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1 | AN ACT concerning criminal law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Criminal Code of 1961 is amended by changing | |||||||||||||||||||
5 | Section 17-1b as follows:
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6 | (720 ILCS 5/17-1b)
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7 | Sec. 17-lb. State's Attorney's bad check diversion | |||||||||||||||||||
8 | program.
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9 | (a) In this Section:
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10 | "Offender" means a person charged with, or for whom | |||||||||||||||||||
11 | probable cause
exists to charge the person with, deceptive | |||||||||||||||||||
12 | practices.
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13 | "Pretrial diversion" means the decision of a prosecutor to | |||||||||||||||||||
14 | refer an
offender to a diversion program on condition that the | |||||||||||||||||||
15 | criminal charges against
the offender will be dismissed after a | |||||||||||||||||||
16 | specified period of time, or the case
will not be charged, if | |||||||||||||||||||
17 | the offender successfully completes the program.
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18 | "Restitution" means all amounts payable to a victim of | |||||||||||||||||||
19 | deceptive practices
under the bad check diversion program | |||||||||||||||||||
20 | created under this Section, including
the amount of the check | |||||||||||||||||||
21 | and any transaction fees payable to a victim as set
forth in | |||||||||||||||||||
22 | subsection (g)
but does not include amounts
recoverable under | |||||||||||||||||||
23 | Section 3-806 of the Uniform Commercial Code and Section
17-1a |
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1 | of this Code.
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2 | (b) A State's Attorney may create within his or her office | ||||||
3 | a bad check
diversion program for offenders who agree to | ||||||
4 | voluntarily participate in the
program instead of undergoing | ||||||
5 | prosecution. The program may be conducted by the
State's | ||||||
6 | Attorney or by a private entity under contract with the State's
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7 | Attorney. If the State's Attorney contracts with a private | ||||||
8 | entity to perform
any services in operating the program, the | ||||||
9 | entity shall operate under the
supervision, direction, and | ||||||
10 | control of the State's Attorney. Any private entity
providing | ||||||
11 | services under this Section is not a "collection agency" as | ||||||
12 | that
term is defined under the Collection Agency Act.
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13 | (c) If an offender is referred to the State's Attorney, the | ||||||
14 | State's
Attorney may determine whether the offender is | ||||||
15 | appropriate for acceptance in
the
program. The State's Attorney | ||||||
16 | may consider, but shall not be limited to
consideration of, the
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17 | following factors:
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18 | (1) the amount of the check that was drawn or passed;
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19 | (2) prior referrals of the offender to the program;
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20 | (3) whether other charges of deceptive practices are | ||||||
21 | pending
against the offender;
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22 | (4) the evidence presented to the State's Attorney | ||||||
23 | regarding the
facts and circumstances of the incident;
| ||||||
24 | (5) the offender's criminal history; and
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25 | (6) the reason the check was dishonored by the | ||||||
26 | financial
institution.
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1 | (d) The bad check diversion program may require an offender | ||||||
2 | to do one or
more of the following:
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3 | (i) pay for, at his or her own expense, and | ||||||
4 | successfully
complete an educational class held by the | ||||||
5 | State's Attorney or a private
entity under contract with | ||||||
6 | the State's Attorney;
| ||||||
7 | (ii) make full restitution for the offense;
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8 | (iii) pay a per-check administrative fee as set forth | ||||||
9 | in this
Section.
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10 | (e) If an offender is diverted to the program, the State's | ||||||
11 | Attorney shall
agree in writing not to prosecute the offender | ||||||
12 | upon the offender's successful
completion of the program | ||||||
13 | conditions. The State's Attorney's agreement to
divert the | ||||||
14 | offender shall specify the
offenses that will not be prosecuted | ||||||
15 | by identifying the checks involved in the
transactions.
