Illinois General Assembly - Full Text of SB2342
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Full Text of SB2342  100th General Assembly

SB2342enr 100TH GENERAL ASSEMBLY



 


 
SB2342 EnrolledLRB100 17956 MRW 33140 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 Seizure and Forfeiture Reporting Act is
5amended by changing Section 20 as follows:
 
6    (5 ILCS 810/20)
7    Sec. 20. Applicability. This Act and the changes made to
8this Act by Public Act 100-699 this amendatory Act of the 100th
9General Assembly only apply to property seized on and after
10July 1, 2018.
11(Source: P.A. 100-699, eff. 8-3-18.)
 
12    Section 10. The Illinois Food, Drug and Cosmetic Act is
13amended by changing Section 3.23 as follows:
 
14    (410 ILCS 620/3.23)
15    Sec. 3.23. Legend drug prohibition.
16    (a) In this Section:
17    "Legend drug" means a drug limited by the Federal Food,
18Drug and Cosmetic Act to being dispensed by or upon a medical
19practitioner's prescription because the drug is:
20        (1) habit forming;
21        (2) toxic or having potential for harm; or

 

 

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1        (3) limited in use by the new drug application for the
2    drug to use only under a medical practitioner's
3    supervision.
4    "Medical practitioner" means any person licensed to
5practice medicine in all its branches in the State.
6    "Deliver" or "delivery" means the actual, constructive, or
7attempted transfer of possession of a legend drug, with or
8without consideration, whether or not there is an agency
9relationship.
10    "Manufacture" means the production, preparation,
11propagation, compounding, conversion, or processing of a
12legend drug, either directly or indirectly, by extraction from
13substances of natural origin, or independently by means of
14chemical synthesis, or by a combination of extraction and
15chemical synthesis, and includes any packaging or repackaging
16of the substance or labeling of its container. "Manufacture"
17does not include:
18        (1) by an ultimate user, the preparation or compounding
19    of a legend drug for his or her own use; or
20        (2) by a medical practitioner, or his or her authorized
21    agent under his or her supervision, the preparation,
22    compounding, packaging, or labeling of a legend drug:
23            (A) as an incident to his or her administering or
24        dispensing of a legend drug in the course of his or her
25        professional practice; or
26            (B) as an incident to lawful research, teaching, or

 

 

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1        chemical analysis and not for sale.
2    "Prescription" has the same meaning ascribed to it in
3Section 3 of the Pharmacy Practice Act.
4    (b) It is unlawful for any person to knowingly manufacture
5or deliver or possess with the intent to manufacture or deliver
6a legend drug of 6 or more pills, tablets, capsules, or caplets
7or 30 ml or more of a legend drug in liquid form who is not
8licensed by applicable law to prescribe or dispense legend
9drugs or is not an employee of the licensee operating in the
10normal course of business under the supervision of the
11licensee. Any person who violates this Section is guilty of a
12Class 3 felony, the fine for which shall not exceed $100,000. A
13person convicted of a second or subsequent violation of this
14Section is guilty of a Class 1 felony, the fine for which shall
15not exceed $250,000.
16    (c) The following are subject to forfeiture:
17        (1) (blank);
18        (2) all raw materials, products, and equipment of any
19    kind which are used, or intended for use, in manufacturing,
20    distributing, dispensing, administering, or possessing any
21    substance in violation of this Section;
22        (3) all conveyances, including aircraft, vehicles, or
23    vessels, which are used, or intended for use, to transport,
24    or in any manner to facilitate the transportation, sale,
25    receipt, possession, or concealment of any substance
26    manufactured, distributed, dispensed, or possessed in

 

 

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1    violation of this Section or property described in
2    paragraph (2) of this subsection (c), but:
3            (A) no conveyance used by any person as a common
4        carrier in the transaction of business as a common
5        carrier is subject to forfeiture under this Section
6        unless it appears that the owner or other person in
7        charge of the conveyance is a consenting party or privy
8        to the violation;
9            (B) no conveyance is subject to forfeiture under
10        this Section by reason of any act or omission which the
11        owner proves to have been committed or omitted without
12        his or her knowledge or consent; and
13            (C) a forfeiture of a conveyance encumbered by a
14        bona fide security interest is subject to the interest
15        of the secured party if he or she neither had knowledge
16        of nor consented to the act or omission;
17        (4) all money, things of value, books, records, and
18    research products and materials including formulas,
19    microfilm, tapes, and data that are used, or intended to be
20    used, in violation of this Section;
21        (5) everything of value furnished, or intended to be
22    furnished, in exchange for a substance in violation of this
23    Section, all proceeds traceable to such an exchange, and
24    all moneys, negotiable instruments, and securities used,
25    or intended to be used, to commit or in any manner to
26    facilitate any violation of this Section; and

 

 

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1        (6) all real property, including any right, title, and
2    interest, including, but not limited to, any leasehold
3    interest or the beneficial interest in a land trust, in the
4    whole of any lot or tract of land and any appurtenances or
5    improvements, which is used or intended to be used, in any
6    manner or part, to commit, or in any manner to facilitate
7    the commission of, any violation or act that constitutes a
8    violation of this Section or that is the proceeds of any
9    violation or act that constitutes a violation of this
10    Section.
11    (d) Property subject to forfeiture under this Act may be
12seized under the Drug Asset Forfeiture Procedure Act. In the
13event of seizure, forfeiture proceedings shall be instituted
14under the Drug Asset Forfeiture Procedure Act.
15    (e) Forfeiture under this Act is subject to an 8th
16Amendment to the United States Constitution disproportionate
17penalties analysis as provided under Section 9.5 of the Drug
18Asset Forfeiture Procedure Act.
19    (f) With regard to possession of legend drug offenses only,
20a sum of currency with a value of less than $500 shall not be
21subject to forfeiture under this Act. For all other offenses
22under this Act, a sum of currency with a value of less than
23$100 shall not be subject to forfeiture under this Act. In
24seizures of currency in excess of these amounts, this Section
25shall not create an exemption for these amounts.
26    (f-5) For felony offenses involving possession of legend

 

 

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1drug only, no property shall be subject to forfeiture under
2this Act because of the possession of less than 2 single unit
3doses of a legend drug. This exemption shall not apply in
4instances when the possessor, or another person at the
5direction of the possessor, is engaged in the destruction of
6any amount of a legend drug. The amount of a single unit dose
7shall be the State's burden to prove in its case in chief.
8    (g) If the Department suspends or revokes a registration,
9all legend drugs owned or possessed by the registrant at the
10time of suspension or the effective date of the revocation
11order may be placed under seal. No disposition may be made of
12substances under seal until the time for taking an appeal has
13elapsed or until all appeals have been concluded unless a
14court, upon application therefor, orders the sale of perishable
15substances and the deposit of the proceeds of the sale with the
16court. Upon a revocation rule becoming final, all substances
17are subject to seizure and forfeiture under the Drug Asset
18Forfeiture Procedure Act.
19    (h) (Blank).
20    (i) (Blank).
21    (j) Contraband, including legend drugs possessed without a
22prescription or other authorization under State or federal law,
23is not subject to forfeiture. No property right exists in
24contraband. Contraband is subject to seizure and shall be
25disposed of according to State law.
26    (k) The changes made to this Section by Public Act 100-512

 

 

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1100-0512 and Public Act 100-699 this amendatory Act of the
2100th General Assembly only apply to property seized on and
3after July 1, 2018.
4(Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
 
5    Section 15. The Criminal Code of 2012 is amended by
6changing Sections 29B-0.5, 29B-1, 29B-2, 29B-5, 29B-7, 29B-10,
729B-12, 29B-13, 29B-14, 29B-17, 29B-21, 29B-22, 29B-26,
829B-27, 36-1.3, 36-1.4, 36-1.5, 36-2, 36-2.1, 36-2.5, and 36-10
9as follows:
 
10    (720 ILCS 5/29B-0.5)
11    Sec. 29B-0.5. Definitions. In this Article:
12    "Conduct" or "conducts" includes, in addition to its
13ordinary meaning, initiating, concluding, or participating in
14initiating or concluding a transaction.
15    "Criminally derived property" means: (1) any property,
16real or personal, constituting or derived from proceeds
17obtained, directly or indirectly, from activity that
18constitutes a felony under State, federal, or foreign law; or
19(2) any property represented to be property constituting or
20derived from proceeds obtained, directly or indirectly, from
21activity that constitutes a felony under State, federal, or
22foreign law.
23    "Department" means the Department of State Police of this
24State or its successor agency.

 

 

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1    "Director" means the Director of State Police or his or her
2designated agents.
3    "Financial institution" means any bank; savings saving and
4loan association; trust company; agency or branch of a foreign
5bank in the United States; currency exchange; credit union;
6mortgage banking institution; pawnbroker; loan or finance
7company; operator of a credit card system; issuer, redeemer, or
8cashier of travelers checks, checks, or money orders; dealer in
9precious metals, stones, or jewels; broker or dealer in
10securities or commodities; investment banker; or investment
11company.
12    "Financial transaction" means a purchase, sale, loan,
13pledge, gift, transfer, delivery, or other disposition
14utilizing criminally derived property, and with respect to
15financial institutions, includes a deposit, withdrawal,
16transfer between accounts, exchange of currency, loan,
17extension of credit, purchase or sale of any stock, bond,
18certificate of deposit or other monetary instrument, use of
19safe deposit box, or any other payment, transfer or delivery
20by, through, or to a financial institution. "Financial
21transaction" also means a transaction which without regard to
22whether the funds, monetary instruments, or real or personal
23property involved in the transaction are criminally derived,
24any transaction which in any way or degree: (1) involves the
25movement of funds by wire or any other means; (2) involves one
26or more monetary instruments; or (3) the transfer of title to

 

 

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1any real or personal property. The receipt by an attorney of
2bona fide fees for the purpose of legal representation is not a
3financial transaction for purposes of this Article.
4    "Form 4-64" means the Illinois State Police
5Notice/Inventory of Seized Property (Form 4-64).
6    "Knowing that the property involved in a financial
7transaction represents the proceeds of some form of unlawful
8activity" means that the person knew the property involved in
9the transaction represented proceeds from some form, though not
10necessarily which form, of activity that constitutes a felony
11under State, federal, or foreign law.
12    "Monetary instrument" means United States coins and
13currency; coins and currency of a foreign country; travelers
14checks; personal checks, bank checks, and money orders;
15investment securities; bearer negotiable instruments; bearer
16investment securities; or bearer securities and certificates
17of stock in a form that title passes upon delivery.
18    "Specified criminal activity" means any violation of
19Section 29D-15.1 and any violation of Article 29D of this Code.
20    "Transaction reporting requirement under State law" means
21any violation as defined under the Currency Reporting Act.
22(Source: P.A. 100-699, eff. 8-3-18.)
 
