100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB3074

 

Introduced , by Rep. Stephanie A. Kifowit

 

SYNOPSIS AS INTRODUCED:
 
720 ILCS 5/28-5  from Ch. 38, par. 28-5
720 ILCS 5/29B-1  from Ch. 38, par. 29B-1
720 ILCS 5/36-2  from Ch. 38, par. 36-2
720 ILCS 5/47-15
725 ILCS 5/124B-160
725 ILCS 150/9  from Ch. 56 1/2, par. 1679
725 ILCS 175/5  from Ch. 56 1/2, par. 1655

    Amends the Criminal Code of 2012, Code of Criminal Procedure of 1963, Drug Asset Forfeiture Act, and the Narcotics Profit Forfeiture Act. Provides in provisions pertaining to forfeiture proceedings that the court shall admit a signed statement by a person who is 65 years old or older to demonstrate that the conveyance or other property was used without his or her consent. Provides that a claimant may file a temporary restraining order against the person who used his or her property without his or her consent under the Code of Civil Procedure.


LRB100 10982 SLF 21220 b

 

 

A BILL FOR

 

HB3074LRB100 10982 SLF 21220 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 2012 is amended by changing
5Sections 28-5, 29B-1, 36-2, and 47-15 as follows:
 
6    (720 ILCS 5/28-5)  (from Ch. 38, par. 28-5)
7    Sec. 28-5. Seizure of gambling devices and gambling funds.
8    (a) Every device designed for gambling which is incapable
9of lawful use or every device used unlawfully for gambling
10shall be considered a "gambling device", and shall be subject
11to seizure, confiscation and destruction by the Department of
12State Police or by any municipal, or other local authority,
13within whose jurisdiction the same may be found. As used in
14this Section, a "gambling device" includes any slot machine,
15and includes any machine or device constructed for the
16reception of money or other thing of value and so constructed
17as to return, or to cause someone to return, on chance to the
18player thereof money, property or a right to receive money or
19property. With the exception of any device designed for
20gambling which is incapable of lawful use, no gambling device
21shall be forfeited or destroyed unless an individual with a
22property interest in said device knows of the unlawful use of
23the device.

 

 

HB3074- 2 -LRB100 10982 SLF 21220 b

1    (b) Every gambling device shall be seized and forfeited to
2the county wherein such seizure occurs. Any money or other
3thing of value integrally related to acts of gambling shall be
4seized and forfeited to the county wherein such seizure occurs.
5    (c) If, within 60 days after any seizure pursuant to
6subparagraph (b) of this Section, a person having any property
7interest in the seized property is charged with an offense, the
8court which renders judgment upon such charge shall, within 30
9days after such judgment, conduct a forfeiture hearing to
10determine whether such property was a gambling device at the
11time of seizure. Such hearing shall be commenced by a written
12petition by the State, including material allegations of fact,
13the name and address of every person determined by the State to
14have any property interest in the seized property, a
15representation that written notice of the date, time and place
16of such hearing has been mailed to every such person by
17certified mail at least 10 days before such date, and a request
18for forfeiture. Every such person may appear as a party and
19present evidence at such hearing. The quantum of proof required
20shall be a preponderance of the evidence, and the burden of
21proof shall be on the State. The court shall admit a signed
22statement by a person who is 65 years old or older to
23demonstrate that the conveyance or other property was used
24without his or her consent. The claimant may file a temporary
25restraining order against the person who allegedly used his or
26her property without his or her consent under Section 11-101 of

 

 

HB3074- 3 -LRB100 10982 SLF 21220 b

1the Code of Civil Procedure. If the court determines that the
2seized property was a gambling device at the time of seizure,
3an order of forfeiture and disposition of the seized property
4shall be entered: a gambling device shall be received by the
5State's Attorney, who shall effect its destruction, except that
6valuable parts thereof may be liquidated and the resultant
7money shall be deposited in the general fund of the county
8wherein such seizure occurred; money and other things of value
9shall be received by the State's Attorney and, upon
10liquidation, shall be deposited in the general fund of the
11county wherein such seizure occurred. However, in the event
12that a defendant raises the defense that the seized slot
13machine is an antique slot machine described in subparagraph
14(b) (7) of Section 28-1 of this Code and therefore he is exempt
15from the charge of a gambling activity participant, the seized
16antique slot machine shall not be destroyed or otherwise
17altered until a final determination is made by the Court as to
18whether it is such an antique slot machine. Upon a final
19determination by the Court of this question in favor of the
20defendant, such slot machine shall be immediately returned to
21the defendant. Such order of forfeiture and disposition shall,
22for the purposes of appeal, be a final order and judgment in a
23civil proceeding.
24    (d) If a seizure pursuant to subparagraph (b) of this
25Section is not followed by a charge pursuant to subparagraph
26(c) of this Section, or if the prosecution of such charge is

 

 

HB3074- 4 -LRB100 10982 SLF 21220 b

1permanently terminated or indefinitely discontinued without
2any judgment of conviction or acquittal (1) the State's
3Attorney shall commence an in rem proceeding for the forfeiture
4and destruction of a gambling device, or for the forfeiture and
5deposit in the general fund of the county of any seized money
6or other things of value, or both, in the circuit court and (2)
7any person having any property interest in such seized gambling
8device, money or other thing of value may commence separate
9civil proceedings in the manner provided by law.
10    (e) Any gambling device displayed for sale to a riverboat
11gambling operation or used to train occupational licensees of a
12riverboat gambling operation as authorized under the Riverboat
13Gambling Act is exempt from seizure under this Section.
14    (f) Any gambling equipment, devices and supplies provided
15by a licensed supplier in accordance with the Riverboat
16Gambling Act which are removed from the riverboat for repair
17are exempt from seizure under this Section.
18    (g) The following video gaming terminals are exempt from
19seizure under this Section:
20        (1) Video gaming terminals for sale to a licensed
21    distributor or operator under the Video Gaming Act.
22        (2) Video gaming terminals used to train licensed
23    technicians or licensed terminal handlers.
24        (3) Video gaming terminals that are removed from a
25    licensed establishment, licensed truck stop establishment,
26    licensed fraternal establishment, or licensed veterans

 

 

HB3074- 5 -LRB100 10982 SLF 21220 b

1    establishment for repair.
2(Source: P.A. 98-31, eff. 6-24-13.)
 
3    (720 ILCS 5/29B-1)  (from Ch. 38, par. 29B-1)
4    Sec. 29B-1. Money laundering; forfeiture proceedings.
5    (a) A person commits the offense of money laundering:
6        (1) when, knowing that the property involved in a
7    financial transaction represents the proceeds of some form
8    of unlawful activity, he or she conducts or attempts to
9    conduct such a financial transaction which in fact involves
10    criminally derived property:
11            (A) with the intent to promote the carrying on of
12        the unlawful activity from which the criminally
13        derived property was obtained; or
14            (B) where he or she knows or reasonably should know
15        that the financial transaction is designed in whole or
16        in part:
17                (i) to conceal or disguise the nature, the
18            location, the source, the ownership or the control
19            of the criminally derived property; or
20                (ii) to avoid a transaction reporting
21            requirement under State law; or
22        (1.5) when he or she transports, transmits, or
23    transfers, or attempts to transport, transmit, or transfer
24    a monetary instrument:
25            (A) with the intent to promote the carrying on of

 

 

HB3074- 6 -LRB100 10982 SLF 21220 b

1        the unlawful activity from which the criminally
2        derived property was obtained; or
3            (B) knowing, or having reason to know, that the
4        financial transaction is designed in whole or in part:
5                (i) to conceal or disguise the nature, the
6            location, the source, the ownership or the control
7            of the criminally derived property; or
8                (ii) to avoid a transaction reporting
9            requirement under State law; or
10        (2) when, with the intent to:
11            (A) promote the carrying on of a specified criminal
12        activity as defined in this Article; or
13            (B) conceal or disguise the nature, location,
14        source, ownership, or control of property believed to
15        be the proceeds of a specified criminal activity as
16        defined by subdivision (b)(6); or
17            (C) avoid a transaction reporting requirement
18        under State law,
19    he or she conducts or attempts to conduct a financial
20    transaction involving property he or she believes to be the
21    proceeds of specified criminal activity as defined by
22    subdivision (b)(6) or property used to conduct or
23    facilitate specified criminal activity as defined by
24    subdivision (b)(6).
25    (b) As used in this Section:
26        (0.5) "Knowing that the property involved in a

