HB3821eng 93RD GENERAL ASSEMBLY

HB3821 Engrossed LRB093 12239 DRH 17458 b

AN ACT in relation to vehicles.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Boat Registration and Safety Act is amended by changing Sections 5-2, 5-16, 6-1, 11A-3, 11A-4, and 11A-5 as follows:

(625 ILCS 45/5-2) (from Ch. 95 1/2, par. 315-2)

Sec. 5-2. Reckless operation.

(a) No person shall operate any watercraft, specialty prop-craft, personal watercraft or manipulate any water skis, aquaplane, or similar device in such a manner as to willfully or wantonly endanger the life, limb or property of any person, to weave through congested traffic, to jump the wake of another vessel unreasonably or unnecessarily close to the other vessel or when visibility around the other vessel is obstructed, to wait until the last possible moment to swerve to avoid collision, or operate any watercraft so as to approach or pass another watercraft in such a manner or at such a rate of speed as to create a hazardous wake or wash.

(b) A person convicted of committing a violation of this Section shall be guilty of aggravated reckless operation of a watercraft if the violation of this Section resulted in great bodily harm or permanent disability or disfigurement of another, when the violation was a proximate cause of the injuries.

(Source: P.A. 87-798.)

(625 ILCS 45/5-16)

Sec. 5-16. Operating a watercraft under the influence of alcohol, other drug, or combination thereof.

(A) 1. A person shall not operate or be in actual physical control of any watercraft within this State while:

(a) The alcohol concentration in such person's blood or breath is a concentration at which driving a motor vehicle is prohibited under subdivision (1) of subsection (a) of Section 11-501 of the Illinois Vehicle Code;

(b) Under the influence of alcohol;

(c) Under the influence of any other drug or combination of drugs to a degree which renders such person incapable of safely operating any watercraft;

(d) Under the combined influence of alcohol and any other drug or drugs to a degree which renders such person incapable of safely operating a watercraft; or

(e) There is any amount of a drug, substance, or compound in the person's blood or urine resulting from the unlawful use or consumption of cannabis as defined in the Cannabis Control Act or a controlled substance listed in the Illinois Controlled Substances Act.

2. The fact that any person charged with violating this Section is or has been legally entitled to use alcohol, or other drugs, or any combination of both, shall not constitute a defense against any charge of violating this Section.

3. Every person convicted of violating this Section shall be guilty of a Class A misdemeanor, except as otherwise provided in this Section.

4. Every person convicted of violating this Section shall be guilty of a Class 4 felony if:

(a) He has a previous conviction under this Section;

(b) The offense results in personal injury where a person other than the operator suffers great bodily harm or permanent disability or disfigurement, when the violation was a proximate cause of the injuries. A person guilty of a Class 4 felony under this subparagraph (b), if sentenced to a term of imprisonment, shall be sentenced to a term of not less than one year nor more than 12 years; or

(c) The offense occurred during a period in which his or her privileges to operate a watercraft are revoked or suspended, and the revocation or suspension was for a violation of this Section or was imposed under subsection (B).

5. Every person convicted of violating this Section shall be guilty of a Class 2 felony if the offense results in the death of a person. A person guilty of a Class 2 felony under this paragraph 5, if sentenced to a term of imprisonment, shall be sentenced to a term of not less than 3 years and not more than 14 years.

6. (a) In addition to any criminal penalties imposed, the Department of Natural Resources shall suspend the watercraft operation privileges of any person convicted or found guilty of a misdemeanor under this Section, or a similar provision of a local ordinance or Title 46, Part A, Chapter 23, Section 2302 of the U.S. Code of Federal Regulations, for a period of one year, except that a first time offender who is placed on court supervision is exempt from this mandatory one year suspension.

(b) In addition to any criminal penalties imposed, the Department of Natural Resources shall suspend the watercraft operation privileges of any person convicted of a felony under this Section, or a similar provision of a local ordinance or federal law, or Section 9-3 of the Criminal Code, for a period of 3 years.

(B) 1. Any person who operates or is in actual physical control of any watercraft upon the waters of this State shall be deemed to have given consent to a chemical test or tests of blood, breath or urine for the purpose of determining the alcohol, other drug, or combination thereof content of such person's blood if arrested for any offense of subsection (A) above. The test or tests shall be administered at the direction of the arresting officer.

2. Any person who is dead, unconscious or who is otherwise in a condition rendering such person incapable of refusal, shall be deemed not to have withdrawn the consent provided above.

