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| [ Introduced ] | [ Enrolled ] | [ House Amendment 001 ] |
| [ Senate Amendment 001 ] |
92_HB5794eng HB5794 Engrossed LRB9216073RCcd 1 AN ACT in relation to criminal law. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 2. The Cannabis Control Act is amended by 5 changing Section 12 as follows: 6 (720 ILCS 550/12) (from Ch. 56 1/2, par. 712) 7 Sec. 12. (a) The following are subject to forfeiture: 8 (1) all substances containing cannabis which have 9 been produced, manufactured, delivered, or possessed in 10 violation of this Act; 11 (2) all raw materials, products and equipment of 12 any kind which are produced, delivered, or possessed in 13 connection with any substance containing cannabis in 14 violation of this Act; 15 (3) all conveyances, including aircraft, vehicles 16 or vessels, which are used, or intended for use, to 17 transport, or in any manner to facilitate the 18 transportation, sale, receipt, possession, or concealment 19 of property described in paragraph (1) or (2) that 20 constitutes a felony violation of the Act, but: 21 (i) no conveyance used by any person as a 22 common carrier in the transaction of business as a 23 common carrier is subject to forfeiture under this 24 Section unless it appears that the owner or other 25 person in charge of the conveyance is a consenting 26 party or privy to a violation of this Act; 27 (ii) no conveyance is subject to forfeiture 28 under this Section by reason of any act or omission 29 which the owner proves to have been committed or 30 omitted without his knowledge or consent; 31 (iii) a forfeiture of a conveyance encumbered HB5794 Engrossed -2- LRB9216073RCcd 1 by a bona fide security interest is subject to the 2 interest of the secured party if he neither had 3 knowledge of nor consented to the act or omission; 4 (4) all money, things of value, books, records, and 5 research products and materials including formulas, 6 microfilm, tapes, and data which are used, or intended 7 for use in a felony violation of this Act; 8 (5) everything of value furnished or intended to be 9 furnished by any person in exchange for a substance in 10 violation of this Act, all proceeds traceable to such an 11 exchange, and all moneys, negotiable instruments, and 12 securities used, or intended to be used, to commit or in 13 any manner to facilitate any felony violation of this 14 Act. 15 (b) Property subject to forfeiture under this Act may be 16 seized by the Director or any peace officer upon process or 17 seizure warrant issued by any court having jurisdiction over 18 the property. Seizure by the Director or any peace officer 19 without process may be made: 20 (1) if the property subject to seizure has been the 21 subject of a prior judgment in favor of the State in a 22 criminal proceeding or in an injunction or forfeiture 23 proceeding based upon this Act or the Drug Asset 24 Forfeiture Procedure Act; 25 (2) if there is probable cause to believe that the 26 property is directly or indirectly dangerous to health or 27 safety; 28 (3) if there is probable cause to believe that the 29 property is subject to forfeiture under this Act and the 30 property is seized under circumstances in which a 31 warrantless seizure or arrest would be reasonable; or 32 (4) in accordance with the Code of Criminal 33 Procedure of 1963. 34 (c) In the event of seizure pursuant to subsection (b), HB5794 Engrossed -3- LRB9216073RCcd 1 forfeiture proceedings shall be instituted in accordance with 2 the Drug Asset Forfeiture Procedure Act. 3 (d) Property taken or detained under this Section shall 4 not be subject to replevin, but is deemed to be in the 5 custody of the Director subject only to the order and 6 judgments of the circuit court having jurisdiction over the 7 forfeiture proceedings and the decisions of the State's 8 Attorney under the Drug Asset Forfeiture Procedure Act. When 9 property is seized under this Act, the seizing agency shall 10 promptly conduct an inventory of the seized property, 11 estimate the property's value, and shall forward a copy of 12 the inventory of seized property and the estimate of the 13 property's value to the Director. Upon receiving notice of 14 seizure, the Director may: 15 (1) place the property under seal; 16 (2) remove the property to a place designated by 17 him; 18 (3) keep the property in the possession of the 19 seizing agency; 20 (4) remove the property to a storage area for 21 safekeeping or, if the property is a negotiable 22 instrument or money and is not needed for evidentiary 23 purposes, deposit it in an interest bearing account; 24 (5) place the property under constructive seizure 25 by posting notice of pending forfeiture on it, by giving 26 notice of pending forfeiture to its owners and interest 27 holders, or by filing notice of pending forfeiture in any 28 appropriate public record relating to the property; or 29 (6) provide for another agency or custodian, 30 including an owner, secured party, or lienholder, to take 31 custody of the property upon the terms and conditions set 32 by the Director. 