shall be entered against |
11 | | the parties to whom the conveyance was released and the |
12 | | registered owner, jointly and severally, for the difference |
13 | | between the full market value and the amount of the cash |
14 | | security. If the conveyance is returned in a condition other |
15 | | than the condition in which it was released, the cash security |
16 | | shall be returned to the surety who posted the security minus |
17 | | the amount of the diminished value, and that amount shall be |
18 | | forfeited in the same manner as the conveyance subject to |
19 | | forfeiture. Additionally, the court may enter an order allowing |
20 | | any law enforcement agency in the State of Illinois to seize |
21 | | the conveyance wherever it may be found in the State to satisfy |
22 | | the judgment if the cash security was less than the full market |
23 | | value of the conveyance.
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24 | | (Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12.)
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25 | | (725 ILCS 150/4) (from Ch. 56 1/2, par. 1674)
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1 | | Sec. 4. Notice to Owner or Interest Holder. The first |
2 | | attempted service shall be commenced within 28 days of the |
3 | | filing of the verified claim or the receipt of the notice from |
4 | | seizing agency by the form 4-64, whichever occurs sooner. A |
5 | | complaint for forfeiture or a notice of pending forfeiture |
6 | | shall be served upon the property owner or interest holder in |
7 | | the following manner: |
8 | | (1) If the owner's or interest holder's name and |
9 | | current address are known, then by either: |
10 | | (A) personal service; or |
11 | | (B) mailing a copy of the notice by certified mail, |
12 | | return receipt requested and first class mail, to that |
13 | | address. |
14 | | (i) If notice is sent by certified mail and no |
15 | | signed return receipt is received by the State's |
16 | | Attorney within 28 days of mailing, and no |
17 | | communication from the owner or interest holder is |
18 | | received by the State's Attorney documenting |
19 | | actual notice by said parties, then the State's |
20 | | Attorney shall, within a reasonable period of |
21 | | time, mail a second copy of the notice by certified |
22 | | mail, return receipt requested and first class |
23 | | mail, to that address. |
24 | | (ii) If no signed return receipt is received by |
25 | | the State's Attorney within 28 days of the second |
26 | | attempt at service by certified mail, and no |
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1 | | communication from the owner or interest holder is |
2 | | received by the State's Attorney documenting |
3 | | actual notice by said parties, then the State's |
4 | | Attorney shall have 60 days to attempt to serve the |
5 | | notice by personal service, which also includes |
6 | | substitute service by leaving a copy at the usual |
7 | | place of abode, with some person of the family or a |
8 | | person residing there, of the age of 13 years or |
9 | | upwards. If after 3 attempts at service in this |
10 | | manner, no service of the notice is accomplished, |
11 | | then the notice shall be posted in a conspicuous |
12 | | manner at this address and service shall be made by |
13 | | posting. |
14 | | The attempts at service and the posting if |
15 | | required, shall be documented by the person |
16 | | attempting service and said documentation shall be |
17 | | made part of a return of service returned to the |
18 | | State's Attorney. |
19 | | The State's Attorney may utilize any Sheriff |
20 | | or Deputy Sheriff any peace officer, a private |
21 | | process server or investigator, or any employee, |
22 | | agent, or investigator of the State's Attorney's |
23 | | Office to attempt service without seeking leave of |
24 | | court. |
25 | | After the procedures set forth are followed, |
26 | | service shall be effective on an owner or interest |
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1 | | holder on the date of receipt by the State's |
2 | | Attorney of a returned return receipt requested, |
3 | | or on the date of receipt of a communication from |
4 | | an owner or interest holder documenting actual |
5 | | notice, whichever is first in time, or on the date |
6 | | of the last act performed by the State's Attorney |
7 | | in attempting personal service under subparagraph |
8 | | (ii) above. If notice is to be shown by actual |
9 | | notice from communication with a claimant, then |
10 | | the State's Attorney shall file an affidavit |
11 | | providing details of the communication, which may |
12 | | be accepted as sufficient proof of service by the |
13 | | court. |
14 | | After a claimant files a verified claim with |
15 | | the State's Attorney and provide an address at |
16 | | which they will accept service, the complaint |
17 | | shall be served and notice shall be perfected upon |
18 | | mailing of the complaint to the claimant at the |
19 | | address the claimant provided via certified mail, |
20 | | return receipt requested and first class mail. No |
21 | | return receipt card need be received, or any other |
22 | | attempts at service need be made to comply with |
23 | | service and notice requirements under this Act. |
24 | | This certified mailing, return receipt requested |
25 | | shall be proof of service of the complaint on the |
26 | | claimant. |
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1 | | For purposes of notice under this Section, if a |
2 | | person has been arrested for the conduct giving |
3 | | rise to the forfeiture, then the address provided |
4 | | to the arresting agency at the time of arrest shall |
5 | | be deemed to be that person's known address. |
6 | | Provided, however, if an owner or interest |
7 | | holder's address changes prior to the effective |
8 | | date of the notice of pending forfeiture, the owner |
9 | | or interest holder shall promptly notify the |
10 | | seizing agency of the change in address or, if the |
11 | | owner or interest holder's address changes |
12 | | subsequent to the effective date of the notice of |
13 | | pending forfeiture, the owner or interest holder |
14 | | shall promptly notify the State's Attorney of the |
15 | | change in address; or if the property seized is a |
16 | | conveyance, to the address reflected in the office |
17 | | of the agency or official in which title or |
18 | | interest to the conveyance is required by law to be |
19 | | recorded. |
20 | | (2) If the owner's or interest holder's address is not |
21 | | known, and is not on record, then notice shall be served by |
22 | | publication for 3 successive weeks in a newspaper of |
23 | | general circulation in the county in which the seizure |
24 | | occurred. |
25 | | (3) After a claimant files a verified claim with the |
26 | | State's Attorney and provides an address at which they will |
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1 | | accept service, the complaint shall be served and notice |
2 | | shall be perfected upon mailing of the complaint to the |
3 | | claimant at the address the claimant provided via certified |
4 | | mail, return receipt requested and first class mail. No |
5 | | return receipt card need be received or any other attempts |
6 | | at service need be made to comply with service and notice |
7 | | requirements under this Act. This certified mailing, |
8 | | return receipt requested shall be proof of service of the |
9 | | complaint on the claimant. |
10 | | (4) Notice to any business entity, corporation, LLC, |
11 | | LLP, or partnership shall be complete by a single mailing |
12 | | of a copy of the notice by certified mail, return receipt |
13 | | requested and first class mail, to that address. This |
14 | | notice is complete regardless of the return of a signed |
15 | | "return receipt requested". |
16 | | (5) Notice to a person whose address is not within the |
17 | | State shall be complete by a single mailing of a copy of |
18 | | the notice by certified mail, return receipt requested and |
19 | | first class mail, to that address. This notice is complete |
20 | | regardless of the return of a signed "return receipt |
21 | | requested". |
22 | | (6) Notice to a person whose address is not within the |
23 | | United States shall be complete by a single mailing of a |
24 | | copy of the notice by certified mail, return receipt |
25 | | requested and first class mail, to that address. This |
26 | | notice shall be complete regardless of the return of a |
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1 | | signed "return receipt requested". If certified mail is not |
2 | | available in the foreign country where the person has an |
3 | | address, then notice shall proceed by publication under |
4 | | paragraph (2) of this Section. |
5 | | (7) Notice to any person whom the State's Attorney |
6 | | reasonably should know is incarcerated within the State |
7 | | shall also include the mailing a copy of the notice by |
8 | | certified mail, return receipt requested and first class |
9 | | mail, to the address of the detention facility with the |
10 | | inmate's name clearly marked on the envelope.
