HB4786 95TH GENERAL ASSEMBLY

LRB095 18041 LCT 44124 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB4786

Introduced , by Rep. Dennis M. Reboletti

SYNOPSIS AS INTRODUCED:

625 ILCS 5/Chapter 16A heading new
625 ILCS 5/16A-1 new
625 ILCS 5/16A-5 new
625 ILCS 5/16A-10 new
625 ILCS 5/16A-15 new
625 ILCS 5/16A-20 new
625 ILCS 5/16A-25 new
625 ILCS 5/16A-30 new
625 ILCS 5/16A-35 new
625 ILCS 5/16A-40 new
625 ILCS 5/16A-45 new
625 ILCS 5/16A-50 new
720 ILCS 5/36-1	from Ch. 38, par. 36-1

Amends the Illinois Vehicle Code. Provides for the seizure of any motor vehicle used in violation of one of the listed Sections. Requires the seizing agency to notify, within 30 days after seizure of the motor vehicle, the sheriff of the county of the seizure and the State's Attorney of the county in which the act or omission giving rise to the forfeiture occurred. Requires the seizing agency to notify the Secretary of State that forfeiture proceedings are pending regarding the vehicle. Outlines requirements for notice to the owner and interest holders of the seized vehicle. Provides exemptions from forfeiture. Provides for judicial proceedings and settlement of claims. Amends the Criminal Code of 1961. Removes various Illinois Vehicle Code violations from the list of violations under which a vehicle may be seized and delivered to the sheriff of the county of the seizure.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning transportation.

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

Section 5. The Illinois Vehicle Code is amended by adding Chapter 16A as follows:

(625 ILCS 5/Chapter 16A heading new)

CHAPTER 16A. TRAFFIC SAFETY FORFEITURES

(625 ILCS 5/16A-1 new)

Sec. 16A-1. Short title. This Chapter may be cited as the Traffic Safety Forfeiture Law of 2008.

(625 ILCS 5/16A-5 new)

Sec. 16A-5. Legislative declaration. The Illinois General Assembly finds that persons who drive without a valid driver's license or permit or with a suspended or revoked driver's license or permit pose a significant and dangerous threat to Illinois motorists. The civil forfeiture of motor vehicles used by persons who drive without a valid driver's license or permit or with a suspended or revoked driver's license or permit will have a significant beneficial effect in deterring this type of activity and will reduce the number of traffic fatalities and accidents caused by those persons. It is necessary and appropriate to take additional steps to prevent drivers who drive without a valid driver's license or permit or with suspended or revoked licenses or permits from driving, including civil forfeiture of vehicles used by those persons. The State has a critical interest in enforcing its traffic laws and keeping drivers with suspended or revoked licenses or permits from illegally driving. Seizing the vehicles used by those persons serves an important governmental and public interest, namely the protection of the health, safety, and welfare of Illinois motorists from the harm associated with driving without a valid driver's license or permit or with a suspended or revoked license or permit.

(625 ILCS 5/16A-10 new)

Sec. 16A-10. Applicability. This Chapter applies to all motor vehicles used by persons who drive without a valid driver's license or permit or with suspended or revoked licenses or permits in violation of Section 6-303 of this Code, if the person's driving privileges were revoked or suspended as a result of a violation listed in paragraph (1), (2), or (3) of subsection (c) of Section 6-303 of this Code or as a result of a statutory summary suspension as provided in paragraph (4) of subsection (c) of Section 6-303, or if the person committed the offenses described in the following provisions of this Code: Section 11-501, subdivisions (d)(1)(A), (d)(1)(D), (d)(1)(G), (d)(1)(H), or (d)(1)(I); or an offense described in subsection (e) of Section 6-101 of this Code.

(625 ILCS 5/16A-15 new)

Sec. 16A-15. Seizure.

(a) Any motor vehicle used in violation of Section 6-101, 6-303, or 11-501 of this Code may be seized for forfeiture if:

(1) the person's driving privileges were revoked or suspended as a result of a violation listed in paragraph (1), (2), or (3) of subsection (c) of Section 6-303;

(2) the person's driving privileges were revoked or suspended as a result of a summary suspension as provided in paragraph (4) of subsection (c) of Section 6-303;

(3) the person committed the offenses described in the following provisions of this Code: Section 11-501, subdivisions (d)(1)(A), (d)(1)(D), (d)(1)(G), (d)(1)(H), or (d)(1)(I); or

(4) the person committed an offense described in subsection (e) of Section 6-101 of this Code.