23    (720 ILCS 5/29B-1)  (from Ch. 38, par. 29B-1)
24    Sec. 29B-1. Money laundering.
25    (a) A person commits the offense of money laundering:

 

 

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1        (1) when, knowing that the property involved in a
2    financial transaction represents the proceeds of some form
3    of unlawful activity, he or she conducts or attempts to
4    conduct the financial transaction which in fact involves
5    criminally derived property:
6            (A) with the intent to promote the carrying on of
7        the unlawful activity from which the criminally
8        derived property was obtained; or
9            (B) where he or she knows or reasonably should know
10        that the financial transaction is designed in whole or
11        in part:
12                (i) to conceal or disguise the nature, the
13            location, the source, the ownership or the control
14            of the criminally derived property; or
15                (ii) to avoid a transaction reporting
16            requirement under State law; or
17        (1.5) when he or she transports, transmits, or
18    transfers, or attempts to transport, transmit, or transfer
19    a monetary instrument:
20            (A) with the intent to promote the carrying on of
21        the unlawful activity from which the criminally
22        derived property was obtained; or
23            (B) knowing, or having reason to know, that the
24        financial transaction is designed in whole or in part:
25                (i) to conceal or disguise the nature, the
26            location, the source, the ownership or the control

 

 

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1            of the criminally derived property; or
2                (ii) to avoid a transaction reporting
3            requirement under State law; or
4        (2) when, with the intent to:
5            (A) promote the carrying on of a specified criminal
6        activity as defined in this Article; or
7            (B) conceal or disguise the nature, location,
8        source, ownership, or control of property believed to
9        be the proceeds of a specified criminal activity as
10        defined in this Article; or
11            (C) avoid a transaction reporting requirement
12        under State law,
13    he or she conducts or attempts to conduct a financial
14    transaction involving property he or she believes to be the
15    proceeds of specified criminal activity or property used to
16    conduct or facilitate specified criminal activity as
17    defined in this Article.
18    (b) (Blank).
19    (c) Sentence.
20        (1) Laundering of criminally derived property of a
21    value not exceeding $10,000 is a Class 3 felony;
22        (2) Laundering of criminally derived property of a
23    value exceeding $10,000 but not exceeding $100,000 is a
24    Class 2 felony;
25        (3) Laundering of criminally derived property of a
26    value exceeding $100,000 but not exceeding $500,000 is a

 

 

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1    Class 1 felony;
2        (4) Money laundering in violation of subsection (a)(2)
3    of this Section is a Class X felony;
4        (5) Laundering of criminally derived property of a
5    value exceeding $500,000 is a Class 1 non-probationable
6    felony;
7        (6) In a prosecution under clause (a)(1.5)(B)(ii) of
8    this Section, the sentences are as follows:
9            (A) Laundering of property of a value not exceeding
10        $10,000 is a Class 3 felony;
11            (B) Laundering of property of a value exceeding
12        $10,000 but not exceeding $100,000 is a Class 2 felony;
13            (C) Laundering of property of a value exceeding
14        $100,000 but not exceeding $500,000 is a Class 1
15        felony;
16            (D) Laundering of property of a value exceeding
17        $500,000 is a Class 1 non-probationable felony.
18        Substance Use Disorder Act.
19(Source: P.A. 99-480, eff. 9-9-15; 100-512, eff. 7-1-18;
20100-699, eff. 8-3-18; 100-759, eff. 1-1-19; revised 10-3-18.)
 
21    (720 ILCS 5/29B-2)
22    Sec. 29B-2. Evidence in money laundering prosecutions. In a
23prosecution under this Article, either party may introduce the
24following evidence pertaining to the issue of whether the
25property or proceeds were known to be some form of criminally

 

 

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1derived property or from some form of unlawful activity:
2        (1) a financial transaction was conducted or
3    structured or attempted in violation of the reporting
4    requirements of any State or federal law;
5        (2) a financial transaction was conducted or attempted
6    with the use of a false or fictitious name or a forged
7    instrument;
8        (3) a falsely altered or completed written instrument
9    or a written instrument that contains any materially false
10    personal identifying information was made, used, offered,
11    or presented, whether accepted or not, in connection with a
12    financial transaction;
13        (4) a financial transaction was structured or
14    attempted to be structured so as to falsely report the
15    actual consideration or value of the transaction;
16        (5) a money transmitter, a person engaged in a trade or
17    business, or any employee of a money transmitter or a
18    person engaged in a trade or business, knows or reasonably
19    should know that false personal identifying information
20    has been presented and incorporates the false personal
21    identifying information into any report or record;
22        (6) the criminally derived property is transported or
23    possessed in a fashion inconsistent with the ordinary or
24    usual means of transportation or possession of the property
25    and where the property is discovered in the absence of any
26    documentation or other indicia of legitimate origin or

 

 

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1    right to the property;
2        (7) a person pays or receives substantially less than
3    face value for one or more monetary instruments; or
4        (8) a person engages in a transaction involving one or
5    more monetary instruments, where the physical condition or
6    form of the monetary instrument or instruments makes it
7    apparent that they are not the product of bona fide
8    business or financial transactions.
9(Source: P.A. 100-699, eff. 8-3-18.)
 
10    (720 ILCS 5/29B-5)
11    Sec. 29B-5. Property subject to forfeiture. The following
12are subject to forfeiture:
13        (1) any property, real or personal, constituting,
14    derived from, or traceable to any proceeds the person
15    obtained, directly or indirectly, as a result of a
16    violation of this Article;
17        (2) any of the person's property used, or intended to
18    be used, in any manner or part, to commit, or to facilitate
19    the commission of, a violation of this Article;
20        (3) all conveyances, including aircraft, vehicles, or
21    vessels, which are used, or intended for use, to transport,
22    or in any manner to facilitate the transportation, sale,
23    receipt, possession, or concealment of property described
24    in paragraphs (1) and (2) of this Section, but:
25            (A) no conveyance used by any person as a common

 

 

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1        carrier in the transaction of business as a common
2        carrier is subject to forfeiture under this Section
3        unless it appears that the owner or other person in
4        charge of the conveyance is a consenting party or privy
5        to a violation of this Article;
6            (B) no conveyance is subject to forfeiture under
7        this Article by reason of any act or omission which the
8        owner proves to have been committed or omitted without
9        his or her knowledge or consent;
10            (C) a forfeiture of a conveyance encumbered by a
11        bona fide security interest is subject to the interest
12        of the secured party if he or she neither had knowledge
13        of nor consented to the act or omission;
14        (4) all real property, including any right, title, and
15    interest, including, but not limited to, any leasehold
16    interest or the beneficial interest in a land trust, in the
17    whole of any lot or tract of land and any appurtenances or
18    improvements, which is used or intended to be used, in any
19    manner or part, to commit, or in any manner to facilitate
20    the commission of, any violation of this Article or that is
21    the proceeds of any violation or act that constitutes a
22    violation of this Article.
23(Source: P.A. 100-699, eff. 8-3-18.)
 
24    (720 ILCS 5/29B-7)
25    Sec. 29B-7. Safekeeping of seized property pending

 

 

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

 

 

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1Director shall sell all the property unless the property is
2required by law to be destroyed or is harmful to the public,
3and shall distribute the proceeds of the sale, together with
4any moneys forfeited or seized, under Section 29B-26 of this
5Article.
6(Source: P.A. 100-699, eff. 8-3-18.)
 
7    (720 ILCS 5/29B-10)
8    Sec. 29B-10. Notice to owner or interest holder.
9    (a) The first attempted service of notice shall be
10commenced within 28 days of the latter of filing of the
11verified claim or the receipt of the notice from the seizing
12agency by Form 4-64. A complaint for forfeiture or a notice of
13pending forfeiture shall be served on a claimant if the owner's
14or interest holder's name and current address are known, then
15by either: (1) personal service; or (2) mailing a copy of the
16notice by certified mail, return receipt requested, and first
17class mail to that address.
18    (b) If no signed return receipt is received by the State's
19Attorney within 28 days of mailing or no communication from the
20owner or interest holder is received by the State's Attorney
21documenting actual notice by the parties, the State's Attorney
22shall, within a reasonable period of time, mail a second copy
23of the notice by certified mail, return receipt requested, and
24first class mail to that address. If no signed return receipt
25is received by the State's Attorney within 28 days of the

 

 

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1second mailing, or no communication from the owner or interest
2holder is received by the State's Attorney documenting actual
3notice by the parties, the State's Attorney shall have 60 days
4to attempt to serve the notice by personal service, including
5substitute service by leaving a copy at the usual place of
6abode with some person of the family or a person residing
7there, of the age of 13 years or upwards. If, after 3 attempts
8at service in this manner, no service of the notice is
9accomplished, the notice shall be posted in a conspicuous
10manner at the address and service shall be made by the posting.
11The attempts at service and the posting, if required, shall be
12documented by the person attempting service which shall be made
13part of a return of service returned to the State's Attorney.
14The State's Attorney may utilize any Sheriff or Deputy Sheriff,
15a peace officer, a private process server or investigator, or
16an employee, agent, or investigator of the State's Attorney's
17Office to attempt service without seeking leave of court.
18    (c) After the procedures listed are followed, service shall
19be effective on the owner or interest holder on the date of
20receipt by the State's Attorney of a return receipt, or on the
21date of receipt of a communication from an owner or interest
22holder documenting actual notice, whichever is first in time,
23or on the date of the last act performed by the State's
24Attorney in attempting personal service. For purposes of notice
25under this Section, if a person has been arrested for the
26conduct giving rise to the forfeiture, the address provided to

 

 

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1the arresting agency at the time of arrest shall be deemed to
2be that person's known address. Provided, however, if an owner
3or interest holder's address changes prior to the effective
4date of the notice of pending forfeiture, the owner or interest
5holder shall promptly notify the seizing agency of the change
6in address or, if the owner or interest holder's address
7changes subsequent to the effective date of the notice of
8pending forfeiture, the owner or interest holder shall promptly
9notify the State's Attorney of the change in address. If the
10property seized is a conveyance, notice shall also be directed
11to the address reflected in the office of the agency or
12official in which title to or interest in the conveyance is
13required by law to be recorded.
14    (d) If the owner's or interest holder's address is not
15known, and is not on record as provided in this Section,
16service by publication for 3 successive weeks in a newspaper of
17general circulation in the county in which the seizure occurred
18shall suffice for service requirements.
19    (e) Notice to any business entity, corporation, limited
20liability company, limited liability partnership, or
21partnership shall be completed by a single mailing of a copy of
22the notice by certified mail, return receipt requested, and
23first class mail to that address. This notice is complete
24regardless of the return of a signed return receipt.
25    (f) Notice to a person whose address is not within the
26State shall be completed by a single mailing of a copy of the

 

 

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1notice by certified mail, return receipt requested, and first
2class mail to that address. This notice is complete regardless
3of the return of a signed return receipt.
4    (g) Notice to a person whose address is not within the
5United States shall be completed by a single mailing of a copy
6of the notice by certified mail, return receipt requested, and
7first class mail to that address. This notice is complete
8regardless of the return of a signed return receipt. If
9certified mail is not available in the foreign country where
10the person has an address, notice shall proceed by publication
11requirements under subsection (d) of this Section.
12    (h) Notice to a A person whom the State's Attorney
13reasonably should know is incarcerated within this State, shall
14also include, mailing a copy of the notice by certified mail,
15return receipt requested, and first class mail to the address
16of the detention facility with the inmate's name clearly marked
17on the envelope.
18    (i) After a claimant files a verified claim with the
19State's Attorney and provides an address at which the claimant
20will accept service, the complaint shall be served and notice
21shall be complete upon the mailing of the complaint to the
22claimant at the address the claimant provided via certified
23mail, return receipt requested, and first class mail. No return
24receipt need be received, or any other attempts at service need
25be made to comply with service and notice requirements under
26this Section. This certified mailing, return receipt

 

 

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1requested, shall be proof of service of the complaint on the
2claimant. If notice is to be shown by actual notice from
3communication with a claimant, then the State's Attorney shall
4file an affidavit as proof of service, providing details of the
5communication, which shall be accepted as proof of service by
6the court.
7    (j) If the property seized is a conveyance, notice shall
8also be directed to the address reflected in the office of the
9agency or official in which title to or interest in the
10conveyance is required by law to be recorded, then by mailing a
11copy of the notice by certified mail, return receipt requested,
12to that address.
13    (k) Notice served under this Article is effective upon
14personal service, the last date of publication, or the mailing
15of written notice, whichever is earlier.
16(Source: P.A. 100-699, eff. 8-3-18.)
 