 

 

HB3074- 7 -LRB100 10982 SLF 21220 b

1    financial transaction represents the proceeds of some form
2    of unlawful activity" means that the person knew the
3    property involved in the transaction represented proceeds
4    from some form, though not necessarily which form, of
5    activity that constitutes a felony under State, federal, or
6    foreign law.
7        (1) "Financial transaction" means a purchase, sale,
8    loan, pledge, gift, transfer, delivery or other
9    disposition utilizing criminally derived property, and
10    with respect to financial institutions, includes a
11    deposit, withdrawal, transfer between accounts, exchange
12    of currency, loan, extension of credit, purchase or sale of
13    any stock, bond, certificate of deposit or other monetary
14    instrument, use of safe deposit box, or any other payment,
15    transfer or delivery by, through, or to a financial
16    institution. For purposes of clause (a)(2) of this Section,
17    the term "financial transaction" also means a transaction
18    which without regard to whether the funds, monetary
19    instruments, or real or personal property involved in the
20    transaction are criminally derived, any transaction which
21    in any way or degree: (1) involves the movement of funds by
22    wire or any other means; (2) involves one or more monetary
23    instruments; or (3) the transfer of title to any real or
24    personal property. The receipt by an attorney of bona fide
25    fees for the purpose of legal representation is not a
26    financial transaction for purposes of this Section.

 

 

HB3074- 8 -LRB100 10982 SLF 21220 b

1        (2) "Financial institution" means any bank; saving and
2    loan association; trust company; agency or branch of a
3    foreign bank in the United States; currency exchange;
4    credit union, mortgage banking institution; pawnbroker;
5    loan or finance company; operator of a credit card system;
6    issuer, redeemer or cashier of travelers checks, checks or
7    money orders; dealer in precious metals, stones or jewels;
8    broker or dealer in securities or commodities; investment
9    banker; or investment company.
10        (3) "Monetary instrument" means United States coins
11    and currency; coins and currency of a foreign country;
12    travelers checks; personal checks, bank checks, and money
13    orders; investment securities; bearer negotiable
14    instruments; bearer investment securities; or bearer
15    securities and certificates of stock in such form that
16    title thereto passes upon delivery.
17        (4) "Criminally derived property" means: (A) any
18    property, real or personal, constituting or derived from
19    proceeds obtained, directly or indirectly, from activity
20    that constitutes a felony under State, federal, or foreign
21    law; or (B) any property represented to be property
22    constituting or derived from proceeds obtained, directly
23    or indirectly, from activity that constitutes a felony
24    under State, federal, or foreign law.
25        (5) "Conduct" or "conducts" includes, in addition to
26    its ordinary meaning, initiating, concluding, or

 

 

HB3074- 9 -LRB100 10982 SLF 21220 b

1    participating in initiating or concluding a transaction.
2        (6) "Specified criminal activity" means any violation
3    of Section 29D-15.1 (720 ILCS 5/29D-15.1) and any violation
4    of Article 29D of this Code.
5        (7) "Director" means the Director of State Police or
6    his or her designated agents.
7        (8) "Department" means the Department of State Police
8    of the State of Illinois or its successor agency.
9        (9) "Transaction reporting requirement under State
10    law" means any violation as defined under the Currency
11    Reporting Act.
12    (c) Sentence.
13        (1) Laundering of criminally derived property of a
14    value not exceeding $10,000 is a Class 3 felony;
15        (2) Laundering of criminally derived property of a
16    value exceeding $10,000 but not exceeding $100,000 is a
17    Class 2 felony;
18        (3) Laundering of criminally derived property of a
19    value exceeding $100,000 but not exceeding $500,000 is a
20    Class 1 felony;
21        (4) Money laundering in violation of subsection (a)(2)
22    of this Section is a Class X felony;
23        (5) Laundering of criminally derived property of a
24    value exceeding $500,000 is a Class 1 non-probationable
25    felony;
26        (6) In a prosecution under clause (a)(1.5)(B)(ii) of

 

 

HB3074- 10 -LRB100 10982 SLF 21220 b

1    this Section, the sentences are as follows:
2            (A) Laundering of property of a value not exceeding
3        $10,000 is a Class 3 felony;
4            (B) Laundering of property of a value exceeding
5        $10,000 but not exceeding $100,000 is a Class 2 felony;
6            (C) Laundering of property of a value exceeding
7        $100,000 but not exceeding $500,000 is a Class 1
8        felony;
9            (D) Laundering of property of a value exceeding
10        $500,000 is a Class 1 non-probationable felony.
11    (d) Evidence. In a prosecution under this Article, either
12party may introduce the following evidence pertaining to the
13issue of whether the property or proceeds were known to be some
14form of criminally derived property or from some form of
15unlawful activity:
16        (1) A financial transaction was conducted or
17    structured or attempted in violation of the reporting
18    requirements of any State or federal law; or
19        (2) A financial transaction was conducted or attempted
20    with the use of a false or fictitious name or a forged
21    instrument; or
22        (3) A falsely altered or completed written instrument
23    or a written instrument that contains any materially false
24    personal identifying information was made, used, offered
25    or presented, whether accepted or not, in connection with a
26    financial transaction; or

 

 

HB3074- 11 -LRB100 10982 SLF 21220 b

1        (4) A financial transaction was structured or
2    attempted to be structured so as to falsely report the
3    actual consideration or value of the transaction; or
4        (5) A money transmitter, a person engaged in a trade or
5    business or any employee of a money transmitter or a person
6    engaged in a trade or business, knows or reasonably should
7    know that false personal identifying information has been
8    presented and incorporates the false personal identifying
9    information into any report or record; or
10        (6) The criminally derived property is transported or
11    possessed in a fashion inconsistent with the ordinary or
12    usual means of transportation or possession of such
13    property and where the property is discovered in the
14    absence of any documentation or other indicia of legitimate
15    origin or right to such property; or
16        (7) A person pays or receives substantially less than
17    face value for one or more monetary instruments; or
18        (8) A person engages in a transaction involving one or
19    more monetary instruments, where the physical condition or
20    form of the monetary instrument or instruments makes it
21    apparent that they are not the product of bona fide
22    business or financial transactions.
23    (e) Duty to enforce this Article.
24        (1) It is the duty of the Department of State Police,
25    and its agents, officers, and investigators, to enforce all
26    provisions of this Article, except those specifically

 

 

HB3074- 12 -LRB100 10982 SLF 21220 b

1    delegated, and to cooperate with all agencies charged with
2    the enforcement of the laws of the United States, or of any
3    state, relating to money laundering. Only an agent,
4    officer, or investigator designated by the Director may be
5    authorized in accordance with this Section to serve seizure
6    notices, warrants, subpoenas, and summonses under the
7    authority of this State.
8        (2) Any agent, officer, investigator, or peace officer
9    designated by the Director may: (A) make seizure of
10    property pursuant to the provisions of this Article; and
11    (B) perform such other law enforcement duties as the
12    Director designates. It is the duty of all State's
13    Attorneys to prosecute violations of this Article and
14    institute legal proceedings as authorized under this
15    Article.
16    (f) Protective orders.
17        (1) Upon application of the State, the court may enter
18    a restraining order or injunction, require the execution of
19    a satisfactory performance bond, or take any other action
20    to preserve the availability of property described in
21    subsection (h) for forfeiture under this Article:
22            (A) upon the filing of an indictment, information,
23        or complaint charging a violation of this Article for
24        which forfeiture may be ordered under this Article and
25        alleging that the property with respect to which the
26        order is sought would be subject to forfeiture under

 

 

HB3074- 13 -LRB100 10982 SLF 21220 b

1        this Article; or
2            (B) prior to the filing of such an indictment,
3        information, or complaint, if, after notice to persons
4        appearing to have an interest in the property and
5        opportunity for a hearing, the court determines that:
6                (i) there is probable cause to believe that the
7            State will prevail on the issue of forfeiture and
8            that failure to enter the order will result in the
9            property being destroyed, removed from the
10            jurisdiction of the court, or otherwise made
11            unavailable for forfeiture; and
12                (ii) the need to preserve the availability of
13            the property through the entry of the requested
14            order outweighs the hardship on any party against
15            whom the order is to be entered.
16            Provided, however, that an order entered pursuant
17        to subparagraph (B) shall be effective for not more
18        than 90 days, unless extended by the court for good
19        cause shown or unless an indictment, information,
20        complaint, or administrative notice has been filed.
21        (2) A temporary restraining order under this
22    subsection may be entered upon application of the State
23    without notice or opportunity for a hearing when an
24    indictment, information, complaint, or administrative
25    notice has not yet been filed with respect to the property,
26    if the State demonstrates that there is probable cause to

