HB4949 93RD GENERAL ASSEMBLY

LRB093 20898 RLC 46857 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
HB4949

Introduced 02/05/04, by Edward J. Acevedo

SYNOPSIS AS INTRODUCED:

720 ILCS 5/3-5	from Ch. 38, par. 3-5
720 ILCS 5/12-2	from Ch. 38, par. 12-2
720 ILCS 5/24-1.1	from Ch. 38, par. 24-1.1
720 ILCS 5/24-1.6
720 ILCS 5/24-3	from Ch. 38, par. 24-3
720 ILCS 5/24-3A
720 ILCS 5/Art. 24-3B heading new
720 ILCS 5/24-3B.5 new
720 ILCS 5/24-3B.10 new
720 ILCS 5/24-3B.15 new
720 ILCS 5/24-3B.20 new
720 ILCS 5/24-3B.25 new
720 ILCS 5/24-3B.30 new
720 ILCS 5/24-3B.35 new
720 ILCS 5/24-3B.40 new
720 ILCS 5/24-3B.45 new

Amends the Criminal Code of 1961. Provides that a prosecution for unlawful sale of firearms, unlawful purchase of a firearm, gunrunning, or defacing identification marks of firearms may be commenced within 10 years after the commission of the offense. Enhances the penalties for various offenses committed while armed with a firearm while wearing or in possession of body armor. Enhances the penalties for gunrunning based upon the the number of firearms illegally transferred. Provides that the offense of unlawful sale of firearms applies to the sale or gift of a firearm to a person who does not possess a valid Firearm Owner's Identification Card and who is required to possess the Card before the person may purchase or receive a firearm. Provides for the forfeiture of property used to commit the offense of gunrunning and for the forfeiture of any moneys, profits, or proceeds a person acquired in whole or in part as a result of committing the offense of gunrunning. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning criminal law.

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

Section 5. The Criminal Code of 1961 is amended by changing Sections 3-5, 12-2, 24-1.1, 24-1.6, 24-3, and 24-3A and by adding Article 24-3B as follows:

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

Sec. 3-5. General Limitations.

(a) A prosecution for: (1) first degree murder, attempt to commit first degree murder, second degree murder, involuntary manslaughter, reckless homicide, concealment of homicidal death, treason, arson, aggravated arson, forgery, or (2) any offense involving sexual conduct or sexual penetration as defined by Section 12-12 of this Code in which the DNA profile of the offender is obtained and entered into a DNA database within 10 years after the commission of the offense and the identity of the offender is unknown after a diligent investigation by law enforcement authorities, may be commenced at any time. Clause (2) of this subsection (a) applies only if the victim reported the offense to law enforcement authorities within 2 years after the commission of the offense unless a longer period for reporting the offense to law enforcement authorities is provided in Section 3-6.

(a-5) A prosecution for unlawful sale of firearms, unlawful purchase of a firearm, gunrunning, or defacing identification marks of firearms may be commenced within 10 years after the commission of the offense.

(b) Unless the statute describing the offense provides otherwise, or the period of limitation is extended by Section 3-6, a prosecution for any offense not designated in Subsection (a) must be commenced within 3 years after the commission of the offense if it is a felony, or within one year and 6 months after its commission if it is a misdemeanor.

(Source: P.A. 91-801, eff. 6-13-00; 92-752, eff. 8-2-02.)

(720 ILCS 5/12-2) (from Ch. 38, par. 12-2)

Sec. 12-2. Aggravated assault.

(a) A person commits an aggravated assault, when, in committing an assault, he:

(1) Uses a deadly weapon or any device manufactured and designed to be substantially similar in appearance to a firearm, other than by discharging a firearm in the direction of another person, a peace officer, a person summoned or directed by a peace officer, a correctional officer or a fireman or in the direction of a vehicle occupied by another person, a peace officer, a person summoned or directed by a peace officer, a correctional officer or a fireman while the officer or fireman is engaged in the execution of any of his official duties, or to prevent the officer or fireman from performing his official duties, or in retaliation for the officer or fireman performing his official duties;

(2) Is hooded, robed or masked in such manner as to conceal his identity or any device manufactured and designed to be substantially similar in appearance to a firearm;