3. A person requested to submit to a test as provided above shall be verbally advised by the law enforcement officer requesting the test that a refusal to submit to the test will result in suspension of such person's privilege to operate a watercraft. Following this warning, if a person under arrest refuses upon the request of a law enforcement officer to submit to a test designated by the officer, none shall be given, but the law enforcement officer shall file with the clerk of the circuit court for the county in which the arrest was made, a sworn statement naming the person refusing to take and complete the test or tests requested under the provisions of this Section. Such sworn statement shall identify the arrested person, such person's current residence address and shall specify that a refusal by such person to take the test or tests was made. Such sworn statement shall include a statement that the arresting officer had reasonable cause to believe the person was operating or was in actual physical control of the watercraft within this State while under the influence of alcohol, other drug, or combination thereof and that such test or tests were made as an incident to and following the lawful arrest for an offense as defined in this Section or a similar provision of a local ordinance, and that the person after being arrested for an offense arising out of acts alleged to have been committed while so operating or in actual physical control of a watercraft refused to submit to and complete a test or tests as requested by the law enforcement officer.

The clerk shall thereupon notify such person in writing that the person's privilege to operate a watercraft will be suspended unless, within 28 days from the date of mailing of the notice, such person shall request in writing a hearing thereon; if the person desires a hearing, such person shall file a complaint in the circuit court for and in the county in which such person was arrested for such hearing. Such hearing shall proceed in the court in the same manner as other civil proceedings, shall cover only the issues of whether the person was placed under arrest for an offense as defined in this Section or a similar provision of a local ordinance as evidenced by the issuance of a uniform citation; whether the arresting officer had reasonable grounds to believe that such person was operating or was in actual physical control of a watercraft while under the influence of alcohol, other drug, or combination thereof; and whether such person refused to submit and complete the test or tests upon the request of the law enforcement officer. Whether the person was informed that such person's privilege to operate a watercraft would be suspended if such person refused to submit to the test or tests shall not be an issue.

If the court finds against the person on the issues before the court, the clerk shall immediately notify the Department of Natural Resources of the court's decision, and the Department shall suspend the watercraft operation privileges of the person for at least 2 years.

4. A person must submit to each test offered by the law enforcement officer in order to comply with the implied consent provisions of this Section.

5. The provisions of Section 11-501.2 of the Illinois Vehicle Code, as amended, concerning the certification and use of chemical tests apply to the use of such tests under this Section.

(C) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while operating or in actual physical control of a watercraft while under the influence of alcohol, the concentration of alcohol in the person's blood or breath at the time alleged as shown by analysis of a person's blood, urine, breath, or other bodily substance shall give rise to the presumptions specified in subdivisions 1, 2, and 3 of subsection (b) of Section 11-501.2 of the Illinois Vehicle Code. The foregoing provisions of this subsection (C) shall not be construed as limiting the introduction of any other relevant evidence bearing upon the question whether the person was under the influence of alcohol.

(D) If a person under arrest refuses to submit to a chemical test under the provisions of this Section, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person under the influence of alcohol, or other drugs, or combination of both was operating or was in actual physical control of a watercraft.

(E) The owner of any watercraft or any person given supervisory authority over a watercraft, may not knowingly permit a watercraft to be operated by any person under the influence of alcohol, other drug, or combination thereof.

(F) Whenever any person is convicted of a violation of this Section, the court shall notify the Division of Law Enforcement of the Department of Natural Resources, to provide the Department with the records essential for the performance of the Department's duties to monitor and enforce any order of suspension or revocation concerning the privilege to operate a watercraft.

(G) No person who has been arrested and charged for violating paragraph 1 of subsection (A) of this Section shall operate or be in actual physical control of any watercraft within this State for a period of 6 hours after such arrest.

(Source: P.A. 92-615, eff. 1-1-03.)

(625 ILCS 45/6-1) (from Ch. 95 1/2, par. 316-1)

Sec. 6-1. Collisions, accidents, and casualties; reports.

A. The operator of a vessel involved in a collision, accident, or other casualty, so far as he can without serious danger to his own vessel, crew, passengers and guests, if any, shall render to other persons affected by the collision, accident, or other casualty assistance as may be practicable and as may be necessary in order to save them from or minimize any danger caused by the collision, accident, or other casualty, and also shall give his name, address, and identification of his vessel to any person injured and to the owner of any property damaged in the collision, accident, or other casualty.

If the collision, accident, or other casualty has resulted in the death of or personal injury to any person, failure to comply with this subsection A is a Class A misdemeanor.

