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)

Sec. 109-1. Person arrested; release from law enforcement custody and court appearance; geographic 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, within 48 hours, 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 audio-visual communication system, except that a hearing to deny pretrial release to the defendant may not be conducted by two-way audio-visual communication system unless the accused waives the right to be present physically in court, the court determines that the physical health and safety of any person necessary to the proceedings would be endangered by appearing in court, or the chief judge of the circuit orders use of that system due to operational challenges in conducting the hearing in person. Such operational challenges must be documented and approved by the chief judge of the circuit, and a plan to address the challenges through reasonable efforts must be presented and approved by the Administrative Office of the Illinois Courts every 6 months.

(a-1) Law enforcement shall issue a citation in lieu of custodial arrest, upon proper identification, for those accused of any offense that is not a felony or Class A misdemeanor unless (i) a law enforcement officer reasonably believes the accused poses a threat to the community or any person, (ii) a custodial arrest is necessary because the criminal activity persists after the issuance of a citation, or (iii) the accused has an obvious medical or mental health issue that poses a risk to the accused's own safety. Nothing in this Section requires arrest in the case of Class A misdemeanor and felony offenses, or otherwise limits existing law enforcement discretion to decline to effect a custodial arrest.

(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 a law enforcement officer without appearing before a judge. 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.

(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 two-way audio-video communication system unless the accused waives the right to be present physically in court, the court determines that the physical health and safety of any person necessary to the proceedings would be endangered by appearing in court, or the chief judge of the circuit orders use of that system due to operational challenges in conducting the hearing in person. Such operational challenges must be documented and approved by the chief judge of the circuit, and a plan to address the challenges through reasonable efforts must be presented and approved by the Administrative Office of the Illinois Courts every 6 months.

(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. If defense counsel needs to confer or consult with the defendant during any hearing conducted via a two-way audio-visual communication system, such consultation shall not be recorded and shall be undertaken consistent with constitutional protections.

(Source: P.A. 101-652, eff. 1-1-23; 102-813, eff. 5-13-22; 102-1104, eff. 1-1-23.)

(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)

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. 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 person is taken before a judge in any county and a warrant for arrest issued by another Illinois county exists for that person, the court in the arresting county shall hold for that person a detention hearing under Section 110-6.1, or other hearing under Section 110-5 or Section 110-6.

(d) After the court in the arresting county has determined whether the person shall be released or detained on the arresting offense, the court shall then order the sheriff to immediately contact the sheriff in any county where any warrant is outstanding and notify them of the arrest of the individual.

(e) If a person has a warrant in another county for an offense, then, no later than 5 calendar days after the end of any detention issued on the charge in the arresting county, the county where the warrant is outstanding shall do one of the following:

(1) transport the person to the county where the warrant was issued for a hearing under Section 110-6 or 110-6.1 in the matter for which the warrant was issued; or

(2) quash the warrant and order the person released on the case for which the warrant was issued only when the county that issued the warrant fails to transport the defendant in the timeline as proscribed.

(f) If the issuing county fails to take any action under subsection (e) within 5 calendar days, the defendant shall be released from custody on the warrant, and the circuit judge or associate circuit judge in the county of arrest shall set conditions of release under Section 110-5 and shall admit the defendant to pretrial release for his or her appearance before the court named in the warrant. Upon releasing the defendant, the circuit judge or associate circuit judge shall certify such a fact on the warrant and deliver the warrant and the acknowledgment by the defendant of his or her receiving the conditions of pretrial release to the officer having charge of the defendant from arrest and without delay deliver such warrant and such acknowledgment by the defendant of his or her receiving the conditions to the court before which the defendant is required to appear.

(g) If a person has a warrant in another county, in lieu of transporting the person to the issuing county as outlined in subsection (e), the issuing county may hold the hearing by way of a two-way audio-visual communication system if the accused waives the right to be physically present in court, the court determines that the physical health and safety of any person necessary to the proceedings would be endangered by appearing in court, or the chief judge of the circuit orders use of that system due to operational challenges in conducting the hearing in person. Such operational challenges must be documented and approved by the chief judge of the circuit, and a plan to address the challenges through reasonable efforts must be presented and approved by the Administrative Office of the Illinois Courts every 6 months.

(h) If more than 2 Illinois county warrants exist, the judge in the county of arrest shall order that the process described in subsections (d) through (f) occur in each county in whatever order the judge finds most appropriate. Each judge in each subsequent county shall then follow the rules in this Section.

(i) This Section applies only to warrants issued by Illinois state, county, or municipal courts.

(j) When an issuing agency is contacted by an out-of-state agency of a person arrested for any offense, or when an arresting agency is contacted by or contacts an out-of-state issuing agency, the Uniform Criminal Extradition Act shall govern.

(Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23.)

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

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. 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 commits a Class C misdemeanor.

(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; 102-1104, eff. 1-1-23.)

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

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 released pretrial 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; 102-1104, eff. 1-1-23.)