(3) Knows the individual assaulted to be a teacher or other person employed in any school and such teacher or other employee is upon the grounds of a school or grounds adjacent thereto, or is in any part of a building used for school purposes;

(4) Knows the individual assaulted to be a supervisor, director, instructor or other person employed in any park district and such supervisor, director, instructor or other employee is upon the grounds of the park or grounds adjacent thereto, or is in any part of a building used for park purposes;

(5) Knows the individual assaulted to be a caseworker, investigator, or other person employed by the State Department of Public Aid, a County Department of Public Aid, or the Department of Human Services (acting as successor to the Illinois Department of Public Aid under the Department of Human Services Act) and such caseworker, investigator, or other person is upon the grounds of a public aid office or grounds adjacent thereto, or is in any part of a building used for public aid purposes, or upon the grounds of a home of a public aid applicant, recipient or any other person being interviewed or investigated in the employees' discharge of his duties, or on grounds adjacent thereto, or is in any part of a building in which the applicant, recipient, or other such person resides or is located;

(6) Knows the individual assaulted to be a peace officer, or a community policing volunteer, or a fireman while the officer or fireman is engaged in the execution of any of his official duties, or to prevent the officer, community policing volunteer, or fireman from performing his official duties, or in retaliation for the officer, community policing volunteer, or fireman performing his official duties, and the assault is committed other than by the discharge of a firearm in the direction of the officer or fireman or in the direction of a vehicle occupied by the officer or fireman;

(7) Knows the individual assaulted to be an emergency medical technician - ambulance, emergency medical technician - intermediate, emergency medical technician - paramedic, ambulance driver or other medical assistance or first aid personnel engaged in the execution of any of his official duties, or to prevent the emergency medical technician - ambulance, emergency medical technician - intermediate, emergency medical technician - paramedic, ambulance driver, or other medical assistance or first aid personnel from performing his official duties, or in retaliation for the emergency medical technician - ambulance, emergency medical technician - intermediate, emergency medical technician - paramedic, ambulance driver, or other medical assistance or first aid personnel performing his official duties;

(8) Knows the individual assaulted to be the driver, operator, employee or passenger of any transportation facility or system engaged in the business of transportation of the public for hire and the individual assaulted is then performing in such capacity or then using such public transportation as a passenger or using any area of any description designated by the transportation facility or system as a vehicle boarding, departure, or transfer location;

(9) Or the individual assaulted is on or about a public way, public property, or public place of accommodation or amusement;

(10) Knows the individual assaulted to be an employee of the State of Illinois, a municipal corporation therein or a political subdivision thereof, engaged in the performance of his authorized duties as such employee;

(11) Knowingly and without legal justification, commits an assault on a physically handicapped person;

(12) Knowingly and without legal justification, commits an assault on a person 60 years of age or older;

(13) Discharges a firearm;

(14) Knows the individual assaulted to be a correctional officer, while the officer is engaged in the execution of any of his or her official duties, or to prevent the officer from performing his or her official duties, or in retaliation for the officer performing his or her official duties;

(15) Knows the individual assaulted to be a correctional employee or an employee of the Department of Human Services supervising or controlling sexually dangerous persons or sexually violent persons, while the employee is engaged in the execution of any of his or her official duties, or to prevent the employee from performing his or her official duties, or in retaliation for the employee performing his or her official duties, and the assault is committed other than by the discharge of a firearm in the direction of the employee or in the direction of a vehicle occupied by the employee; or

(16) Knows the individual assaulted to be an employee of a police or sheriff's department engaged in the performance of his or her official duties as such employee.

(a-5) A person commits an aggravated assault when he or she knowingly and without lawful justification shines or flashes a laser gunsight or other laser device that is attached or affixed to a firearm, or used in concert with a firearm, so that the laser beam strikes near or in the immediate vicinity of any person.

(b) Sentence.