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16 | (f) The State's Attorney, or private entity under contract | ||||||
17 | with the
State's Attorney, may collect a fee from an offender | ||||||
18 | diverted to the State's
Attorney's bad check diversion program. | ||||||
19 | This fee may be deposited in a
bank account maintained by the | ||||||
20 | State's Attorney for the purpose of
depositing fees and paying | ||||||
21 | the expenses of the program or for use in the enforcement and | ||||||
22 | prosecution of criminal laws . The State's
Attorney may require | ||||||
23 | that the fee be paid directly to a private entity that
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24 | administers the program under a contract with the State's | ||||||
25 | Attorney.
The amount of the administrative fees collected by | ||||||
26 | the State's Attorney
under the program may not exceed $35 per |
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1 | check. The county board may,
however, by ordinance, increase | ||||||
2 | the fees allowed by this Section if the
increase is justified | ||||||
3 | by an acceptable cost study showing that the fees
allowed by | ||||||
4 | this Section are not sufficient to cover the cost of providing | ||||||
5 | the
service.
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6 | (g) (1) The private entity shall be required to maintain | ||||||
7 | adequate
general
liability insurance of $1,000,000 per | ||||||
8 | occurrence as well as adequate
coverage for potential loss | ||||||
9 | resulting from employee dishonesty. The State's
Attorney | ||||||
10 | may require a surety bond payable to the State's Attorney | ||||||
11 | if in the
State's Attorney's opinion it is determined that | ||||||
12 | the private entity is not
adequately insured or funded.
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13 | (2) (A) Each private entity that has a contract with | ||||||
14 | the State's
Attorney to conduct a bad check diversion | ||||||
15 | program shall at all times
maintain a separate bank | ||||||
16 | account in which all moneys received from the
offenders | ||||||
17 | participating in the program shall be deposited, | ||||||
18 | referred to as a
"Trust Account", except that | ||||||
19 | negotiable instruments received may be
forwarded | ||||||
20 | directly to a victim of the deceptive practice | ||||||
21 | committed by the
offender if that procedure is provided | ||||||
22 | for by a writing executed by the
victim. Moneys | ||||||
23 | received shall be so deposited within 5 business days
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24 | after posting to the private entity's books of account.
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25 | There shall be sufficient funds in the trust account at | ||||||
26 | all times to
pay the victims the amount due them.
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1 | (B) The trust account shall be established in a | ||||||
2 | bank, savings and
loan association, or other | ||||||
3 | recognized depository which is federally or
State | ||||||
4 | insured or otherwise secured as defined by rule. If the | ||||||
5 | account is
interest bearing, the private entity shall | ||||||
6 | pay to the victim interest
earned on funds on deposit | ||||||
7 | after the 60th day.
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8 | (C) Each private entity shall keep on file the name | ||||||
9 | of the bank,
savings and loan association, or other | ||||||
10 | recognized depository in which
each trust account is | ||||||
11 | maintained, the name of each trust account, and
the | ||||||
12 | names of the persons authorized to withdraw funds from | ||||||
13 | each account.
The private entity, within 30 days of the | ||||||
14 | time of a change of
depository or person authorized to | ||||||
15 | make withdrawal, shall update its
files to reflect that | ||||||
16 | change.
An examination and audit of a private entity's | ||||||
17 | trust accounts may be
made by the State's Attorney as | ||||||
18 | the State's Attorney deems appropriate.
A trust | ||||||
19 | account financial report shall be submitted annually | ||||||
20 | on
forms acceptable to the State's Attorney.
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21 | (3) The State's Attorney may cancel a contract entered | ||||||
22 | into
with a
private entity under this Section for any one | ||||||
23 | or any
combination of the following causes:
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24 | (A) Conviction of the private entity or the | ||||||
25 | principals of
the private entity of any crime under the | ||||||
26 | laws of any U.S. jurisdiction
which is a felony, a |
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1 | misdemeanor an essential element of which is
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2 | dishonesty, or of any crime which directly relates to | ||||||
3 | the practice
of the profession.
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4 | (B) A determination that the private entity has | ||||||
5 | engaged in conduct
prohibited in item (4).
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6 | (4) The State's Attorney may determine whether the | ||||||
7 | private entity has
engaged in the following prohibited | ||||||
8 | conduct:
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9 | (A) Using or threatening to use force or violence | ||||||
10 | to cause
physical harm to an offender, his or her | ||||||
11 | family, or his or her property.