|
11 | | (A) (Blank). Whenever notice of pending forfeiture or |
12 | | service of an in rem
complaint is required under the provisions |
13 | | of this Act, such notice or
service shall be given as follows:
|
14 | | (1) If the owner's or interest holder's name and |
15 | | current address are
known, then by either personal service |
16 | | or mailing a copy of the notice by
certified mail, return |
17 | | receipt requested, to that address. For purposes of
notice |
18 | | under this Section, if a person has been arrested for the |
19 | | conduct
giving rise to the forfeiture, then the address |
20 | | provided to the arresting
agency at the time of arrest |
21 | | shall be deemed to be that person's known
address. |
22 | | Provided, however, if an owner or interest holder's address
|
23 | | changes prior to the effective date of the notice of |
24 | | pending forfeiture,
the owner or interest holder shall |
25 | | promptly notify the seizing agency of
the change in address |
26 | | or, if the owner or interest holder's address changes
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1 | | subsequent to the effective date of the notice of pending |
2 | | forfeiture, the
owner or interest holder shall promptly |
3 | | notify the State's Attorney of the
change in address; or
|
4 | | (2) If the property seized is a conveyance, to the |
5 | | address reflected in
the office of the agency or official |
6 | | in which title or interest to the
conveyance is required by |
7 | | law to be recorded, then by mailing a copy of the
notice by |
8 | | certified mail, return receipt requested, to that address; |
9 | | or
|
10 | | (3) If the owner's or interest holder's address is not |
11 | | known, and is not
on record as provided in paragraph (2), |
12 | | then by publication for 3
successive weeks in a newspaper |
13 | | of general circulation in the county in
which the seizure |
14 | | occurred.
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15 | | (B) (Blank). Notice served under this Act is effective upon |
16 | | personal service,
the last date of publication, or the mailing |
17 | | of written notice, whichever
is earlier.
|
18 | | (Source: P.A. 86-1382; 87-614.)
|
19 | | (725 ILCS 150/5) (from Ch. 56 1/2, par. 1675)
|
20 | | Sec. 5. Notice to State's Attorney. The law enforcement |
21 | | agency
seizing property for forfeiture under the Illinois |
22 | | Controlled
Substances Act, the Cannabis Control Act, or the |
23 | | Methamphetamine Control and Community Protection Act , or the |
24 | | Illinois Food, Drug, and Cosmetic Act shall, as soon as |
25 | | practicable but not later than 28 days after the shall,
within |
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1 | | 52 days of seizure, notify the State's Attorney for the county |
2 | | in
which an act or omission giving rise to the seizure |
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. Said |
7 | | notice shall be by the delivery of the form 4-64. When
the |
8 | | property seized for forfeiture is a vehicle, the law |
9 | | enforcement agency
seizing the property shall immediately |
10 | | notify the Secretary of State that
forfeiture proceedings are |
11 | | pending regarding such vehicle.
|
12 | | (Source: P.A. 94-556, eff. 9-11-05.)
|
13 | | (725 ILCS 150/5.1 new) |
14 | | Sec. 5.1. Replevin prohibited; return of personal property |
15 | | inside seized conveyance. |
16 | | (a) Property seized under this Act shall not be subject to |
17 | | replevin, but is deemed to be in the custody of the Director of |
18 | | State Police subject only to the order and judgments of the |
19 | | circuit court having jurisdiction over the forfeiture |
20 | | proceedings and the decisions of the State's Attorney. |
21 | | (b) A claimant or a party interested in personal property |
22 | | contained within a seized conveyance may file a request with |
23 | | the State's Attorney in an administrative forfeiture action, or |
24 | | a motion with the court in a judicial forfeiture action, for |
25 | | the return of any personal property contained within a |
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1 | | conveyance seized under this Act. The return of personal |
2 | | property shall not be unreasonably withheld if the personal |
3 | | property is not mechanically or electrically coupled to the |
4 | | conveyance, needed for evidentiary purposes, or otherwise |
5 | | contraband. A law enforcement agency that returns property |
6 | | under a court order under this Section shall not be liable to |
7 | | any person who claims ownership to the property if the property |
8 | | is returned to an improper party.