A-1. Any operator of a vessel that either (1) is used by its operator for recreational purposes or (2) is required to be numbered by or under the authority of this State, who has failed to stop or to comply with the requirements of subsection A must, as soon as possible but in no case later than one hour after the collision, accident, or other casualty, or, if hospitalized and incapacitated from reporting at any time during that period, as soon as possible but in no case later than one hour after being discharged from the hospital, report the date, place, and approximate time of the collision, accident, or other casualty, the watercraft operator's name and address, the identification number of the watercraft, if any, and the names of all other occupants of the watercraft, at a police station or sheriff's office near the location where the collision, accident, or other casualty occurred. A report made as required under this subsection A-1 may not be used, directly or indirectly, as a basis for the prosecution of any violation of subsection A.

As used in this Section, "personal injury" means any injury requiring medical treatment beyond first aid.

Any person failing to comply with this subsection A-1 is guilty of a Class 4 felony if the collision, accident, or other casualty does not result in the death of any person. Any person failing to comply with this subsection A-1 when the collision, accident, or other casualty results in the death of any person is guilty of a Class 2 felony, for which the person, if sentenced to a term of imprisonment, shall be sentenced to a term of not less than 3 years and not more than 14 years.

B. In the case of collision, accident, or other casualty involving a vessel, the operator, if the collision, accident, or other casualty results in death or injury to a person or damage to property in excess of $2,000 or there is a complete loss of the vessel $500, shall file with the Department a full description of the collision, accident, or other casualty, including information as the Department may by regulation require. Reports of the accidents must be filed with the Department on a Department Accident Report form within 5 days.

C. Reports of accidents resulting in personal injury, where a person sustains an injury requiring medical attention beyond first aid is incapacitated for a period exceeding 72 hours, must be filed with the Department on a Department Accident Report form within 5 days. Accidents that result in loss of life shall be reported to the Department on a Department form within 48 hours.

D. All required accident reports and supplemental reports are without prejudice to the individual reporting, and are for the confidential use of the Department, except that the Department may disclose the identity of a person involved in an accident when the identity is not otherwise known or when the person denies his presence at the accident. No report to the Department may be used as evidence in any trial, civil or criminal, arising out of an accident, except that the Department must furnish upon demand of any person who has or claims to have made a report or upon demand of any court a certificate showing that a specified accident report has or has not been made to the Department solely to prove a compliance or a failure to comply with the requirements that a report be made to the Department.

E. (1) Every coroner or medical examiner shall on or before the 10th day of each month report in writing to the Department the circumstances surrounding the death of any person that has occurred as the result of a boating accident within the examiner's jurisdiction during the preceding calendar month.

(2) Within 6 hours after a death resulting from a boating accident, but in any case not more than 12 hours after the occurrence of the boating accident, a blood specimen of at least 10 cc shall be withdrawn from the body of the decedent by the coroner or medical examiner or by a qualified person at the direction of the physician. All morticians shall obtain a release from the coroner or medical examiner prior to proceeding with embalming any body coming under the scope of this Section. The blood so drawn shall be forwarded to a laboratory approved by the Department of State Police for analysis of the alcoholic content of the blood specimen. The coroner or medical examiner causing the blood to be withdrawn shall be notified of the results of each analysis made and shall forward the results of each analysis to the Department. The Department shall keep a record of all examinations to be used for statistical purposes only. The cumulative results of the examinations, without identifying the individuals involved, shall be disseminated and made public by the Department.

(Source: P.A. 91-828, eff. 1-1-01.)

(625 ILCS 45/11A-3) (from Ch. 95 1/2, par. 321A-3)

Sec. 11A-3. Any person who violates any of the provisions of Section 5-1 or 5-2 of this Act is guilty of a Class B misdemeanor.

Any person who violates Section 5-2 of this Act is guilty of a Class A misdemeanor, except that aggravated reckless operation of a watercraft is a Class 4 felony.

(Source: P.A. 85-149.)

(625 ILCS 45/11A-4) (from Ch. 95 1/2, par. 321A-4)

Sec. 11A-4. Any person who is convicted of a violation of Sections 5-1, 5-2 or 11A-5 of this Act, in addition to any other penalties authorized in this Act, may in the discretion of the court be refused the privilege of operating any watercraft on any of the waterways of this State for a period of not less than one year.

Any person who is convicted of a violation of Section 5-2 of this Act or subsection A-1 of Section 6-1 of this Act, in addition to any other penalties authorized in this Act, shall have his or her privilege of operating any watercraft on any of the waterways of this State suspended by the Department for a period of not less than one year.