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12 | (B) Threatening the seizure, attachment, or sale | ||||||
13 | of an offender's
property where such action can only be | ||||||
14 | taken pursuant to court order
without disclosing that | ||||||
15 | prior court proceedings are required.
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16 | (C) Disclosing or threatening to disclose | ||||||
17 | information
adversely affecting an offender's | ||||||
18 | reputation for creditworthiness with
knowledge the | ||||||
19 | information is false.
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20 | (D) Initiating or threatening to initiate | ||||||
21 | communication with
an offender's employer unless there | ||||||
22 | has been a default of the payment
of the obligation for | ||||||
23 | at least 30 days and at least 5 days prior
written | ||||||
24 | notice, to the last known address of the offender, of | ||||||
25 | the
intention to communicate with the employer has been | ||||||
26 | given to the
employee, except as expressly permitted by |
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1 | law or court order.
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2 | (E) Communicating with the offender or any member | ||||||
3 | of the
offender's family at such a time of day or night | ||||||
4 | and with such
frequency as to constitute harassment of | ||||||
5 | the offender or any member of
the offender's family. | ||||||
6 | For purposes of this clause (E) the following
conduct | ||||||
7 | shall constitute harassment:
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8 | (i) Communicating with the offender or any | ||||||
9 | member of his or
her family at any unusual time or | ||||||
10 | place or a time
or place known or which should be | ||||||
11 | known to be inconvenient to
the offender. In the | ||||||
12 | absence of knowledge of circumstances to
the | ||||||
13 | contrary, a private entity shall assume that the | ||||||
14 | convenient
time for communicating with a consumer | ||||||
15 | is after 8 o'clock a.m.
and before 9 o'clock p.m. | ||||||
16 | local time at the offender's residence.
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17 | (ii) The threat of publication or publication | ||||||
18 | of a list of
offenders who allegedly refuse to pay | ||||||
19 | restitution, except by the State's
Attorney.
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20 | (iii) The threat of advertisement or | ||||||
21 | advertisement for sale
of any restitution to | ||||||
22 | coerce payment of the restitution.
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23 | (iv) Causing a telephone to ring or engaging | ||||||
24 | any person in
telephone conversation repeatedly or | ||||||
25 | continuously with intent
to annoy, abuse, or | ||||||
26 | harass any person at the called number.
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1 | (v) Using profane, obscene or abusive language | ||||||
2 | in
communicating with an offender, his or her | ||||||
3 | family, or others.
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4 | (vi) Disclosing or threatening to disclose | ||||||
5 | information
relating to a offender's case to any | ||||||
6 | other person except
the victim and appropriate law | ||||||
7 | enforcement personnel.
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8 | (vii) Disclosing or threatening to disclose | ||||||
9 | information
concerning the alleged criminal act | ||||||
10 | which the private entity knows to
be reasonably | ||||||
11 | disputed by the offender without disclosing the | ||||||
12 | fact
that the offender disputes the accusation.
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13 | (viii) Engaging in any conduct which the | ||||||
14 | State's Attorney finds was
intended to cause and | ||||||
15 | did cause mental or physical illness to the
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16 | offender or his or her family.
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17 | (ix) Attempting or threatening to enforce a | ||||||
18 | right or remedy
with knowledge or reason to know | ||||||
19 | that the right or remedy does not
exist.
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20 | (x) Except as authorized by the State's | ||||||
21 | Attorney, using any form of
communication which | ||||||
22 | simulates legal or
judicial process or which gives | ||||||
23 | the appearance of being authorized,
issued or | ||||||
24 | approved by a governmental agency or official or by | ||||||
25 | an
attorney at law when it is not.
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26 | (xi) Using any badge,
uniform, or other |
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1 | indicia of any
governmental agency or official, | ||||||
2 | except as authorized by law or by the State's
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3 | Attorney.
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4 | (xii) Except as authorized by the State's | ||||||
5 | Attorney, conducting
business
under any name or in | ||||||
6 | any manner which
suggests or implies that the | ||||||
7 | private entity is bonded if such
private entity is | ||||||
8 | or is a branch of or is affiliated with any
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9 | governmental agency or court if such private | ||||||
10 | entity is not.