|
9 | | (725 ILCS 150/6) (from Ch. 56 1/2, par. 1676)
|
10 | | Sec. 6. Non-Judicial Forfeiture. If non-real property that |
11 | | exceeds $150,000
in value excluding the value of any |
12 | | conveyance, or if real property
is seized under the provisions |
13 | | of the Illinois Controlled Substances Act,
the Cannabis Control |
14 | | Act, or the Methamphetamine Control and Community Protection |
15 | | Act, the State's Attorney shall institute judicial in
rem |
16 | | forfeiture proceedings as described in Section 9 of this Act |
17 | | within 45
days from receipt of notice of seizure from the |
18 | | seizing agency under
Section 5 of this Act. However, if |
19 | | non-real property that does not exceed
$150,000 in value |
20 | | excluding the value of any conveyance is seized, the
following |
21 | | procedure shall be used:
|
22 | | (A) If, after review of the facts surrounding the seizure, |
23 | | the State's
Attorney is of the opinion that the seized property |
24 | | is subject to
forfeiture, then within 45 days of the receipt of |
25 | | notice of seizure from the
seizing agency, the State's Attorney |
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1 | | shall cause notice of pending
forfeiture to be given to the |
2 | | owner of the property and all known interest
holders of the |
3 | | property in accordance with Section 4 of this Act.
|
4 | | (B) The notice of pending forfeiture must include a |
5 | | description of the
property, the estimated value of the |
6 | | property, the date and place of
seizure, the conduct giving |
7 | | rise to forfeiture or the violation of law
alleged, and a |
8 | | summary of procedures and procedural rights applicable to
the |
9 | | forfeiture action.
|
10 | | (C) (1) Any person claiming an interest in property which |
11 | | is the
subject of notice under subsection (A) of Section 6 |
12 | | of this Act, may,
within 45 days after the effective date |
13 | | of notice as described in Section 4
of this Act, file a |
14 | | verified claim with the State's Attorney expressing his
or |
15 | | her interest in the property. The claim must set forth:
|
16 | | (i) the caption of the proceedings as set forth on |
17 | | the notice of
pending forfeiture and the name of the |
18 | | claimant;
|
19 | | (ii) the address at which the claimant will accept |
20 | | mail;
|
21 | | (iii) the nature and extent of the claimant's |
22 | | interest in the property;
|
23 | | (iv) the date, identity of the transferor, and |
24 | | circumstances of the
claimant's acquisition of the |
25 | | interest in the property;
|
26 | | (v) the name and address of all other persons known |
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1 | | to have an
interest in the property;
|
2 | | (vi) the specific provision of law relied on in |
3 | | asserting the property
is not subject to forfeiture;
|
4 | | (vii) all essential facts supporting each |
5 | | assertion; and
|
6 | | (viii) the relief sought.
|
7 | | (2) If a claimant files the claim and deposits with the |
8 | | State's Attorney
a cost bond, in the form of a cashier's |
9 | | check payable to the clerk of the
court, in the sum of 10 |
10 | | percent of the reasonable value of the property as
alleged |
11 | | by the State's Attorney or the sum of $100, whichever is |
12 | | greater,
upon condition that, in the case of forfeiture, |
13 | | the claimant must pay all
costs and expenses of forfeiture |
14 | | proceedings, then the State's Attorney
shall institute |
15 | | judicial in rem forfeiture proceedings and deposit the cost
|
16 | | bond with the clerk of the court as described in Section 9 |
17 | | of this Act
within 30 45 days after receipt of the claim |
18 | | and cost bond . In lieu of a cost
bond, a person claiming |
19 | | interest in the seized property may file, under
penalty of |
20 | | perjury, an indigency affidavit .
|
21 | | (3) If none of the seized property is forfeited in the |
22 | | judicial in rem
proceeding, the clerk of the court shall |
23 | | return to the claimant, unless the
court orders otherwise, |
24 | | 90% of the sum which has been deposited and shall
retain as |
25 | | costs 10% of the money deposited. If any of the seized |
26 | | property
is forfeited under the judicial forfeiture |
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1 | | proceeding, the clerk of
the court shall transfer 90% of |
2 | | the sum which has been deposited to the
State's Attorney |
3 | | prosecuting the civil forfeiture to be applied to the
costs |
4 | | of prosecution and the clerk shall retain as costs 10% of |
5 | | the sum
deposited.
|
6 | | (D) If no claim is filed or bond given within the 45 day |
7 | | period as
described in subsection (C) of Section 6 of this Act, |
8 | | the State's Attorney
shall declare the property forfeited and |
9 | | shall promptly notify the
owner and all known interest holders |
10 | | of the property and the Director of the
Illinois Department of |
11 | | State Police of the declaration of forfeiture and
the Director |
12 | | shall dispose of the property in accordance with law.
|
13 | | (Source: P.A. 97-544, eff. 1-1-12.)
|
14 | | (725 ILCS 150/7) (from Ch. 56 1/2, par. 1677)
|
15 | | Sec. 7. Presumptions and inferences . |
16 | | (1) The following situation situations shall give rise to a
|
17 | | presumption that the property described therein was furnished |
18 | | or intended
to be furnished in exchange for a substance in |
19 | | violation of the Illinois
Controlled Substances Act, the |
20 | | Cannabis Control Act, or the Methamphetamine Control and |
21 | | Community Protection Act, or is the proceeds
of such an |
22 | | exchange, and therefore forfeitable under this Act, such
|
23 | | presumptions being rebuttable by a preponderance of the |
24 | | evidence:
|
25 | | (1) All moneys, coin, or currency found in close proximity |
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1 | | to
forfeitable substances, to forfeitable drug manufacturing |
2 | | or distributing
paraphernalia, or to forfeitable records of the |
3 | | importation, manufacture or
distribution of substances . ;
|
4 | | (2) In the following situation, the trier of fact may infer |
5 | | that the property described therein was furnished or intended |
6 | | to be furnished in exchange for a substance in violation of the |
7 | | Illinois Controlled Substances Act, the Cannabis Control Act, |
8 | | or the Methamphetamine Control and Community Protection Act, or |
9 | | is the proceeds of such an exchange, and therefore forfeitable |
10 | | under this Act: |
11 | | (2) All property acquired or caused to be acquired by a |
12 | | person either
between the dates of occurrence of two or more |
13 | | acts in felony violation of
the Illinois Controlled Substances |
14 | | Act, the Cannabis Control Act, or the Methamphetamine Control |
15 | | and Community Protection Act,
or an act committed in another |
16 | | state, territory or
country which would be punishable as a |
17 | | felony under the Illinois
Controlled Substances Act, the |
18 | | Cannabis Control Act, or the Methamphetamine Control and |
19 | | Community Protection Act, committed by that
person within 5 |
20 | | years of each other, or all property acquired by such
person |
21 | | within a reasonable amount of time after the commission of such |
22 | | acts if:
|
23 | | (a) At least one of the above acts was committed after |
24 | | the effective
date of this Act; and
|
25 | | (b) Both At least one of the acts are or were is or was |
26 | | punishable as a Class X, Class 1,
or Class 2 felony; and
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1 | | (c) There was no likely source for such property other |
2 | | than a violation
of the above Acts.