(b) The seizing agency shall, within 30 days after seizure, deliver the vehicle to the sheriff of the county of seizure and notify the State's Attorney of the county in which the act or omission giving rise to the forfeiture occurred, or in which the motor vehicle was seized, of the seizure and the facts and circumstances giving rise to the seizure and shall provide the State's Attorney with the inventory of the motor vehicle and its estimated value. The seizing agency shall also notify the Secretary of State that forfeiture proceedings are pending regarding the vehicle.

(c) If, after review of the facts surrounding the seizure, the State's Attorney is of the opinion that the seized motor vehicle is subject to forfeiture, the State's Attorney shall, within 45 days of the receipt of notice of seizure from the seizing agency, cause notice of pending forfeiture of the motor vehicle to be given to the owner and any person whose right, title, or interest is of record with the Secretary of State.

(625 ILCS 5/16A-20 new)

Sec. 16A-20. Notice to owner or interest holder.

(a) Whenever notice of pending forfeiture or service of an in rem complaint is required under this Chapter:

(1) the notice of pending forfeiture must include a description of the motor vehicle, the estimated value of the motor vehicle, the date and place of seizure, the conduct giving rise to forfeiture or the violation of law alleged, and a summary of procedures and procedural rights applicable to the forfeiture action; and

(2) if the name and address of the owner or any person whose right, title, or interest is of record are known, the notice or service shall be given by either personal service or by mailing a copy of the notice by certified mail, return receipt requested, to that address. If the address of an owner or any person whose right, title, or interest is of record changes prior to the effective date of the notice of pending forfeiture, the owner or any person whose right, title, or interest is of record shall promptly notify the seizing agency of the change in address or, if the address of an owner or any person whose right, title, or interest is of record changes subsequent to the effective date of the notice of pending forfeiture, the owner or any person whose right, title, or interest is of record shall promptly notify the seizing agency and the State's Attorney's Office of the change in address.

(b) Notice served under this Chapter is effective upon personal service or the mailing of written notice, whichever is earlier.

(625 ILCS 5/16A-25 new)

Sec. 16A-25. Non-judicial forfeiture.

(a) Any person claiming ownership of the motor vehicle that is the subject of notice under Section 16A-20 may, within 45 days after the effective date of notice as described in Section 16A-20, file with the State's Attorney a verified claim of his or her ownership of the motor vehicle. The claim must set forth:

(1) the caption of the proceedings as set forth on the notice of pending forfeiture and the name of the claimant;

(2) the address at which the claimant will accept mail;

(3) the nature and extent of the claimant's ownership of the motor vehicle;

(4) the date and circumstances of the claimant's acquisition of the ownership of the motor vehicle and the identity of the transferor;

(5) the name and address of all other persons known to have ownership of the motor vehicle;

(6) the specific provision of law relied on in asserting that the motor vehicle is not subject to forfeiture;

(7) all essential facts supporting each assertion; and

(8) the relief sought.

(b) If a claimant files a claim and deposits with the State's Attorney a cost bond, in the form of a cashier's check payable to the clerk of the court, in the sum of 10% of the reasonable value of the motor vehicle as alleged by the State's Attorney, the State's Attorney shall, within 45 days after receipt of the claim and cost bond, institute judicial in rem forfeiture proceedings and deposit the cost bond with the clerk of the court as described in Section 16A-35. In lieu of a cost bond, a person claiming ownership of the seized motor vehicle may file, under penalty of perjury, an indigency affidavit.

(c) If the motor vehicle is not forfeited in the judicial in rem proceeding, the clerk of the court shall return to the claimant, unless the court orders otherwise, 90% of the sum that has been deposited and shall retain as costs 10% of the money deposited. If the motor vehicle is forfeited in the judicial in rem proceeding, the clerk of the court shall transfer 80% of the sum that has been deposited to the Office of the State's Attorney prosecuting the civil forfeiture to be applied to the costs of prosecution and 10% to the sheriff's office of the county in which the prosecution resulting in the forfeiture was instituted for expenses related to the administration and sale of the seized property and the clerk shall retain as costs 10% of the money deposited.

