725 ILCS 5/ Code of Criminal Procedure of 1963.

(725 ILCS 5/Art. 109 heading) ARTICLE 109. PRELIMINARY EXAMINATION

(725 ILCS 5/109-1) (from Ch. 38, par. 109-1)

(Text of Section before amendment by P.A. 101-652)

Sec. 109-1. Person arrested.

(a) A person arrested with or without a warrant shall be taken without unnecessary delay before the nearest and most accessible judge in that county, except when such county is a participant in a regional jail authority, in which event such person may be taken to the nearest and most accessible judge, irrespective of the county where such judge presides, and a charge shall be filed. Whenever a person arrested either with or without a warrant is required to be taken before a judge, a charge may be filed against such person by way of a two-way closed circuit television system, except that a hearing to deny bail to the defendant may not be conducted by way of closed circuit television.

(a-5) A person charged with an offense shall be allowed counsel at the hearing at which bail is determined under Article 110 of this Code. If the defendant desires counsel for his or her initial appearance but is unable to obtain counsel, the court shall appoint a public defender or licensed attorney at law of this State to represent him or her for purposes of that hearing.

(b) The judge shall:

(1) Inform the defendant of the charge against him and shall provide him with a copy of the charge;

(2) Advise the defendant of his right to counsel and if indigent shall appoint a public defender or licensed attorney at law of this State to represent him in accordance with the provisions of Section 113-3 of this Code;

(3) Schedule a preliminary hearing in appropriate cases;

(4) Admit the defendant to bail in accordance with the provisions of Article 110 of this Code; and

(5) Order the confiscation of the person's passport or impose travel restrictions on a defendant arrested for first degree murder or other violent crime as defined in Section 3 of the Rights of Crime Victims and Witnesses Act, if the judge determines, based on the factors in Section 110-5 of this Code, that this will reasonably ensure the appearance of the defendant and compliance by the defendant with all conditions of release.

(c) The court may issue an order of protection in accordance with the provisions of Article 112A of this Code.

(d) At the initial appearance of a defendant in any criminal proceeding, the court must advise the defendant in open court that any foreign national who is arrested or detained has the right to have notice of the arrest or detention given to his or her country's consular representatives and the right to communicate with those consular representatives if the notice has not already been provided. The court must make a written record of so advising the defendant.

(e) If consular notification is not provided to a defendant before his or her first appearance in court, the court shall grant any reasonable request for a continuance of the proceedings to allow contact with the defendant's consulate. Any delay caused by the granting of the request by a defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsections (a), (b), or (e) of Section 103-5 of this Code and on the day of the expiration of delay the period shall continue at the point at which it was suspended.

(Source: P.A. 102-813, eff. 5-13-22.)

(Text of Section after amendment by P.A. 101-652)

Sec. 109-1. Person arrested; release from law enforcement custody and court appearance; geographical constraints prevent in-person appearances.

(a) A person arrested with or without a warrant for an offense for which pretrial release may be denied under paragraphs (1) through (6) of Section 110-6.1 shall be taken without unnecessary delay before the nearest and most accessible judge in that county, except when such county is a participant in a regional jail authority, in which event such person may be taken to the nearest and most accessible judge, irrespective of the county where such judge presides, and a charge shall be filed. Whenever a person arrested either with or without a warrant is required to be taken before a judge, a charge may be filed against such person by way of a two-way closed circuit television system, except that a hearing to deny pretrial release to the defendant may not be conducted by way of closed circuit television.

(a-1) Law enforcement shall issue a citation in lieu of custodial arrest, upon proper identification, for those accused of traffic and Class B and C criminal misdemeanor offenses, or of petty and business offenses, who pose no obvious threat to the community or any person, or who have no obvious medical or mental health issues that pose a risk to their own safety. Those released on citation shall be scheduled into court within 21 days.

(a-3) A person arrested with or without a warrant for an offense for which pretrial release may not be denied may, except as otherwise provided in this Code, be released by the officer without appearing before a judge. The releasing officer shall issue the person a summons to appear within 21 days. A presumption in favor of pretrial release shall be applied by an arresting officer in the exercise of his or her discretion under this Section.