|
3 | | (3) Presumptions and permissive inferences set forth in |
4 | | this Section shall apply to all portions of all phases of the |
5 | | judicial in rem forfeiture proceedings under this Act. |
6 | | (Source: P.A. 94-556, eff. 9-11-05.)
|
7 | | (725 ILCS 150/8) (from Ch. 56 1/2, par. 1678)
|
8 | | Sec. 8. Exemptions from forfeiture. |
9 | | (a) No vessel or watercraft, vehicle, or aircraft used by |
10 | | any person as a common carrier in the transaction of business |
11 | | as a common carrier may be forfeited under this Act unless the |
12 | | State proves by a preponderance of the evidence that: |
13 | | (1) in the case of a railway car or engine, the owner, |
14 | | or |
15 | | (2) in the case of any other such vessel or watercraft, |
16 | | vehicle or aircraft, the owner or the master of such vessel |
17 | | or watercraft or the owner or conductor, driver, pilot, or |
18 | | other person in charge of that vehicle or aircraft was at |
19 | | the time of the alleged illegal act a consenting party or |
20 | | privy to that knowledge. |
21 | | (b) No vessel or watercraft, vehicle, or aircraft shall be |
22 | | forfeited under this Act by reason of any act or omission |
23 | | committed or omitted by any person other than such owner while |
24 | | a vessel or watercraft, vehicle, or aircraft was unlawfully in |
25 | | the possession of a person who acquired possession in violation |
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1 | | of the criminal laws of the United States, or of any state. A |
2 | | property interest is exempt
from forfeiture under this Section |
3 | | if its owner or interest holder
establishes by a preponderance |
4 | | of evidence that the owner or interest holder:
|
5 | | (A) (blank); and (i) in the case of personal property, is |
6 | | not legally accountable
for the conduct giving rise to the |
7 | | forfeiture, did not acquiesce in it, and
did not know and could |
8 | | not reasonably have known of the conduct or that
the conduct |
9 | | was likely to occur, or
|
10 | | (ii) in the case of real property, is not legally |
11 | | accountable for
the conduct giving rise to the forfeiture, or |
12 | | did not solicit, conspire, or
attempt to commit the conduct |
13 | | giving rise to the forfeiture; and
|
14 | | (B) (blank); and had not acquired and did not stand to |
15 | | acquire substantial proceeds
from the conduct giving rise to |
16 | | its forfeiture other than as an interest
holder in an arms |
17 | | length commercial transaction; and
|
18 | | (C) (blank); and with respect to conveyances, did not hold |
19 | | the property jointly or in
common with a person whose conduct |
20 | | gave rise to the forfeiture; and
|
21 | | (D) (blank); and does not hold the property for the benefit |
22 | | of or as nominee for any
person whose conduct gave rise to its |
23 | | forfeiture, and, if the owner or
interest holder acquired the |
24 | | interest through any such person, the owner or
interest holder |
25 | | acquired it as a bona fide purchaser for value without
|
26 | | knowingly taking part in the conduct giving rise to the |
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1 | | forfeiture; and
|
2 | | (E) (blank); and that the owner or interest holder acquired |
3 | | the interest:
|
4 | | (i) before the commencement of the conduct giving rise to |
5 | | its forfeiture
and the person whose conduct gave rise to its |
6 | | forfeiture did not have the
authority to convey the interest to |
7 | | a bona fide purchaser for value at the
time of the conduct; or
|
8 | | (ii) after the commencement of the conduct giving rise to |
9 | | its forfeiture,
and the owner or interest holder acquired the |
10 | | interest as a mortgagee,
secured creditor, lienholder, or bona |
11 | | fide purchaser for value without
knowledge of the conduct which |
12 | | gave rise to the forfeiture; and
|
13 | | (a) in the case of personal property, without knowledge of |
14 | | the seizure
of the property for forfeiture; or
|
15 | | (b) in the case of real estate, before the filing in the |
16 | | office of the
Recorder of Deeds of the county in which the real |
17 | | estate is located of a
notice of seizure for forfeiture or a |
18 | | lis pendens notice.
|
19 | | (Source: P.A. 86-1382.)
|
20 | | (725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)
|
21 | | Sec. 9. Judicial in rem procedures. If property seized |
22 | | under the
provisions of the Illinois Controlled Substances Act, |
23 | | the Cannabis Control
Act, or the Methamphetamine Control and |
24 | | Community Protection Act is non-real property that exceeds |
25 | | $150,000 $20,000 in value excluding the value
of any |
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1 | | conveyance, or is real property, or a claimant has filed a |
2 | | claim and
a cost bond under subsection (C) of Section 6 of this |
3 | | Act, the following
judicial in rem procedures shall apply:
|
4 | | (A) If, after a review of the facts surrounding the |
5 | | seizure, the State's
Attorney is of the opinion that the seized |
6 | | property is subject to
forfeiture, then within 45 days of the |
7 | | receipt of notice of seizure by the
seizing agency or the |
8 | | filing of the claim and cost bond, whichever is
later, the |
9 | | State's Attorney shall institute judicial forfeiture |
10 | | proceedings
by filing a verified complaint for forfeiture in |
11 | | the circuit court within whose jurisdiction the seizure |
12 | | occurred, or within whose jurisdiction an act or omission |
13 | | giving rise to the seizure occurred, subject to Supreme Court |
14 | | Rule 187 and, if the claimant has
filed a claim and cost bond, |
15 | | by depositing the cost bond with the clerk of
the court . The |
16 | | complaint of forfeiture shall be filed as soon as practicable, |
17 | | but not later than 28 days after the filing of a verified claim |
18 | | by a claimant if the property was acted upon under a |
19 | | non-judicial forfeiture action, or 28 days after the State's |
20 | | Attorney receives notice from the seizing agency as provided |
21 | | under Section 5 of this Act, whichever occurs later. When |
22 | | authorized by law, a forfeiture must be ordered by a court
on |
23 | | an action in rem brought by a State's Attorney under a verified
|
24 | | complaint for forfeiture.