 

 

HB3074- 14 -LRB100 10982 SLF 21220 b

1    believe that the property with respect to which the order
2    is sought would be subject to forfeiture under this Section
3    and that provision of notice will jeopardize the
4    availability of the property for forfeiture. Such a
5    temporary order shall expire not more than 30 days after
6    the date on which it is entered, unless extended for good
7    cause shown or unless the party against whom it is entered
8    consents to an extension for a longer period. A hearing
9    requested concerning an order entered under this paragraph
10    shall be held at the earliest possible time and prior to
11    the expiration of the temporary order.
12        (3) The court may receive and consider, at a hearing
13    held pursuant to this subsection (f), evidence and
14    information that would be inadmissible under the Illinois
15    rules of evidence.
16        (4) Order to repatriate and deposit.
17            (A) In general. Pursuant to its authority to enter
18        a pretrial restraining order under this Section, the
19        court may order a defendant to repatriate any property
20        that may be seized and forfeited and to deposit that
21        property pending trial with the Illinois State Police
22        or another law enforcement agency designated by the
23        Illinois State Police.
24            (B) Failure to comply. Failure to comply with an
25        order under this subsection (f) is punishable as a
26        civil or criminal contempt of court.

 

 

HB3074- 15 -LRB100 10982 SLF 21220 b

1    (g) Warrant of seizure. The State may request the issuance
2of a warrant authorizing the seizure of property described in
3subsection (h) in the same manner as provided for a search
4warrant. If the court determines that there is probable cause
5to believe that the property to be seized would be subject to
6forfeiture, the court shall issue a warrant authorizing the
7seizure of such property.
8    (h) Forfeiture.
9        (1) The following are subject to forfeiture:
10            (A) any property, real or personal, constituting,
11        derived from, or traceable to any proceeds the person
12        obtained directly or indirectly, as a result of a
13        violation of this Article;
14            (B) any of the person's property used, or intended
15        to be used, in any manner or part, to commit, or to
16        facilitate the commission of, a violation of this
17        Article;
18            (C) all conveyances, including aircraft, vehicles
19        or vessels, which are used, or intended for use, to
20        transport, or in any manner to facilitate the
21        transportation, sale, receipt, possession, or
22        concealment of property described in subparagraphs (A)
23        and (B), but:
24                (i) no conveyance used by any person as a
25            common carrier in the transaction of business as a
26            common carrier is subject to forfeiture under this

 

 

HB3074- 16 -LRB100 10982 SLF 21220 b

1            Section unless it appears that the owner or other
2            person in charge of the conveyance is a consenting
3            party or privy to a violation of this Article;
4                (ii) no conveyance is subject to forfeiture
5            under this Section by reason of any act or omission
6            which the owner proves to have been committed or
7            omitted without his or her knowledge or consent;
8                (iii) a forfeiture of a conveyance encumbered
9            by a bona fide security interest is subject to the
10            interest of the secured party if he or she neither
11            had knowledge of nor consented to the act or
12            omission;
13            (D) all real property, including any right, title,
14        and interest (including, but not limited to, any
15        leasehold interest or the beneficial interest in a land
16        trust) in the whole of any lot or tract of land and any
17        appurtenances or improvements, which is used or
18        intended to be used, in any manner or part, to commit,
19        or in any manner to facilitate the commission of, any
20        violation of this Article or that is the proceeds of
21        any violation or act that constitutes a violation of
22        this Article.
23        (2) Property subject to forfeiture under this Article
24    may be seized by the Director or any peace officer upon
25    process or seizure warrant issued by any court having
26    jurisdiction over the property. Seizure by the Director or

 

 

HB3074- 17 -LRB100 10982 SLF 21220 b

1    any peace officer without process may be made:
2            (A) if the seizure is incident to a seizure
3        warrant;
4            (B) if the property subject to seizure has been the
5        subject of a prior judgment in favor of the State in a
6        criminal proceeding, or in an injunction or forfeiture
7        proceeding based upon this Article;
8            (C) if there is probable cause to believe that the
9        property is directly or indirectly dangerous to health
10        or safety;
11            (D) if there is probable cause to believe that the
12        property is subject to forfeiture under this Article
13        and the property is seized under circumstances in which
14        a warrantless seizure or arrest would be reasonable; or
15            (E) in accordance with the Code of Criminal
16        Procedure of 1963.
17        (3) In the event of seizure pursuant to paragraph (2),
18    forfeiture proceedings shall be instituted in accordance
19    with subsections (i) through (r).
20        (4) Property taken or detained under this Section shall
21    not be subject to replevin, but is deemed to be in the
22    custody of the Director subject only to the order and
23    judgments of the circuit court having jurisdiction over the
24    forfeiture proceedings and the decisions of the State's
25    Attorney under this Article. When property is seized under
26    this Article, the seizing agency shall promptly conduct an

 

 

HB3074- 18 -LRB100 10982 SLF 21220 b

1    inventory of the seized property and estimate the
2    property's value and shall forward a copy of the inventory
3    of seized property and the estimate of the property's value
4    to the Director. Upon receiving notice of seizure, the
5    Director may:
6            (A) place the property under seal;
7            (B) remove the property to a place designated by
8        the Director;
9            (C) keep the property in the possession of the
10        seizing agency;
11            (D) remove the property to a storage area for
12        safekeeping or, if the property is a negotiable
13        instrument or money and is not needed for evidentiary
14        purposes, deposit it in an interest bearing account;
15            (E) place the property under constructive seizure
16        by posting notice of pending forfeiture on it, by
17        giving notice of pending forfeiture to its owners and
18        interest holders, or by filing notice of pending
19        forfeiture in any appropriate public record relating
20        to the property; or
21            (F) provide for another agency or custodian,
22        including an owner, secured party, or lienholder, to
23        take custody of the property upon the terms and
24        conditions set by the Director.
25        (5) When property is forfeited under this Article, the
26    Director shall sell all such property unless such property

 

 

HB3074- 19 -LRB100 10982 SLF 21220 b

1    is required by law to be destroyed or is harmful to the
2    public, and shall distribute the proceeds of the sale,
3    together with any moneys forfeited or seized, in accordance
4    with paragraph (6). However, upon the application of the
5    seizing agency or prosecutor who was responsible for the
6    investigation, arrest or arrests and prosecution which
7    lead to the forfeiture, the Director may return any item of
8    forfeited property to the seizing agency or prosecutor for
9    official use in the enforcement of laws, if the agency or
10    prosecutor can demonstrate that the item requested would be
11    useful to the agency or prosecutor in its enforcement
12    efforts. When any real property returned to the seizing
13    agency is sold by the agency or its unit of government, the
14    proceeds of the sale shall be delivered to the Director and
15    distributed in accordance with paragraph (6).
16        (6) All monies and the sale proceeds of all other
17    property forfeited and seized under this Article shall be
18    distributed as follows:
19            (A) 65% shall be distributed to the metropolitan
20        enforcement group, local, municipal, county, or State
21        law enforcement agency or agencies which conducted or
22        participated in the investigation resulting in the
23        forfeiture. The distribution shall bear a reasonable
24        relationship to the degree of direct participation of
25        the law enforcement agency in the effort resulting in
26        the forfeiture, taking into account the total value of

 

 

HB3074- 20 -LRB100 10982 SLF 21220 b

1        the property forfeited and the total law enforcement
2        effort with respect to the violation of the law upon
3        which the forfeiture is based. Amounts distributed to
4        the agency or agencies shall be used for the
5        enforcement of laws.
6            (B)(i) 12.5% shall be distributed to the Office of
7        the State's Attorney of the county in which the
8        prosecution resulting in the forfeiture was
9        instituted, deposited in a special fund in the county
10        treasury and appropriated to the State's Attorney for
11        use in the enforcement of laws. In counties over
12        3,000,000 population, 25% shall be distributed to the
13        Office of the State's Attorney for use in the
14        enforcement of laws. If the prosecution is undertaken
15        solely by the Attorney General, the portion provided
16        hereunder shall be distributed to the Attorney General
17        for use in the enforcement of laws.
18            (ii) 12.5% shall be distributed to the Office of
19        the State's Attorneys Appellate Prosecutor and
20        deposited in the Narcotics Profit Forfeiture Fund of
21        that office to be used for additional expenses incurred
22        in the investigation, prosecution and appeal of cases
23        arising under laws. The Office of the State's Attorneys
24        Appellate Prosecutor shall not receive distribution
25        from cases brought in counties with over 3,000,000
26        population.

