Full Text of HB3074 100th General Assembly
HB3074eng 100TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning criminal law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Criminal Code of 2012 is amended by changing | 5 | | Sections 28-5, 29B-1, 36-2, and 47-15 as follows:
| 6 | | (720 ILCS 5/28-5) (from Ch. 38, par. 28-5)
| 7 | | Sec. 28-5. Seizure of gambling devices and gambling funds.
| 8 | | (a) Every device designed for gambling which is incapable | 9 | | of lawful use
or every device used unlawfully for gambling | 10 | | shall be considered a
"gambling device", and shall be subject | 11 | | to seizure, confiscation and
destruction by the Department of | 12 | | State Police or by any municipal, or other
local authority, | 13 | | within whose jurisdiction the same may be found. As used
in | 14 | | this Section, a "gambling device" includes any slot machine, | 15 | | and
includes any machine or device constructed for the | 16 | | reception of money or
other thing of value and so constructed | 17 | | as to return, or to cause someone
to return, on chance to the | 18 | | player thereof money, property or a right to
receive money or | 19 | | property. With the exception of any device designed for
| 20 | | gambling which is incapable of lawful use, no gambling device | 21 | | shall be
forfeited or destroyed unless an individual with a | 22 | | property interest in
said device knows of the unlawful use of | 23 | | the device.
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| 1 | | (b) Every gambling device shall be seized and forfeited to | 2 | | the county
wherein such seizure occurs. Any money or other | 3 | | thing of value integrally
related to acts of gambling shall be | 4 | | seized and forfeited to the county
wherein such seizure occurs.
| 5 | | (c) If, within 60 days after any seizure pursuant to | 6 | | subparagraph
(b) of this Section, a person having any property | 7 | | interest in the seized
property is charged with an offense, the | 8 | | court which renders judgment
upon such charge shall, within 30 | 9 | | days after such judgment, conduct a
forfeiture hearing to | 10 | | determine whether such property was a gambling device
at the | 11 | | time of seizure. Such hearing shall be commenced by a written
| 12 | | petition by the State, including material allegations of fact, | 13 | | the name
and address of every person determined by the State to | 14 | | have any property
interest in the seized property, a | 15 | | representation that written notice of
the date, time and place | 16 | | of such hearing has been mailed to every such
person by | 17 | | certified mail at least 10 days before such date, and a
request | 18 | | for forfeiture. Every such person may appear as a party and
| 19 | | present evidence at such hearing. The quantum of proof required | 20 | | shall
be a preponderance of the evidence, and the burden of | 21 | | proof shall be on
the State. The court shall admit a signed | 22 | | statement by a person who is 65 years old or older to | 23 | | demonstrate that the conveyance or other property was used | 24 | | without his or her consent. The claimant may file a temporary | 25 | | restraining order against the person who allegedly used his or | 26 | | her property without his or her consent under Section 11-101 of |
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| 1 | | the Code of Civil Procedure. If the court determines that the | 2 | | seized property was
a gambling device at the time of seizure, | 3 | | an order of forfeiture and
disposition of the seized property | 4 | | shall be entered: a gambling device
shall be received by the | 5 | | State's Attorney, who shall effect its
destruction, except that | 6 | | valuable parts thereof may be liquidated and
the resultant | 7 | | money shall be deposited in the general fund of the county
| 8 | | wherein such seizure occurred; money and other things of value | 9 | | shall be
received by the State's Attorney and, upon | 10 | | liquidation, shall be
deposited in the general fund of the | 11 | | county wherein such seizure
occurred. However, in the event | 12 | | that a defendant raises the defense
that the seized slot | 13 | | machine is an antique slot machine described in
subparagraph | 14 | | (b) (7) of Section 28-1 of this Code and therefore he is
exempt | 15 | | from the charge of a gambling activity participant, the seized
| 16 | | antique slot machine shall not be destroyed or otherwise | 17 | | altered until a
final determination is made by the Court as to | 18 | | whether it is such an
antique slot machine. Upon a final | 19 | | determination by the Court of this
question in favor of the | 20 | | defendant, such slot machine shall be
immediately returned to | 21 | | the defendant. Such order of forfeiture and
disposition shall, | 22 | | for the purposes of appeal, be a final order and
judgment in a | 23 | | civil proceeding.
| 24 | | (d) If a seizure pursuant to subparagraph (b) of this | 25 | | Section is not
followed by a charge pursuant to subparagraph | 26 | | (c) of this Section, or if
the prosecution of such charge is |
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| 1 | | permanently terminated or indefinitely
discontinued without | 2 | | any judgment of conviction or acquittal (1) the
State's | 3 | | Attorney shall commence an in rem proceeding for the forfeiture
| 4 | | and destruction of a gambling device, or for the forfeiture and | 5 | | deposit
in the general fund of the county of any seized money | 6 | | or other things of
value, or both, in the circuit court and (2) | 7 | | any person having any
property interest in such seized gambling | 8 | | device, money or other thing
of value may commence separate | 9 | | civil proceedings in the manner provided
by law.