(Source: P.A. 85-149.)

(625 ILCS 45/11A-5) (from Ch. 95 1/2, par. 321A-5)

Sec. 11A-5. A person may not operate a watercraft during the time that the person's privilege to operate a watercraft is suspended or revoked in this State, by another state, or by a federal agency. Any person who operates any watercraft during the period when he is denied the privilege to so operate is guilty of a Class A misdemeanor for a first offense and a Class 4 felony for a second or subsequent offense.

(Source: P.A. 85-149.)

Section 10. The Unified Code of Corrections is amended by changing Section 5-5-3 as follows:

(730 ILCS 5/5-5-3) (from Ch. 38, par. 1005-5-3)

Sec. 5-5-3. Disposition.

(a) Every person convicted of an offense shall be sentenced as provided in this Section.

(b) The following options shall be appropriate dispositions, alone or in combination, for all felonies and misdemeanors other than those identified in subsection (c) of this Section:

(1) A period of probation.

(2) A term of periodic imprisonment.

(3) A term of conditional discharge.

(4) A term of imprisonment.

(5) An order directing the offender to clean up and repair the damage, if the offender was convicted under paragraph (h) of Section 21-1 of the Criminal Code of 1961.

(6) A fine.

(7) An order directing the offender to make restitution to the victim under Section 5-5-6 of this Code.

(8) A sentence of participation in a county impact incarceration program under Section 5-8-1.2 of this Code.

Whenever an individual is sentenced for an offense based upon an arrest for a violation of Section 11-501 of the Illinois Vehicle Code, or a similar provision of a local ordinance, and the professional evaluation recommends remedial or rehabilitative treatment or education, neither the treatment nor the education shall be the sole disposition and either or both may be imposed only in conjunction with another disposition. The court shall monitor compliance with any remedial education or treatment recommendations contained in the professional evaluation. Programs conducting alcohol or other drug evaluation or remedial education must be licensed by the Department of Human Services. However, if the individual is not a resident of Illinois, the court may accept an alcohol or other drug evaluation or remedial education program in the state of such individual's residence. Programs providing treatment must be licensed under existing applicable alcoholism and drug treatment licensure standards.

In addition to any other fine or penalty required by law, any individual convicted of a violation of Section 11-501 of the Illinois Vehicle Code or a similar provision of local ordinance, whose operation of a motor vehicle while in violation of Section 11-501 or such ordinance proximately caused an incident resulting in an appropriate emergency response, shall be required to make restitution to a public agency for the costs of that emergency response. Such restitution shall not exceed $500 per public agency for each such emergency response. For the purpose of this paragraph, emergency response shall mean any incident requiring a response by: a police officer as defined under Section 1-162 of the Illinois Vehicle Code; a fireman carried on the rolls of a regularly constituted fire department; and an ambulance as defined under Section 3.85 4.05 of the Emergency Medical Services (EMS) Systems Act.

Neither a fine nor restitution shall be the sole disposition for a felony and either or both may be imposed only in conjunction with another disposition.

(c) (1) When a defendant is found guilty of first degree murder the State may either seek a sentence of imprisonment under Section 5-8-1 of this Code, or where appropriate seek a sentence of death under Section 9-1 of the Criminal Code of 1961.

(2) A period of probation, a term of periodic imprisonment or conditional discharge shall not be imposed for the following offenses. The court shall sentence the offender to not less than the minimum term of imprisonment set forth in this Code for the following offenses, and may order a fine or restitution or both in conjunction with such term of imprisonment:

(A) First degree murder where the death penalty is not imposed.

(B) Attempted first degree murder.

(C) A Class X felony.

(D) A violation of Section 401.1 or 407 of the Illinois Controlled Substances Act, or a violation of subdivision (c)(1) or (c)(2) of Section 401 of that Act which relates to more than 5 grams of a substance containing heroin or cocaine or an analog thereof.

(E) A violation of Section 5.1 or 9 of the Cannabis Control Act.

(F) A Class 2 or greater felony if the offender had been convicted of a Class 2 or greater felony within 10 years of the date on which the offender committed the offense for which he or she is being sentenced, except as otherwise provided in Section 40-10 of the Alcoholism and Other Drug Abuse and Dependency Act.

(G) Residential burglary, except as otherwise provided in Section 40-10 of the Alcoholism and Other Drug Abuse and Dependency Act.

(H) Criminal sexual assault, except as otherwise provided in subsection (e) of this Section.