 

 

HB3074- 21 -LRB100 10982 SLF 21220 b

1            (C) 10% shall be retained by the Department of
2        State Police for expenses related to the
3        administration and sale of seized and forfeited
4        property.
5        Moneys and the sale proceeds distributed to the
6    Department of State Police under this Article shall be
7    deposited in the Money Laundering Asset Recovery Fund
8    created in the State treasury and shall be used by the
9    Department of State Police for State law enforcement
10    purposes.
11        (7) All moneys and sale proceeds of property forfeited
12    and seized under this Article and distributed according to
13    paragraph (6) may also be used to purchase opioid
14    antagonists as defined in Section 5-23 of the Alcoholism
15    and Other Drug Abuse and Dependency Act.
16    (i) Notice to owner or interest holder.
17        (1) Whenever notice of pending forfeiture or service of
18    an in rem complaint is required under the provisions of
19    this Article, such notice or service shall be given as
20    follows:
21            (A) If the owner's or interest holder's name and
22        current address are known, then by either personal
23        service or mailing a copy of the notice by certified
24        mail, return receipt requested, to that address. For
25        purposes of notice under this Section, if a person has
26        been arrested for the conduct giving rise to the

 

 

HB3074- 22 -LRB100 10982 SLF 21220 b

1        forfeiture, then 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 notice of pending 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
13            (B) If the property seized is a conveyance, to the
14        address reflected in the office of the agency or
15        official in which title or interest to the conveyance
16        is required by law to be recorded, then by mailing a
17        copy of the notice by certified mail, return receipt
18        requested, to that address; or
19            (C) If the owner's or interest holder's address is
20        not known, and is not on record as provided in
21        paragraph (B), then by publication for 3 successive
22        weeks in a newspaper of general circulation in the
23        county in which the seizure occurred.
24        (2) Notice served under this Article is effective upon
25    personal service, the last date of publication, or the
26    mailing of written notice, whichever is earlier.

 

 

HB3074- 23 -LRB100 10982 SLF 21220 b

1    (j) Notice to State's Attorney. The law enforcement agency
2seizing property for forfeiture under this Article shall,
3within 90 days after seizure, notify the State's Attorney for
4the county, either where an act or omission giving rise to the
5forfeiture occurred or where the property was seized, of the
6seizure of the property and the facts and circumstances giving
7rise to the seizure and shall provide the State's Attorney with
8the inventory of the property and its estimated value. When the
9property seized for forfeiture is a vehicle, the law
10enforcement agency seizing the property shall immediately
11notify the Secretary of State that forfeiture proceedings are
12pending regarding such vehicle.
13    (k) Non-judicial forfeiture. If non-real property that
14exceeds $20,000 in value excluding the value of any conveyance,
15or if real property is seized under the provisions of this
16Article, the State's Attorney shall institute judicial in rem
17forfeiture proceedings as described in subsection (l) of this
18Section within 45 days from receipt of notice of seizure from
19the seizing agency under subsection (j) of this Section.
20However, if non-real property that does not exceed $20,000 in
21value excluding the value of any conveyance is seized, the
22following procedure shall be used:
23        (1) If, after review of the facts surrounding the
24    seizure, the State's Attorney is of the opinion that the
25    seized property is subject to forfeiture, then within 45
26    days after the receipt of notice of seizure from the

 

 

HB3074- 24 -LRB100 10982 SLF 21220 b

1    seizing agency, the State's Attorney shall cause notice of
2    pending forfeiture to be given to the owner of the property
3    and all known interest holders of the property in
4    accordance with subsection (i) of this Section.
5        (2) The notice of pending forfeiture must include a
6    description of the property, the estimated value of the
7    property, the date and place of seizure, the conduct giving
8    rise to forfeiture or the violation of law alleged, and a
9    summary of procedures and procedural rights applicable to
10    the forfeiture action.
11        (3)(A) Any person claiming an interest in property
12    which is the subject of notice under paragraph (1) of this
13    subsection (k), must, in order to preserve any rights or
14    claims to the property, within 45 days after the effective
15    date of notice as described in subsection (i) of this
16    Section, file a verified claim with the State's Attorney
17    expressing his or her interest in the property. The claim
18    must set forth:
19            (i) the caption of the proceedings as set forth on
20        the notice of pending forfeiture and the name of the
21        claimant;
22            (ii) the address at which the claimant will accept
23        mail;
24            (iii) the nature and extent of the claimant's
25        interest in the property;
26            (iv) the date, identity of the transferor, and

 

 

HB3074- 25 -LRB100 10982 SLF 21220 b

1        circumstances of the claimant's acquisition of the
2        interest in the property;
3            (v) the name and address of all other persons known
4        to have an interest in the property;
5            (vi) the specific provision of law relied on in
6        asserting the property is not subject to forfeiture;
7            (vii) all essential facts supporting each
8        assertion; and
9            (viii) the relief sought.
10        (B) If a claimant files the claim and deposits with the
11    State's Attorney a cost bond, in the form of a cashier's
12    check payable to the clerk of the court, in the sum of 10%
13    of the reasonable value of the property as alleged by the
14    State's Attorney or the sum of $100, whichever is greater,
15    upon condition that, in the case of forfeiture, the
16    claimant must pay all costs and expenses of forfeiture
17    proceedings, then the State's Attorney shall institute
18    judicial in rem forfeiture proceedings and deposit the cost
19    bond with the clerk of the court as described in subsection
20    (l) of this Section within 45 days after receipt of the
21    claim and cost bond. In lieu of a cost bond, a person
22    claiming interest in the seized property may file, under
23    penalty of perjury, an indigency affidavit which has been
24    approved by a circuit court judge.
25        (C) If none of the seized property is forfeited in the
26    judicial in rem proceeding, the clerk of the court shall

 

 

HB3074- 26 -LRB100 10982 SLF 21220 b

1    return to the claimant, unless the court orders otherwise,
2    90% of the sum which has been deposited and shall retain as
3    costs 10% of the money deposited. If any of the seized
4    property is forfeited under the judicial forfeiture
5    proceeding, the clerk of the court shall transfer 90% of
6    the sum which has been deposited to the State's Attorney
7    prosecuting the civil forfeiture to be applied to the costs
8    of prosecution and the clerk shall retain as costs 10% of
9    the sum deposited.
10        (4) If no claim is filed or bond given within the 45
11    day period as described in paragraph (3) of this subsection
12    (k), the State's Attorney shall declare the property
13    forfeited and shall promptly notify the owner and all known
14    interest holders of the property and the Director of State
15    Police of the declaration of forfeiture and the Director
16    shall dispose of the property in accordance with law.
17    (l) Judicial in rem procedures. If property seized under
18the provisions of this Article is non-real property that
19exceeds $20,000 in value excluding the value of any conveyance,
20or is real property, or a claimant has filed a claim and a cost
21bond under paragraph (3) of subsection (k) of this Section, the
22following judicial in rem procedures shall apply:
23        (1) If, after a review of the facts surrounding the
24    seizure, the State's Attorney is of the opinion that the
25    seized property is subject to forfeiture, then within 45
26    days of the receipt of notice of seizure by the seizing

 

 

HB3074- 27 -LRB100 10982 SLF 21220 b

1    agency or the filing of the claim and cost bond, whichever
2    is later, the State's Attorney shall institute judicial
3    forfeiture proceedings by filing a verified complaint for
4    forfeiture and, if the claimant has filed a claim and cost
5    bond, by depositing the cost bond with the clerk of the
6    court. When authorized by law, a forfeiture must be ordered
7    by a court on an action in rem brought by a State's
8    Attorney under a verified complaint for forfeiture.
9        (2) During the probable cause portion of the judicial
10    in rem proceeding wherein the State presents its
11    case-in-chief, the court must receive and consider, among
12    other things, all relevant hearsay evidence and
13    information. The laws of evidence relating to civil actions
14    apply to all other portions of the judicial in rem
15    proceeding.
16        (3) Only an owner of or interest holder in the property
17    may file an answer asserting a claim against the property
18    in the action in rem. For purposes of this Section, the
19    owner or interest holder shall be referred to as claimant.
20    Upon motion of the State, the court shall first hold a
21    hearing, wherein any claimant must establish by a
22    preponderance of the evidence, that he or she has a lawful,
23    legitimate ownership interest in the property and that it
24    was obtained through a lawful source.
25        (4) The answer must be signed by the owner or interest
26    holder under penalty of perjury and must set forth:

 

 

HB3074- 28 -LRB100 10982 SLF 21220 b

1            (A) the caption of the proceedings as set forth on
2        the notice of pending forfeiture and the name of the
3        claimant;
4            (B) the address at which the claimant will accept
5        mail;
6            (C) the nature and extent of the claimant's
7        interest in the property;
8            (D) the date, identity of transferor, and
9        circumstances of the claimant's acquisition of the
10        interest in the property;
11            (E) the name and address of all other persons known
12        to have an interest in the property;
13            (F) all essential facts supporting each assertion;
14        and
15            (G) the precise relief sought.
16        (5) The answer must be filed with the court within 45
17    days after service of the civil in rem complaint.
18        (6) The hearing must be held within 60 days after
19    filing of the answer unless continued for good cause.
20        (7) The State shall show the existence of probable
21    cause for forfeiture of the property. If the State shows
22    probable cause, the claimant has the burden of showing by a
23    preponderance of the evidence that the claimant's interest
24    in the property is not subject to forfeiture.
25        (7.5) The court shall admit a signed statement by a
26    person who is 65 years old or older to demonstrate that the

 

 

HB3074- 29 -LRB100 10982 SLF 21220 b

1    conveyance or other property was used without his or her
2    consent. The claimant may file a temporary restraining
3    order against the person who allegedly used his or her
4    property without his or her consent under Section 11-101 of
5    the Code of Civil Procedure.
6        (8) If the State does not show existence of probable
7    cause, the court shall order the interest in the property
8    returned or conveyed to the claimant and shall order all
9    other property forfeited to the State. If the State does
10    show existence of probable cause, the court shall order all
11    property forfeited to the State.
12        (9) A defendant convicted in any criminal proceeding is
13    precluded from later denying the essential allegations of
14    the criminal offense of which the defendant was convicted
15    in any proceeding under this Article regardless of the
16    pendency of an appeal from that conviction. However,
17    evidence of the pendency of an appeal is admissible.
18        (10) An acquittal or dismissal in a criminal proceeding
19    does not preclude civil proceedings under this Article;
20    however, for good cause shown, on a motion by the State's
21    Attorney, the court may stay civil forfeiture proceedings
22    during the criminal trial for a related criminal indictment
23    or information alleging a money laundering violation. Such
24    a stay shall not be available pending an appeal. Property
25    subject to forfeiture under this Article shall not be
26    subject to return or release by a court exercising

 

 

HB3074- 30 -LRB100 10982 SLF 21220 b

1    jurisdiction over a criminal case involving the seizure of
2    such property unless such return or release is consented to
3    by the State's Attorney.
4        (11) All property declared forfeited under this
5    Article vests in this State on the commission of the
6    conduct giving rise to forfeiture together with the
7    proceeds of the property after that time. Any such property
8    or proceeds subsequently transferred to any person remain
9    subject to forfeiture and thereafter shall be ordered
10    forfeited.
11        (12) A civil action under this Article must be
12    commenced within 5 years after the last conduct giving rise
13    to forfeiture became known or should have become known or 5
14    years after the forfeitable property is discovered,
15    whichever is later, excluding any time during which either
16    the property or claimant is out of the State or in
17    confinement or during which criminal proceedings relating
18    to the same conduct are in progress.
19    (m) Stay of time periods. If property is seized for
20evidence and for forfeiture, the time periods for instituting
21judicial and non-judicial forfeiture proceedings shall not
22begin until the property is no longer necessary for evidence.
23    (n) Settlement of claims. Notwithstanding other provisions
24of this Article, the State's Attorney and a claimant of seized
25property may enter into an agreed-upon settlement concerning
26the seized property in such an amount and upon such terms as

 

 

HB3074- 31 -LRB100 10982 SLF 21220 b

1are set out in writing in a settlement agreement.
2    (o) Property constituting attorney fees. Nothing in this
3Article applies to property which constitutes reasonable bona
4fide attorney's fees paid to an attorney for services rendered
5or to be rendered in the forfeiture proceeding or criminal
6proceeding relating directly thereto where such property was
7paid before its seizure, before the issuance of any seizure
8warrant or court order prohibiting transfer of the property and
9where the attorney, at the time he or she received the property
10did not know that it was property subject to forfeiture under
11this Article.
12    (p) Construction. It is the intent of the General Assembly
13that the forfeiture provisions of this Article be liberally
14construed so as to effect their remedial purpose. The
15forfeiture of property and other remedies hereunder shall be
16considered to be in addition to, and not exclusive of, any
17sentence or other remedy provided by law.
18    (q) Judicial review. If property has been declared
19forfeited under subsection (k) of this Section, any person who
20has an interest in the property declared forfeited may, within
2130 days after the effective date of the notice of the
22declaration of forfeiture, file a claim and cost bond as
23described in paragraph (3) of subsection (k) of this Section.
24If a claim and cost bond is filed under this Section, then the
25procedures described in subsection (l) of this Section apply.
26    (r) Burden of proof of exemption or exception. It is not

 

 

HB3074- 32 -LRB100 10982 SLF 21220 b

1necessary for the State to negate any exemption or exception in
2this Article in any complaint, information, indictment or other
3pleading or in any trial, hearing, or other proceeding under
4this Article. The burden of proof of any exemption or exception
5is upon the person claiming it.
6    (s) Review of administrative decisions. All administrative
7findings, rulings, final determinations, findings, and
8conclusions of the State's Attorney's Office under this Article
9are final and conclusive decisions of the matters involved. Any
10person aggrieved by the decision may obtain review of the
11decision pursuant to the provisions of the Administrative
12Review Law and the rules adopted pursuant to that Law. Pending
13final decision on such review, the administrative acts, orders,
14and rulings of the State's Attorney's Office remain in full
15force and effect unless modified or suspended by order of court
16pending final judicial decision. Pending final decision on such
17review, the acts, orders, and rulings of the State's Attorney's
18Office remain in full force and effect, unless stayed by order
19of court. However, no stay of any decision of the
20administrative agency shall issue unless the person aggrieved
21by the decision establishes by a preponderance of the evidence
22that good cause exists for the stay. In determining good cause,
23the court shall find that the aggrieved party has established a
24substantial likelihood of prevailing on the merits and that
25granting the stay will not have an injurious effect on the
26general public.

 

 

HB3074- 33 -LRB100 10982 SLF 21220 b

1(Source: P.A. 99-480, eff. 9-9-15.)
 
2    (720 ILCS 5/36-2)  (from Ch. 38, par. 36-2)
3    Sec. 36-2. Action for forfeiture.
4    (a) The State's Attorney in the county in which such
5seizure occurs if he or she finds that the forfeiture was
6incurred without willful negligence or without any intention on
7the part of the owner of the vessel or watercraft, vehicle or
8aircraft or any person whose right, title or interest is of
9record as described in Section 36-1, to violate the law, or
10finds the existence of such mitigating circumstances as to
11justify remission of the forfeiture, may cause the law
12enforcement agency to remit the same upon such terms and
13conditions as the State's Attorney deems reasonable and just.
14The State's Attorney shall exercise his or her discretion under
15the foregoing provision of this Section 36-2(a) prior to or
16promptly after the preliminary review under Section 36-1.5.
17    (b) If the State's Attorney does not cause the forfeiture
18to be remitted he or she shall forthwith bring an action for
19forfeiture in the Circuit Court within whose jurisdiction the
20seizure and confiscation has taken place. The State's Attorney
21shall give notice of seizure and the forfeiture proceeding to
22each person according to the following method: upon each person
23whose right, title, or interest is of record in the office of
24the Secretary of State, the Secretary of Transportation, the
25Administrator of the Federal Aviation Agency, or any other

 

 