Aggravated assault as defined in paragraphs (1) through (5) and (8) through (12) of subsection (a) of this Section is a Class A misdemeanor. Aggravated assault as defined in paragraph (1) of subsection (a) of this Section while armed with a firearm and while wearing or in possession of body armor as defined in Section 33F-1 of this Code is a Class 2 felony. Aggravated assault as defined in paragraph (1) of subsection (a) of this Section while using a device manufactured and designed to be substantially similar in appearance to a firearm and while wearing or in possession of body armor as defined in Section 33F-1 of this Code is a Class 4 felony. Aggravated assault as defined in paragraphs (13), (14), and (15) of subsection (a) of this Section and as defined in subsection (a-5) of this Section is a Class 4 felony. Aggravated assault as defined in paragraphs (6), (7), and (16) of subsection (a) of this Section is a Class A misdemeanor if a firearm is not used in the commission of the assault. Aggravated assault as defined in paragraphs (6), (7), and (16) of subsection (a) of this Section is a Class 4 felony if a firearm is used in the commission of the assault.

(Source: P.A. 91-672, eff. 1-1-00; 92-841, eff. 8-22-02; 92-865, eff. 1-3-03; revised 1-9-03.)

(720 ILCS 5/24-1.1) (from Ch. 38, par. 24-1.1)

Sec. 24-1.1. Unlawful Use or Possession of Weapons by Felons or Persons in the Custody of the Department of Corrections Facilities.

(a) It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any weapon prohibited under Section 24-1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction. This Section shall not apply if the person has been granted relief by the Director of the Department of State Police under Section 10 of the Firearm Owners Identification Card Act.

(b) It is unlawful for any person confined in a penal institution, which is a facility of the Illinois Department of Corrections, to possess any weapon prohibited under Section 24-1 of this Code or any firearm or firearm ammunition, regardless of the intent with which he possesses it.

(c) It shall be an affirmative defense to a violation of subsection (b), that such possession was specifically authorized by rule, regulation, or directive of the Illinois Department of Corrections or order issued pursuant thereto.

(d) The defense of necessity is not available to a person who is charged with a violation of subsection (b) of this Section.

(e) Sentence. Violation of this Section by a person not confined in a penal institution shall be a Class 3 felony for which the person, if sentenced to a term of imprisonment, shall be sentenced to no less than 2 years and no more than 10 years. Violation of this Section by a person not confined in a penal institution who has been convicted of a forcible felony, a felony violation of Article 24 of this Code or of the Firearm Owners Identification Card Act, stalking or aggravated stalking, or a Class 2 or greater felony under the Illinois Controlled Substances Act or the Cannabis Control Act is a Class 2 felony for which the person, if sentenced to a term of imprisonment, shall be sentenced to not less than 3 years and not more than 14 years. Violation of this Section by a person who is on parole or mandatory supervised release is a Class 2 felony for which the person, if sentenced to a term of imprisonment, shall be sentenced to not less than 3 years and not more than 14 years. Violation of this Section by a person not confined in a penal institution is a Class X felony when the firearm possessed is a machine gun. Any person who violates this Section while confined in a penal institution, which is a facility of the Illinois Department of Corrections, is guilty of a Class 1 felony, if he possesses any weapon prohibited under Section 24-1 of this Code regardless of the intent with which he possesses it, a Class X felony if he possesses any firearm, firearm ammunition or explosive, and a Class X felony for which the offender shall be sentenced to not less than 12 years and not more than 50 years when the firearm possessed is a machine gun. A violation of this Section while wearing or in possession of body armor as defined in Section 33F-1 is a Class X felony.

(Source: P.A. 91-544, eff. 1-1-00.)

(720 ILCS 5/24-1.6)

Sec. 24-1.6. Aggravated unlawful use of a weapon.

(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; or

(2) Carries or possesses on or about his or her person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his or her own land or in his or her own abode or fixed place of business, any pistol, revolver, stun gun or taser or other firearm; and

(3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense; or

(B) the firearm possessed was uncased, unloaded and the ammunition for the weapon was immediately accessible at the time of the offense; or

(C) the person possessing the firearm has not been issued a currently valid Firearm Owner's Identification Card; or

(D) the person possessing the weapon was previously adjudicated a delinquent minor under the Juvenile Court Act of 1987 for an act that if committed by an adult would be a felony; or

(E) the person possessing the weapon was engaged in a misdemeanor violation of the Cannabis Control Act or in a misdemeanor violation of the Illinois Controlled Substances Act; or

(F) the person possessing the weapon is a member of a street gang or is engaged in street gang related activity, as defined in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act; or

(G) the person possessing the weapon had a order of protection issued against him or her within the previous 2 years; or

(H) the person possessing the weapon was engaged in the commission or attempted commission of a misdemeanor involving the use or threat of violence against the person or property of another; or

(I) the person possessing the weapon was under 21 years of age and in possession of a handgun as defined in Section 24-3, unless the person under 21 is engaged in lawful activities under the Wildlife Code or described in subsection 24-2(b)(1), (b)(3), or 24-2(f).