(a-5) A person charged with an offense shall be allowed counsel at the hearing at which pretrial release is determined under Article 110 of this Code. If the defendant desires counsel for his or her initial appearance but is unable to obtain counsel, the court shall appoint a public defender or licensed attorney at law of this State to represent him or her for purposes of that hearing.

(b) Upon initial appearance of a person before the court, the judge shall:

(1) inform the defendant of the charge against him and shall provide him with a copy of the charge;

(2) advise the defendant of his right to counsel and if indigent shall appoint a public defender or licensed attorney at law of this State to represent him in accordance with the provisions of Section 113-3 of this Code;

(3) schedule a preliminary hearing in appropriate cases;

(4) admit the defendant to pretrial release in accordance with the provisions of Article 110 of this Code, or upon verified petition of the State, proceed with the setting of a detention hearing as provided in Section 110-6.1; and

(5) order the confiscation of the person's passport or impose travel restrictions on a defendant arrested for first degree murder or other violent crime as defined in Section 3 of the Rights of Crime Victims and Witnesses Act, if the judge determines, based on the factors in Section 110-5 of this Code, that this will reasonably ensure the appearance of the defendant and compliance by the defendant with all conditions of release.

(c) The court may issue an order of protection in accordance with the provisions of Article 112A of this Code. Crime victims shall be given notice by the State's Attorney's office of this hearing as required in paragraph (2) of subsection (b) of Section 4.5 of the Rights of Crime Victims and Witnesses Act and shall be informed of their opportunity at this hearing to obtain an order of protection under Article 112A of this Code.

(d) At the initial appearance of a defendant in any criminal proceeding, the court must advise the defendant in open court that any foreign national who is arrested or detained has the right to have notice of the arrest or detention given to his or her country's consular representatives and the right to communicate with those consular representatives if the notice has not already been provided. The court must make a written record of so advising the defendant.

(e) If consular notification is not provided to a defendant before his or her first appearance in court, the court shall grant any reasonable request for a continuance of the proceedings to allow contact with the defendant's consulate. Any delay caused by the granting of the request by a defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsection (a), (b), or (e) of Section 103-5 of this Code and on the day of the expiration of delay the period shall continue at the point at which it was suspended.

(f) At the hearing at which conditions of pretrial release are determined, the person charged shall be present in person rather than by video phone or any other form of electronic communication, unless the physical health and safety of the person would be endangered by appearing in court or the accused waives the right to be present in person.

(g) Defense counsel shall be given adequate opportunity to confer with the defendant prior to any hearing in which conditions of release or the detention of the defendant is to be considered, with a physical accommodation made to facilitate attorney/client consultation.

(Source: P.A. 101-652, eff. 1-1-23; 102-813, eff. 5-13-22.)

(725 ILCS 5/109-1.1) (from Ch. 38, par. 109-1.1)

Sec. 109-1.1. Whenever a person arrested either with or without a warrant is taken before a judge as provided for in Sections 107-9(d)(6) and 109-1(a), the judge shall ask the arrestee whether he or she has any children under 18 years old living with him or her who may be neglected as a result of the arrest, incarceration or otherwise. If the judge has reasonable cause to believe that a child may be a neglected child as defined in the Abused and Neglected Child Reporting Act, he shall instruct a probation officer to report it immediately to the Department of Children and Family Services as provided in that Act.

(Source: P.A. 99-78, eff. 7-20-15.)

(725 ILCS 5/109-2) (from Ch. 38, par. 109-2)

(Text of Section before amendment by P.A. 101-652)

Sec. 109-2. Person arrested in another county.

(a) Any person arrested in a county other than the one in which a warrant for his arrest was issued shall be taken without unnecessary delay before the nearest and most accessible judge in the county where the arrest was made or, if no additional delay is created, before the nearest and most accessible judge in the county from which the warrant was issued. He shall be admitted to bail in the amount specified in the warrant or, for offenses other than felonies, in an amount as set by the judge, and such bail shall be conditioned on his appearing in the court issuing the warrant on a certain date. The judge may hold a hearing to determine if the defendant is the same person as named in the warrant.