(d) If no claim is filed or bond given within the 45 day period described in this Section, the State's Attorney shall declare the property forfeited and shall promptly notify the owner, any person whose right, title, or interest is of record, and the sheriff of the county in which the seizure occurred, of the declaration of forfeiture.

(e) A copy of the declaration of forfeiture shall be filed with the sheriff of the county in which the seizure occurs and with the Secretary of State. The declaration, when filed, constitutes authority for the issuance of clear title to the vehicle to the department or agency to whom it is delivered or to any purchaser of the vehicle.

(f) When a motor vehicle is forfeited under this Section, the sheriff of the county in which the seizure occurs shall sell the motor vehicle at public auction, unless the motor vehicle is required by law to be destroyed, is harmful to the public, or is awarded to the seizing agency or prosecutor as set forth in paragraph (g) of this Section.

(g) Upon application of the seizing agency or the prosecutor who was responsible for the investigation, arrest, and prosecution that led to the forfeiture of the motor vehicle, the county sheriff shall award the motor vehicle to the seizing agency or prosecutor for their official use.

(h) The proceeds of any sale at public auction by the sheriff under this Chapter after deduction of the reasonable charges and expenses incurred by the sheriff in storing and selling the vehicle, shall be paid into the general fund of the county of seizure.

(625 ILCS 5/16A-30 new)

Sec. 16A-30. Presumptions. Suspension or revocation of the driver's license or permit of the driver of the motor vehicle shall be conclusively presumed to be known by the driver and any person whose right, title, or interest is or record if:

(1) the Secretary of State has sent the driver a certified letter, return receipt requested, regarding the suspension or revocation; or

(2) the suspension or revocation was the result of a court order.

(625 ILCS 5/16A-35 new)

Sec. 16A-35. Exemptions from forfeiture. A motor vehicle is exempt from forfeiture under this Chapter if:

(1) the owner or any person whose right, title, or interest is of record with the Secretary of State establishes by a preponderance of the evidence that he or she made a reasonable effort or inquiry to determine whether the driver possessed a valid driver's license before allowing him or her to operate the owner's vehicle. The owner or any person whose right, title, or interest is of record is not required to inquire of the Secretary of State whether the driver possessed a valid driver's license;

(2) the owner or any person whose right, title, or interest is of record with the Secretary of State did not hold the property jointly or in common with a person whose conduct gave rise to the forfeiture;

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

(4) the owner or any person whose right, title, or interest is of record with the Secretary of State acquired the interest 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.

(625 ILCS 5/16A-40 new)

Sec. 16A-40. Judicial in rem procedures.

(a) Within 45 days of receipt of a proper verified claim and cost bond, the State's Attorney shall institute judicial forfeiture proceedings by filing a verified complaint for forfeiture and, if the claimant has filed a claim and cost bond, by depositing the cost bond with the clerk of the court. When authorized by law, a forfeiture must be ordered by a court in an action in rem brought by a State's Attorney under a verified complaint for forfeiture.

(b) During the probable cause portion of the judicial in rem proceeding in which the State presents its case-in-chief, the court must receive and consider, among other things, all relevant hearsay evidence and information. The laws of evidence relating to civil actions shall apply to all other portions of the judicial in rem proceeding.

(c) Only an owner or a person or legal entity whose right, title, or interest is of record with the Secretary of State on or before the date of seizure of the vehicle may file an answer asserting a claim against the motor vehicle in the action in rem. For purposes of this Section, any person or legal entity whose right, title, or interest is of record shall be referred to as the claimant.

(d) The answer must be signed by the claimant under penalty of perjury and must indicate:

(1) the caption of the proceedings, as set forth on the notice of pending forfeiture, and the name of the claimant;

(2) the address at which the claimant will accept mail;

(3) the nature and extent of the claimant's ownership of the motor vehicle;

(4) the date and circumstances of the claimant's acquisition of ownership of the motor vehicle and the identity of transferor;

(5) the name and address of all other persons known to have ownership of the motor vehicle;

(6) the specific language of Section 16A-35 relied on in asserting that the motor vehicle is not subject to forfeiture;

(7) all essential facts supporting each assertion; and

(8) the precise relief sought.

(e) The answer must be filed with the court within 45 days after service of the civil in rem complaint.