33 (e) No disposition may be made of property under seal 34 until the time for taking an appeal has elapsed or until all HB5794 Engrossed -4- LRB9216073RCcd 1 appeals have been concluded unless a court, upon application 2 therefor, orders the sale of perishable substances and the 3 deposit of the proceeds of the sale with the court. 4 (f) When property is forfeited under this Act the 5 Director shall sell all such property unless such property is 6 required by law to be destroyed or is harmful to the public, 7 and shall distribute the proceeds of the sale, together with 8 any moneys forfeited or seized, in accordance with 9 subsectionssubsection(g) and (g-5). However, upon the 10 application of the seizing agency or prosecutor who was 11 responsible for the investigation, arrest or arrests and 12 prosecution which lead to the forfeiture, the Director may 13 return any item of forfeited property to the seizing agency 14 or prosecutor for official use in the enforcement of laws 15 relating to cannabis or controlled substances, if the agency 16 or prosecutor can demonstrate that the item requested would 17 be useful to the agency or prosecutor in their enforcement 18 efforts. When any real property returned to the seizing 19 agency is sold by the agency or its unit of government, the 20 proceeds of the sale shall be delivered to the Director and 21 distributed in accordance with subsectionssubsection(g) and 22 (g-5). 23 (g) Except otherwise provided in subsection (g-5), all 24 monies and the sale proceeds of all other property forfeited 25 and seized under this Act shall be distributed as follows: 26 (1) 65% shall be distributed to the metropolitan 27 enforcement group, local, municipal, county, or state law 28 enforcement agency or agencies which conducted or 29 participated in the investigation resulting in the 30 forfeiture. The distribution shall bear a reasonable 31 relationship to the degree of direct participation of the 32 law enforcement agency in the effort resulting in the 33 forfeiture, taking into account the total value of the 34 property forfeited and the total law enforcement effort HB5794 Engrossed -5- LRB9216073RCcd 1 with respect to the violation of the law upon which the 2 forfeiture is based. Amounts distributed to the agency 3 or agencies shall be used for the enforcement of laws 4 governing cannabis and controlled substances, except that 5 amounts distributed to the Secretary of State shall be 6 deposited into the Secretary of State Evidence Fund to be 7 used as provided in Section 2-115 of the Illinois Vehicle 8 Code. 9 (2)(i) 12.5% shall be distributed to the Office of 10 the State's Attorney of the county in which the 11 prosecution resulting in the forfeiture was 12 instituted, deposited in a special fund in the 13 county treasury and appropriated to the State's 14 Attorney for use in the enforcement of laws 15 governing cannabis and controlled substances. In 16 counties over 3,000,000 population, 25% will be 17 distributed to the Office of the State's Attorney 18 for use in the enforcement of laws governing 19 cannabis and controlled substances. If the 20 prosecution is undertaken solely by the Attorney 21 General, the portion provided hereunder shall be 22 distributed to the Attorney General for use in the 23 enforcement of laws governing cannabis and 24 controlled substances. 25 (ii) 12.5% shall be distributed to the Office 26 of the State's Attorneys Appellate Prosecutor and 27 deposited in the Narcotics Profit Forfeiture Fund of 28 that Office to be used for additional expenses 29 incurred in the investigation, prosecution and 30 appeal of cases arising under laws governing 31 cannabis and controlled substances. The Office of 32 the State's Attorneys Appellate Prosecutor shall not 33 receive distribution from cases brought in counties 34 with over 3,000,000 population. HB5794 Engrossed -6- LRB9216073RCcd 1 (3) 10% shall be retained by the Department of 2 State Police for expenses related to the administration 3 and sale of seized and forfeited property. 4 (g-5) All moneys and the sale proceeds of all other 5 property forfeited and seized as a direct result of 6 enforcement efforts of the Illinois Conservation Police may 7 be used by the Department of Natural Resources Office of Law 8 Enforcement for use in enforcing laws regulating controlled 9 substances and cannabis on Department of Natural Resources 10 regulated lands and waterways. 11 (Source: P.A. 89-404, eff. 8-20-95; 90-593, eff. 6-19-98.) 