(b) "Stun gun or taser" as used in this Section has the same definition given to it in Section 24-1 of this Code.

(c) This Section does not apply to or affect the transportation or possession of weapons that:

(i) are broken down in a non-functioning state; or

(ii) are not immediately accessible; or

(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner's Identification Card.

(d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony; a second or subsequent offense is a Class 2 felony. Aggravated unlawful use of a weapon by a person who has been previously convicted of a felony in this State or another jurisdiction is a Class 2 felony. Aggravated unlawful use of a weapon while wearing or in possession of body armor as defined in Section 33F-1 is a Class X felony.

(Source: P.A. 91-690, eff. 4-13-00.)

(720 ILCS 5/24-3) (from Ch. 38, par. 24-3)

Sec. 24-3. Unlawful Sale of Firearms.

(A) A person commits the offense of unlawful sale of firearms when he or she knowingly does any of the following:

(a) Sells or gives any firearm of a size which may be concealed upon the person to any person under 18 years of age.

(b) Sells or gives any firearm to a person under 21 years of age who has been convicted of a misdemeanor other than a traffic offense or adjudged delinquent.

(c) Sells or gives any firearm to any narcotic addict.

(d) Sells or gives any firearm to any person who has been convicted of a felony under the laws of this or any other jurisdiction.

(e) Sells or gives any firearm to any person who has been a patient in a mental hospital within the past 5 years.

(f) Sells or gives any firearms to any person who is mentally retarded.

(g) Delivers any firearm of a size which may be concealed upon the person, incidental to a sale, without withholding delivery of such firearm for at least 72 hours after application for its purchase has been made, or delivers any rifle, shotgun or other long gun, incidental to a sale, without withholding delivery of such rifle, shotgun or other long gun for at least 24 hours after application for its purchase has been made. However, this paragraph (g) does not apply to: (1) the sale of a firearm to a law enforcement officer or a person who desires to purchase a firearm for use in promoting the public interest incident to his or her employment as a bank guard, armed truck guard, or other similar employment; (2) a mail order sale of a firearm to a nonresident of Illinois under which the firearm is mailed to a point outside the boundaries of Illinois; (3) the sale of a firearm to a nonresident of Illinois while at a firearm showing or display recognized by the Illinois Department of State Police; or (4) the sale of a firearm to a dealer licensed as a federal firearms dealer under Section 923 of the federal Gun Control Act of 1968 (18 U.S.C. 923).

(h) While holding any license as a dealer, importer, manufacturer or pawnbroker under the federal Gun Control Act of 1968, manufactures, sells or delivers to any unlicensed person a handgun having a barrel, slide, frame or receiver which is a die casting of zinc alloy or any other nonhomogeneous metal which will melt or deform at a temperature of less than 800 degrees Fahrenheit. For purposes of this paragraph, (1) "firearm" is defined as in the Firearm Owners Identification Card Act; and (2) "handgun" is defined as a firearm designed to be held and fired by the use of a single hand, and includes a combination of parts from which such a firearm can be assembled.

(i) Sells or gives a firearm of any size to any person under 18 years of age who does not possess a valid Firearm Owner's Identification Card.

(j) Sells or gives a firearm while engaged in the business of selling firearms at wholesale or retail without being licensed as a federal firearms dealer under Section 923 of the federal Gun Control Act of 1968 (18 U.S.C. 923). In this paragraph (j):

A person "engaged in the business" means a person who devotes time, attention, and labor to engaging in the activity as a regular course of trade or business with the principal objective of livelihood and profit, but does not include a person who makes occasional repairs of firearms or who occasionally fits special barrels, stocks, or trigger mechanisms to firearms.

"With the principal objective of livelihood and profit" means that the intent underlying the sale or disposition of firearms is predominantly one of obtaining livelihood and pecuniary gain, as opposed to other intents, such as improving or liquidating a personal firearms collection; however, proof of profit shall not be required as to a person who engages in the regular and repetitive purchase and disposition of firearms for criminal purposes or terrorism.