(b) Notwithstanding the provisions of subsection (a), any person arrested in a county other than the one in which a warrant for his arrest was issued, may waive the right to be taken before a judge in the county where the arrest was made. If a person so arrested waives such right, the arresting agency shall surrender such person to a law enforcement agency of the county that issued the warrant without unnecessary delay. The provisions of Section 109-1 shall then apply to the person so arrested.

(Source: P.A. 86-298.)

(Text of Section after amendment by P.A. 101-652)

Sec. 109-2. Person arrested in another county.

(a) Any person arrested in a county other than the one in which a warrant for his arrest was issued shall be taken without unnecessary delay before the nearest and most accessible judge in the county where the arrest was made or, if no additional delay is created, before the nearest and most accessible judge in the county from which the warrant was issued. Upon arrival in the county in which the warrant was issued, the status of the arrested person's release status shall be determined by the release revocation process described in Section 110-6. The judge may hold a hearing to determine if the defendant is the same person as named in the warrant.

(b) Notwithstanding the provisions of subsection (a), any person arrested in a county other than the one in which a warrant for his arrest was issued, may waive the right to be taken before a judge in the county where the arrest was made. If a person so arrested waives such right, the arresting agency shall surrender such person to a law enforcement agency of the county that issued the warrant without unnecessary delay. The provisions of Section 109-1 shall then apply to the person so arrested.

(c) If a defendant is charged with a felony offense, but has a warrant in another county, the defendant shall be taken to the county that issued the warrant within 72 hours of the completion of condition or detention hearing, so that release or detention status can be resolved. This provision shall not apply to warrants issued outside of Illinois.

(Source: P.A. 101-652, eff. 1-1-23.)

(725 ILCS 5/109-3) (from Ch. 38, par. 109-3)

(Text of Section before amendment by P.A. 101-652)

Sec. 109-3. Preliminary examination.)

(a) The judge shall hold the defendant to answer to the court having jurisdiction of the offense if from the evidence it appears there is probable cause to believe an offense has been committed by the defendant, as provided in Section 109-3.1 of this Code, if the offense is a felony.

(b) If the defendant waives preliminary examination the judge shall hold him to answer and may, or on the demand of the prosecuting attorney shall, cause the witnesses for the State to be examined. After hearing the testimony if it appears that there is not probable cause to believe the defendant guilty of any offense the judge shall discharge him.

(c) During the examination of any witness or when the defendant is making a statement or testifying the judge may and on the request of the defendant or State shall exclude all other witnesses. He may also cause the witnesses to be kept separate and to be prevented from communicating with each other until all are examined.

(d) If the defendant is held to answer the judge may require any material witness for the State or defendant to enter into a written undertaking to appear at the trial, and may provide for the forfeiture of a sum certain in the event the witness does not appear at the trial. Any witness who refuses to execute a recognizance may be committed by the judge to the custody of the sheriff until trial or further order of the court having jurisdiction of the cause. Any witness who executes a recognizance and fails to comply with its terms shall, in addition to any forfeiture provided in the recognizance, be subject to the penalty provided in Section 32-10 of the Criminal Code of 2012 for violation of bail bond.

(e) During preliminary hearing or examination the defendant may move for an order of suppression of evidence pursuant to Section 114-11 or 114-12 of this Act or for other reasons, and may move for dismissal of the charge pursuant to Section 114-1 of this Act or for other reasons.

(Source: P.A. 97-1150, eff. 1-25-13.)

(Text of Section after amendment by P.A. 101-652)

Sec. 109-3. Preliminary examination.)

(a) The judge shall hold the defendant to answer to the court having jurisdiction of the offense if from the evidence it appears there is probable cause to believe an offense has been committed by the defendant, as provided in Section 109-3.1 of this Code, if the offense is a felony.

(b) If the defendant waives preliminary examination the judge shall hold him to answer and may, or on the demand of the prosecuting attorney shall, cause the witnesses for the State to be examined. After hearing the testimony if it appears that there is not probable cause to believe the defendant guilty of any offense the judge shall discharge him.