(I) Aggravated battery of a senior citizen.

(J) A forcible felony if the offense was related to the activities of an organized gang.

Before July 1, 1994, for the purposes of this paragraph, "organized gang" means an association of 5 or more persons, with an established hierarchy, that encourages members of the association to perpetrate crimes or provides support to the members of the association who do commit crimes.

Beginning July 1, 1994, for the purposes of this paragraph, "organized gang" has the meaning ascribed to it in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act.

(K) Vehicular hijacking.

(L) A second or subsequent conviction for the offense of hate crime when the underlying offense upon which the hate crime is based is felony aggravated assault or felony mob action.

(M) A second or subsequent conviction for the offense of institutional vandalism if the damage to the property exceeds $300.

(N) A Class 3 felony violation of paragraph (1) of subsection (a) of Section 2 of the Firearm Owners Identification Card Act.

(O) A violation of Section 12-6.1 of the Criminal Code of 1961.

(P) A violation of paragraph (1), (2), (3), (4), (5), or (7) of subsection (a) of Section 11-20.1 of the Criminal Code of 1961.

(Q) A violation of Section 20-1.2 of the Criminal Code of 1961.

(R) A violation of Section 24-3A of the Criminal Code of 1961.

(S) A violation of Section 11-501(c-1)(3) of the Illinois Vehicle Code.

(3) A minimum term of imprisonment of not less than 5 days or 30 days of community service as may be determined by the court shall be imposed for a second violation committed within 5 years of a previous violation of Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance. In the case of a third or subsequent violation committed within 5 years of a previous violation of Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance, a minimum term of either 10 days of imprisonment or 60 days of community service shall be imposed.

(4) A minimum term of imprisonment of not less than 10 consecutive days or 30 days of community service shall be imposed for a violation of paragraph (c) of Section 6-303 of the Illinois Vehicle Code.

(4.1) A minimum term of 30 consecutive days of imprisonment, 40 days of 24 hour periodic imprisonment or 720 hours of community service, as may be determined by the court, shall be imposed for a violation of Section 11-501 of the Illinois Vehicle Code during a period in which the defendant's driving privileges are revoked or suspended, where the revocation or suspension was for a violation of Section 11-501 or Section 11-501.1 of that Code.

(4.2) Except as provided in paragraph (4.3) of this subsection (c), a minimum of 100 hours of community service shall be imposed for a second violation of Section 6-303 of the Illinois Vehicle Code.

(4.3) A minimum term of imprisonment of 30 days or 300 hours of community service, as determined by the court, shall be imposed for a second violation of subsection (c) of Section 6-303 of the Illinois Vehicle Code.

(4.4) Except as provided in paragraph (4.5) and paragraph (4.6) of this subsection (c), a minimum term of imprisonment of 30 days or 300 hours of community service, as determined by the court, shall be imposed for a third or subsequent violation of Section 6-303 of the Illinois Vehicle Code.

(4.5) A minimum term of imprisonment of 30 days shall be imposed for a third violation of subsection (c) of Section 6-303 of the Illinois Vehicle Code.

(4.6) A minimum term of imprisonment of 180 days shall be imposed for a fourth or subsequent violation of subsection (c) of Section 6-303 of the Illinois Vehicle Code.

(5) The court may sentence an offender convicted of a business offense or a petty offense or a corporation or unincorporated association convicted of any offense to:

(A) a period of conditional discharge;

(B) a fine;

(C) make restitution to the victim under Section 5-5-6 of this Code.

(5.1) In addition to any penalties imposed under paragraph (5) of this subsection (c), and except as provided in paragraph (5.2) or (5.3), a person convicted of violating subsection (c) of Section 11-907 of the Illinois Vehicle Code shall have his or her driver's license, permit, or privileges suspended for at least 90 days but not more than one year, if the violation resulted in damage to the property of another person.

(5.2) In addition to any penalties imposed under paragraph (5) of this subsection (c), and except as provided in paragraph (5.3), a person convicted of violating subsection (c) of Section 11-907 of the Illinois Vehicle Code shall have his or her driver's license, permit, or privileges suspended for at least 180 days but not more than 2 years, if the violation resulted in injury to another person.

(5.3) In addition to any penalties imposed under paragraph (5) of this subsection (c), a person convicted of violating subsection (c) of Section 11-907 of the Illinois Vehicle Code shall have his or her driver's license, permit, or privileges suspended for 2 years, if the violation resulted in the death of another person.

(6) In no case shall an offender be eligible for a disposition of probation or conditional discharge for a Class 1 felony committed while he was serving a term of probation or conditional discharge for a felony.

