Sen. Don Harmon

Filed: 4/5/2011

 

 


 

 


 
09700SB2268sam001LRB097 10022 RLC 51670 a

1
AMENDMENT TO SENATE BILL 2268

2    AMENDMENT NO. ______. Amend Senate Bill 2268 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Criminal Code of 1961 is amended by adding
5Section 36-1.5 as follows:
 
6    (720 ILCS 5/36-1.5 new)
7    Sec. 36-1.5. Preliminary Review.
8    (a) Within 14 days of the seizure, the State shall seek a
9preliminary determination from the circuit court as to whether
10there is probable cause that the property may be subject to
11forfeiture.
12    (b) The rules of evidence shall not apply to any proceeding
13conducted under this Section.
14    (c) The court may conduct the review under subsection (a)
15simultaneously with a proceeding pursuant to Section 109-1 of
16the Code of Criminal Procedure of 1963 for a related criminal

 

 

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1offense of a prosecution is commenced by information or
2complaint.
3    (d) The court may accept a finding of probable cause at a
4preliminary hearing following the filing of an information or
5complaint charging a related criminal offense or following the
6return of indictment by a grand jury charging the related
7offense as sufficient evidence of probable cause as required
8under subsection (a).
9    (e) Upon making a finding of probable cause as required
10under this Section, the circuit court shall enter a restraining
11order or injunction, or take other appropriate action, as
12necessary to ensure that the property is not removed from the
13court's jurisdiction and is not concealed, destroyed, or
14otherwise disposed of by the property owner or interest holder
15before a forfeiture hearing is conducted.
 
16    Section 10. The Drug Asset Forfeiture Procedure Act is
17amended by changing Section 6 and by adding Section 3.5 as
18follows:
 
19    (725 ILCS 150/3.5 new)
20    Sec. 3.5. Preliminary Review.
21    (a) Within 14 days of the seizure, the State shall seek a
22preliminary determination from the circuit court as to whether
23there is probable cause that the property may be subject to
24forfeiture.

 

 

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1    (b) The rules of evidence shall not apply to any proceeding
2conducted under this Section.
3    (c) The court may conduct the review under subsection (a)
4simultaneously with a proceeding pursuant to Section 109-1 of
5the Code of Criminal Procedure of 1963 for a related criminal
6offense of a prosecution is commenced by information or
7complaint.
8    (d) The court may accept a finding of probable cause at a
9preliminary hearing following the filing of an information or
10complaint charging a related criminal offense or following the
11return of indictment by a grand jury charging the related
12offense as sufficient evidence of probable cause as required
13under subsection (a).
14    (e) Upon making a finding of probable cause as required
15under this Section, the circuit court shall enter a restraining
16order or injunction, or take other appropriate action, as
17necessary to ensure that the property is not removed from the
18court's jurisdiction and is not concealed, destroyed, or
19otherwise disposed of by the property owner or interest holder
20before a forfeiture hearing is conducted.
 
21    (725 ILCS 150/6)  (from Ch. 56 1/2, par. 1676)
22    Sec. 6. Non-Judicial Forfeiture. If non-real property that
23exceeds $150,000 $20,000 in value excluding the value of any
24conveyance, or if real property is seized under the provisions
25of the Illinois Controlled Substances Act, the Cannabis Control

 

 

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1Act, or the Methamphetamine Control and Community Protection
2Act, the State's Attorney shall institute judicial in rem
3forfeiture proceedings as described in Section 9 of this Act
4within 45 days from receipt of notice of seizure from the
5seizing agency under Section 5 of this Act. However, if
6non-real property that does not exceed $150,000 $20,000 in
7value excluding the value of any conveyance is seized, the
8following procedure shall be used:
9    (A) If, after review of the facts surrounding the seizure,
10the State's Attorney is of the opinion that the seized property
11is subject to forfeiture, then within 45 days of the receipt of
12notice of seizure from the seizing agency, the State's Attorney
13shall cause notice of pending forfeiture to be given to the
14owner of the property and all known interest holders of the
15property in accordance with Section 4 of this Act.
16    (B) The notice of pending forfeiture must include a
17description of the property, the estimated value of the
18property, the date and place of seizure, the conduct giving
19rise to forfeiture or the violation of law alleged, and a
20summary of procedures and procedural rights applicable to the
21forfeiture action.
22    (C) (1) Any person claiming an interest in property which
23    is the subject of notice under subsection (A) of Section 6
24    of this Act, may, within 45 days after the effective date
25    of notice as described in Section 4 of this Act, file a
26    verified claim with the State's Attorney expressing his or

 

 

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1    her interest in the property. The claim must set forth:
2            (i) the caption of the proceedings as set forth on
3        the notice of pending forfeiture and the name of the
4        claimant;
5            (ii) the address at which the claimant will accept
6        mail;
7            (iii) the nature and extent of the claimant's
8        interest in the property;
9            (iv) the date, identity of the transferor, and
10        circumstances of the claimant's acquisition of the
11        interest in the property;
12            (v) the name and address of all other persons known
13        to have an interest in the property;
14            (vi) the specific provision of law relied on in
15        asserting the property is not subject to forfeiture;
16            (vii) all essential facts supporting each
17        assertion; and
18            (viii) the relief sought.
19        (2) If a claimant files the claim and deposits with the
20    State's Attorney a cost bond, in the form of a cashier's
21    check payable to the clerk of the court, in the sum of 10
22    percent of the reasonable value of the property as alleged
23    by the State's Attorney or the sum of $100, whichever is
24    greater, upon condition that, in the case of forfeiture,
25    the claimant must pay all costs and expenses of forfeiture
26    proceedings, then the State's Attorney shall institute

 

 

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1    judicial in rem forfeiture proceedings and deposit the cost
2    bond with the clerk of the court as described in Section 9
3    of this Act within 45 days after receipt of the claim and
4    cost bond. In lieu of a cost bond, a person claiming
5    interest in the seized property may file, under penalty of
6    perjury, an indigency affidavit.
7        (3) If none of the seized property is forfeited in the
8    judicial in rem proceeding, the clerk of the court shall
9    return to the claimant, unless the court orders otherwise,
10    90% of the sum which has been deposited and shall retain as
11    costs 10% of the money deposited. If any of the seized
12    property is forfeited under the judicial forfeiture
13    proceeding, the clerk of the court shall transfer 90% of
14    the sum which has been deposited to the State's Attorney
15    prosecuting the civil forfeiture to be applied to the costs
16    of prosecution and the clerk shall retain as costs 10% of
17    the sum deposited.
18    (D) If no claim is filed or bond given within the 45 day
19period as described in subsection (C) of Section 6 of this Act,
20the State's Attorney shall declare the property forfeited and
21shall promptly notify the owner and all known interest holders
22of the property and the Director of the Illinois Department of
23State Police of the declaration of forfeiture and the Director
24shall dispose of the property in accordance with law.
25(Source: P.A. 94-556, eff. 9-11-05.)".