|
25 | | (A-5) If the State's Attorney finds that the alleged |
26 | | violation of law giving rise to the seizure was incurred |
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1 | | without willful negligence or without any intention on the part |
2 | | of the owner of the property to violate the law or finds the |
3 | | existence of those mitigating circumstances to justify |
4 | | remission of the forfeiture, may cause the law enforcement |
5 | | agency having custody of the property to return the property to |
6 | | the owner within a reasonable time not to exceed 7 days. The |
7 | | State's Attorney shall exercise his or her discretion prior to |
8 | | or promptly after the preliminary review under Section 3.5 of |
9 | | this Act. Judicial in rem forfeiture proceedings under this Act |
10 | | shall be subject to the Code of Civil Procedure and the rules |
11 | | of evidence relating to civil actions. |
12 | | (A-10) A complaint of forfeiture shall include: |
13 | | (1) a description of the property seized; |
14 | | (2) the date and place of seizure of the property; |
15 | | (3) the name and address of the law enforcement agency |
16 | | making the seizure; and |
17 | | (4) the specific statutory and factual grounds for the |
18 | | seizure. |
19 | | The complaint shall be served upon the person from whom the |
20 | | property was seized and all persons known or reasonably |
21 | | believed by the State to claim an interest in the property, as |
22 | | provided in Section 4 of this Act. The complaint shall be |
23 | | accompanied by the following written notice: |
24 | | "This is a civil court proceeding subject to the Code of |
25 | | Civil Procedure. You received this Complaint of Forfeiture |
26 | | because the State's Attorney's office has brought a legal |
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1 | | action seeking forfeiture of your seized property. This |
2 | | complaint starts the court process where the state seeks to |
3 | | prove that your property should be forfeited and not |
4 | | returned to you. This process is also your opportunity to |
5 | | try to prove to a judge that you should get your property |
6 | | back. The complaint lists the date, time, and location of |
7 | | your first court date. You must appear in court on that |
8 | | day, or you may lose the case automatically. You must also |
9 | | file an appearance and answer. If you are unable to pay the |
10 | | appearance fee, you may qualify to have the fee waived. If |
11 | | there is a criminal case related to the seizure of your |
12 | | property, your case may be set for trial after the criminal |
13 | | case has been resolved. Before trial, the judge may allow |
14 | | discovery, where the State can ask you to respond in |
15 | | writing to questions and give them certain documents, and |
16 | | you can make similar requests of the State. The trial is |
17 | | your opportunity to explain what happened when your |
18 | | property was seized and why you should get the property |
19 | | back." |
20 | | (B) During the probable cause portion of the judicial in |
21 | | rem
proceeding wherein the State presents its case-in-chief, |
22 | | the court must
receive and consider, among other things, all |
23 | | relevant hearsay evidence and
information. The laws of evidence |
24 | | relating to civil actions shall apply to
all other proceedings |
25 | | under this Act except that the parties shall be allowed to use, |
26 | | and the court must receive and consider, all relevant hearsay |
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1 | | evidence which relates to evidentiary foundation, chain of |
2 | | custody, business records, recordings, laboratory analysis, |
3 | | laboratory reports, and the use of technology in the |
4 | | investigation that resulted in the seizure of the property |
5 | | which is subject to this forfeiture action portions of the |
6 | | judicial in rem proceeding .
|
7 | | (C) Only an owner of or interest holder in the property may |
8 | | file an
answer asserting a claim against the property in the |
9 | | action in rem. For
purposes of this Section, the owner or |
10 | | interest holder shall be referred
to as claimant. A person not |
11 | | named in the forfeiture complaint who claims to have an |
12 | | interest in the property may petition to intervene as a |
13 | | claimant under Section 2-408 of the Code of Civil Procedure.
|
14 | | (D) The answer must be signed by the owner or interest |
15 | | holder under
penalty of perjury and must set forth:
|
16 | | (i) the caption of the proceedings as set forth on the |
17 | | notice of pending
forfeiture and the name of the claimant;
|
18 | | (ii) the address at which the claimant will accept |
19 | | mail;
|
20 | | (iii) the nature and extent of the claimant's interest |
21 | | in the property;
|
22 | | (iv) the date, identity of transferor, and |
23 | | circumstances of the
claimant's acquisition of the |
24 | | interest in the property;
|
25 | | (v) the name and address of all other persons known to |
26 | | have an interest
in the property;
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1 | | (vi) the specific provisions of Section 8 of this Act
|
2 | | relied on in asserting it
is exempt from not subject to |
3 | | forfeiture , if applicable ;
|
4 | | (vii) all essential facts supporting each assertion; |
5 | | and
|
6 | | (viii) the precise relief sought ; and . |
7 | | (ix) in a forfeiture action involving currency or its |
8 | | equivalent, a claimant shall provide the State with notice |
9 | | of their intent to allege that the currency or its |
10 | | equivalent is not related to the alleged factual basis for |
11 | | the forfeiture, and why.
|
12 | | (E) The answer must be filed with the court within 45 days |
13 | | after service
of the civil in rem complaint.
|
14 | | (F) The trial shall hearing must be held within 60 days |
15 | | after filing of the answer
unless continued for good cause.
|
16 | | (G) The State , in its case in chief shall show the |
17 | | existence of probable cause for forfeiture
of the property. If |
18 | | the State shows probable cause, the claimant has the
burden of |
19 | | showing by a preponderance of the evidence the property is |
20 | | subject to forfeiture; and at least one of the following: that |
21 | | the claimant's
interest in the property is not subject to |
22 | | forfeiture.