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11 | (xiii) Misrepresenting the amount of the | ||||||
12 | restitution alleged
to be owed.
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13 | (xiv) Except as authorized by the State's | ||||||
14 | Attorney, representing that
an
existing | ||||||
15 | restitution amount may be increased
by
the | ||||||
16 | addition of attorney's fees, investigation fees, | ||||||
17 | or any other
fees or charges when those fees or | ||||||
18 | charges may not legally be added
to the existing | ||||||
19 | restitution.
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20 | (xv) Except as authorized by the State's | ||||||
21 | Attorney, representing that
the
private entity is | ||||||
22 | an attorney at
law or an agent for an attorney if | ||||||
23 | the entity is not.
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24 | (xvi) Collecting or attempting to collect any | ||||||
25 | interest or other
charge or fee in excess of the | ||||||
26 | actual restitution or claim unless the
interest or |
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1 | other charge or fee is expressly authorized by the
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2 | State's Attorney, who shall
determine what | ||||||
3 | constitutes a reasonable collection fee.
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4 | (xvii) Communicating or threatening to | ||||||
5 | communicate with an offender
when the private | ||||||
6 | entity is informed in writing by an attorney that
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7 | the attorney represents the offender concerning | ||||||
8 | the claim, unless
authorized by the attorney. If | ||||||
9 | the attorney fails to respond within
a reasonable | ||||||
10 | period of time, the private entity may communicate | ||||||
11 | with the
offender. The private entity may | ||||||
12 | communicate with the offender when the
attorney | ||||||
13 | gives his consent.
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14 | (xviii) Engaging in dishonorable, unethical, | ||||||
15 | or unprofessional
conduct of a character likely to | ||||||
16 | deceive, defraud, or harm the
public.
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17 | (5) The State's Attorney shall audit the accounts of | ||||||
18 | the bad check
diversion
program after notice in writing to | ||||||
19 | the private entity.
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20 | (6) Any information obtained by a private entity that | ||||||
21 | has a contract with
the State's Attorney to conduct a bad | ||||||
22 | check diversion program is confidential
information | ||||||
23 | between the State's Attorney and the private entity and may | ||||||
24 | not
be sold or used for any other purpose but may be shared | ||||||
25 | with other authorized
law enforcement agencies as | ||||||
26 | determined by the State's Attorney.
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1 | (h) The State's Attorney, or private entity under contract | ||||||
2 | with the
State's Attorney, shall recover, in addition to the | ||||||
3 | face amount of the
dishonored check or draft, a transaction fee | ||||||
4 | to defray the costs and expenses
incurred by a victim who | ||||||
5 | received a dishonored check that was made or
delivered by the | ||||||
6 | offender. The face amount of the dishonored check or draft and
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7 | the transaction fee shall be paid by the State's Attorney or | ||||||
8 | private entity
under contract with the State's Attorney to the | ||||||
9 | victim as
restitution for the offense. The amount of the | ||||||
10 | transaction fee must not
exceed: $25 if the face amount of the | ||||||
11 | check or draft does not exceed $100;
$30 if the face amount of | ||||||
12 | the check or draft is greater than $100 but does not
exceed | ||||||
13 | $250; $35 if the face amount of the check or draft is greater | ||||||
14 | than
$250 but does not exceed $500; $40 if the face amount of | ||||||
15 | the
check or draft is greater than $500 but does not exceed | ||||||
16 | $1,000; and $50 if the
face amount of the check or draft is | ||||||
17 | greater than $1,000.
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18 | (i) The offender, if aggrieved by an action of the private
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19 | entity contracted to operate a bad check diversion program, may | ||||||
20 | submit a
grievance to
the State's Attorney who may then resolve | ||||||
21 | the grievance. The private entity
must give notice to the | ||||||
22 | offender that the grievance procedure is available. The
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23 | grievance procedure shall be established by the State's | ||||||
24 | Attorney.
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25 | (Source: P.A. 93-394, eff. 7-29-03.)
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