HB3074- 34 -LRB100 10982 SLF 21220 b

1department of this State, or any other state of the United
2States if the vessel or watercraft, vehicle, or aircraft is
3required to be so registered, as the case may be, by delivering
4the notice and complaint in open court or by certified mail to
5the address as given upon the records of the Secretary of
6State, the Division of Aeronautics of the Department of
7Transportation, the Capital Development Board, or any other
8department of this State or the United States if the vessel or
9watercraft, vehicle, or aircraft is required to be so
10registered.
11    (c) The owner of the seized vessel or watercraft, vehicle,
12or aircraft or any person whose right, title, or interest is of
13record as described in Section 36-1, may within 20 days after
14delivery in open court or the mailing of such notice file a
15verified answer to the Complaint and may appear at the hearing
16on the action for forfeiture.
17    (d) The State shall show at such hearing by a preponderance
18of the evidence, that such vessel or watercraft, vehicle, or
19aircraft was used in the commission of an offense described in
20Section 36-1.
21    (e) The owner of such vessel or watercraft, vehicle, or
22aircraft or any person whose right, title, or interest is of
23record as described in Section 36-1, may show by a
24preponderance of the evidence that he did not know, and did not
25have reason to know, that the vessel or watercraft, vehicle, or
26aircraft was to be used in the commission of such an offense or

 

 

HB3074- 35 -LRB100 10982 SLF 21220 b

1that any of the exceptions set forth in Section 36-3 are
2applicable.
3    (e-5) The court shall admit a signed statement by a person
4who is 65 years old or older to demonstrate that the conveyance
5or other property was used without his or her consent. The
6claimant may file a temporary restraining order against the
7person who allegedly used his or her property without his or
8her consent under Section 11-101 of the Code of Civil
9Procedure.
10    (f) Unless the State shall make such showing, the Court
11shall order such vessel or watercraft, vehicle, or aircraft
12released to the owner. Where the State has made such showing,
13the Court may order the vessel or watercraft, vehicle, or
14aircraft destroyed or may order it forfeited to any local,
15municipal or county law enforcement agency, or the Department
16of State Police or the Department of Revenue of the State of
17Illinois.
18    (g) A copy of the order shall be filed with the law
19enforcement agency, and with each Federal or State office or
20agency with which such vessel or watercraft, vehicle, or
21aircraft is required to be registered. Such order, when filed,
22constitutes authority for the issuance of clear title to such
23vessel or watercraft, vehicle, or aircraft, to the department
24or agency to whom it is delivered or any purchaser thereof. The
25law enforcement agency shall comply promptly with instructions
26to remit received from the State's Attorney or Attorney General

 

 

HB3074- 36 -LRB100 10982 SLF 21220 b

1in accordance with Sections 36-2(a) or 36-3.
2    (h) The proceeds of any sale at public auction pursuant to
3Section 36-2 of this Act, after payment of all liens and
4deduction of the reasonable charges and expenses incurred by
5the State's Attorney's Office shall be paid to the law
6enforcement agency having seized the vehicle for forfeiture.
7(Source: P.A. 98-699, eff. 1-1-15; 98-1020, eff. 8-22-14;
899-78, eff. 7-20-15.)
 
9    (720 ILCS 5/47-15)
10    Sec. 47-15. Dumping garbage upon real property.
11    (a) It is unlawful for a person to dump, deposit, or place
12garbage, rubbish, trash, or refuse upon real property not owned
13by that person without the consent of the owner or person in
14possession of the real property.
15    (b) A person who violates this Section is liable to the
16owner or person in possession of the real property on which the
17garbage, rubbish, trash, or refuse is dumped, deposited, or
18placed for the reasonable costs incurred by the owner or person
19in possession for cleaning up and properly disposing of the
20garbage, rubbish, trash, or refuse, and for reasonable
21attorneys' fees.
22    (c) A person violating this Section is guilty of a Class B
23misdemeanor for which the court must impose a minimum fine of
24$500. A second conviction for an offense committed after the
25first conviction is a Class A misdemeanor for which the court

 

 

HB3074- 37 -LRB100 10982 SLF 21220 b

1must impose a minimum fine of $500. A third or subsequent
2violation, committed after a second conviction, is a Class 4
3felony for which the court must impose a minimum fine of $500.
4A person who violates this Section and who has an equity
5interest in a motor vehicle used in violation of this Section
6is presumed to have the financial resources to pay the minimum
7fine not exceeding his or her equity interest in the vehicle.
8Personal property used by a person in violation of this Section
9shall on the third or subsequent conviction of the person be
10forfeited to the county where the violation occurred and
11disposed of at a public sale. Before the forfeiture, the court
12shall conduct a hearing to determine whether property is
13subject to forfeiture under this Section. At the forfeiture
14hearing the State has the burden of establishing by a
15preponderance of the evidence that property is subject to
16forfeiture under this Section. The court shall admit a signed
17statement by a person who is 65 years old or older to
18demonstrate that the conveyance or other property was used
19without his or her consent. The claimant may file a temporary
20restraining order against the person who allegedly used his or
21her property without his or her consent under Section 11-101 of
22the Code of Civil Procedure.
23    (d) The statutory minimum fine required by subsection (c)
24is not subject to reduction or suspension unless the defendant
25is indigent. If the defendant files a motion with the court
26asserting his or her inability to pay the mandatory fine

 

 

HB3074- 38 -LRB100 10982 SLF 21220 b

1required by this Section, the court must set a hearing on the
2motion before sentencing. The court must require an affidavit
3signed by the defendant containing sufficient information to
4ascertain the assets and liabilities of the defendant. If the
5court determines that the defendant is indigent, the court must
6require that the defendant choose either to pay the minimum
7fine of $500 or to perform 100 hours of community service.
8(Source: P.A. 90-655, eff. 7-30-98; 91-409, eff. 1-1-00.)
 
9    Section 10. The Code of Criminal Procedure of 1963 is
10amended by changing Section 124B-160 as follows:
 
11    (725 ILCS 5/124B-160)
12    Sec. 124B-160. Petition for forfeiture; forfeiture
13hearing; burden of proof.
14    (a) The Attorney General or State's Attorney may file a
15petition for forfeiture of property in connection with an
16offense as defined in this Article, and, within a reasonable
17time after sentencing, the court shall conduct a hearing to
18determine whether any property is subject to forfeiture under
19this Article. Every person with any property interest in the
20property alleged to be subject to forfeiture may appear as a
21party and present evidence at the hearing.
22    (b) At the forfeiture hearing, the State has the burden of
23establishing, by a preponderance of the evidence, that the
24property is subject to forfeiture under this Article. The court

 

 

HB3074- 39 -LRB100 10982 SLF 21220 b

1shall admit a signed statement by a person who is 65 years old
2or older to demonstrate that the conveyance or other property
3was used without his or her consent. The claimant may file a
4temporary restraining order against the person who allegedly
5used his or her property without his or her consent under
6Section 11-101 of the Code of Civil Procedure.
7(Source: P.A. 96-712, eff. 1-1-10.)
 
8    Section 15. The Drug Asset Forfeiture Procedure Act is
9amended by changing Section 9 as follows:
 
10    (725 ILCS 150/9)  (from Ch. 56 1/2, par. 1679)
11    Sec. 9. Judicial in rem procedures. If property seized
12under the provisions of the Illinois Controlled Substances Act,
13the Cannabis Control Act, or the Methamphetamine Control and
14Community Protection Act is non-real property that exceeds
15$20,000 in value excluding the value of any conveyance, or is
16real property, or a claimant has filed a claim and a cost bond
17under subsection (C) of Section 6 of this Act, the following
18judicial in rem procedures shall apply:
19    (A) If, after a review of the facts surrounding the
20seizure, the State's Attorney is of the opinion that the seized
21property is subject to forfeiture, then within 45 days of the
22receipt of notice of seizure by the seizing agency or the
23filing of the claim and cost bond, whichever is later, the
24State's Attorney shall institute judicial forfeiture

 

 