12 Section 3. The Illinois Controlled Substances Act is 13 amended by changing Section 505 as follows: 14 (720 ILCS 570/505) (from Ch. 56 1/2, par. 1505) 15 Sec. 505. (a) The following are subject to forfeiture: 16 (1) all substances which have been manufactured, 17 distributed, dispensed, or possessed in violation of this 18 Act; 19 (2) all raw materials, products and equipment of 20 any kind which are used, or intended for use in 21 manufacturing, distributing, dispensing, administering or 22 possessing any substance in violation of this Act; 23 (3) all conveyances, including aircraft, vehicles 24 or vessels, which are used, or intended for use, to 25 transport, or in any manner to facilitate the 26 transportation, sale, receipt, possession, or concealment 27 of property described in paragraphs (1) and (2), but: 28 (i) no conveyance used by any person as a 29 common carrier in the transaction of business as a 30 common carrier is subject to forfeiture under this 31 Section unless it appears that the owner or other 32 person in charge of the conveyance is a consenting HB5794 Engrossed -7- LRB9216073RCcd 1 party or privy to a violation of this Act; 2 (ii) no conveyance is subject to forfeiture 3 under this Section by reason of any act or omission 4 which the owner proves to have been committed or 5 omitted without his knowledge or consent; 6 (iii) a forfeiture of a conveyance encumbered 7 by a bona fide security interest is subject to the 8 interest of the secured party if he neither had 9 knowledge of nor consented to the act or omission; 10 (4) all money, things of value, books, records, and 11 research products and materials including formulas, 12 microfilm, tapes, and data which are used, or intended to 13 be used in violation of this Act; 14 (5) everything of value furnished, or intended to 15 be furnished, in exchange for a substance in violation of 16 this Act, all proceeds traceable to such an exchange, and 17 all moneys, negotiable instruments, and securities used, 18 or intended to be used, to commit or in any manner to 19 facilitate any violation of this Act; 20 (6) all real property, including any right, title, 21 and interest (including, but not limited to, any 22 leasehold interest or the beneficial interest in a land 23 trust) in the whole of any lot or tract of land and any 24 appurtenances or improvements, which is used or intended 25 to be used, in any manner or part, to commit, or in any 26 manner to facilitate the commission of, any violation or 27 act that constitutes a violation of Section 401 or 405 of 28 this Act or that is the proceeds of any violation or act 29 that constitutes a violation of Section 401 or 405 of 30 this Act. 31 (b) Property subject to forfeiture under this Act may be 32 seized by the Director or any peace officer upon process or 33 seizure warrant issued by any court having jurisdiction over 34 the property. Seizure by the Director or any peace officer HB5794 Engrossed -8- LRB9216073RCcd 1 without process may be made: 2 (1) if the seizure is incident to inspection under 3 an administrative inspection warrant; 4 (2) if the property subject to seizure has been the 5 subject of a prior judgment in favor of the State in a 6 criminal proceeding, or in an injunction or forfeiture 7 proceeding based upon this Act or the Drug Asset 8 Forfeiture Procedure Act; 9 (3) if there is probable cause to believe that the 10 property is directly or indirectly dangerous to health or 11 safety; 12 (4) if there is probable cause to believe that the 13 property is subject to forfeiture under this Act and the 14 property is seized under circumstances in which a 15 warrantless seizure or arrest would be reasonable; or 16 (5) in accordance with the Code of Criminal 17 Procedure of 1963. 18 (c) In the event of seizure pursuant to subsection (b), 19 forfeiture proceedings shall be instituted in accordance with 20 the Drug Asset Forfeiture Procedure Act. 21 (d) Property taken or detained under this Section shall 22 not be subject to replevin, but is deemed to be in the 23 custody of the Director subject only to the order and 24 judgments of the circuit court having jurisdiction over the 25 forfeiture proceedings and the decisions of the State's 26 Attorney under the Drug Asset Forfeiture Procedure Act. When 27 property is seized under this Act, the seizing agency shall 28 promptly conduct an inventory of the seized property and 29 estimate the property's value, and shall forward a copy of 30 the inventory of seized property and the estimate of the 31 property's value to the Director. Upon receiving notice of 32 seizure, the Director may: 33 (1) place the property under seal; 34 (2) remove the property to a place designated by HB5794 Engrossed -9- LRB9216073RCcd 1 the Director; 2 (3) keep the property in the possession of the 3 seizing agency; 4 (4) remove the property to a storage area for 5 safekeeping or, if the property is a negotiable 6 instrument or money and is not needed for evidentiary 7 purposes, deposit it in an interest bearing account; 8 (5) place the property under constructive seizure 9 by posting notice of pending forfeiture on it, by giving 10 notice of pending forfeiture to its owners and interest 11 holders, or by filing notice of pending forfeiture in any 12 appropriate public record relating to the property; or 13 (6) provide for another agency or custodian, 14 including an owner, secured party, or lienholder, to take 15 custody of the property upon the terms and conditions set 16 by the Director. 