(k) Sells or gives a firearm to a person who does not display to the seller or transferor of the firearm a currently valid Firearm Owner's Identification Card that has previously been issued in the transferee's name by the Department of State Police under the provisions of the Firearm Owners Identification Card Act. This paragraph (k) does not apply to the transfer of a firearm to a person who is exempt from the requirement of possessing a Firearm Owner's Identification Card under Section 2 of the Firearm Owners Identification Card Act.

(B) Paragraph (h) of subsection (A) does not include firearms sold within 6 months after enactment of Public Act 78-355 (approved August 21, 1973, effective October 1, 1973), nor is any firearm legally owned or possessed by any citizen or purchased by any citizen within 6 months after the enactment of Public Act 78-355 subject to confiscation or seizure under the provisions of that Public Act. Nothing in Public Act 78-355 shall be construed to prohibit the gift or trade of any firearm if that firearm was legally held or acquired within 6 months after the enactment of that Public Act.

(C) Sentence.

(1) Any person convicted of unlawful sale of firearms in violation of any of paragraphs (c) through (h) of subsection (A) commits a Class 4 felony.

(2) Any person convicted of unlawful sale of firearms in violation of paragraph (b) or (i) of subsection (A) commits a Class 3 felony.

(3) Any person convicted of unlawful sale of firearms in violation of paragraph (a) of subsection (A) commits a Class 2 felony.

(4) Any person convicted of unlawful sale of firearms in violation of paragraph (a), (b), or (i) of subsection (A) in any school, on the real property comprising a school, within 1,000 feet of the real property comprising a school, at a school related activity, or on or within 1,000 feet of any conveyance owned, leased, or contracted by a school or school district to transport students to or from school or a school related activity, regardless of the time of day or time of year at which the offense was committed, commits a Class 1 felony. Any person convicted of a second or subsequent violation of unlawful sale of firearms in violation of paragraph (a), (b), or (i) of subsection (A) in any school, on the real property comprising a school, within 1,000 feet of the real property comprising a school, at a school related activity, or on or within 1,000 feet of any conveyance owned, leased, or contracted by a school or school district to transport students to or from school or a school related activity, regardless of the time of day or time of year at which the offense was committed, commits a Class 1 felony for which the sentence shall be a term of imprisonment of no less than 5 years and no more than 15 years.

(5) Any person convicted of unlawful sale of firearms in violation of paragraph (a) or (i) of subsection (A) in residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development, in a public park, in a courthouse, on residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development, on the real property comprising any public park, on the real property comprising any courthouse, or on any public way within 1,000 feet of the real property comprising any public park, courthouse, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 2 felony.

(6) Any person convicted of unlawful sale of firearms in violation of paragraph (j) of subsection (A) commits a Class A misdemeanor. A second or subsequent violation is a Class 4 felony.

(7) Any person convicted of unlawful sale of firearms in violation of paragraph (k) of subsection (A) commits a Class 4 felony. A third or subsequent conviction for a violation of paragraph (k) of subsection (A) is a Class 1 felony.

(D) For purposes of this Section:

"School" means a public or private elementary or secondary school, community college, college, or university.

"School related activity" means any sporting, social, academic, or other activity for which students' attendance or participation is sponsored, organized, or funded in whole or in part by a school or school district.

(Source: P.A. 93-162, eff. 7-10-03.)

(720 ILCS 5/24-3A)

Sec. 24-3A. Gunrunning.

(a) A person commits gunrunning when he or she transfers 3 or more firearms in violation of any of the paragraphs of Section 24-3 of this Code.

(b) Sentence. A person who commits gunrunning:

(1) is guilty of a Class 1 felony if the transfer is of not less than 3 firearms and not more than 10 firearms;

(2) is guilty of a Class X felony for which the sentence shall be a term of imprisonment of not less 8 years and not more than 40 years if the transfer is of not less than 11 firearms and not more than 20 firearms;

(3) is guilty of a Class X felony for which the sentence shall be a term of imprisonment of not less than 10 years and not more than 50 years if the transfer is of more than 20 firearms. A person who commits gunrunning by transferring firearms to a person who, at the time of the commission of the offense, is under 18 years of age is guilty of a Class X felony.