|
23 | | (i) In the case of personal property, including |
24 | | conveyances: |
25 | | (a) that the claimant was legally accountable for |
26 | | the conduct giving rise to the forfeiture; |
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1 | | (b) that the claimant knew or reasonably should |
2 | | have known of the conduct giving rise to the |
3 | | forfeiture; |
4 | | (c) that the claimant knew or reasonably should |
5 | | have known that the conduct giving rise to the |
6 | | forfeiture was likely to occur; |
7 | | (d) that the claimant held the property for the |
8 | | benefit of, or as nominee for, any person whose conduct |
9 | | gave rise to its forfeiture; |
10 | | (e) that if the claimant acquired their interest |
11 | | through any person engaging in any of the conduct |
12 | | described above or conduct giving rise to the |
13 | | forfeiture: |
14 | | (1) the claimant did not acquire it as a bona |
15 | | fide purchaser for value, or |
16 | | (2) the claimant acquired the interest under |
17 | | such circumstances that they reasonably should |
18 | | have known the property was derived from, or used |
19 | | in, the conduct giving rise to the forfeiture; or |
20 | | (f) that the claimant is not the true owner of the |
21 | | property; |
22 | | (g) that the claimant acquired the interest: |
23 | | (1) before the commencement of the conduct |
24 | | giving rise to the forfeiture and the person whose |
25 | | conduct gave rise to the forfeiture did not have |
26 | | authority to convey the interest to a bona fide |
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1 | | purchaser for value at the time of the conduct; or |
2 | | (2) after the commencement of the conduct |
3 | | giving rise to the forfeiture and the owner or |
4 | | interest holder acquired the interest as a |
5 | | mortgagee, secured creditor, lienholder, or bona |
6 | | fide purchaser for value without knowledge of the |
7 | | conduct which gave rise to the forfeiture, and |
8 | | without the knowledge of the seizure of the |
9 | | property for forfeiture. |
10 | | (ii) In the case of real property: |
11 | | (a) that the claimant was legally accountable for |
12 | | the conduct giving rise to the forfeiture; |
13 | | (b) that the claimant solicited, conspired, or |
14 | | attempted to commit the conduct giving rise to the |
15 | | forfeiture; or |
16 | | (c) that the claimant had acquired or stood to |
17 | | acquire substantial proceeds from the conduct giving |
18 | | rise to its forfeiture other than as an interest holder |
19 | | in an arm's length transaction; |
20 | | (d) that the claimant is not the true owner of the |
21 | | property; |
22 | | (e) that the claimant acquired the interest: |
23 | | (1) before the commencement of the conduct |
24 | | giving rise to the forfeiture and the person whose |
25 | | conduct gave rise to the forfeiture did not have |
26 | | authority to convey the interest to a bona fide |
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1 | | purchaser for value at the time of the conduct; or |
2 | | (2) after the commencement of the conduct |
3 | | giving rise to the forfeiture and the owner or |
4 | | interest holder acquired the interest as a |
5 | | mortgagee, secured creditor, lienholder, or bona |
6 | | fide purchaser for value without knowledge of the |
7 | | conduct which gave rise to the forfeiture, and |
8 | | before the filing in the office of the recorder of |
9 | | deeds of the county in which the real estate is |
10 | | located a notice of seizure for forfeiture or a lis |
11 | | pendens notice. |
12 | | (G-5) If the property that is the subject of the forfeiture |
13 | | proceeding is currency or its equivalent, the State, in its |
14 | | case in chief, shall show by a preponderance of the evidence |
15 | | that the property is subject to forfeiture. If the State makes |
16 | | that showing, the claimant shall have the burden of production |
17 | | to set forth evidence that the currency or its equivalent is |
18 | | not related to the alleged factual basis of the forfeiture. |
19 | | After the production of evidence, the State shall maintain the |
20 | | burden of proof to overcome this assertion. |
21 | | (G-10) Notwithstanding any other provision of this |
22 | | Section, the State's burden of proof at the trial of the |
23 | | forfeiture action shall be by clear and convincing evidence if: |
24 | | (1) a finding of not guilty is entered as to all counts |
25 | | and all defendants in a criminal proceeding relating to the |
26 | | conduct giving rise to the forfeiture action; or |
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1 | | (2) the State receives an adverse finding at a |
2 | | preliminary hearing and fails to secure an indictment in a |
3 | | criminal proceeding related to the factual allegations of |
4 | | the forfeiture action. |
5 | | (H) If the State does not meet its burden of proof show |
6 | | existence of probable cause or a claimant
has established by a |
7 | | preponderance of evidence that the claimant has an
interest |
8 | | that is exempt under Section 8 of this Act , the court shall |
9 | | order
the interest in the property returned or conveyed to the |
10 | | claimant and shall
order all other property as to which the |
11 | | State does meet its burden of proof forfeited to the State. If |
12 | | the State does meet its burden of proof show
existence of |
13 | | probable cause and the claimant does not establish by a
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14 | | preponderance of evidence that the claimant has an interest |
15 | | that is exempt
under Section 8 of this Act, the court shall |
16 | | order all property forfeited
to the State.
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17 | | (I) A defendant convicted in any criminal proceeding is |
18 | | precluded from
later denying the essential allegations of the |
19 | | criminal offense of which
the defendant was convicted in any |
20 | | proceeding under this Act
regardless of the pendency of an |
21 | | appeal from that conviction. However,
evidence of the pendency |
22 | | of an appeal is admissible.
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23 | | (J) An acquittal or dismissal in a criminal proceeding |
24 | | shall not
preclude civil proceedings under this Act; however, |
25 | | for good cause shown,
on a motion by the State's Attorney, the |
26 | | court may stay civil forfeiture
proceedings during the criminal |
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1 | | trial for a related criminal indictment or
information alleging |
2 | | a violation of the Illinois Controlled Substances Act,
the |
3 | | Cannabis Control Act, or the Methamphetamine Control and |
4 | | Community Protection Act. Such a stay shall not be available |
5 | | pending an
appeal. Property subject to forfeiture under the |
6 | | Illinois Controlled
Substances Act, the Cannabis Control Act, |
7 | | or the Methamphetamine Control and Community Protection Act |
8 | | shall not be subject to return
or release by a court exercising |
9 | | jurisdiction over a criminal case
involving the seizure of such |
10 | | property unless such return or release is
consented to by the |
11 | | State's Attorney.