17 (e) If the Department of Professional Regulation 18 suspends or revokes a registration, all controlled substances 19 owned or possessed by the registrant at the time of 20 suspension or the effective date of the revocation order may 21 be placed under seal. No disposition may be made of 22 substances under seal until the time for taking an appeal has 23 elapsed or until all appeals have been concluded unless a 24 court, upon application therefor, orders the sale of 25 perishable substances and the deposit of the proceeds of the 26 sale with the court. Upon a revocation rule becoming final, 27 all substances may be forfeited to the Department of 28 Professional Regulation. 29 (f) When property is forfeited under this Act the 30 Director shall sell all such property unless such property is 31 required by law to be destroyed or is harmful to the public, 32 and shall distribute the proceeds of the sale, together with 33 any moneys forfeited or seized, in accordance with 34 subsectionssubsection(g) and (g-5). However, upon the HB5794 Engrossed -10- LRB9216073RCcd 1 application of the seizing agency or prosecutor who was 2 responsible for the investigation, arrest or arrests and 3 prosecution which lead to the forfeiture, the Director may 4 return any item of forfeited property to the seizing agency 5 or prosecutor for official use in the enforcement of laws 6 relating to cannabis or controlled substances, if the agency 7 or prosecutor can demonstrate that the item requested would 8 be useful to the agency or prosecutor in their enforcement 9 efforts. When any real property returned to the seizing 10 agency is sold by the agency or its unit of government, the 11 proceeds of the sale shall be delivered to the Director and 12 distributed in accordance with subsectionssubsection(g) and 13 (g-5). 14 (g) Except as otherwise provided in subsection (g-5), 15 all monies and the sale proceeds of all other property 16 forfeited and seized under this Act shall be distributed as 17 follows: 18 (1) 65% shall be distributed to the metropolitan 19 enforcement group, local, municipal, county, or state law 20 enforcement agency or agencies which conducted or 21 participated in the investigation resulting in the 22 forfeiture. The distribution shall bear a reasonable 23 relationship to the degree of direct participation of the 24 law enforcement agency in the effort resulting in the 25 forfeiture, taking into account the total value of the 26 property forfeited and the total law enforcement effort 27 with respect to the violation of the law upon which the 28 forfeiture is based. Amounts distributed to the agency or 29 agencies shall be used for the enforcement of laws 30 governing cannabis and controlled substances, except that 31 amounts distributed to the Secretary of State shall be 32 deposited into the Secretary of State Evidence Fund to be 33 used as provided in Section 2-115 of the Illinois Vehicle 34 Code. HB5794 Engrossed -11- LRB9216073RCcd 1 (2) (i) 12.5% shall be distributed to the Office of 2 the State's Attorney of the county in which the 3 prosecution resulting in the forfeiture was instituted, 4 deposited in a special fund in the county treasury and 5 appropriated to the State's Attorney for use in the 6 enforcement of laws governing cannabis and controlled 7 substances. In counties over 3,000,000 population, 25% 8 will be distributed to the Office of the State's Attorney 9 for use in the enforcement of laws governing cannabis and 10 controlled substances. If the prosecution is undertaken 11 solely by the Attorney General, the portion provided 12 hereunder shall be distributed to the Attorney General 13 for use in the enforcement of laws governing cannabis and 14 controlled substances. 15 (ii) 12.5% shall be distributed to the Office of 16 the State's Attorneys Appellate Prosecutor and deposited 17 in the Narcotics Profit Forfeiture Fund of that office to 18 be used for additional expenses incurred in the 19 investigation, prosecution and appeal of cases arising 20 under laws governing cannabis and controlled substances. 21 The Office of the State's Attorneys Appellate Prosecutor 22 shall not receive distribution from cases brought in 23 counties with over 3,000,000 population. 24 (3) 10% shall be retained by the Department of 25 State Police for expenses related to the administration 26 and sale of seized and forfeited property. 