(Source: P.A. 91-13, eff. 1-1-00; 91-696, eff. 4-13-00.)

(720 ILCS 5/Art. 24-3B heading new)

ARTICLE 24-3B. GUNRUNNING; FORFEITURE

(720 ILCS 5/24-3B.5 new)

Sec. 24-3B.5. Legislative declaration. The General Assembly finds that the forfeiture of real property that is used or intended to be used in connection with the offense of gunrunning will have a significant beneficial effect in deterring the rising incidence of those activities within this State, as well as other crimes that frequently occur in partnership with gunrunning.

(720 ILCS 5/24-3B.10 new)

Sec. 24-3B.10. Applicability. A person who commits the offense of gunrunning under Section 24-3A of this Code shall forfeit (i) any moneys, profits, or proceeds the person acquired in whole or in part, as a result of committing the violation and (ii) any real property or interest in real property that the sentencing court determines the person acquired in whole or in part, as a result of committing the violation or the person maintained or used in whole or in part, to facilitate, directly or indirectly, the commission of the violation. The person shall forfeit any interest in, securities, or claim against, or contractual right of any kind that affords the person a source of influence over, any enterprise that the person has established, operated, controlled, conducted, or participated in conducting if the person's relations to or connection with the interest, security, or claim, or contractual right, directly or indirectly, in whole or in part, is traceable to any thing or benefit that the person has obtained or acquired as a result of a violation of Section 24-3A of this Code.

(720 ILCS 5/24-3B.15 new)

Sec. 24-3B.15. Real property forfeiture.

(a) Following the arrest of a person or persons for the offense of gunrunning under Section 24-3A of this Code, the State's Attorney of the county in which it occurred or the Attorney General may seek forfeiture of the real property associated with the offense, whether the real property belongs to the person committing the offense of gunrunning under Section 24-3A of this Code or to any other person participating in gunrunning who is related to the organization and operation of the activity or to any person who knowingly allowed the activities to occur on his or her premises.

(b) Real property includes any land, home, house, apartment, building, garage, site, structure, or facility, whether enclosed or not, and any part or section of any land, home, house, apartment, building, garage, site, structure, or facility and any right title, or interest in the whole of any lot or tract of land and any appurtenances or improvements on the land. Real property includes, but is not limited to, any leasehold or possessory interest or beneficial interest in a land trust.

(720 ILCS 5/24-3B.20 new)

Sec. 24-3B.20. Procedure. Proceedings instituted under this Article shall be subject to and conducted in accordance with the procedures set forth in this Section.

(a) Notice to owner or interest holder. Whenever notice of pending forfeiture or service of a lis pendens is required under the provisions of this Article, the notice or service shall be given as follows:

(1) If the owner's or interest holder's name and current address are known, then by either personal service or mailing a copy of the notice by certified mail, return receipt requested, to that address. For purposes of notice under this Section if a person has been arrested for the conduct giving rise to the forfeiture, then the address provided to the arresting agency at the time of arrest shall be deemed to be that person's known address. Provided, however, if an owner or interest holder's address changes prior to the effective date of the notice of pending forfeitures, the owner or interest holder shall promptly notify the seizing agency of the change in address or, if the owner or interest holder's address changes subsequent to the effective date of the notice of pending forfeitures, the owner or interest holder shall promptly notify the State's Attorney or Attorney General of the change in address; or

(2) If the owner's or interest holder's address is not known, and is not on record as provided in paragraph (1), then by publication for 3 successive weeks in a newspaper of general circulation in the county in which the seizure occurred; or

(3) Notice served under this Article is effective upon personal service, the last date of publication, or the mailing of written notice, whichever is earlier.

(b) Probable cause hearing. In an action brought by the People of the State of Illinois under this Section, in which a restraining order, injunction, prohibition, lis pendens, or other action in connection with any property or interest subject to forfeiture under this Article is sought, the circuit court presiding over the trial of the person charged with gunrunning under Section 24-3A of this Code shall first determine whether there is probable cause to believe that the person so charged has committed the offense of gunrunning under Section 24-3A of this Code and whether the property or interest, is subject to forfeiture under this Article. To make that determination before entering an order in connection with that property or interest, the court shall conduct a hearing without a jury, at which the People must establish that there is: (i) probable cause that the person charged committed the offense of gunrunning under Section 24-3A of this Code and (ii) probable cause that the property or interest may be subject to forfeiture under this Article. The hearing may be conducted simultaneously with a preliminary hearing, if the prosecution is commenced by information or complaint, or by motion of the People at any stage in the proceedings. The court may accept, at a preliminary hearing, (i) the filing of an information charging that the defendant committed the offense of gunrunning under Section 24-3A of this Code or (ii) the return of an indictment by a grand jury charging that the defendant committed the offense of gunrunning under Section 24-3A of this Code as sufficient evidence of probable cause that the person committed the offense.