17    (720 ILCS 5/29B-12)
18    Sec. 29B-12. Non-judicial forfeiture. If non-real
19property that exceeds $20,000 in value excluding the value of
20any conveyance, or if real property is seized under the
21provisions of this Article, the State's Attorney shall
22institute judicial in rem forfeiture proceedings as described
23in Section 29B-13 of this Article within 28 days from receipt
24of notice of seizure from the seizing agency under Section
2529B-8 of this Article. However, if non-real property that does

 

 

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1not exceed $20,000 in value excluding the value of any
2conveyance is seized, the following procedure shall be used:
3        (1) If, after review of the facts surrounding the
4    seizure, the State's Attorney is of the opinion that the
5    seized property is subject to forfeiture, then, within 28
6    days after the receipt of notice of seizure from the
7    seizing agency, the State's Attorney shall cause notice of
8    pending forfeiture to be given to the owner of the property
9    and all known interest holders of the property in
10    accordance with Section 29B-10 of this Article.
11        (2) The notice of pending forfeiture shall include a
12    description of the property, the estimated value of the
13    property, the date and place of seizure, the conduct giving
14    rise to forfeiture or the violation of law alleged, and a
15    summary of procedures and procedural rights applicable to
16    the forfeiture action.
17        (3)(A) Any person claiming an interest in property that
18    is the subject of notice under paragraph (1) of this
19    Section, must, in order to preserve any rights or claims to
20    the property, within 45 days after the effective date of
21    notice as described in Section 29B-10 of this Article, file
22    a verified claim with the State's Attorney expressing his
23    or her interest in the property. The claim shall set forth:
24            (i) the caption of the proceedings as set forth on
25        the notice of pending forfeiture and the name of the
26        claimant;

 

 

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1            (ii) the address at which the claimant will accept
2        mail;
3            (iii) the nature and extent of the claimant's
4        interest in the property;
5            (iv) the date, identity of the transferor, and
6        circumstances of the claimant's acquisition of the
7        interest in the property;
8            (v) the names and addresses of all other persons
9        known to have an interest in the property;
10            (vi) the specific provision of law relied on in
11        asserting the property is not subject to forfeiture;
12            (vii) all essential facts supporting each
13        assertion; and
14            (viii) the relief sought.
15        (B) If a claimant files the claim, then the State's
16    Attorney shall institute judicial in rem forfeiture
17    proceedings with the clerk of the court as described in
18    Section 29B-13 of this Article within 28 days after receipt
19    of the claim.
20        (4) If no claim is filed within the 28-day period as
21    described in paragraph (3) of this Section, the State's
22    Attorney shall declare the property forfeited and shall
23    promptly notify the owner and all known interest holders of
24    the property and the Director of State Police of the
25    declaration of forfeiture and the Director shall dispose of
26    the property in accordance with law.

 

 

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1(Source: P.A. 100-699, eff. 8-3-18.)
 
2    (720 ILCS 5/29B-13)
3    Sec. 29B-13. Judicial in rem procedures. If property seized
4under this Article is non-real property that exceeds $20,000 in
5value excluding the value of any conveyance, or is real
6property, or a claimant has filed a claim under paragraph (3)
7of Section 29B-12 of this Article, the following judicial in
8rem procedures shall apply:
9        (1) If, after a review of the facts surrounding the
10    seizure, the State's Attorney is of the opinion that the
11    seized property is subject to forfeiture, then, within 28
12    days of the receipt of notice of seizure by the seizing
13    agency or the filing of the claim, whichever is later, the
14    State's Attorney shall institute judicial forfeiture
15    proceedings by filing a verified complaint for forfeiture.
16    If authorized by law, a forfeiture shall be ordered by a
17    court on an action in rem brought by a State's Attorney
18    under a verified complaint for forfeiture.
19        (2) A complaint of forfeiture shall include:
20            (A) a description of the property seized;
21            (B) the date and place of seizure of the property;
22            (C) the name and address of the law enforcement
23        agency making the seizure; and
24            (D) the specific statutory and factual grounds for
25        the seizure.

 

 

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1        (3) The complaint shall be served upon the person from
2    whom the property was seized and all persons known or
3    reasonably believed by the State to claim an interest in
4    the property, as provided in Section 29B-10 of this
5    Article. The complaint shall be accompanied by the
6    following written notice:
7        "This is a civil court proceeding subject to the Code
8    of Civil Procedure. You received this Complaint of
9    Forfeiture because the State's Attorney's office has
10    brought a legal action seeking forfeiture of your seized
11    property. This complaint starts the court process where the
12    State seeks to prove that your property should be forfeited
13    and not returned to you. This process is also your
14    opportunity to try to prove to a judge that you should get
15    your property back. The complaint lists the date, time, and
16    location of your first court date. You must appear in court
17    on that day, or you may lose the case automatically. You
18    must also file an appearance and answer. If you are unable
19    to pay the appearance fee, you may qualify to have the fee
20    waived. If there is a criminal case related to the seizure
21    of your property, your case may be set for trial after the
22    criminal case has been resolved. Before trial, the judge
23    may allow discovery, where the State can ask you to respond
24    in writing to questions and give them certain documents,
25    and you can make similar requests of the State. The trial
26    is your opportunity to explain what happened when your

 

 

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1    property was seized and why you should get the property
2    back."
3        (4) Forfeiture proceedings under this Article shall be
4    subject to the Code of Civil Procedure and the rules of
5    evidence relating to civil actions shall apply to
6    proceedings under this Article with the following
7    exception. The parties shall be allowed to use, and the
8    court shall receive and consider, all relevant hearsay
9    evidence that relates to evidentiary foundation, chain of
10    custody, business records, recordings, laboratory
11    analysis, laboratory reports, and relevant hearsay related
12    to the use of technology in the investigation that resulted
13    in the seizure of property that is subject to the
14    forfeiture action.
15        (5) Only an owner of or interest holder in the property
16    may file an answer asserting a claim against the property
17    in the action in rem. For purposes of this Section, the
18    owner or interest holder shall be referred to as claimant.
19    Upon motion of the State, the court shall first hold a
20    hearing, in which a claimant shall establish by a
21    preponderance of the evidence, that he or she has a lawful,
22    legitimate ownership interest in the property and that it
23    was obtained through a lawful source.
24        (6) The answer must be signed by the owner or interest
25    holder under penalty of perjury and shall set forth:
26            (A) the caption of the proceedings as set forth on

 

 

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1        the notice of pending forfeiture and the name of the
2        claimant;
3            (B) the address at which the claimant will accept
4        mail;
5            (C) the nature and extent of the claimant's
6        interest in the property;
7            (D) the date, identity of transferor, and
8        circumstances of the claimant's acquisition of the
9        interest in the property;
10            (E) the names and addresses of all other persons
11        known to have an interest in the property;
12            (F) all essential facts supporting each assertion;
13            (G) the precise relief sought; and
14            (H) in a forfeiture action involving currency or
15        its equivalent, a claimant shall provide the State with
16        notice of his or her intent to allege that the currency
17        or its equivalent is not related to the alleged factual
18        basis for the forfeiture, and why. ; and
19        The (I) the answer shall follow the rules under the
20    Code of Civil Procedure.
21        (7) The answer shall be filed with the court within 45
22    days after service of the civil in rem complaint.
23        (8) The hearing shall be held within 60 days after
24    filing of the answer unless continued for good cause.
25        (9) At the judicial in rem proceeding, in the State's
26    case in chief, the State shall show by a preponderance of

 

 

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1    the evidence that the property is subject to forfeiture. If
2    the State makes such a showing, the claimant shall have the
3    burden of production to set forth evidence that the
4    property is not related to the alleged factual basis of the
5    forfeiture. After this production of evidence, the State
6    shall maintain the burden of proof to overcome this
7    assertion. A claimant shall provide the State notice of its
8    intent to allege that the currency or its equivalent is not
9    related to the alleged factual basis of the forfeiture and
10    why. As to conveyances, at the judicial in rem proceeding,
11    in its case in chief, the State shall show by a
12    preponderance of the evidence: , that
13            (A) that the property is subject to forfeiture; and
14            (B) at least one of the following:
15                (i) that the claimant was legally accountable
16            for the conduct giving rise to the forfeiture;
17                (ii) that the claimant knew or reasonably
18            should have known of the conduct giving rise to the
19            forfeiture;
20                (iii) that the claimant knew or reasonably
21            should have known that the conduct giving rise to
22            the forfeiture was likely to occur;
23                (iv) that the claimant held the property for
24            the benefit of, or as nominee for, any person whose
25            conduct gave rise to its forfeiture;
26                (v) that if the claimant acquired the interest

 

 

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1            through any person engaging in any of the conduct
2            described above or conduct giving rise to the
3            forfeiture:
4                    (a) the claimant did not acquire it as a
5                bona fide purchaser for value; or
6                    (b) the claimant acquired the interest
7                under the circumstances that the claimant
8                reasonably should have known the property was
9                derived from, or used in, the conduct giving
10                rise to the forfeiture; or
11                (vi) that the claimant is not the true owner of
12            the property that is subject to forfeiture.
13        (10) If the State does not meet its burden to show that
14    the property is subject to forfeiture, the court shall
15    order the interest in the property returned or conveyed to
16    the claimant and shall order all other property forfeited
17    to the State. If the State does meet its burden to show
18    that the property is subject to forfeiture, the court shall
19    order all property forfeited to the State.
20        (11) A defendant convicted in any criminal proceeding
21    is precluded from later denying the essential allegations
22    of the criminal offense of which the defendant was
23    convicted in any proceeding under this Article regardless
24    of the pendency of an appeal from that conviction. However,
25    evidence of the pendency of an appeal is admissible.
26        (12) On a motion by the parties, the court may stay

 

 

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1    civil forfeiture proceedings during the criminal trial for
2    a related criminal indictment or information alleging a
3    money laundering violation. Such a stay shall not be
4    available pending an appeal. Property subject to
5    forfeiture under this Article shall not be subject to
6    return or release by a court exercising jurisdiction over a
7    criminal case involving the seizure of the property unless
8    the return or release is consented to by the State's
9    Attorney.
10(Source: P.A. 100-699, eff. 8-3-18.)
 