(7) When a defendant is adjudged a habitual criminal under Article 33B of the Criminal Code of 1961, the court shall sentence the defendant to a term of natural life imprisonment.

(8) When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class 2 or greater Class felony and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second. A person sentenced as a Class X offender under this paragraph is not eligible to apply for treatment as a condition of probation as provided by Section 40-10 of the Alcoholism and Other Drug Abuse and Dependency Act.

(9) A defendant convicted of a second or subsequent offense of ritualized abuse of a child may be sentenced to a term of natural life imprisonment.

(10) When a person is convicted of violating Section 11-501 of the Illinois Vehicle Code or a similar provision of a local ordinance, the following penalties apply when his or her blood, breath, or urine was .16 or more based on the definition of blood, breath, or urine units in Section 11-501.2 or that person is convicted of violating Section 11-501 of the Illinois Vehicle Code while transporting a child under the age of 16:

(A) For a first violation of subsection (a) of Section 11-501, in addition to any other penalty that may be imposed under subsection (c) of Section 11-501: a mandatory minimum of 100 hours of community service and a minimum fine of $500.

(B) For a second violation of subsection (a) of Section 11-501, in addition to any other penalty that may be imposed under subsection (c) of Section 11-501 within 10 years: a mandatory minimum of 2 days of imprisonment and a minimum fine of $1,250.

(C) For a third violation of subsection (a) of Section 11-501, in addition to any other penalty that may be imposed under subsection (c) of Section 11-501 within 20 years: a mandatory minimum of 90 days of imprisonment and a minimum fine of $2,500.

(D) For a fourth or subsequent violation of subsection (a) of Section 11-501: ineligibility for a sentence of probation or conditional discharge and a minimum fine of $2,500.

(11) A person may not receive a disposition of court supervision for a violation of Section 5-16 of the Boat Registration and Safety Act if that person has previously received a disposition of court supervision for a violation of that Section.

(d) In any case in which a sentence originally imposed is vacated, the case shall be remanded to the trial court. The trial court shall hold a hearing under Section 5-4-1 of the Unified Code of Corrections which may include evidence of the defendant's life, moral character and occupation during the time since the original sentence was passed. The trial court shall then impose sentence upon the defendant. The trial court may impose any sentence which could have been imposed at the original trial subject to Section 5-5-4 of the Unified Code of Corrections. If a sentence is vacated on appeal or on collateral attack due to the failure of the trier of fact at trial to determine beyond a reasonable doubt the existence of a fact (other than a prior conviction) necessary to increase the punishment for the offense beyond the statutory maximum otherwise applicable, either the defendant may be re-sentenced to a term within the range otherwise provided or, if the State files notice of its intention to again seek the extended sentence, the defendant shall be afforded a new trial.

(e) In cases where prosecution for criminal sexual assault or aggravated criminal sexual abuse under Section 12-13 or 12-16 of the Criminal Code of 1961 results in conviction of a defendant who was a family member of the victim at the time of the commission of the offense, the court shall consider the safety and welfare of the victim and may impose a sentence of probation only where:

(1) the court finds (A) or (B) or both are appropriate:

(A) the defendant is willing to undergo a court approved counseling program for a minimum duration of 2 years; or

(B) the defendant is willing to participate in a court approved plan including but not limited to the defendant's:

(i) removal from the household;

(ii) restricted contact with the victim;

(iii) continued financial support of the family;

(iv) restitution for harm done to the victim; and

(v) compliance with any other measures that the court may deem appropriate; and

(2) the court orders the defendant to pay for the victim's counseling services, to the extent that the court finds, after considering the defendant's income and assets, that the defendant is financially capable of paying for such services, if the victim was under 18 years of age at the time the offense was committed and requires counseling as a result of the offense.

Probation may be revoked or modified pursuant to Section 5-6-4; except where the court determines at the hearing that the defendant violated a condition of his or her probation restricting contact with the victim or other family members or commits another offense with the victim or other family members, the court shall revoke the defendant's probation and impose a term of imprisonment.

For the purposes of this Section, "family member" and "victim" shall have the meanings ascribed to them in Section 12-12 of the Criminal Code of 1961.

(f) This Article shall not deprive a court in other proceedings to order a forfeiture of property, to suspend or cancel a license, to remove a person from office, or to impose any other civil penalty.