HB3074- 40 -LRB100 10982 SLF 21220 b

1proceedings by filing a verified complaint for forfeiture and,
2if the claimant has filed a claim and cost bond, by depositing
3the cost bond with the clerk of the court. When authorized by
4law, a forfeiture must be ordered by a court on an action in
5rem brought by a State's Attorney under a verified complaint
6for forfeiture.
7    (B) During the probable cause portion of the judicial in
8rem proceeding wherein the State presents its case-in-chief,
9the court must receive and consider, among other things, all
10relevant hearsay evidence and information. The laws of evidence
11relating to civil actions shall apply to all other portions of
12the judicial in rem proceeding.
13    (C) Only an owner of or interest holder in the property may
14file an answer asserting a claim against the property in the
15action in rem. For purposes of this Section, the owner or
16interest holder shall be referred to as claimant.
17    (D) The answer must be signed by the owner or interest
18holder under penalty of perjury and must set forth:
19        (i) the caption of the proceedings as set forth on the
20    notice of pending forfeiture and the name of the claimant;
21        (ii) the address at which the claimant will accept
22    mail;
23        (iii) the nature and extent of the claimant's interest
24    in the property;
25        (iv) the date, identity of transferor, and
26    circumstances of the claimant's acquisition of the

 

 

HB3074- 41 -LRB100 10982 SLF 21220 b

1    interest in the property;
2        (v) the name and address of all other persons known to
3    have an interest in the property;
4        (vi) the specific provisions of Section 8 of this Act
5    relied on in asserting it is not subject to forfeiture;
6        (vii) all essential facts supporting each assertion;
7    and
8        (viii) the precise relief sought.
9    (E) The answer must be filed with the court within 45 days
10after service of the civil in rem complaint.
11    (F) The hearing must be held within 60 days after filing of
12the answer unless continued for good cause.
13    (G) The State shall show the existence of probable cause
14for forfeiture of the property. If the State shows probable
15cause, the claimant has the burden of showing by a
16preponderance of the evidence that the claimant's interest in
17the property is not subject to forfeiture.
18    (G-5) The court shall admit a signed statement by a person
19who is 65 years old or older to demonstrate that the conveyance
20or other property was used without his or her consent. The
21claimant may file a temporary restraining order against the
22person who allegedly used his or her property without his or
23her consent under Section 11-101 of the Code of Civil
24Procedure.
25    (H) If the State does not show existence of probable cause
26or a claimant has established by a preponderance of evidence

 

 

HB3074- 42 -LRB100 10982 SLF 21220 b

1that the claimant has an interest that is exempt under Section
28 of this Act, the court shall order the interest in the
3property returned or conveyed to the claimant and shall order
4all other property forfeited to the State. If the State does
5show existence of probable cause and the claimant does not
6establish by a preponderance of evidence that the claimant has
7an interest that is exempt under Section 8 of this Act, the
8court shall order all property forfeited to the State.
9    (I) A defendant convicted in any criminal proceeding is
10precluded from later denying the essential allegations of the
11criminal offense of which the defendant was convicted in any
12proceeding under this Act regardless of the pendency of an
13appeal from that conviction. However, evidence of the pendency
14of an appeal is admissible.
15    (J) An acquittal or dismissal in a criminal proceeding
16shall not preclude civil proceedings under this Act; however,
17for good cause shown, on a motion by the State's Attorney, the
18court may stay civil forfeiture proceedings during the criminal
19trial for a related criminal indictment or information alleging
20a violation of the Illinois Controlled Substances Act, the
21Cannabis Control Act, or the Methamphetamine Control and
22Community Protection Act. Such a stay shall not be available
23pending an appeal. Property subject to forfeiture under the
24Illinois Controlled Substances Act, the Cannabis Control Act,
25or the Methamphetamine Control and Community Protection Act
26shall not be subject to return or release by a court exercising

 

 

HB3074- 43 -LRB100 10982 SLF 21220 b

1jurisdiction over a criminal case involving the seizure of such
2property unless such return or release is consented to by the
3State's Attorney.
4    (K) All property declared forfeited under this Act vests in
5this State on the commission of the conduct giving rise to
6forfeiture together with the proceeds of the property after
7that time. Any such property or proceeds subsequently
8transferred to any person remain subject to forfeiture and
9thereafter shall be ordered forfeited unless the transferee
10claims and establishes in a hearing under the provisions of
11this Act that the transferee's interest is exempt under Section
128 of this Act.
13    (L) A civil action under this Act must be commenced within
145 years after the last conduct giving rise to forfeiture became
15known or should have become known or 5 years after the
16forfeitable property is discovered, whichever is later,
17excluding any time during which either the property or claimant
18is out of the State or in confinement or during which criminal
19proceedings relating to the same conduct are in progress.
20(Source: P.A. 94-556, eff. 9-11-05.)
 
21    Section 20. The Narcotics Profit Forfeiture Act is amended
22by changing Section 5 as follows:
 
23    (725 ILCS 175/5)  (from Ch. 56 1/2, par. 1655)
24    Sec. 5. Forfeiture procedures.

 

 

HB3074- 44 -LRB100 10982 SLF 21220 b

1    (a) A person who commits the offense of narcotics
2racketeering shall:
3        (1) be guilty of a Class 1 felony; and
4        (2) be subject to a fine of up to $250,000.
5    A person who commits the offense of narcotics racketeering
6or who violates Section 3 of the Drug Paraphernalia Control Act
7shall forfeit to the State of Illinois: (A) any profits or
8proceeds and any property or property interest he has acquired
9or maintained in violation of this Act or Section 3 of the Drug
10Paraphernalia Control Act or has used to facilitate a violation
11of this Act that the court determines, after a forfeiture
12hearing, under subsection (b) of this Section to have been
13acquired or maintained as a result of narcotics racketeering or
14violating Section 3 of the Drug Paraphernalia Control Act, or
15used to facilitate narcotics racketeering; and (B) any interest
16in, security of, claim against, or property or contractual
17right of any kind affording a source of influence over, any
18enterprise which he has established, operated, controlled,
19conducted, or participated in the conduct of, in violation of
20this Act or Section 3 of the Drug Paraphernalia Control Act,
21that the court determines, after a forfeiture hearing, under
22subsection (b) of this Section to have been acquired or
23maintained as a result of narcotics racketeering or violating
24Section 3 of the Drug Paraphernalia Control Act or used to
25facilitate narcotics racketeering.
26    (b) The court shall, upon petition by the Attorney General

 

 

HB3074- 45 -LRB100 10982 SLF 21220 b

1or State's Attorney, at any time subsequent to the filing of an
2information or return of an indictment, conduct a hearing to
3determine whether any property or property interest is subject
4to forfeiture under this Act. At the forfeiture hearing the
5people shall have the burden of establishing, by a
6preponderance of the evidence, that property or property
7interests are subject to forfeiture under this Act. The court
8shall admit a signed statement by a person who is 65 years old
9or older to demonstrate that the conveyance or other property
10was used without his or her consent. The claimant may file a
11temporary restraining order against the person who allegedly
12used his or her property without his or her consent under
13Section 11-101 of the Code of Civil Procedure. There is a
14rebuttable presumption at such hearing that any property or
15property interest of a person charged by information or
16indictment with narcotics racketeering or who is convicted of a
17violation of Section 3 of the Drug Paraphernalia Control Act is
18subject to forfeiture under this Section if the State
19establishes by a preponderance of the evidence that:
20        (1) such property or property interest was acquired by
21    such person during the period of the violation of this Act
22    or Section 3 of the Drug Paraphernalia Control Act or
23    within a reasonable time after such period; and
24        (2) there was no likely source for such property or
25    property interest other than the violation of this Act or
26    Section 3 of the Drug Paraphernalia Control Act.