| 10 | | (e) Any gambling device displayed for sale to a riverboat | 11 | | gambling
operation or used to train occupational licensees of a | 12 | | riverboat gambling
operation as authorized under the Riverboat | 13 | | Gambling Act is exempt from
seizure under this Section.
| 14 | | (f) Any gambling equipment, devices and supplies provided | 15 | | by a licensed
supplier in accordance with the Riverboat | 16 | | Gambling Act which are removed
from the riverboat for repair | 17 | | are exempt from seizure under this Section.
| 18 | | (g) The following video gaming terminals are exempt from | 19 | | seizure under this Section: | 20 | | (1) Video gaming terminals for sale to a licensed | 21 | | distributor or operator under the Video Gaming Act. | 22 | | (2) Video gaming terminals used to train licensed | 23 | | technicians or licensed terminal handlers. | 24 | | (3) Video gaming terminals that are removed from a | 25 | | licensed establishment, licensed truck stop establishment,
| 26 | | licensed
fraternal establishment, or licensed veterans |
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| 1 | | establishment for repair. | 2 | | (Source: P.A. 98-31, eff. 6-24-13.)
| 3 | | (720 ILCS 5/29B-1) (from Ch. 38, par. 29B-1)
| 4 | | Sec. 29B-1. Money laundering; forfeiture proceedings. | 5 | | (a) A person commits the offense of money laundering:
| 6 | | (1) when, knowing that the property involved in a | 7 | | financial transaction represents the proceeds of some form | 8 | | of unlawful activity, he or she conducts or attempts to | 9 | | conduct such a financial transaction which in fact involves | 10 | | criminally derived property: | 11 | | (A) with the intent to promote the carrying on of | 12 | | the unlawful activity from which the criminally | 13 | | derived property was obtained; or | 14 | | (B) where he or she knows or reasonably should know | 15 | | that the financial transaction is designed in whole or | 16 | | in part: | 17 | | (i) to conceal or disguise the nature, the | 18 | | location, the source, the ownership or the control | 19 | | of the criminally derived property; or | 20 | | (ii) to avoid a transaction reporting | 21 | | requirement under State law; or | 22 | | (1.5) when he or she transports, transmits, or | 23 | | transfers, or attempts to transport, transmit, or transfer | 24 | | a monetary instrument: | 25 | | (A) with the intent to promote the carrying on of |
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| 1 | | the unlawful activity from which the criminally | 2 | | derived property was obtained; or | 3 | | (B) knowing, or having reason to know, that the | 4 | | financial transaction is designed in whole or in part: | 5 | | (i) to conceal or disguise the nature, the | 6 | | location, the source, the ownership or the control | 7 | | of the criminally derived property; or | 8 | | (ii) to avoid a transaction reporting | 9 | | requirement under State law;
or
| 10 | | (2) when, with the intent to:
| 11 | | (A) promote the carrying on of a specified criminal | 12 | | activity as defined
in this Article; or
| 13 | | (B) conceal or disguise the nature, location, | 14 | | source, ownership, or
control of property believed to | 15 | | be the proceeds of a specified criminal
activity as | 16 | | defined by subdivision (b)(6); or | 17 | | (C) avoid a transaction reporting requirement | 18 | | under State law,
| 19 | | he or she conducts or attempts to conduct a financial | 20 | | transaction
involving property he or she believes to be the | 21 | | proceeds of specified criminal
activity as defined by | 22 | | subdivision (b)(6) or property used to conduct or
| 23 | | facilitate specified criminal activity as defined by | 24 | | subdivision (b)(6).
| 25 | | (b) As used in this Section:
| 26 | | (0.5) "Knowing that the property involved in a |
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| 1 | | financial transaction represents the proceeds of some form | 2 | | of unlawful activity" means that the person knew the | 3 | | property involved in the transaction represented proceeds | 4 | | from some form, though not necessarily which form, of | 5 | | activity that constitutes a felony under State, federal, or | 6 | | foreign law.
| 7 | | (1) "Financial transaction" means a purchase, sale, | 8 | | loan, pledge, gift,
transfer, delivery or other | 9 | | disposition utilizing criminally derived property,
and | 10 | | with respect to financial institutions, includes a | 11 | | deposit, withdrawal,
transfer between accounts, exchange | 12 | | of currency, loan, extension of credit,
purchase or sale of | 13 | | any stock, bond, certificate of deposit or other monetary
| 14 | | instrument, use of safe deposit box, or any other payment, | 15 | | transfer or delivery by, through, or to a
financial | 16 | | institution.