(c) During the examination of any witness or when the defendant is making a statement or testifying the judge may and on the request of the defendant or State shall exclude all other witnesses. He may also cause the witnesses to be kept separate and to be prevented from communicating with each other until all are examined.

(d) If the defendant is held to answer the judge may require any material witness for the State or defendant to enter into a written undertaking to appear at the trial, and may provide for the forfeiture of a sum certain in the event the witness does not appear at the trial. Any witness who refuses to execute a recognizance may be committed by the judge to the custody of the sheriff until trial or further order of the court having jurisdiction of the cause. Any witness who executes a recognizance and fails to comply with its terms shall, in addition to any forfeiture provided in the recognizance, be subject to the penalty provided in Section 32-10 of the Criminal Code of 2012 for violation of the conditions of pretrial release.

(e) During preliminary hearing or examination the defendant may move for an order of suppression of evidence pursuant to Section 114-11 or 114-12 of this Act or for other reasons, and may move for dismissal of the charge pursuant to Section 114-1 of this Act or for other reasons.

(Source: P.A. 101-652, eff. 1-1-23.)

(725 ILCS 5/109-3.1) (from Ch. 38, par. 109-3.1)

(Text of Section before amendment by P.A. 101-652)

Sec. 109-3.1. Persons charged with felonies.

(a) In any case involving a person charged with a felony in this State, alleged to have been committed on or after January 1, 1984, the provisions of this Section shall apply.

(b) Every person in custody in this State for the alleged commission of a felony shall receive either a preliminary examination as provided in Section 109-3 or an indictment by Grand Jury as provided in Section 111-2, within 30 days from the date he or she was taken into custody. Every person on bail or recognizance for the alleged commission of a felony shall receive either a preliminary examination as provided in Section 109-3 or an indictment by Grand Jury as provided in Section 111-2, within 60 days from the date he or she was arrested.

The provisions of this paragraph shall not apply in the following situations:

(1) when delay is occasioned by the defendant; or

(2) when the defendant has been indicted by the Grand Jury on the felony offense for which he or she was initially taken into custody or on an offense arising from the same transaction or conduct of the defendant that was the basis for the felony offense or offenses initially charged; or

(3) when a competency examination is ordered by the court; or

(4) when a competency hearing is held; or

(5) when an adjudication of incompetency for trial has been made; or

(6) when the case has been continued by the court under Section 114-4 of this Code after a determination that the defendant is physically incompetent to stand trial.

(c) Delay occasioned by the defendant shall temporarily suspend, for the time of the delay, the period within which the preliminary examination must be held. On the day of expiration of the delay the period in question shall continue at the point at which it was suspended.

(Source: P.A. 83-644.)

(Text of Section after amendment by P.A. 101-652)

Sec. 109-3.1. Persons charged with felonies.

(a) In any case involving a person charged with a felony in this State, alleged to have been committed on or after January 1, 1984, the provisions of this Section shall apply.

(b) Every person in custody in this State for the alleged commission of a felony shall receive either a preliminary examination as provided in Section 109-3 or an indictment by Grand Jury as provided in Section 111-2, within 30 days from the date he or she was taken into custody. Every person on pretrial release or recognizance for the alleged commission of a felony shall receive either a preliminary examination as provided in Section 109-3 or an indictment by Grand Jury as provided in Section 111-2, within 60 days from the date he or she was arrested.

The provisions of this paragraph shall not apply in the following situations:

(1) when delay is occasioned by the defendant; or

(2) when the defendant has been indicted by the Grand Jury on the felony offense for which he or she was initially taken into custody or on an offense arising from the same transaction or conduct of the defendant that was the basis for the felony offense or offenses initially charged; or

(3) when a competency examination is ordered by the court; or

(4) when a competency hearing is held; or

(5) when an adjudication of incompetency for trial has been made; or

(6) when the case has been continued by the court under Section 114-4 of this Code after a determination that the defendant is physically incompetent to stand trial.

(c) Delay occasioned by the defendant shall temporarily suspend, for the time of the delay, the period within which the preliminary examination must be held. On the day of expiration of the delay the period in question shall continue at the point at which it was suspended.

(Source: P.A. 101-652, eff. 1-1-23.)