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12 | | (K) Title to all All property declared forfeited under this |
13 | | Act vests in this State
on the commission of the conduct giving |
14 | | rise to forfeiture together with
the proceeds of the property |
15 | | after that time. Except as otherwise provided in this Act, any |
16 | | Any such property or
proceeds subsequently transferred to any |
17 | | person remain subject to
forfeiture unless a person to whom the |
18 | | property was transferred makes an appropriate claim under this |
19 | | Act and has their claim adjudicated in the judicial in rem |
20 | | proceeding and thereafter shall be ordered forfeited unless the |
21 | | transferee
claims and establishes in a hearing under the |
22 | | provisions of this Act that
the transferee's interest is exempt |
23 | | under Section 8 of this Act .
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24 | | (L) A civil action under this Act must be commenced within |
25 | | 5 years
after the last conduct giving rise to forfeiture became |
26 | | known or should
have become known or 5 years after the |
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1 | | forfeitable property is
discovered, whichever is later, |
2 | | excluding any time during which either the
property or claimant |
3 | | is out of the State or in confinement or during which
criminal |
4 | | proceedings relating to the same conduct are in progress. |
5 | | (M) No property shall be forfeited under this Act from a |
6 | | person who, without actual or constructive notice that the |
7 | | property was the subject of forfeiture proceedings, obtained |
8 | | possession of the property as a bona fide purchaser for value. |
9 | | A person who purports to transfer property after receiving |
10 | | actual or constructive notice that the property is subject to |
11 | | seizure or forfeiture is guilty of contempt of court and shall |
12 | | be liable to the State for a penalty in the amount of the fair |
13 | | market value of the property. |
14 | | (N) If property is ordered forfeited under this Act from a |
15 | | claimant who held title to the property in joint tenancy or |
16 | | tenancy in common with another claimant, the court shall |
17 | | determine the amount of each owner's interest in the property |
18 | | according to principles of property law.
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19 | | (Source: P.A. 94-556, eff. 9-11-05.)
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20 | | (725 ILCS 150/9.1 new) |
21 | | Sec. 9.1. Innocent owner hearing. |
22 | | (a) After a complaint for forfeiture is filed and all |
23 | | claimants have appeared and answered, a claimant may file a |
24 | | motion with the court for an innocent owner hearing prior to |
25 | | trial. This motion shall be made and supported by sworn |
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1 | | affidavit and shall assert the following along with specific |
2 | | facts which support each assertion: |
3 | | (1) that the claimant filing the motion is the true |
4 | | owner of the conveyance as interpreted by case law; |
5 | | (2) that the claimant was not legally accountable for |
6 | | the conduct giving rise to the forfeiture or acquiesced in |
7 | | the conduct; |
8 | | (3) that the claimant did not solicit, conspire, or |
9 | | attempt to commit the conduct giving rise to the |
10 | | forfeiture; |
11 | | (4) that the claimant did not know or did they have |
12 | | reason to know that the conduct giving rise to the |
13 | | forfeiture was likely to occur; and |
14 | | (5) that the claimant did not hold the property for the |
15 | | benefit of, or as nominee for any person whose conduct gave |
16 | | rise to its forfeiture, or if the owner or interest holder |
17 | | acquired the interest through any such person, the owner or |
18 | | interest holder did not acquire it as a bona fide purchaser |
19 | | for value, or acquired the interest without knowledge of |
20 | | the seizure of the property for forfeiture. |
21 | | (b) The claimant's motion shall include specific facts |
22 | | supporting these assertions. |
23 | | (c) Upon this filing, a hearing may only be held after the |
24 | | parties have been given the opportunity to conduct limited |
25 | | discovery as to the ownership and control of the property, the |
26 | | claimant's knowledge, or any matter relevant to the issues |
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1 | | raised or facts alleged in the claimant's motion. Discovery |
2 | | shall be limited to the People's requests in these areas but |
3 | | may proceed by any means allowed in the Code of Civil |
4 | | Procedure. |
5 | | (d) After discovery is complete and the court has allowed |
6 | | for sufficient time to review and investigate the discovery |
7 | | responses, the court shall conduct a hearing. At the hearing, |
8 | | the fact that the property is subject to forfeiture shall not |
9 | | be at issue. The court shall only hear evidence relating to the |
10 | | issue of innocent ownership. |
11 | | (e) At the hearing on the motion, the claimant shall bear |
12 | | the burden of proving by a preponderance of the evidence each |
13 | | of the assertions set forth in subsection (a) of this Section. |
14 | | (f) If a claimant meets their burden of proof, the court |
15 | | shall grant the motion and order the property returned to the |
16 | | claimant. If the claimant fails to meet their burden of proof, |
17 | | then the court shall deny the motion and the forfeiture case |
18 | | shall proceed according to the Rules of Civil Procedure. |
19 | | (725 ILCS 150/9.5 new) |
20 | | Sec. 9.5. Proportionality. Property forfeited under this |
21 | | Act shall be subject to an 8th Amendment to the United States |
22 | | Constitution disproportionate penalties analysis and the |
23 | | property forfeiture may be denied in whole or in part if the |
24 | | court finds that the forfeiture would constitute an excessive |
25 | | fine in violation of the 8th Amendment to the United States |
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1 | | Constitution, as interpreted by case law.
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2 | | (725 ILCS 150/11) (from Ch. 56 1/2, par. 1681)
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3 | | Sec. 11. Settlement of Claims. Notwithstanding other |
4 | | provisions of
this Act, the State's Attorney and a claimant of |
5 | | seized property may enter
into an agreed-upon settlement |
6 | | concerning the seized property in such an
amount and upon such |
7 | | terms as are set out in writing in a settlement agreement. All |
8 | | proceeds from a settlement agreement shall be tendered to the |
9 | | Department of State Police and distributed in accordance with |
10 | | the provisions of Section 17 of this Act.
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11 | | (Source: P.A. 86-1382.)
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12 | | (725 ILCS 150/14) (from Ch. 56 1/2, par. 1684)
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13 | | Sec. 14. Judicial Review. If property has been declared |
14 | | forfeited under
Section 6 of this Act, any person who has an |
15 | | interest in the property
declared forfeited may, within 30 days |
16 | | of the effective date of the notice
of the declaration of |
17 | | forfeiture, file a claim and cost bond as described
in |
18 | | subsection (C) of Section 6 of this Act. If a claim and cost |
19 | | bond is
filed under this Section, then the procedures described |
20 | | in Section 9 of
this Act shall apply.