(1) Upon making a finding of probable cause, the circuit court shall enter a restraining order, injunction, lis pendens, or prohibition or shall take other action in connection with the property or other interest subject to forfeiture under this Article as is necessary to insure that the property is not removed from the jurisdiction of the court, concealed, destroyed, or otherwise disposed of by the owner of that property or interest before a forfeiture hearing under this Article. The State's Attorney shall file a certified copy of the restraining order, injunction, or other prohibition with the recorder or registrar of title of each county in which the property may be located. An injunction, restraining order, or other prohibition issued under this Section does not affect the rights of any bonafide purchaser, mortgagee, judgment creditor, or other lien holder that arose before the date the certified copy is filed.

(2) The court may at any time, on verified petition by the defendant, conduct a hearing to determine whether all or any portion of the property or interest, which the court previously determined to be subject to forfeiture or subject to any restraining order, injunction, lis pendens, prohibition, or other action, should be released. The court may in its discretion release the property to the defendant for good cause shown.

(720 ILCS 5/24-3B.25 new)

Sec. 24-3B.25. Forfeiture hearing. If real property is subject to seizure for violations under Section 24-3A of this Code, upon conviction, the State's Attorney or Attorney General may commence an action by petition in the sentencing court anytime following sentencing of the defendant. The sentencing court shall conduct a hearing to determine whether any property or property interest of the defendant, profits, or proceeds is subject to forfeiture under this Article. At the forfeiture hearing the People have the burden of establishing, by a preponderance of the evidence, that the property or property interest is subject to forfeiture.

(1) All property declared forfeited under this Article vests in this State on the date of the commission of the conduct giving rise to forfeiture together with the proceeds of the property after that time. Any such property or proceeds subsequently transferred to any person remain subject to forfeiture and thereafter shall be ordered forfeited unless the transferee claims and establishes in a hearing under the provisions of this Article that the transferee's interest is exempt.

(2) If the State does not show by a preponderance of the evidence or a claimant has established by preponderance of evidence that the claimant has an interest that is exempt under this Article, the court shall order the interest in the property returned or conveyed to the claimant and shall order all other property forfeited to the State. If the State does show by a preponderance of the evidence that the property interest is subject to forfeiture, and the claimant does not establish by a preponderance of evidence that the claimant has an interest that is exempt under this Article, the court shall order all real property forfeited to the State.

(3) A defendant convicted in any criminal proceeding is precluded from later denying the essential allegations of the criminal offense of which the defendant was convicted in any proceeding under this Article regardless of the pendency of an appeal from that conviction. However, evidence of the pendency of an appeal is admissible.

(720 ILCS 5/24-3B.30 new)

Sec. 24-3B.30. Exemption from forfeiture.

(a) A property interest is exempt from forfeiture under this Article if its owner or interest holder establishes by a preponderance of evidence that the owner or interest holder:

(1) in the case of real property is not legally accountable for the conduct giving rise to the forfeiture, or did not solicit, conspire, or attempt to commit the conduct giving rise to the forfeiture; and

(2) had not acquired and did not stand to acquire proceeds from the conduct giving rise to its forfeiture other than as an interest holder in an arms length commercial transaction; and

(3) does not hold the property for the benefit of or as a nominee for any person whose conduct gave rise to its forfeiture, and, if the owner or interest holder acquired the interest through any such person, the owner or interest holder acquired it as a bona fide purchaser for value without knowingly taking part in the conduct giving rise to the forfeiture; and

(4) that the owner or interest holder acquired the interest:

(i) before the commencement of the conduct giving rise to its forfeiture and the person whose conduct gave rise to its forfeiture did not have the authority to convey the interest to a bona fide purchaser for value at the time of the conduct; or

(ii) after the commencement of the conduct giving rise to its forfeiture, and the owner or interest holder acquired the interest as a mortgagee, secured creditor, lienholder, or bona fide purchaser for value without knowledge of the conduct which gave rise to the forfeiture; and

(iii) in the case of real estate, before the filing in the office of the recorder of the county in which the real estate is located of a notice of a lis pendens notice.