11    (720 ILCS 5/29B-14)
12    Sec. 29B-14. Innocent owner hearing.
13    (a) After a complaint for forfeiture has been filed and all
14claimants have appeared and answered, a claimant may file a
15motion with the court for an innocent owner hearing prior to
16trial. This motion shall be made and supported by sworn
17affidavit and shall assert the following along with specific
18facts that support each assertion:
19        (1) that the claimant filing the motion is the true
20    owner of the conveyance as interpreted by case law;
21        (2) that the claimant was not legally accountable for
22    the conduct giving rise to the forfeiture or acquiesced in
23    the conduct;
24        (3) that the claimant did not solicit, conspire, or
25    attempt to commit the conduct giving rise to the

 

 

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1    forfeiture;
2        (4) that the claimant did not know or did not have
3    reason to know that the conduct giving rise to the
4    forfeiture was likely to occur; and
5        (5) that the claimant did not hold the property for the
6    benefit of, or as nominee for, any person whose conduct
7    gave rise to its forfeiture, or if the claimant owner or
8    interest holder acquired the interest through any person,
9    the claimant acquired owner or interest holder did not
10    acquire it as a bona fide purchaser for value or acquired
11    the interest without knowledge of the seizure of the
12    property for forfeiture.
13    (b) The claimant's motion shall include specific facts
14supporting these assertions.
15    (c) Upon this filing, a hearing may only be conducted after
16the parties have been given the opportunity to conduct limited
17discovery as to the ownership and control of the property, the
18claimant's knowledge, or any matter relevant to the issues
19raised or facts alleged in the claimant's motion. Discovery
20shall be limited to the People's requests in these areas but
21may proceed by any means allowed in the Code of Civil
22Procedure.
23        (1) After discovery is complete and the court has
24    allowed for sufficient time to review and investigate the
25    discovery responses, the court shall conduct a hearing. At
26    the hearing, the fact that the conveyance is subject to

 

 

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1    forfeiture shall not be at issue. The court shall only hear
2    evidence relating to the issue of innocent ownership.
3        (2) At the hearing on the motion, it shall be the
4    burden of the claimant to prove each of the assertions
5    listed in subsection (a) of this Section by a preponderance
6    of the evidence.
7        (3) If a claimant meets his or her burden of proof, the
8    court shall grant the motion and order the property
9    returned to the claimant. If the claimant fails to meet his
10    or her burden of proof, then the court shall deny the
11    motion and the forfeiture case shall proceed according to
12    the Code of Civil Procedure.
13(Source: P.A. 100-699, eff. 8-3-18.)
 
14    (720 ILCS 5/29B-17)
15    Sec. 29B-17. Exception for bona fide purchasers. No
16property shall be forfeited under this Article from a person
17who, without actual or constructive notice that the property
18was the subject of forfeiture proceedings, obtained possession
19of the property as a bona fide purchaser for value. A person
20who purports to effect affect transfer of property after
21receiving actual or constructive notice that the property is
22subject to seizure or forfeiture is guilty of contempt of
23court, and shall be liable to the State for a penalty in the
24amount of the fair market value of the property.
25(Source: P.A. 100-699, eff. 8-3-18.)
 

 

 

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1    (720 ILCS 5/29B-21)
2    Sec. 29B-21. Attorney's fees. Nothing in this Article
3applies to property that constitutes reasonable bona fide
4attorney's fees paid to an attorney for services rendered or to
5be rendered in the forfeiture proceeding or criminal proceeding
6relating directly thereto if the property was paid before its
7seizure and , before the issuance of any seizure warrant or
8court order prohibiting transfer of the property and if the
9attorney, at the time he or she received the property did not
10know that it was property subject to forfeiture under this
11Article.
12(Source: P.A. 100-699, eff. 8-3-18.)
 
13    (720 ILCS 5/29B-22)
14    Sec. 29B-22. Construction.
15    (a) It is the intent of the General Assembly that the
16forfeiture provisions of this Article be liberally construed so
17as to effect their remedial purpose. The forfeiture of property
18and other remedies under this Article shall be considered to be
19in addition to, and not exclusive of, any sentence or other
20remedy provided by law.
21    (b) The changes made to this Article by Public Act 100-512
22100-0512 and Public Act 100-699 this amendatory Act of the
23100th General Assembly are subject to Section 2 of the Statute
24on Statutes.

 

 

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1(Source: P.A. 100-699, eff. 8-3-18.)
 
2    (720 ILCS 5/29B-26)
3    Sec. 29B-26. Distribution of proceeds. All moneys monies
4and the sale proceeds of all other property forfeited and
5seized under this Article shall be distributed as follows:
6        (1) 65% shall be distributed to the metropolitan
7    enforcement group, local, municipal, county, or State law
8    enforcement agency or agencies that 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        (2)(i) 12.5% shall be distributed to the Office of the
19    State's Attorney of the county in which the prosecution
20    resulting in the forfeiture was instituted, deposited in a
21    special fund in the county treasury and appropriated to the
22    State's Attorney for use in the enforcement of laws. In
23    counties over 3,000,000 population, 25% shall be
24    distributed to the Office of the State's Attorney for use
25    in the enforcement of laws. If the prosecution is

 

 

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1    undertaken solely by the Attorney General, the portion
2    provided under this subparagraph (i) shall be distributed
3    to the Attorney General for use in the enforcement of laws.
4        (ii) 12.5% shall be distributed to the Office of the
5    State's Attorneys Appellate Prosecutor and deposited in
6    the Narcotics Profit Forfeiture Fund of that office to be
7    used for additional expenses incurred in the
8    investigation, prosecution, and appeal of cases arising
9    under laws. The Office of the State's Attorneys Appellate
10    Prosecutor shall not receive distribution from cases
11    brought in counties with over 3,000,000 population.
12        (3) 10% shall be retained by the Department of State
13    Police for expenses related to the administration and sale
14    of seized and forfeited property.
15    Moneys and the sale proceeds distributed to the Department
16of State Police under this Article shall be deposited in the
17Money Laundering Asset Recovery Fund created in the State
18treasury and shall be used by the Department of State Police
19for State law enforcement purposes. All moneys and sale
20proceeds of property forfeited and seized under this Article
21and distributed according to this Section may also be used to
22purchase opioid antagonists as defined in Section 5-23 of the
23Substance Use Disorder Alcoholism and Other Drug Abuse and
24Dependency Act.
25(Source: P.A. 100-699, eff. 8-3-18.)
 

 

 

SB2342 Enrolled- 36 -LRB100 17956 MRW 33140 b

1    (720 ILCS 5/29B-27)
2    Sec. 29B-27. Applicability; savings clause.
3    (a) The changes made to this Article by Public Act 100-512
4100-0512 and Public Act 100-699 this amendatory Act of the
5100th General Assembly only apply to property seized on and
6after July 1, 2018.
7    (b) The changes made to this Article by Public Act 100-699
8this amendatory Act of the 100th General Assembly are subject
9to Section 4 of the Statute on Statutes.
10(Source: P.A. 100-699, eff. 8-3-18.)
 
11    (720 ILCS 5/36-1.3)
12    Sec. 36-1.3. Safekeeping of seized property pending
13disposition.
14    (a) Property seized under this Article is deemed to be in
15the custody of the Director of State Police, subject only to
16the order and judgments of the circuit court having
17jurisdiction over the forfeiture proceedings and the decisions
18of the State's Attorney under this Article.
19    (b) If property is seized under this Article, the seizing
20agency shall promptly conduct an inventory of the seized
21property and estimate the property's value, and shall forward a
22copy of the inventory of seized property and the estimate of
23the property's value to the Director of State Police. Upon
24receiving notice of seizure, the Director of State Police may:
25        (1) place the property under seal;

 

 

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1        (2) remove the property to a place designated by the
2    Director of State Police;
3        (3) keep the property in the possession of the seizing
4    agency;
5        (4) remove the property to a storage area for
6    safekeeping;
7        (5) place the property under constructive seizure by
8    posting notice of pending forfeiture on it, by giving
9    notice of pending forfeiture to its owners and interest
10    holders, or by filing notice of pending forfeiture in any
11    appropriate public record relating to the property; or
12        (6) provide for another agency or custodian, including
13    an owner, secured party, or lienholder, to take custody of
14    the property upon the terms and conditions set by the
15    seizing agency.
16    (c) The seizing agency shall exercise ordinary care to
17protect the subject of the forfeiture from negligent loss,
18damage, or destruction.
19    (d) Property seized or forfeited under this Article is
20subject to reporting under the Seizure and Forfeiture Reporting
21Act.
22(Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
 
23    (720 ILCS 5/36-1.4)
24    Sec. 36-1.4. Notice to State's Attorney. The law
25enforcement agency seizing property for forfeiture under this

 

 

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1Article shall, as soon as practicable but not later than 28
2days after the seizure, notify the State's Attorney for the
3county in which an act or omission giving rise to the seizure
4occurred or in which the property was seized and the facts and
5circumstances giving rise to the seizure, and shall provide the
6State's Attorney with the inventory of the property and its
7estimated value. The notice shall be by the delivery of
8Illinois State Police Notice/Inventory of Seized Property
9(Form 4-64). If the property seized for forfeiture is a
10vehicle, the law enforcement agency seizing the property shall
11immediately notify the Secretary of State that forfeiture
12proceedings are pending regarding the vehicle.
13(Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
 
14    (720 ILCS 5/36-1.5)
15    Sec. 36-1.5. Preliminary review.
16    (a) Within 14 days of the seizure, the State's Attorney of
17the county in which the seizure occurred shall seek a
18preliminary determination from the circuit court as to whether
19there is probable cause that the property may be subject to
20forfeiture.
21    (b) The rules of evidence shall not apply to any proceeding
22conducted under this Section.
23    (c) The court may conduct the review under subsection (a)
24of this Section simultaneously with a proceeding under Section
25109-1 of the Code of Criminal Procedure of 1963 for a related

 

 

SB2342 Enrolled- 39 -LRB100 17956 MRW 33140 b

1criminal offense if a prosecution is commenced by information
2or complaint.
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) of this ths Section.
9    (e) Upon making a finding of probable cause as required
10under this Section, the circuit court shall order the property
11subject to the provisions of the applicable forfeiture Act held
12until the conclusion of any forfeiture proceeding.
13    For seizures of conveyances, within 28 days of a finding of
14probable cause under subsection (a) of this Section, the
15registered owner or other claimant may file a motion in writing
16supported by sworn affidavits claiming that denial of the use
17of the conveyance during the pendency of the forfeiture
18proceedings creates a substantial hardship and alleges facts
19showing that the hardship was not due to his or her culpable
20negligence. The court shall consider the following factors in
21determining whether a substantial hardship has been proven:
22        (1) the nature of the claimed hardship;
23        (2) the availability of public transportation or other
24    available means of transportation; and
25        (3) any available alternatives to alleviate the
26    hardship other than the return of the seized conveyance.

 

 

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1    If the court determines that a substantial hardship has
2been proven, the court shall then balance the nature of the
3hardship against the State's interest in safeguarding the
4conveyance. If the court determines that the hardship outweighs
5the State's interest in safeguarding the conveyance, the court
6may temporarily release the conveyance to the registered owner
7or the registered owner's authorized designee, or both, until
8the conclusion of the forfeiture proceedings or for such
9shorter period as ordered by the court provided that the person
10to whom the conveyance is released provides proof of insurance
11and a valid driver's license and all State and local
12registrations for operation of the conveyance are current. The
13court shall place conditions on the conveyance limiting its use
14to the stated hardship and providing transportation for
15employment, religious purposes, medical needs, child care, and
16restricting the conveyance's use to only those individuals
17authorized to use the conveyance by the registered owner. The
18use of the vehicle shall be further restricted to exclude all
19recreational and entertainment purposes. The court may order
20additional restrictions it deems reasonable and just on its own
21motion or on motion of the People. The court shall revoke the
22order releasing the conveyance and order that the conveyance be
23reseized by law enforcement if the conditions of release are
24violated or if the conveyance is used in the commission of any
25offense identified in subsection (a) of Section 6-205 of the
26Illinois Vehicle Code.