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21 | | (Source: P.A. 87-614 .)
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22 | | (725 ILCS 150/15 new) |
23 | | Sec. 15. Return of property, damages, and costs. |
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1 | | (a) The law enforcement agency that holds custody of |
2 | | property seized for forfeiture shall deliver property ordered |
3 | | by the court to be returned or conveyed to the claimant within |
4 | | a reasonable time not to exceed 7 days, unless the order is |
5 | | stayed by the trial court or a reviewing court pending an |
6 | | appeal, motion to reconsider, or other reason. |
7 | | (b) The law enforcement agency that holds custody of |
8 | | property described in subsection (a) of this Section is |
9 | | responsible for any damages, storage fees, and related costs |
10 | | applicable to property returned. The claimant shall not be |
11 | | subject to any charges by the State for storage of the property |
12 | | or expenses incurred in the preservation of the property. |
13 | | Charges for the towing of a conveyance shall be borne by the |
14 | | claimant unless the conveyance was towed for the sole reason of |
15 | | seizure for forfeiture. This Section does not prohibit the |
16 | | imposition of any fees or costs by a home rule unit of local |
17 | | government related to the impoundment of a conveyance pursuant |
18 | | to an ordinance enacted by the unit of government. |
19 | | (c) A law enforcement agency shall not retain forfeited |
20 | | property for its own use or transfer the property to any person |
21 | | or entity, except as provided under this Section. A law |
22 | | enforcement agency may apply in writing to the Director of |
23 | | State Police to request that a forfeited property be awarded to |
24 | | the agency for a specifically articulated official law |
25 | | enforcement use in an investigation. The Director of State |
26 | | Police shall provide a written justification in each instance |
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1 | | detailing the reasons why the forfeited property was placed |
2 | | into official use and the justification shall be retained for a |
3 | | period of not less than 3 years. |
4 | | (725 ILCS 150/17 new) |
5 | | Sec. 17. Distribution of proceeds; selling or retaining |
6 | | seized property prohibited. |
7 | | (a) Except as otherwise provided in this Section, the court |
8 | | shall order that property forfeited under this Act be delivered |
9 | | to the Department of State Police within 60 days. |
10 | | (b) All monies and the sale proceeds of all other property |
11 | | forfeited and seized under this Act shall be distributed as |
12 | | follows: |
13 | | (1)(i) 65% shall be distributed to the metropolitan |
14 | | enforcement group, local, municipal, county, or state law |
15 | | enforcement agency or agencies which conducted or participated |
16 | | in the investigation resulting in the forfeiture. The |
17 | | distribution shall bear a reasonable relationship to the degree |
18 | | of direct participation of the law enforcement agency in the |
19 | | effort resulting in the forfeiture, taking into account the |
20 | | total value of the property forfeited and the total law |
21 | | enforcement effort with respect to the violation of the law |
22 | | upon which the forfeiture is based. Amounts distributed to the |
23 | | agency or agencies shall be used for the enforcement of laws |
24 | | governing cannabis and controlled substances; for public |
25 | | education in the community or schools in the prevention or |
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1 | | detection of the abuse of drugs or alcohol; or for security |
2 | | cameras used for the prevention or detection of violence, |
3 | | except that amounts distributed to the Secretary of State shall |
4 | | be deposited into the Secretary of State Evidence Fund to be |
5 | | used as provided in Section 2-115 of the Illinois Vehicle Code. |
6 | | (ii) Any local, municipal, or county law enforcement agency |
7 | | entitled to receive a monetary distribution of forfeiture |
8 | | proceeds may share those forfeiture proceeds pursuant to the |
9 | | terms of an intergovernmental agreement with a municipality |
10 | | that has a population in excess of 20,000 if: |
11 | | (A) the receiving agency has entered into an |
12 | | intergovernmental agreement with the municipality to |
13 | | provide police services; |
14 | | (B) the intergovernmental agreement for police |
15 | | services provides for consideration in an amount of not |
16 | | less than $1,000,000 per year; |
17 | | (C) the seizure took place within the geographical |
18 | | limits of the municipality; and |
19 | | (D) the funds are used only for the enforcement of laws |
20 | | governing cannabis and controlled substances; for public |
21 | | education in the community or schools in the prevention or |
22 | | detection of the abuse of drugs or alcohol; or for security |
23 | | cameras used for the prevention or detection of violence or |
24 | | the establishment of a municipal police force, including |
25 | | the training of officers, construction of a police station, |
26 | | or the purchase of law enforcement equipment or vehicles. |
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1 | | (2)(i) 12.5% shall be distributed to the Office of the |
2 | | State's Attorney of the county in which the prosecution |
3 | | resulting in the forfeiture was instituted, deposited in a |
4 | | special fund in the county treasury and appropriated to the |
5 | | State's Attorney for use in the enforcement of laws governing |
6 | | cannabis and controlled substances; for public education in the |
7 | | community or schools in the prevention or detection of the |
8 | | abuse of drugs or alcohol; or at the discretion of the State's |
9 | | Attorney, in addition to other authorized purposes, to make |
10 | | grants to local substance abuse treatment facilities and |
11 | | half-way houses. In counties over 3,000,000 population, 25% |
12 | | shall be distributed to the Office of the State's Attorney for |
13 | | use in the enforcement of laws governing cannabis and |
14 | | controlled substances; for public education in the community or |
15 | | schools in the prevention or detection of the abuse of drugs or |
16 | | alcohol; or at the discretion of the State's Attorney, in |
17 | | addition to other authorized purposes, to make grants to local |
18 | | substance abuse treatment facilities and half-way houses. If |
19 | | the prosecution is undertaken solely by the Attorney General, |
20 | | the portion provided shall be distributed to the Attorney |
21 | | General for use in the enforcement of laws governing cannabis |
22 | | and controlled substances or for public education in the |
23 | | community or schools in the prevention or detection of the |
24 | | abuse of drugs or alcohol. |
25 | | (ii) 12.5% shall be distributed to the Office of the |
26 | | |