(g) Whenever a defendant is convicted of an offense under Sections 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-18, 11-18.1, 11-19, 11-19.1, 11-19.2, 12-13, 12-14, 12-14.1, 12-15 or 12-16 of the Criminal Code of 1961, the defendant shall undergo medical testing to determine whether the defendant has any sexually transmissible disease, including a test for infection with human immunodeficiency virus (HIV) or any other identified causative agent of acquired immunodeficiency syndrome (AIDS). Any such medical test shall be performed only by appropriately licensed medical practitioners and may include an analysis of any bodily fluids as well as an examination of the defendant's person. Except as otherwise provided by law, the results of such test shall be kept strictly confidential by all medical personnel involved in the testing and must be personally delivered in a sealed envelope to the judge of the court in which the conviction was entered for the judge's inspection in camera. Acting in accordance with the best interests of the victim and the public, the judge shall have the discretion to determine to whom, if anyone, the results of the testing may be revealed. The court shall notify the defendant of the test results. The court shall also notify the victim if requested by the victim, and if the victim is under the age of 15 and if requested by the victim's parents or legal guardian, the court shall notify the victim's parents or legal guardian of the test results. The court shall provide information on the availability of HIV testing and counseling at Department of Public Health facilities to all parties to whom the results of the testing are revealed and shall direct the State's Attorney to provide the information to the victim when possible. A State's Attorney may petition the court to obtain the results of any HIV test administered under this Section, and the court shall grant the disclosure if the State's Attorney shows it is relevant in order to prosecute a charge of criminal transmission of HIV under Section 12-16.2 of the Criminal Code of 1961 against the defendant. The court shall order that the cost of any such test shall be paid by the county and may be taxed as costs against the convicted defendant.

(g-5) When an inmate is tested for an airborne communicable disease, as determined by the Illinois Department of Public Health including but not limited to tuberculosis, the results of the test shall be personally delivered by the warden or his or her designee in a sealed envelope to the judge of the court in which the inmate must appear for the judge's inspection in camera if requested by the judge. Acting in accordance with the best interests of those in the courtroom, the judge shall have the discretion to determine what if any precautions need to be taken to prevent transmission of the disease in the courtroom.

(h) Whenever a defendant is convicted of an offense under Section 1 or 2 of the Hypodermic Syringes and Needles Act, the defendant shall undergo medical testing to determine whether the defendant has been exposed to human immunodeficiency virus (HIV) or any other identified causative agent of acquired immunodeficiency syndrome (AIDS). Except as otherwise provided by law, the results of such test shall be kept strictly confidential by all medical personnel involved in the testing and must be personally delivered in a sealed envelope to the judge of the court in which the conviction was entered for the judge's inspection in camera. Acting in accordance with the best interests of the public, the judge shall have the discretion to determine to whom, if anyone, the results of the testing may be revealed. The court shall notify the defendant of a positive test showing an infection with the human immunodeficiency virus (HIV). The court shall provide information on the availability of HIV testing and counseling at Department of Public Health facilities to all parties to whom the results of the testing are revealed and shall direct the State's Attorney to provide the information to the victim when possible. A State's Attorney may petition the court to obtain the results of any HIV test administered under this Section, and the court shall grant the disclosure if the State's Attorney shows it is relevant in order to prosecute a charge of criminal transmission of HIV under Section 12-16.2 of the Criminal Code of 1961 against the defendant. The court shall order that the cost of any such test shall be paid by the county and may be taxed as costs against the convicted defendant.

(i) All fines and penalties imposed under this Section for any violation of Chapters 3, 4, 6, and 11 of the Illinois Vehicle Code, or a similar provision of a local ordinance, and any violation of the Child Passenger Protection Act, or a similar provision of a local ordinance, shall be collected and disbursed by the circuit clerk as provided under Section 27.5 of the Clerks of Courts Act.

(j) In cases when prosecution for any violation of Section 11-6, 11-8, 11-9, 11-11, 11-14, 11-15, 11-15.1, 11-16, 11-17, 11-17.1, 11-18, 11-18.1, 11-19, 11-19.1, 11-19.2, 11-20.1, 11-21, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of 1961, any violation of the Illinois Controlled Substances Act, or any violation of the Cannabis Control Act results in conviction, a disposition of court supervision, or an order of probation granted under Section 10 of the Cannabis Control Act or Section 410 of the Illinois Controlled Substance Act of a defendant, the court shall determine whether the defendant is employed by a facility or center as defined under the Child Care Act of 1969, a public or private elementary or secondary school, or otherwise works with children under 18 years of age on a daily basis. When a defendant is so employed, the court shall order the Clerk of the Court to send a copy of the judgment of conviction or order of supervision or probation to the defendant's employer by certified mail. If the employer of the defendant is a school, the Clerk of the Court shall direct the mailing of a copy of the judgment of conviction or order of supervision or probation to the appropriate regional superintendent of schools. The regional superintendent of schools shall notify the State Board of Education of any notification under this subsection.