 

 

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1    If the court orders the release of the conveyance during
2the pendency of the forfeiture proceedings, the court may order
3the registered owner or his or her authorized designee to post
4a cash security with the clerk of the court as ordered by the
5court. If cash security is ordered, the court shall consider
6the following factors in determining the amount of the cash
7security:
8        (A) the full market value of the conveyance;
9        (B) the nature of the hardship;
10        (C) the extent and length of the usage of the
11    conveyance;
12        (D) the ability of the owner or designee to pay; and
13        (E) other conditions as the court deems necessary to
14    safeguard the conveyance.
15    If the conveyance is released, the court shall order that
16the registered owner or his or her designee safeguard the
17conveyance, not remove the conveyance from the jurisdiction,
18not conceal, destroy, or otherwise dispose of the conveyance,
19not encumber the conveyance, and not diminish the value of the
20conveyance in any way. The court shall also make a
21determination of the full market value of the conveyance prior
22to it being released based on a source or sources defined in 50
23Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
24    If the conveyance subject to forfeiture is released under
25this Section and is subsequently forfeited, the person to whom
26the conveyance was released shall return the conveyance to the

 

 

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1law enforcement agency that seized the conveyance within 7 days
2from the date of the declaration of forfeiture or order of
3forfeiture. If the conveyance is not returned within 7 days,
4the cash security shall be forfeited in the same manner as the
5conveyance subject to forfeiture. If the cash security was less
6than the full market value, a judgment shall be entered against
7the parties to whom the conveyance was released and the
8registered owner, jointly and severally, for the difference
9between the full market value and the amount of the cash
10security. If the conveyance is returned in a condition other
11than the condition in which it was released, the cash security
12shall be returned to the surety who posted the security minus
13the amount of the diminished value, and that amount shall be
14forfeited in the same manner as the conveyance subject to
15forfeiture. Additionally, the court may enter an order allowing
16any law enforcement agency in the State of Illinois to seize
17the conveyance wherever it may be found in the State to satisfy
18the judgment if the cash security was less than the full market
19value of the conveyance.
20(Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
 
21    (720 ILCS 5/36-2)  (from Ch. 38, par. 36-2)
22    Sec. 36-2. Complaint for forfeiture.
23    (a) If the State's Attorney of the county in which such
24seizure occurs finds that the alleged violation of law giving
25rise to the seizure was incurred without willful negligence or

 

 

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1without any intention on the part of the owner of the vessel or
2watercraft, vehicle, or aircraft or any person whose right,
3title, or interest is of record as described in Section 36-1 of
4this Article, to violate the law, or finds the existence of
5such mitigating circumstances as to justify remission of the
6forfeiture, he or she may cause the law enforcement agency
7having custody of the property to return the property to the
8owner within a reasonable time not to exceed 7 days. The
9State's Attorney shall exercise his or her discretion under
10this subsection (a) prior to or promptly after the preliminary
11review under Section 36-1.5.
12    (b) If, after review of the facts surrounding the seizure,
13the State's Attorney is of the opinion that the seized property
14is subject to forfeiture and the State's Attorney does not
15cause the forfeiture to be remitted under subsection (a) of
16this Section, he or she shall bring an action for forfeiture in
17the circuit court within whose jurisdiction the seizure and
18confiscation has taken place by filing a verified complaint for
19forfeiture in the circuit court within whose jurisdiction the
20seizure occurred, or within whose jurisdiction an act or
21omission giving rise to the seizure occurred, subject to
22Supreme Court Rule 187. The complaint shall be filed as soon as
23practicable but not later than 28 days after the State's
24Attorney receives notice from the seizing agency as provided
25under Section 36-1.4 of this Article. A complaint of forfeiture
26shall include:

 

 

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1        (1) a description of the property seized;
2        (2) the date and place of seizure of the property;
3        (3) the name and address of the law enforcement agency
4    making the seizure; and
5        (4) the specific statutory and factual grounds for the
6    seizure.
7    The complaint shall be served upon each person whose right,
8title, or interest is of record in the office of the Secretary
9of State, the Secretary of Transportation, the Administrator of
10the Federal Aviation Agency, or any other department of this
11State, or any other state of the United States if the vessel or
12watercraft, vehicle, or aircraft is required to be so
13registered, as the case may be, the person from whom the
14property was seized, and all persons known or reasonably
15believed by the State to claim an interest in the property, as
16provided in this Article. The complaint shall be accompanied by
17the following written notice:
18    "This is a civil court proceeding subject to the Code of
19Civil Procedure. You received this Complaint of Forfeiture
20because the State's Attorney's office has brought a legal
21action seeking forfeiture of your seized property. This
22complaint starts the court process where the State seeks to
23prove that your property should be forfeited and not returned
24to you. This process is also your opportunity to try to prove
25to a judge that you should get your property back. The
26complaint lists the date, time, and location of your first

 

 

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1court date. You must appear in court on that day, or you may
2lose the case automatically. You must also file an appearance
3and answer. If you are unable to pay the appearance fee, you
4may qualify to have the fee waived. If there is a criminal case
5related to the seizure of your property, your case may be set
6for trial after the criminal case has been resolved. Before
7trial, the judge may allow discovery, where the State can ask
8you to respond in writing to questions and give them certain
9documents, and you can make similar requests of the State. The
10trial is your opportunity to explain what happened when your
11property was seized and why you should get the property back."
12    (c) (Blank).
13    (d) (Blank).
14    (e) (Blank).
15    (f) (Blank).
16    (g) (Blank).
17    (h) (Blank).
18(Source: P.A. 99-78, eff. 7-20-15; 100-512, eff. 7-1-18;
19100-699, eff. 8-3-18.)
 
20    (720 ILCS 5/36-2.1)
21    Sec. 36-2.1. Notice to owner or interest holder. The first
22attempted service of notice shall be commenced within 28 days
23of the receipt of the notice from the seizing agency by Form
244-64. If the property seized is a conveyance, notice shall also
25be directed to the address reflected in the office of the

 

 

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1agency or official in which title to or interest in the
2conveyance is required by law to be recorded. A complaint for
3forfeiture shall be served upon the property owner or interest
4holder in the following manner:
5        (1) If the owner's or interest holder's name and
6    current address are known, then by either:
7            (A) personal service; or
8            (B) mailing a copy of the notice by certified mail,
9        return receipt requested, and first class mail to that
10        address.
11                (i) If notice is sent by certified mail and no
12            signed return receipt is received by the State's
13            Attorney within 28 days of mailing, and no
14            communication from the owner or interest holder is
15            received by the State's Attorney documenting
16            actual notice by said parties, the State's
17            Attorney shall, within a reasonable period of
18            time, mail a second copy of the notice by certified
19            mail, return receipt requested, and first class
20            mail to that address.
21                (ii) If no signed return receipt is received by
22            the State's Attorney within 28 days of the second
23            attempt at service by certified mail, and no
24            communication from the owner or interest holder is
25            received by the State's Attorney documenting
26            actual notice by said parties, the State's

 

 

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1            Attorney shall have 60 days to attempt to serve the
2            notice by personal service, which also includes
3            substitute service by leaving a copy at the usual
4            place of abode, with some person of the family or a
5            person residing there, of the age of 13 years or
6            upwards. If, after 3 attempts at service in this
7            manner, no service of the notice is accomplished,
8            then the notice shall be posted in a conspicuous
9            manner at this address and service shall be made by
10            the posting.
11            The attempts at service and the posting, if
12        required, shall be documented by the person attempting
13        service and said documentation shall be made part of a
14        return of service returned to the State's Attorney.
15            The State's Attorney may utilize a Sheriff or
16        Deputy Sheriff, any peace officer, a private process
17        server or investigator, or any employee, agent, or
18        investigator of the State's Attorney's office to
19        attempt service without seeking leave of court.
20            After the procedures are followed, service shall
21        be effective on an owner or interest holder on the date
22        of receipt by the State's Attorney of a return receipt,
23        or on the date of receipt of a communication from an
24        owner or interest holder documenting actual notice,
25        whichever is first in time, or on the date of the last
26        act performed by the State's Attorney in attempting

 

 

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1        personal service under item (ii) of this paragraph (1).
2        If notice is to be shown by actual notice from
3        communication with a claimant, then the State's
4        Attorney shall file an affidavit providing details of
5        the communication, which shall be accepted as
6        sufficient proof of service by the court.
7            For purposes of notice under this Section, if a
8        person has been arrested for the conduct giving rise to
9        the forfeiture, the address provided to the arresting
10        agency at the time of arrest shall be deemed to be that
11        person's known address. Provided, however, if an owner
12        or interest holder's address changes prior to the
13        effective date of the complaint for forfeiture, the
14        owner or interest holder shall promptly notify the
15        seizing agency of the change in address or, if the
16        owner or interest holder's address changes subsequent
17        to the effective date of the notice of pending
18        forfeiture, the owner or interest holder shall
19        promptly notify the State's Attorney of the change in
20        address; or if the property seized is a conveyance, to
21        the address reflected in the office of the agency or
22        official in which title to or interest in the
23        conveyance is required by law to be recorded.
24        (2) If the owner's or interest holder's address is not
25    known, and is not on record, then notice shall be served by
26    publication for 3 successive weeks in a newspaper of

 

 

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1    general circulation in the county in which the seizure
2    occurred.
3        (3) Notice to any business entity, corporation,
4    limited liability company, limited liability partnership,
5    or partnership shall be completed by a single mailing of a
6    copy of the notice by certified mail, return receipt
7    requested, and first class mail to that address. This
8    notice is complete regardless of the return of a signed
9    return receipt.
10        (4) Notice to a person whose address is not within the
11    State shall be completed by a single mailing of a copy of
12    the notice by certified mail, return receipt requested, and
13    first class mail to that address. This notice is complete
14    regardless of the return of a signed return receipt.
15        (5) Notice to a person whose address is not within the
16    United States shall be completed by a single mailing of a
17    copy of the notice by certified mail, return receipt
18    requested, and first class mail to that address. This
19    notice shall be complete regardless of the return of a
20    signed return receipt. If certified mail is not available
21    in the foreign country where the person has an address,
22    then notice shall proceed by publication under paragraph
23    (2) of this Section.
24        (6) Notice to any person whom the State's Attorney
25    reasonably should know is incarcerated within the State
26    shall also include the mailing a copy of the notice by

 

 

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1    certified mail, return receipt requested, and first class
2    mail to the address of the detention facility with the
3    inmate's name clearly marked on the envelope.
4(Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
 
5    (720 ILCS 5/36-2.5)
6    Sec. 36-2.5. Judicial in rem procedures.
7    (a) The laws of evidence relating to civil actions shall
8apply to judicial in rem proceedings under this Article.
9    (b) Only an owner of or interest holder in the property may
10file an answer asserting a claim against the property in the
11action in rem. For purposes of this Section, the owner or
12interest holder shall be referred to as claimant. A person not
13named in the forfeiture complaint who claims to have an
14interest in the property may petition to intervene as a
15claimant under Section 2-408 of the Code of Civil Procedure.
16    (c) The answer shall be filed with the court within 45 days
17after service of the civil in rem complaint.
18    (d) The trial shall be held within 60 days after filing of
19the answer unless continued for good cause.
20    (e) In its case in chief, the State shall show by a
21preponderance of the evidence that:
22        (1) the property is subject to forfeiture; and
23        (2) at least one of the following:
24            (i) the claimant knew or should have known that the
25        conduct was likely to occur; or

 

 

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1            (ii) the claimant is not the true owner of the
2        property that is subject to forfeiture.
3    In any forfeiture case under this Article, a claimant may
4present evidence to overcome evidence presented by the State
5that the property is subject to forfeiture.
6    (f) Notwithstanding any other provision of this Section,
7the State's burden of proof at the trial of the forfeiture
8action shall be by clear and convincing evidence if:
9        (1) a finding of not guilty is entered as to all counts
10    and all defendants in a criminal proceeding relating to the
11    conduct giving rise to the forfeiture action; or
12        (2) the State receives an adverse finding at a
13    preliminary hearing and fails to secure an indictment in a
14    criminal proceeding related to the factual allegations of
15    the forfeiture action.
16    (g) If the State does not meet its burden of proof, the
17court shall order the interest in the property returned or
18conveyed to the claimant and shall order all other property in
19which the State does meet its burden of proof forfeited to the
20State. If the State does meet its burden of proof, the court
21shall order all property forfeited to the State.
22    (h) A defendant convicted in any criminal proceeding is
23precluded from later denying the essential allegations of the
24criminal offense of which the defendant was convicted in any
25proceeding under this Article regardless of the pendency of an
26appeal from that conviction. However, evidence of the pendency