(5)(A) With respect to a property interest in existence at the time the illegal conduct giving rise to the forfeiture took place,

(i) did not know of the conduct giving rise to forfeiture; or

(ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property.

(B)(i) For the purposes of this paragraph (5), ways in which a person may show that he or she did all that reasonably could be expected may include demonstrating that he or she, to the extent permitted by law:

(I) gave timely notice to an appropriate law enforcement agency of information that led the person to know the conduct giving rise to a forfeiture would occur or has occurred; and

(II) in a timely fashion revoked or made a good faith attempt to revoke permission for those engaging in such conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property.

(ii) A person is not required by this subparagraph to take steps that the person reasonably believes would be likely to subject any person (other than the person whose conduct gave rise to the forfeiture) to physical danger.

(b) If the court determines, in accordance with this Section, that an innocent owner has a partial interest in property otherwise subject to forfeiture, or a joint tenancy or tenancy by the entirety in that property, the court may enter an appropriate order:

(1) severing the property;

(2) transferring the property to the State with a provision that the State compensate the innocent owner to the extent of his or her ownership interest once a final order of forfeiture has been entered and the property has been reduced to liquid assets; or

(3) permitting the innocent owner to retain the property subject to a lien in favor of the State to the extent of the forfeitable interest in the property.

(c) In this Section, the term "owner":

(1) means a person with an ownership interest in the specific property sought to be forfeited, including a leasehold, lien, mortgage, recorded security interest, or valid assignment of an ownership interest; and

(2) does not include:

(i) a person with only a general unsecured interest in, or claim against, the property or estate of another;

(ii) a bailee unless the bailor is identified and the bailee shows a colorable legitimate interest in the property seized; or

(iii) a nominee who exercises no dominion or control over the property.

(720 ILCS 5/24-3B.35 new)

Sec. 24-3B.35. Settlement of claims. Notwithstanding other provisions of this Article, the State's Attorney and a claimant of seized property may enter into an agreed upon settlement concerning the property subject to forfeiture in such an amount and upon such terms as are set out in writing in a settlement agreement.

(720 ILCS 5/24-3B.40 new)

Sec. 24-3B.40. Judicial review. If property has been declared forfeited under this Article, any person who has an interest in the property declared forfeited may, within 30 days of the effective date of the notice of the declaration of forfeiture, file a claim and cost bond and apply to the court for reconsideration based upon his or her interest in the property.

(720 ILCS 5/24-3B.45 new)

Sec. 24-3B.45. Disposal of property. Real property taken or detained under this Section is not subject to replevin, but is deemed to be in the custody of the Director of State Police subject only to the order and judgments of the circuit court having jurisdiction over the forfeiture proceedings and the decisions of the State's Attorney or Attorney General under this Article.

(1) When property is forfeited under this Article, the Director of State Police shall sell all such property and shall distribute the proceeds of the sale, together with any moneys forfeited or seized in accordance with paragraph (2).

(2) All monies and the sale proceeds of all other property forfeited and seized under this Article shall be distributed as follows:

(A) 65% shall be distributed to the local, municipal, county, or State law enforcement agency or agencies that conducted or participated in the investigation resulting in the forfeiture. The distributions shall bear a reasonable relationship to the degree of direct participation of the law enforcement agency in the effort resulting in the forfeiture, taking into account the total value of the property forfeited and the total law enforcement effort with respect to the violation of the law upon which the forfeiture is based.

(B) 12.5% shall be distributed to the Office of the State's Attorney of the county in which the prosecution resulting in the forfeiture was instituted for use in the enforcement of laws, including gunrunning.

(C) 12.5% shall be distributed to the Illinois Department of State Police for use of expenses incurred in the investigation, prosecution, and appeal of cases arising under laws governing gunrunning.

(D) 10% shall be retained by the Department of State Police for expenses related to the administration and sale of seized and forfeited property.

Section 99. Effective date. This Act takes effect upon becoming law.