(f) The hearing must be held within 60 days after filing of the answer unless continued for good cause. If a related traffic or criminal case that gave rise to this proceeding is still pending, however, all forfeiture proceedings shall, upon motion of the State, be stayed until the underlying case is concluded.

(g) The State must, at the hearing, show probable cause for forfeiture of the motor vehicle. If the State shows probable cause, the claimant has the burden of showing by a preponderance of the evidence that the claimant's ownership of the motor vehicle is not subject to forfeiture.

(h) If the State does not show probable cause, or a claimant has established by a preponderance of evidence that the claimant's ownership is exempt under Section 16A-35, the court shall order the motor vehicle returned to the claimant. If the State does show probable cause and the claimant does not establish by a preponderance of evidence that the claimant's ownership is exempt under Section 16A-35, the court shall order the motor vehicle forfeited to the seizing agency or prosecutor for their official use; or may order the motor vehicle destroyed; or may order it sold at public auction by the sheriff of the seizing county as set forth in paragraph (h) of Section 16A-25.

(i) A defendant who has pled guilty or has been found guilty in any underlying traffic or criminal proceeding is precluded from later denying the essential allegations of the traffic or criminal offense of which the defendant was convicted in any proceeding under this Act, regardless of the pendency of an appeal from that conviction. Evidence of the pendency of an appeal is admissible, however.

(j) An acquittal or dismissal in a traffic or criminal proceeding shall not preclude civil proceedings under this Chapter. A motor vehicle subject to forfeiture under this Chapter shall not be subject to return or release by a court exercising jurisdiction over a traffic or criminal case involving the seizure of that motor vehicle, unless the return or release is consented to by the State's Attorney.

(k) Any motor vehicle declared forfeited under this Chapter vests in the county in which the seizure occurs on the commission of the conduct giving rise to forfeiture of the motor vehicle after that time. The motor vehicle remains subject to forfeiture after any subsequent transfer to any person, and the motor vehicle shall be ordered forfeited unless the transferee claims and establishes in a hearing under this Chapter that the transferee's ownership is exempt under Section 16A-35.

(l) A civil action under this Chapter must be commenced within 5 years after the last conduct giving rise to forfeiture became known or should have become known, or 5 years after the forfeitable motor vehicle is discovered, whichever is later, excluding any time during which either the motor vehicle or claimant is out of the State or in confinement or during which criminal proceedings relating to the same conduct are in progress.

(m) Motor vehicles taken or detained under this Chapter are not subject to replevin and are deemed to be in the custody of the county sheriff, 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 under this Chapter.

(625 ILCS 5/16A-45 new)

Sec. 16A-45. Stay of time periods. If a motor vehicle is seized for evidence and for forfeiture, the time periods for instituting judicial and non-judicial forfeiture proceedings shall not begin until the motor vehicle is no longer needed for evidence.

(625 ILCS 5/16A-50 new)

Sec. 16A-50. Settlement of claims.

(a) Notwithstanding other provisions of this Chapter, the State's Attorney and a claimant of a seized motor vehicle may enter into an agreed settlement concerning the seized motor vehicle in the amount and upon the terms that are set out in writing in a settlement agreement.

(b) If the county sheriff or the State's Attorney agrees to release a motor vehicle to an owner or person whose right, title, or interest is of record, that person must sign a stipulated vehicle release agreement that provides for the automatic forfeiture of any vehicle registered to him or her if the vehicle is driven by a driver with a suspended or revoked license or permit. This Section applies to any vehicle currently owned or any vehicle registered in the future. If the person does not sign the agreement, the vehicle may not be released. A signed agreement precludes any claim, if the motor vehicle is subsequently driven by a person with a suspended or revoked driver's license or permit, that the person to whom the vehicle was released is an innocent owner.

Section 10. The Criminal Code of 1961 is amended by changing Section 36-1 as follows:

(720 ILCS 5/36-1) (from Ch. 38, par. 36-1)