 

 

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1of an appeal is admissible.
2    (i) An acquittal or dismissal in a criminal proceeding
3shall not preclude civil proceedings under this Act; however,
4for good cause shown, on a motion by either party, the court
5may stay civil forfeiture proceedings during the criminal trial
6for a related criminal indictment or information alleging a
7violation of law authorizing forfeiture under Section 36-1 of
8this Article.
9    (j) Title to all property declared forfeited under this Act
10vests in this State on the commission of the conduct giving
11rise to forfeiture together with the proceeds of the property
12after that time. Except as otherwise provided in this Article,
13any property or proceeds subsequently transferred to any person
14remain subject to forfeiture unless a person to whom the
15property was transferred makes an appropriate claim under or
16has the claim adjudicated at the judicial in rem hearing.
17    (k) No property shall be forfeited under this Article from
18a person who, without actual or constructive notice that the
19property was the subject of forfeiture proceedings, obtained
20possession of the property as a bona fide purchaser for value.
21A person who purports to transfer property after receiving
22actual or constructive notice that the property is subject to
23seizure or forfeiture is guilty of contempt of court, and shall
24be liable to the State for a penalty in the amount of the fair
25market value of the property.
26    (l) A civil action under this Article shall be commenced

 

 

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1within 5 years after the last conduct giving rise to forfeiture
2became known or should have become known or 5 years after the
3forfeitable property is discovered, whichever is later,
4excluding any time during which either the property or claimant
5is out of the State or in confinement or during which criminal
6proceedings relating to the same conduct are in progress.
7    (m) If property is ordered forfeited under this Article
8from a claimant who held title to the property in joint tenancy
9or tenancy in common with another claimant, the court shall
10determine the amount of each owner's interest in the property
11according to principles of property law.
12(Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
 
13    (720 ILCS 5/36-10)
14    Sec. 36-10. Applicability; savings clause.
15    (a) The changes made to this Article by Public Act 100-512
16100-0512 and Public Act 100-699 this amendatory Act of the
17100th General Assembly only apply to property seized on and
18after July 1, 2018.
19    (b) The changes made to this Article by Public Act 100-699
20this amendatory Act of the 100th General Assembly are subject
21to Section 4 of the Statute on Statutes.
22(Source: P.A. 100-699, eff. 8-3-18.)
 
23    Section 20. The Cannabis Control Act is amended by changing
24Section 12 as follows:
 

 

 

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1    (720 ILCS 550/12)  (from Ch. 56 1/2, par. 712)
2    Sec. 12. Forfeiture.
3    (a) The following are subject to forfeiture:
4        (1) (blank);
5        (2) all raw materials, products, and equipment of any
6    kind which are produced, delivered, or possessed in
7    connection with any substance containing cannabis in a
8    felony violation of this Act;
9        (3) all conveyances, including aircraft, vehicles, or
10    vessels, which are used, or intended for use, to transport,
11    or in any manner to facilitate the transportation, sale,
12    receipt, possession, or concealment of any substance
13    containing cannabis or property described in paragraph (2)
14    of this subsection (a) that constitutes a felony violation
15    of the Act, but:
16            (i) no conveyance used by any person as a common
17        carrier in the transaction of business as a common
18        carrier is subject to forfeiture under this Section
19        unless it appears that the owner or other person in
20        charge of the conveyance is a consenting party or privy
21        to the violation;
22            (ii) no conveyance is subject to forfeiture under
23        this Section by reason of any act or omission which the
24        owner proves to have been committed or omitted without
25        his or her knowledge or consent;

 

 

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1            (iii) a forfeiture of a conveyance encumbered by a
2        bona fide security interest is subject to the interest
3        of the secured party if he or she neither had knowledge
4        of nor consented to the act or omission;
5        (4) all money, things of value, books, records, and
6    research products and materials including formulas,
7    microfilm, tapes, and data which are used, or intended for
8    use, in a felony violation of this Act;
9        (5) everything of value furnished or intended to be
10    furnished by any person in exchange for a substance in
11    violation of this Act, all proceeds traceable to such an
12    exchange, and all moneys, negotiable instruments, and
13    securities used, or intended to be used, to commit or in
14    any manner to facilitate any felony violation of this Act;
15        (6) all real property, including any right, title, and
16    interest including, but not limited to, any leasehold
17    interest or the beneficial interest in a land trust, in the
18    whole of any lot or tract of land and any appurtenances or
19    improvements, that is used or intended to be used to
20    facilitate the manufacture, distribution, sale, receipt,
21    or concealment of a substance containing cannabis or
22    property described in paragraph (2) of this subsection (a)
23    that constitutes a felony violation of this Act involving
24    more than 2,000 grams of a substance containing cannabis or
25    that is the proceeds of any felony violation of this Act.
26    (b) Property subject to forfeiture under this Act may be

 

 

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1seized under the Drug Asset Forfeiture Procedure Act. In the
2event of seizure, forfeiture proceedings shall be instituted
3under the Drug Asset Forfeiture Procedure Act.
4    (c) Forfeiture under this Act is subject to an 8th
5Amendment to the United States Constitution disproportionate
6penalties analysis as provided under Section 9.5 of the Drug
7Asset Forfeiture Procedure Act.
8    (c-1) With regard to possession of cannabis offenses only,
9a sum of currency with a value of less than $500 shall not be
10subject to forfeiture under this Act. For all other offenses
11under this Act, a sum of currency with a value of less than
12$100 shall not be subject to forfeiture under this Act. In
13seizures of currency in excess of these amounts, this Section
14shall not create an exemption for these amounts.
15    (d) (Blank).
16    (e) (Blank).
17    (f) (Blank).
18    (g) (Blank).
19    (h) Contraband, including cannabis possessed without
20authorization under State or federal law, is not subject to
21forfeiture. No property right exists in contraband. Contraband
22is subject to seizure and shall be disposed of according to
23State law.
24    (i) The changes made to this Section by Public Act 100-512
25100-0512 and Public Act 100-699 this amendatory Act of the
26100th General Assembly only apply to property seized on and

 

 

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1after July 1, 2018.
2    (j) The changes made to this Section by Public Act 100-699
3this amendatory Act of the 100th General Assembly are subject
4to Section 4 of the Statute on Statutes.
5(Source: P.A. 99-686, eff. 7-29-16; 100-512, eff. 7-1-18;
6100-699, eff. 8-3-18.)
 
7    Section 25. The Illinois Controlled Substances Act is
8amended by changing Section 505 as follows:
 
9    (720 ILCS 570/505)  (from Ch. 56 1/2, par. 1505)
10    Sec. 505. (a) The following are subject to forfeiture:
11        (1) (blank);
12        (2) all raw materials, products, and equipment of any
13    kind which are used, or intended for use, in manufacturing,
14    distributing, dispensing, administering or possessing any
15    substance in violation of this Act;
16        (3) all conveyances, including aircraft, vehicles, or
17    vessels, which are used, or intended for use, to transport,
18    or in any manner to facilitate the transportation, sale,
19    receipt, possession, or concealment of substances
20    manufactured, distributed, dispensed, or possessed in
21    violation of this Act, or property described in paragraph
22    (2) of this subsection (a), but:
23            (i) no conveyance used by any person as a common
24        carrier in the transaction of business as a common

 

 

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1        carrier is subject to forfeiture under this Section
2        unless it appears that the owner or other person in
3        charge of the conveyance is a consenting party or privy
4        to a violation of this Act;
5            (ii) no conveyance is subject to forfeiture under
6        this Section by reason of any act or omission which the
7        owner proves to have been committed or omitted without
8        his or her knowledge or consent;
9            (iii) a forfeiture of a conveyance encumbered by a
10        bona fide security interest is subject to the interest
11        of the secured party if he or she neither had knowledge
12        of nor consented to the act or omission;
13        (4) all money, things of value, books, records, and
14    research products and materials including formulas,
15    microfilm, tapes, and data which are used, or intended to
16    be used, in violation of this Act;
17        (5) everything of value furnished, or intended to be
18    furnished, in exchange for a substance in violation of this
19    Act, all proceeds traceable to such an exchange, and all
20    moneys, negotiable instruments, and securities used, or
21    intended to be used, to commit or in any manner to
22    facilitate any violation of this Act;
23        (6) all real property, including any right, title, and
24    interest (including, but not limited to, any leasehold
25    interest or the beneficial interest in a land trust) in the
26    whole of any lot or tract of land and any appurtenances or

 

 

SB2342 Enrolled- 59 -LRB100 17956 MRW 33140 b

1    improvements, which is used or intended to be used, in any
2    manner or part, to commit, or in any manner to facilitate
3    the commission of, any violation or act that constitutes a
4    violation of Section 401 or 405 of this Act or that is the
5    proceeds of any violation or act that constitutes a
6    violation of Section 401 or 405 of this Act.
7    (b) Property subject to forfeiture under this Act may be
8seized under the Drug Asset Forfeiture Procedure Act. In the
9event of seizure, forfeiture proceedings shall be instituted
10under the Drug Asset Forfeiture Procedure Act.
11    (c) Forfeiture under this Act is subject to an 8th
12Amendment to the United States Constitution disproportionate
13penalties analysis as provided under Section 9.5 of the Drug
14Asset Forfeiture Procedure Act.
15    (d) With regard to possession of controlled substances
16offenses only, a sum of currency with a value of less than $500
17shall not be subject to forfeiture under this Act. For all
18other offenses under this Act, a sum of currency with a value
19of less than $100 shall not be subject to forfeiture under this
20Act. In seizures of currency in excess of these amounts, this
21Section shall not create an exemption for these amounts.
22    (d-5) For felony offenses involving possession of
23controlled substances only, no property shall be subject to
24forfeiture under this Act because of the possession of less
25than 2 single unit doses of a controlled substance. This
26exemption shall not apply in instances when the possessor, or

 

 

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1another person at the direction of the possessor, engaged in
2the destruction of any amount of a controlled substance. The
3amount of a single unit dose shall be the State's burden to
4prove in its case in chief.
5    (e) If the Department of Financial and Professional
6Regulation suspends or revokes a registration, all controlled
7substances owned or possessed by the registrant at the time of
8suspension or the effective date of the revocation order may be
9placed under seal by the Director. No disposition may be made
10of substances under seal until the time for taking an appeal
11has elapsed or until all appeals have been concluded unless a
12court, upon application therefor, orders the sale of perishable
13substances and the deposit of the proceeds of the sale with the
14court. Upon a suspension or revocation order becoming final,
15all substances are subject to seizure and forfeiture under the
16Drug Asset Forfeiture Procedure Act.
17    (f) (Blank).
18    (g) (Blank).
19    (h) (Blank).
20    (i) Contraband, including controlled substances possessed
21without authorization under State or federal law, is not
22subject to forfeiture. No property right exists in contraband.
23Contraband is subject to seizure and shall be disposed of
24according to State law.
25    (j) The changes made to this Section by Public Act 100-512
26100-0512 and Public Act 100-699 this amendatory Act of the

 

 

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1100th General Assembly only apply to property seized on and
2after July 1, 2018.
3    (k) The changes made to this Section by Public Act 100-699
4this amendatory Act of the 100th General Assembly are subject
5to Section 4 of the Statute on Statutes.
6(Source: P.A. 99-686, eff. 7-29-16; 100-512, eff. 7-1-18;
7100-699, eff. 8-3-18.)
 