 

 

HB3074- 46 -LRB100 10982 SLF 21220 b

1    (c) In an action brought by the People of the State of
2Illinois under this Act, wherein any restraining order,
3injunction or prohibition or any other action in connection
4with any property or property interest subject to forfeiture
5under this Act is sought, the circuit court which shall preside
6over the trial of the person or persons charged with narcotics
7racketeering as defined in Section 4 of this Act or violating
8Section 3 of the Drug Paraphernalia Control Act shall first
9determine whether there is probable cause to believe that the
10person or persons so charged has committed the offense of
11narcotics racketeering as defined in Section 4 of this Act or a
12violation of Section 3 of the Drug Paraphernalia Control Act
13and whether the property or property interest is subject to
14forfeiture pursuant to this Act.
15    In order to make such a determination, prior to entering
16any such order, the court shall conduct a hearing without a
17jury, wherein the People shall establish that there is: (i)
18probable cause that the person or persons so charged have
19committed the offense of narcotics racketeering or violating
20Section 3 of the Drug Paraphernalia Control Act and (ii)
21probable cause that any property or property interest may be
22subject to forfeiture pursuant to this Act. Such hearing may be
23conducted simultaneously with a preliminary hearing, if the
24prosecution is commenced by information or complaint, or by
25motion of the People, at any stage in the proceedings. The
26court may accept a finding of probable cause at a preliminary

 

 

HB3074- 47 -LRB100 10982 SLF 21220 b

1hearing following the filing of an information charging the
2offense of narcotics racketeering as defined in Section 4 of
3this Act or the return of an indictment by a grand jury
4charging the offense of narcotics racketeering as defined in
5Section 4 of this Act or after a charge is filed for violating
6Section 3 of the Drug Paraphernalia Control Act as sufficient
7evidence of probable cause as provided in item (i) above.
8    Upon such a finding, the circuit court shall enter such
9restraining order, injunction or prohibition, or shall take
10such other action in connection with any such property or
11property interest subject to forfeiture under this Act, as is
12necessary to insure that such property is not removed from the
13jurisdiction of the court, concealed, destroyed or otherwise
14disposed of by the owner of that property or property interest
15prior to a forfeiture hearing under subsection (b) of this
16Section. The Attorney General or State's Attorney shall file a
17certified copy of such restraining order, injunction or other
18prohibition with the recorder of deeds or registrar of titles
19of each county where any such property of the defendant may be
20located. No such injunction, restraining order or other
21prohibition shall affect the rights of any bona fide purchaser,
22mortgagee, judgment creditor or other lien holder arising prior
23to the date of such filing.
24    The court may, at any time, upon verified petition by the
25defendant, conduct a hearing to release all or portions of any
26such property or interest which the court previously determined

 

 

HB3074- 48 -LRB100 10982 SLF 21220 b

1to be subject to forfeiture or subject to any restraining
2order, injunction, or prohibition or other action. The court
3may release such property to the defendant for good cause shown
4and within the sound discretion of the court.
5    (d) Prosecution under this Act may be commenced by the
6Attorney General or a State's Attorney.
7    (e) Upon an order of forfeiture being entered pursuant to
8subsection (b) of this Section, the court shall authorize the
9Attorney General to seize any property or property interest
10declared forfeited under this Act and under such terms and
11conditions as the court shall deem proper. Any property or
12property interest that has been the subject of an entered
13restraining order, injunction or prohibition or any other
14action filed under subsection (c) shall be forfeited unless the
15claimant can show by a preponderance of the evidence that the
16property or property interest has not been acquired or
17maintained as a result of narcotics racketeering or has not
18been used to facilitate narcotics racketeering.
19    (f) The Attorney General or his designee is authorized to
20sell all property forfeited and seized pursuant to this Act,
21unless such property is required by law to be destroyed or is
22harmful to the public, and, after the deduction of all
23requisite expenses of administration and sale, shall
24distribute the proceeds of such sale, along with any moneys
25forfeited or seized, in accordance with subsection (g) or (h),
26whichever is applicable.

 

 

HB3074- 49 -LRB100 10982 SLF 21220 b

1    (g) All monies and the sale proceeds of all other property
2forfeited and seized pursuant to this Act shall be distributed
3as follows:
4        (1) An amount equal to 50% shall be distributed to the
5    unit of local government whose officers or employees
6    conducted the investigation into narcotics racketeering
7    and caused the arrest or arrests and prosecution leading to
8    the forfeiture. Amounts distributed to units of local
9    government shall be used for enforcement of laws governing
10    narcotics activity or for public education in the community
11    or schools in the prevention or detection of the abuse of
12    drugs or alcohol. In the event, however, that the
13    investigation, arrest or arrests and prosecution leading
14    to the forfeiture were undertaken solely by a State agency,
15    the portion provided hereunder shall be paid into the Drug
16    Traffic Prevention Fund in the State treasury to be used
17    for enforcement of laws governing narcotics activity.
18        (2) An amount equal to 12.5% shall be distributed to
19    the county in which the prosecution resulting in the
20    forfeiture was instituted, deposited in a special fund in
21    the county treasury and appropriated to the State's
22    Attorney for use in the enforcement of laws governing
23    narcotics activity or for public education in the community
24    or schools in the prevention or detection of the abuse of
25    drugs or alcohol.
26        An amount equal to 12.5% shall be distributed to the

 

 

HB3074- 50 -LRB100 10982 SLF 21220 b

1    Office of the State's Attorneys Appellate Prosecutor and
2    deposited in the Narcotics Profit Forfeiture Fund, which is
3    hereby created in the State treasury, to be used by the
4    Office of the State's Attorneys Appellate Prosecutor for
5    additional expenses incurred in prosecuting appeals
6    arising under this Act. Any amounts remaining in the Fund
7    after all additional expenses have been paid shall be used
8    by the Office to reduce the participating county
9    contributions to the Office on a pro-rated basis as
10    determined by the board of governors of the Office of the
11    State's Attorneys Appellate Prosecutor based on the
12    populations of the participating counties.
13        (3) An amount equal to 25% shall be paid into the Drug
14    Traffic Prevention Fund in the State treasury to be used by
15    the Department of State Police for funding Metropolitan
16    Enforcement Groups created pursuant to the
17    Intergovernmental Drug Laws Enforcement Act. Any amounts
18    remaining in the Fund after full funding of Metropolitan
19    Enforcement Groups shall be used for enforcement, by the
20    State or any unit of local government, of laws governing
21    narcotics activity or for public education in the community
22    or schools in the prevention or detection of the abuse of
23    drugs or alcohol.
24    (h) Where the investigation or indictment for the offense
25of narcotics racketeering or a violation of Section 3 of the
26Drug Paraphernalia Control Act has occurred under the

 

 

HB3074- 51 -LRB100 10982 SLF 21220 b

1provisions of the Statewide Grand Jury Act, all monies and the
2sale proceeds of all other property shall be distributed as
3follows:
4        (1) 60% shall be distributed to the metropolitan
5    enforcement group, local, municipal, county, or State law
6    enforcement agency or agencies which conducted or
7    participated in the investigation resulting in the
8    forfeiture. The distribution shall bear a reasonable
9    relationship to the degree of direct participation of the
10    law enforcement agency in the effort resulting in the
11    forfeiture, taking into account the total value of the
12    property forfeited and the total law enforcement effort
13    with respect to the violation of the law on which the
14    forfeiture is based. Amounts distributed to the agency or
15    agencies shall be used for the enforcement of laws
16    governing cannabis and controlled substances or for public
17    education in the community or schools in the prevention or
18    detection of the abuse of drugs or alcohol.
19        (2) 25% shall be distributed by the Attorney General as
20    grants to drug education, treatment and prevention
21    programs licensed or approved by the Department of Human
22    Services. In making these grants, the Attorney General
23    shall take into account the plans and service priorities
24    of, and the needs identified by, the Department of Human
25    Services.
26        (3) 15% shall be distributed to the Attorney General

 

 

HB3074- 52 -LRB100 10982 SLF 21220 b

1    and the State's Attorney, if any, participating in the
2    prosecution resulting in the forfeiture. The distribution
3    shall bear a reasonable relationship to the degree of
4    direct participation in the prosecution of the offense,
5    taking into account the total value of the property
6    forfeited and the total amount of time spent in preparing
7    and presenting the case, the complexity of the case and
8    other similar factors. Amounts distributed to the Attorney
9    General under this paragraph shall be retained in a fund
10    held by the State Treasurer as ex-officio custodian to be
11    designated as the Statewide Grand Jury Prosecution Fund and
12    paid out upon the direction of the Attorney General for
13    expenses incurred in criminal prosecutions arising under
14    the Statewide Grand Jury Act. Amounts distributed to a
15    State's Attorney shall be deposited in a special fund in
16    the county treasury and appropriated to the State's
17    Attorney for use in the enforcement of laws governing
18    narcotics activity or for public education in the community
19    or schools in the prevention or detection of the abuse of
20    drugs or alcohol.
21    (i) All monies deposited pursuant to this Act in the Drug
22Traffic Prevention Fund established under Section 5-9-1.2 of
23the Unified Code of Corrections are appropriated, on a
24continuing basis, to the Department of State Police to be used
25for funding Metropolitan Enforcement Groups created pursuant
26to the Intergovernmental Drug Laws Enforcement Act or otherwise

 

 

HB3074- 53 -LRB100 10982 SLF 21220 b

1for the enforcement of laws governing narcotics activity or for
2public education in the community or schools in the prevention
3or detection of the abuse of drugs or alcohol.
4(Source: P.A. 99-686, eff. 7-29-16.)