27 (g-5) All moneys and the sale proceeds of all other 28 property forfeited and seized as a direct result of 29 enforcement efforts of the Illinois Conservation Police may 30 be used by the Department of Natural Resources Office of Law 31 Enforcement for use in enforcing laws regulating controlled 32 substances and cannabis on Department of Natural Resources 33 regulated lands and waterways. 34 (h) Species of plants from which controlled substances HB5794 Engrossed -12- LRB9216073RCcd 1 in Schedules I and II may be derived which have been planted 2 or cultivated in violation of this Act, or of which the 3 owners or cultivators are unknown, or which are wild growths, 4 may be seized and summarily forfeited to the State. The 5 failure, upon demand by the Director or any peace officer, of 6 the person in occupancy or in control of land or premises 7 upon which the species of plants are growing or being stored, 8 to produce registration, or proof that he is the holder 9 thereof, constitutes authority for the seizure and forfeiture 10 of the plants. 11 (Source: P.A. 89-404, eff. 8-20-95; 90-593, eff. 12 6-19-98.) 13 Section 5. The Unified Code of Corrections is amended 14 by changing Section 5-9-1.2 as follows: 15 (730 ILCS 5/5-9-1.2) (from Ch. 38, par. 1005-9-1.2) 16 Sec. 5-9-1.2. (a) Twelve and one-half percent of all 17 amounts collected as fines pursuant to Section 5-9-1.1 shall 18 be paid into the Youth Drug Abuse Prevention Fund, which is 19 hereby created in the State treasury, to be used by the 20 Department of Human Services for the funding of programs and 21 services for drug-abuse treatment, and prevention and 22 education services, for juveniles. 23 (b) Eighty-seven and one-half percent of the proceeds of 24 all fines received pursuant to Section 5-9-1.1 shall be 25 transmitted to and deposited in the treasurer's office at the 26 level of government as follows: 27 (1) If such seizure was made by a combination of 28 law enforcement personnel representing differing units of 29 local government, the court levying the fine shall 30 equitably allocate 50% of the fine among these units of 31 local government and shall allocate 37 1/2% to the county 32 general corporate fund. In the event that the seizure was HB5794 Engrossed -13- LRB9216073RCcd 1 made by law enforcement personnel representing a unit of 2 local government from a municipality where the number of 3 inhabitants exceeds 2 million in population, the court 4 levying the fine shall allocate 87 1/2% of the fine to 5 that unit of local government. If the seizure was made 6 by a combination of law enforcement personnel 7 representing differing units of local government, and at 8 least one of those units represents a municipality where 9 the number of inhabitants exceeds 2 million in 10 population, the court shall equitably allocate 87 1/2% of 11 the proceeds of the fines received among the differing 12 units of local government. 13 (2) If such seizure was made by State law 14 enforcement personnel, then the court shall allocate 37 15 1/2% to the State treasury and 50% to the county general 16 corporate fund. 17 (3) If a State law enforcement agency in 18 combination with a law enforcement agency or agencies of 19 a unit or units of local government conducted the 20 seizure, the court shall equitably allocate 37 1/2% of 21 the fines to or among the law enforcement agency or 22 agencies of the unit or units of local government which 23 conducted the seizure and shall allocate 50% to the 24 county general corporate fund. 25 (c) The proceeds of all fines allocated to the law 26 enforcement agency or agencies of the unit or units of local 27 government pursuant to subsection (b) shall be made available 28 to that law enforcement agency as expendable receipts for use 29 in the enforcement of laws regulating controlled substances 30 and cannabis. The proceeds of fines awarded to the State 31 treasury shall be deposited in a special fund known as the 32 Drug Traffic Prevention Fund. Monies from this fund may be 33 used by the Department of State Police for use in the 34 enforcement of laws regulating controlled substances and HB5794 Engrossed -14- LRB9216073RCcd 1 cannabis; to satisfy funding provisions of the 2 Intergovernmental Drug Laws Enforcement Act; and to defray 3 costs and expenses associated with returning violators of the 4 Cannabis Control Act and the Illinois Controlled Substances 5 Act only, as provided in those Acts, when punishment of the 6 crime shall be confinement of the criminal in the 7 penitentiary. Moneys in the Drug Traffic Prevention Fund 8 deposited from fines awarded as a direct result of 9 enforcement efforts of the Illinois Conservation Police may 10 be used by the Department of Natural Resources Office of Law 11 Enforcement for use in enforcing laws regulating controlled 12 substances and cannabis on Department of Natural Resources 13 regulated lands and waterways.; andAll other monies shall be 14 paid into the general revenue fund in the State treasury. 15 (Source: P.A. 89-507, eff. 7-1-97.) 16 Section 99. Effective date. This Act takes effect July 17 1, 2002.