8    Section 30. The Drug Asset Forfeiture Procedure Act is
9amended by changing Sections 3.3, 4, 6, 9, and 13.4 as follows:
 
10    (725 ILCS 150/3.3)
11    Sec. 3.3. Safekeeping of seized property pending
12disposition.
13    (a) Property seized under this Act is deemed to be in the
14custody of the Director of State Police, subject only to the
15order and judgments of the circuit court having jurisdiction
16over the forfeiture proceedings and the decisions of the
17State's Attorney under this Act.
18    (b) If property is seized under this Act, the seizing
19agency shall promptly conduct an inventory of the seized
20property and estimate the property's value, and shall forward a
21copy of the inventory of seized property and the estimate of
22the property's value to the Director of State Police. Upon
23receiving notice of seizure, the Director of State Police may:
24        (1) place the property under seal;

 

 

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1        (2) remove the property to a place designated by the
2    seizing agency;
3        (3) keep the property in the possession of the Director
4    of State Police;
5        (4) remove the property to a storage area for
6    safekeeping;
7        (5) place the property under constructive seizure by
8    posting notice of pending forfeiture on it, by giving
9    notice of pending forfeiture to its owners and interest
10    holders, or by filing notice of pending forfeiture in any
11    appropriate public record relating to the property; or
12        (6) provide for another agency or custodian, including
13    an owner, secured party, or lienholder, to take custody of
14    the property upon the terms and conditions set by the
15    seizing agency.
16    (c) The seizing agency is required to exercise ordinary
17care to protect the seized property from negligent loss,
18damage, or destruction.
19(Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
 
20    (725 ILCS 150/4)  (from Ch. 56 1/2, par. 1674)
21    Sec. 4. Notice to owner or interest holder. The first
22attempted service of notice shall be commenced within 28 days
23of the filing of the verified claim or the receipt of the
24notice from the seizing agency by Illinois State Police
25Notice/Inventory of Seized Property (Form 4-64), whichever

 

 

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1occurs sooner. A complaint for forfeiture or a notice of
2pending forfeiture shall be served upon the property owner or
3interest holder in the following manner:
4        (1) If the owner's or interest holder's name and
5    current address are known, then by either:
6            (A) personal service; or
7            (B) mailing a copy of the notice by certified mail,
8        return receipt requested, and first class mail to that
9        address.
10                (i) If notice is sent by certified mail and no
11            signed return receipt is received by the State's
12            Attorney within 28 days of mailing, and no
13            communication from the owner or interest holder is
14            received by the State's Attorney documenting
15            actual notice by said parties, then the State's
16            Attorney shall, within a reasonable period of
17            time, mail a second copy of the notice by certified
18            mail, return receipt requested, and first class
19            mail to that address.
20                (ii) If no signed return receipt is received by
21            the State's Attorney within 28 days of the second
22            attempt at service by certified mail, and no
23            communication from the owner or interest holder is
24            received by the State's Attorney documenting
25            actual notice by said parties, then the State's
26            Attorney shall have 60 days to attempt to serve the

 

 

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1            notice by personal service, which also includes
2            substitute service by leaving a copy at the usual
3            place of abode, with some person of the family or a
4            person residing there, of the age of 13 years or
5            upwards. If, after 3 attempts at service in this
6            manner, no service of the notice is accomplished,
7            then the notice shall be posted in a conspicuous
8            manner at this address and service shall be made by
9            posting.
10                The attempts at service and the posting, if
11            required, shall be documented by the person
12            attempting service and said documentation shall be
13            made part of a return of service returned to the
14            State's Attorney.
15                The State's Attorney may utilize any Sheriff
16            or Deputy Sheriff, any peace officer, a private
17            process server or investigator, or any employee,
18            agent, or investigator of the State's Attorney's
19            Office to attempt service without seeking leave of
20            court.
21                After the procedures set forth are followed,
22            service shall be effective on an owner or interest
23            holder on the date of receipt by the State's
24            Attorney of a return receipt, or on the date of
25            receipt of a communication from an owner or
26            interest holder documenting actual notice,

 

 

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1            whichever is first in time, or on the date of the
2            last act performed by the State's Attorney in
3            attempting personal service under subparagraph
4            (ii) above. If notice is to be shown by actual
5            notice from communication with a claimant, then
6            the State's Attorney shall file an affidavit
7            providing details of the communication, which may
8            be accepted as sufficient proof of service by the
9            court.
10                After a claimant files a verified claim with
11            the State's Attorney and provides an address at
12            which the claimant will accept service, the
13            complaint shall be served and notice shall be
14            perfected upon mailing of the complaint to the
15            claimant at the address the claimant provided via
16            certified mail, return receipt requested, and
17            first class mail. No return receipt need be
18            received, or any other attempts at service need be
19            made to comply with service and notice
20            requirements under this Act. This certified
21            mailing, return receipt requested, shall be proof
22            of service of the complaint on the claimant.
23                For purposes of notice under this Section, if a
24            person has been arrested for the conduct giving
25            rise to the forfeiture, then the address provided
26            to the arresting agency at the time of arrest shall

 

 

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1            be deemed to be that person's known address.
2            Provided, however, if an owner or interest
3            holder's address changes prior to the effective
4            date of the notice of pending forfeiture, the owner
5            or interest holder shall promptly notify the
6            seizing agency of the change in address or, if the
7            owner or interest holder's address changes
8            subsequent to the effective date of the notice of
9            pending forfeiture, the owner or interest holder
10            shall promptly notify the State's Attorney of the
11            change in address; or if the property seized is a
12            conveyance, to the address reflected in the office
13            of the agency or official in which title to or
14            interest in the conveyance is required by law to be
15            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) After a claimant files a verified claim with the
22    State's Attorney and provides an address at which the
23    claimant will accept service, the complaint shall be served
24    and notice shall be perfected upon mailing of the complaint
25    to the claimant at the address the claimant provided via
26    certified mail, return receipt requested, and first class

 

 

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1    mail. No return receipt need be received or any other
2    attempts at service need be made to comply with service and
3    notice requirements under this Act. This certified
4    mailing, return receipt requested, shall be proof of
5    service of the complaint on the claimant.
6        (4) Notice to any business entity, corporation,
7    limited liability company, limited liability partnership,
8    or partnership shall be completed 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 is complete regardless of the return of a signed
12    return receipt.
13        (5) Notice to a person whose address is not within the
14    State shall be completed by a single mailing of a copy of
15    the notice by certified mail, return receipt requested, and
16    first class mail to that address. This notice is complete
17    regardless of the return of a signed return receipt.
18        (6) Notice to a person whose address is not within the
19    United States shall be completed by a single mailing of a
20    copy of the notice by certified mail, return receipt
21    requested, and first class mail to that address. This
22    notice shall be complete regardless of the return of a
23    signed return receipt. If certified mail is not available
24    in the foreign country where the person has an address,
25    then notice shall proceed by publication under paragraph
26    (2) of this Section.

 

 

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1        (7) Notice to any person whom the State's Attorney
2    reasonably should know is incarcerated within the State
3    shall also include the mailing a copy of the notice by
4    certified mail, return receipt requested, and first class
5    mail to the address of the detention facility with the
6    inmate's name clearly marked on the envelope.
7(Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
 
8    (725 ILCS 150/6)  (from Ch. 56 1/2, par. 1676)
9    Sec. 6. Non-judicial forfeiture. If non-real property that
10exceeds $150,000 in value excluding the value of any
11conveyance, or if real property is seized under the provisions
12of the Illinois Controlled Substances Act, the Cannabis Control
13Act, or the Methamphetamine Control and Community Protection
14Act, the State's Attorney shall institute judicial in rem
15forfeiture proceedings as described in Section 9 of this Act
16within 28 days from receipt of notice of seizure from the
17seizing agency under Section 5 of this Act. However, if
18non-real property that does not exceed $150,000 in value
19excluding the value of any conveyance is seized, the following
20procedure shall be used:
21        (A) 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 28
24    days of the receipt of notice of seizure from the seizing
25    agency, the State's Attorney shall cause notice of pending

 

 

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1    forfeiture to be given to the owner of the property and all
2    known interest holders of the property in accordance with
3    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
9    the forfeiture action.
10         (C)(1) Any person claiming an interest in property
11    which is the subject of notice under subsection (A) of this
12    Section may, within 45 days after the effective date of
13    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 names and addresses of all other persons

 

 

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1        known 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 then the State's
8    Attorney shall institute judicial in rem forfeiture
9    proceedings within 28 days after receipt of the claim.
10        (D) If no claim is filed within the 45-day 45 day
11    period as described in subsection (C) of this Section, the
12    State's Attorney shall declare the property forfeited and
13    shall promptly notify the owner and all known interest
14    holders of the property and the Director of the Illinois
15    Department of State Police of the declaration of forfeiture
16    and the Director shall dispose of the property in
17    accordance with law.
18(Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
 
19    (725 ILCS 150/9)  (from Ch. 56 1/2, par. 1679)
20    Sec. 9. Judicial in rem procedures. If property seized
21under the provisions of the Illinois Controlled Substances Act,
22the Cannabis Control Act, or the Methamphetamine Control and
23Community Protection Act is non-real property that exceeds
24$150,000 in value excluding the value of any conveyance, or is
25real property, or a claimant has filed a claim under subsection

 

 

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1(C) of Section 6 of this Act, the following judicial in rem
2procedures shall apply:
3        (A) If, after a review of the facts surrounding the
4    seizure, the State's Attorney is of the opinion that the
5    seized property is subject to forfeiture, the State's
6    Attorney shall institute judicial forfeiture proceedings
7    by filing a verified complaint for forfeiture in the
8    circuit court within whose jurisdiction the seizure
9    occurred, or within whose jurisdiction an act or omission
10    giving rise to the seizure occurred, subject to Supreme
11    Court Rule 187. The complaint for forfeiture shall be filed
12    as soon as practicable, but not later than 28 days after
13    the filing of a verified claim by a claimant if the
14    property was acted upon under a non-judicial forfeiture
15    action, or 28 days after the State's Attorney receives
16    notice from the seizing agency as provided under Section 5
17    of this Act, whichever occurs later. When authorized by
18    law, a forfeiture must be ordered by a court on an action
19    in rem brought by a State's Attorney under a verified
20    complaint for forfeiture.
21        (A-5) If the State's Attorney finds that the alleged
22    violation of law giving rise to the seizure was incurred
23    without willful negligence or without any intention on the
24    part of the owner of the property to violate the law or
25    finds the existence of mitigating circumstances to justify
26    remission of the forfeiture, the State's Attorney may cause

 

 

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1    the law enforcement agency having custody of the property
2    to return the property to the owner within a reasonable
3    time not to exceed 7 days. The State's Attorney shall
4    exercise his or her discretion prior to or promptly after
5    the preliminary review under Section 3.5 of this Act.
6    Judicial in rem forfeiture proceedings under this Act shall
7    be subject to the Code of Civil Procedure and the rules of
8    evidence relating to civil actions.
9        (A-10) A complaint of forfeiture shall include:
10            (1) a description of the property seized;
11            (2) the date and place of seizure of the property;
12            (3) the name and address of the law enforcement
13        agency making the seizure; and
14            (4) the specific statutory and factual grounds for
15        the seizure.
16        The complaint shall be served upon the person from whom
17    the property was seized and all persons known or reasonably
18    believed by the State to claim an interest in the property,
19    as provided in Section 4 of this Act. The complaint shall
20    be accompanied by the following written notice:
21        "This is a civil court proceeding subject to the Code
22        of Civil Procedure. You received this Complaint of
23        Forfeiture because the State's Attorney's office has
24        brought a legal action seeking forfeiture of your
25        seized property. This complaint starts the court
26        process where the state seeks to prove that your

 

 

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1        property should be forfeited and not returned to you.
2        This process is also your opportunity to try to prove
3        to a judge that you should get your property back. The
4        complaint lists the date, time, and location of your
5        first court date. You must appear in court on that day,
6        or you may lose the case automatically. You must also
7        file an appearance and answer. If you are unable to pay
8        the appearance fee, you may qualify to have the fee
9        waived. If there is a criminal case related to the
10        seizure of your property, your case may be set for
11        trial after the criminal case has been resolved. Before
12        trial, the judge may allow discovery, where the State
13        can ask you to respond in writing to questions and give
14        them certain documents, and you can make similar
15        requests of the State. The trial is your opportunity to
16        explain what happened when your property was seized and
17        why you should get the property back.".
18        (B) The laws of evidence relating to civil actions
19    shall apply to all other proceedings under this Act except
20    that the parties shall be allowed to use, and the court
21    must receive and consider, all relevant hearsay evidence
22    that relates to evidentiary foundation, chain of custody,
23    business records, recordings, laboratory analysis,
24    laboratory reports, and the use of technology in the
25    investigation that resulted in the seizure of the property
26    that is subject to the forfeiture action.