(j-5) A defendant at least 17 years of age who is convicted of a felony and who has not been previously convicted of a misdemeanor or felony and who is sentenced to a term of imprisonment in the Illinois Department of Corrections shall as a condition of his or her sentence be required by the court to attend educational courses designed to prepare the defendant for a high school diploma and to work toward a high school diploma or to work toward passing the high school level Test of General Educational Development (GED) or to work toward completing a vocational training program offered by the Department of Corrections. If a defendant fails to complete the educational training required by his or her sentence during the term of incarceration, the Prisoner Review Board shall, as a condition of mandatory supervised release, require the defendant, at his or her own expense, to pursue a course of study toward a high school diploma or passage of the GED test. The Prisoner Review Board shall revoke the mandatory supervised release of a defendant who wilfully fails to comply with this subsection (j-5) upon his or her release from confinement in a penal institution while serving a mandatory supervised release term; however, the inability of the defendant after making a good faith effort to obtain financial aid or pay for the educational training shall not be deemed a wilful failure to comply. The Prisoner Review Board shall recommit the defendant whose mandatory supervised release term has been revoked under this subsection (j-5) as provided in Section 3-3-9. This subsection (j-5) does not apply to a defendant who has a high school diploma or has successfully passed the GED test. This subsection (j-5) does not apply to a defendant who is determined by the court to be developmentally disabled or otherwise mentally incapable of completing the educational or vocational program.

(k) A court may not impose a sentence or disposition for a felony or misdemeanor that requires the defendant to be implanted or injected with or to use any form of birth control.

(l) (A) Except as provided in paragraph (C) of subsection (l), whenever a defendant, who is an alien as defined by the Immigration and Nationality Act, is convicted of any felony or misdemeanor offense, the court after sentencing the defendant may, upon motion of the State's Attorney, hold sentence in abeyance and remand the defendant to the custody of the Attorney General of the United States or his or her designated agent to be deported when:

(1) a final order of deportation has been issued against the defendant pursuant to proceedings under the Immigration and Nationality Act, and

(2) the deportation of the defendant would not deprecate the seriousness of the defendant's conduct and would not be inconsistent with the ends of justice.

Otherwise, the defendant shall be sentenced as provided in this Chapter V.

(B) If the defendant has already been sentenced for a felony or misdemeanor offense, or has been placed on probation under Section 10 of the Cannabis Control Act or Section 410 of the Illinois Controlled Substances Act, the court may, upon motion of the State's Attorney to suspend the sentence imposed, commit the defendant to the custody of the Attorney General of the United States or his or her designated agent when:

(1) a final order of deportation has been issued against the defendant pursuant to proceedings under the Immigration and Nationality Act, and

(2) the deportation of the defendant would not deprecate the seriousness of the defendant's conduct and would not be inconsistent with the ends of justice.

(C) This subsection (l) does not apply to offenders who are subject to the provisions of paragraph (2) of subsection (a) of Section 3-6-3.

(D) Upon motion of the State's Attorney, if a defendant sentenced under this Section returns to the jurisdiction of the United States, the defendant shall be recommitted to the custody of the county from which he or she was sentenced. Thereafter, the defendant shall be brought before the sentencing court, which may impose any sentence that was available under Section 5-5-3 at the time of initial sentencing. In addition, the defendant shall not be eligible for additional good conduct credit for meritorious service as provided under Section 3-6-6.

(m) A person convicted of criminal defacement of property under Section 21-1.3 of the Criminal Code of 1961, in which the property damage exceeds $300 and the property damaged is a school building, shall be ordered to perform community service that may include cleanup, removal, or painting over the defacement.

(Source: P.A. 91-357, eff. 7-29-99; 91-404, eff. 1-1-00; 91-663, eff. 12-22-99; 91-695, eff. 4-13-00; 91-953, eff. 2-23-01; 92-183, eff. 7-27-01; 92-248, eff. 8-3-01; 92-283, eff. 1-1-02; 92-340, eff. 8-10-01; 92-418, eff. 8-17-01; 92-422, eff. 8-17-01; 92-651, eff. 7-11-02; 92-698, eff. 7-19-02; revised 2-17-03.)