Sec. 36-1. Seizure. Any vessel, vehicle or aircraft used with the knowledge and consent of the owner in the commission of, or in the attempt to commit as defined in Section 8-4 of this Code, an offense prohibited by (a) Section 9-1, 9-3, 10-2, 11-6, 11-15.1, 11-19.1, 11-19.2, 11-20.1, 12-4.1, 12-4.2, 12-4.2-5, 12-4.3, 12-4.6, 12-7.3, 12-7.4, 12-13, 12-14, 18-2, 19-1, 19-2, 19-3, 20-1, 20-2, 20.5-6, 24-1.2, 24-1.2-5, 24-1.5, or 28-1 of this Code, paragraph (a) of Section 12-4 of this Code, paragraph (a) of Section 12-15 or paragraphs (a), (c) or (d) of Section 12-16 of this Code, or paragraph (a)(6) or (a)(7) of Section 24-1 of this Code; (b) Section 21, 22, 23, 24 or 26 of the Cigarette Tax Act if the vessel, vehicle or aircraft contains more than 10 cartons of such cigarettes; (c) Section 28, 29 or 30 of the Cigarette Use Tax Act if the vessel, vehicle or aircraft contains more than 10 cartons of such cigarettes; (d) Section 44 of the Environmental Protection Act; or (e) Section 11-204.1 of the Illinois Vehicle Code; (f) the offenses described in the following provisions of the Illinois Vehicle Code: Section 11-501 subdivisions (c-1)(1), (c-1)(2), (c-1)(3), (d)(1)(A), (d)(1)(D), (d)(1)(G), or (d)(1)(H); (g) an offense described in subsection (g) of Section 6-303 of the Illinois Vehicle Code; or (h) an offense described in subsection (e) of Section 6-101 of the Illinois Vehicle Code; may be seized and delivered forthwith to the sheriff of the county of seizure.

Within 15 days after such delivery the sheriff shall give notice of seizure to each person according to the following method: Upon each such person whose right, title or interest is of record in the office of the Secretary of State, the Secretary of Transportation, the Administrator of the Federal Aviation Agency, or any other Department of this State, or any other state of the United States if such vessel, vehicle or aircraft is required to be so registered, as the case may be, by mailing a copy of the notice by certified mail to the address as given upon the records of the Secretary of State, the Department of Aeronautics, Department of Public Works and Buildings or any other Department of this State or the United States if such vessel, vehicle or aircraft is required to be so registered. Within that 15 day period the sheriff shall also notify the State's Attorney of the county of seizure about the seizure.

In addition, any mobile or portable equipment used in the commission of an act which is in violation of Section 7g of the Metropolitan Water Reclamation District Act shall be subject to seizure and forfeiture under the same procedures provided in this Article for the seizure and forfeiture of vessels, vehicles and aircraft, and any such equipment shall be deemed a vessel, vehicle or aircraft for purposes of this Article.

When a person discharges a firearm at another individual from a vehicle with the knowledge and consent of the owner of the vehicle and with the intent to cause death or great bodily harm to that individual and as a result causes death or great bodily harm to that individual, the vehicle shall be subject to seizure and forfeiture under the same procedures provided in this Article for the seizure and forfeiture of vehicles used in violations of clauses (a), (b), (c), or (d) of this Section.

If the spouse of the owner of a vehicle seized for an offense described in subsection (g) of Section 6-303 of the Illinois Vehicle Code, a violation of subdivision (c-1)(1), (c-1)(2), (c-1)(3), (d)(1)(A), or (d)(1)(D) of Section 11-501 of the Illinois Vehicle Code, or Section 9-3 of this Code makes a showing that the seized vehicle is the only source of transportation and it is determined that the financial hardship to the family as a result of the seizure outweighs the benefit to the State from the seizure, the vehicle may be forfeited to the spouse or family member and the title to the vehicle shall be transferred to the spouse or family member who is properly licensed and who requires the use of the vehicle for employment or family transportation purposes. A written declaration of forfeiture of a vehicle under this Section shall be sufficient cause for the title to be transferred to the spouse or family member. The provisions of this paragraph shall apply only to one forfeiture per vehicle. If the vehicle is the subject of a subsequent forfeiture proceeding by virtue of a subsequent conviction of either spouse or the family member, the spouse or family member to whom the vehicle was forfeited under the first forfeiture proceeding may not utilize the provisions of this paragraph in another forfeiture proceeding. If the owner of the vehicle seized owns more than one vehicle, the procedure set out in this paragraph may be used for only one vehicle.

Property declared contraband under Section 40 of the Illinois Streetgang Terrorism Omnibus Prevention Act may be seized and forfeited under this Article.

(Source: P.A. 93-187, eff. 7-11-03; 94-329, eff. 1-1-06; 94-1017, eff. 7-7-06.)