 

 

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1        (C) Only an owner of or interest holder in the property
2    may file an answer asserting a claim against the property
3    in the action in rem. For purposes of this Section, the
4    owner or interest holder shall be referred to as claimant.
5    A person not named in the forfeiture complaint who claims
6    to have an interest in the property may petition to
7    intervene as a claimant under Section 2-408 of the Code of
8    Civil Procedure.
9        (D) The answer must be signed by the owner or interest
10    holder under penalty of perjury and must set forth:
11            (i) the caption of the proceedings as set forth on
12        the notice of pending forfeiture and the name of the
13        claimant;
14            (ii) the address at which the claimant will accept
15        mail;
16            (iii) the nature and extent of the claimant's
17        interest in the property;
18            (iv) the date, identity of transferor, and
19        circumstances of the claimant's acquisition of the
20        interest in the property;
21            (v) the names and addresses of all other persons
22        known to have an interest in the property;
23            (vi) the specific provisions of Section 8 of this
24        Act relied on in asserting it is exempt from
25        forfeiture, if applicable;
26            (vii) all essential facts supporting each

 

 

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1        assertion;
2            (viii) the precise relief sought; and
3            (ix) in a forfeiture action involving currency or
4        its equivalent, a claimant shall provide the State with
5        notice of the claimant's intent to allege that the
6        currency or its equivalent is not related to the
7        alleged factual basis for the forfeiture, and why.
8        (E) The answer must be filed with the court within 45
9    days after service of the civil in rem complaint.
10        (F) The trial shall be held within 60 days after filing
11    of the answer unless continued for good cause.
12        (G) The State, in its case in chief, shall show by a
13    preponderance of the evidence that the property is subject
14    to forfeiture; and at least one of the following:
15            (i) In the case of personal property, including
16        conveyances:
17                (a) that the claimant was legally accountable
18            for the conduct giving rise to the forfeiture;
19                (b) that the claimant knew or reasonably
20            should have known of the conduct giving rise to the
21            forfeiture;
22                (c) that the claimant knew or reasonably
23            should have known that the conduct giving rise to
24            the forfeiture was likely to occur;
25                (d) that the claimant held the property for the
26            benefit of, or as nominee for, any person whose

 

 

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1            conduct gave rise to its forfeiture;
2                (e) that if the claimant acquired the interest
3            through any person engaging in any of the conduct
4            described above or conduct giving rise to the
5            forfeiture:
6                    (1) the claimant did not acquire it as a
7                bona fide purchaser for value, or
8                    (2) the claimant acquired the interest
9                under such circumstances that the claimant
10                reasonably should have known the property was
11                derived from, or used in, the conduct giving
12                rise to the forfeiture;
13                (f) that the claimant is not the true owner of
14            the property;
15                (g) that the claimant acquired the interest:
16                    (1) before the commencement of the conduct
17                giving rise to the forfeiture and the person
18                whose conduct gave rise to the forfeiture did
19                not have authority to convey the interest to a
20                bona fide purchaser for value at the time of
21                the conduct; or
22                    (2) after the commencement of the conduct
23                giving rise to the forfeiture and the owner or
24                interest holder acquired the interest as a
25                mortgagee, secured creditor, lienholder, or
26                bona fide purchaser for value without

 

 

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1                knowledge of the conduct that gave rise to the
2                forfeiture, and without the knowledge of the
3                seizure of the property for forfeiture.
4            (ii) In the case of real property:
5                (a) that the claimant was legally accountable
6            for the conduct giving rise to the forfeiture;
7                (b) that the claimant solicited, conspired, or
8            attempted to commit the conduct giving rise to the
9            forfeiture; or
10                (c) that the claimant had acquired or stood to
11            acquire substantial proceeds from the conduct
12            giving rise to its forfeiture other than as an
13            interest holder in an arm's length transaction;
14                (d) that the claimant is not the true owner of
15            the property;
16                (e) that the claimant acquired the interest:
17                    (1) before the commencement of the conduct
18                giving rise to the forfeiture and the person
19                whose conduct gave rise to the forfeiture did
20                not have authority to convey the interest to a
21                bona fide purchaser for value at the time of
22                the conduct; or
23                    (2) after the commencement of the conduct
24                giving rise to the forfeiture and the owner or
25                interest holder acquired the interest as a
26                mortgagee, secured creditor, lienholder, or

 

 

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1                bona fide purchaser for value without
2                knowledge of the conduct that gave rise to the
3                forfeiture, and before the filing in the office
4                of the recorder of deeds of the county in which
5                the real estate is located a notice of seizure
6                for forfeiture or a lis pendens notice.
7        (G-5) If the property that is the subject of the
8    forfeiture proceeding is currency or its equivalent, the
9    State, in its case in chief, shall show by a preponderance
10    of the evidence that the property is subject to forfeiture.
11    If the State makes that showing, the claimant shall have
12    the burden of production to set forth evidence that the
13    currency or its equivalent is not related to the alleged
14    factual basis of the forfeiture. After the production of
15    evidence, the State shall maintain the burden of proof to
16    overcome this assertion.
17        (G-10) Notwithstanding any other provision of this
18    Section, the State's burden of proof at the trial of the
19    forfeiture action shall be by clear and convincing evidence
20    if:
21            (1) a finding of not guilty is entered as to all
22        counts and all defendants in a criminal proceeding
23        relating to the conduct giving rise to the forfeiture
24        action; or
25            (2) the State receives an adverse finding at a
26        preliminary hearing and fails to secure an indictment

 

 

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

 

 

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1    Methamphetamine Control and Community Protection Act shall
2    not be subject to return or release by a court exercising
3    jurisdiction over a criminal case involving the seizure of
4    such property unless such return or release is consented to
5    by the State's Attorney.
6        (K) Title to all property declared forfeited under this
7    Act vests in the State on the commission of the conduct
8    giving rise to forfeiture together with the proceeds of the
9    property after that time. Except as otherwise provided in
10    this Act, any such property or proceeds subsequently
11    transferred to any person remain subject to forfeiture
12    unless a person to whom the property was transferred makes
13    an appropriate claim under this Act and has the claim
14    adjudicated in the judicial in rem proceeding.
15        (L) A civil action under this Act must be commenced
16    within 5 years after the last conduct giving rise to
17    forfeiture became known or should have become known or 5
18    years after the forfeitable property is discovered,
19    whichever is later, excluding any time during which either
20    the property or claimant is out of the State or in
21    confinement or during which criminal proceedings relating
22    to the same conduct are in progress.
23        (M) No property shall be forfeited under this Act from
24    a person who, without actual or constructive notice that
25    the property was the subject of forfeiture proceedings,
26    obtained possession of the property as a bona fide

 

 

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1    purchaser for value. A person who purports to transfer
2    property after receiving actual or constructive notice
3    that the property is subject to seizure or forfeiture is
4    guilty of contempt of court and shall be liable to the
5    State for a penalty in the amount of the fair market value
6    of the property.
7        (N) If property is ordered forfeited under this Act
8    from a claimant who held title to the property in joint
9    tenancy or tenancy in common with another claimant, the
10    court shall determine the amount of each owner's interest
11    in the property according to principles of property law.
12(Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
 
13    (725 ILCS 150/13.4)
14    Sec. 13.4. Applicability; savings clause.
15    (a) The changes made to this Act by Public Act 100-512
16100-0512 and Public Act 100-699 this amendatory Act of the
17100th General Assembly only apply to property seized on and
18after July 1, 2018.
19    (b) The changes made to this Act by Public Act 100-699 this
20amendatory Act of the 100th General Assembly are subject to
21Section 4 of the Statute on Statutes.
22(Source: P.A. 100-699, eff. 8-3-18.)
 
23    Section 35. The Illinois Streetgang Terrorism Omnibus
24Prevention Act is amended by changing Section 40 as follows:
 

 

 

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1    (740 ILCS 147/40)
2    Sec. 40. Forfeiture.
3    (a) The following are subject to seizure and forfeiture:
4        (1) any property that is directly or indirectly used or
5    intended for use in any manner to facilitate streetgang
6    related activity; and
7        (2) any property constituting or derived from gross
8    profits or other proceeds obtained from streetgang related
9    activity.
10    (b) Property subject to forfeiture under this Section may
11be seized under the procedures set forth in under Section
1236-2.1 of the Criminal Code of 2012, except that actual
13physical seizure of real property subject to forfeiture under
14this Act requires the issuance of a seizure warrant. Nothing in
15this Section prohibits the constructive seizure of real
16property through the filing of a complaint for forfeiture in
17circuit court and the recording of a lis pendens against the
18real property without a hearing, warrant application, or
19judicial approval.
20    (c) The State's Attorney may initiate forfeiture
21proceedings under the procedures in Article 36 of the Criminal
22Code of 2012. The State shall bear the burden of proving by a
23preponderance of the evidence that the property was acquired
24through a pattern of streetgang related activity.
25    (d) Property forfeited under this Section shall be disposed

 

 

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1of in accordance with Section 36-7 of Article 36 of the
2Criminal Code of 2012 for the forfeiture of vehicles, vessels,
3and aircraft.
4    (e) Within 60 days of the date of the seizure of contraband
5under this Section, the State's Attorney shall initiate
6forfeiture proceedings as provided in Article 36 of the
7Criminal Code of 2012. An owner or person who has a lien on the
8property may establish as a defense to the forfeiture of
9property that is subject to forfeiture under this Section that
10the owner or lienholder had no knowledge that the property was
11acquired through a pattern of streetgang related activity.
12Property that is forfeited under this Section shall be disposed
13of as provided in Article 36 of the Criminal Code of 2012 for
14the forfeiture of vehicles, vessels, and aircraft. The proceeds
15of the disposition shall be paid to the Gang Violence Victims
16and Witnesses Fund to be used to assist in the prosecution of
17gang crimes.
18    (f) Property seized or forfeited under this Section is
19subject to reporting under the Seizure and Forfeiture Reporting
20Act.
21    (g) The changes made to this Section by Public Act 100-512
22100-0512 only apply to property seized on and after July 1,
232018.
24(Source: P.A. 100-512, eff. 7-1-18; 100-699, eff. 8-3-18.)
 
25    Section 99. Effective date. This Act takes effect upon
26becoming law.