For purposes of clause (a)(2) of this Section, | 17 | | the term "financial
transaction" also
means a transaction | 18 | | which without regard to whether the funds, monetary
| 19 | | instruments, or real or personal property involved in the | 20 | | transaction are
criminally derived, any transaction which | 21 | | in any way or degree: (1) involves
the movement of funds by | 22 | | wire or any other means; (2) involves one or more
monetary | 23 | | instruments; or (3) the transfer of title to any real or | 24 | | personal
property.
The receipt by an attorney of bona fide | 25 | | fees for the purpose
of legal representation is not a | 26 | | financial transaction for purposes of this
Section.
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| 1 | | (2) "Financial institution" means any bank; saving and | 2 | | loan
association; trust company; agency or branch of a | 3 | | foreign bank in the
United States; currency exchange; | 4 | | credit union, mortgage banking
institution; pawnbroker; | 5 | | loan or finance company; operator of a credit card
system; | 6 | | issuer, redeemer or cashier of travelers checks, checks or | 7 | | money
orders; dealer in precious metals, stones or jewels; | 8 | | broker or dealer in
securities or commodities; investment | 9 | | banker; or investment company.
| 10 | | (3) "Monetary instrument" means United States coins | 11 | | and currency;
coins and currency of a foreign country; | 12 | | travelers checks; personal checks,
bank checks, and money | 13 | | orders; investment securities; bearer
negotiable | 14 | | instruments; bearer investment securities; or bearer | 15 | | securities
and certificates of stock in such form that | 16 | | title thereto passes upon
delivery.
| 17 | | (4) "Criminally derived property" means: (A) any | 18 | | property, real or personal, constituting
or
derived from | 19 | | proceeds obtained, directly or indirectly, from activity | 20 | | that constitutes a felony under State, federal, or foreign | 21 | | law; or (B) any property
represented to be property | 22 | | constituting or derived from proceeds obtained,
directly | 23 | | or indirectly, from activity that constitutes a felony | 24 | | under State, federal, or foreign law.
| 25 | | (5) "Conduct" or "conducts" includes, in addition to | 26 | | its ordinary
meaning, initiating, concluding, or |
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| 1 | | participating in initiating or concluding
a transaction.
| 2 | | (6) "Specified criminal activity" means any violation | 3 | | of Section 29D-15.1
(720 ILCS 5/29D-15.1) and any violation | 4 | | of Article 29D of this Code.
| 5 | | (7) "Director" means the Director of State Police or | 6 | | his or her designated agents. | 7 | | (8) "Department" means the Department of State Police | 8 | | of the State of Illinois or its successor agency.
| 9 | | (9) "Transaction reporting requirement under State | 10 | | law" means any violation as defined under the Currency | 11 | | Reporting Act.
| 12 | | (c) Sentence.
| 13 | | (1) Laundering of criminally derived property of a | 14 | | value not exceeding
$10,000 is a Class 3 felony;
| 15 | | (2) Laundering of criminally derived property of a | 16 | | value exceeding
$10,000 but not exceeding $100,000 is a | 17 | | Class 2 felony;
| 18 | | (3) Laundering of criminally derived property of a | 19 | | value exceeding
$100,000 but not exceeding $500,000 is a | 20 | | Class 1 felony;
| 21 | | (4) Money laundering in violation of subsection (a)(2) | 22 | | of this Section
is a Class X felony;
| 23 | | (5) Laundering of criminally derived property of a | 24 | | value exceeding
$500,000 is a
Class 1 non-probationable | 25 | | felony;
| 26 | | (6) In a prosecution under clause (a)(1.5)(B)(ii) of |
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| 1 | | this Section, the sentences are as follows: | 2 | | (A) Laundering of property of a value not exceeding | 3 | | $10,000 is a Class 3 felony; | 4 | | (B) Laundering of property of a value exceeding | 5 | | $10,000 but not exceeding $100,000 is a Class 2 felony; | 6 | | (C) Laundering of property of a value exceeding | 7 | | $100,000 but not exceeding $500,000 is a Class 1 | 8 | | felony; | 9 | | (D) Laundering of property of a value exceeding | 10 | | $500,000 is a Class 1 non-probationable felony. | 11 | | (d) Evidence. In a prosecution under this Article, either | 12 | | party may introduce the following evidence pertaining to the | 13 | | issue of whether the property or proceeds were known to be some | 14 | | form of criminally derived property or from some form of | 15 | | unlawful activity: | 16 | | (1) A financial transaction was conducted or | 17 | | structured or attempted in violation of the reporting | 18 | | requirements of any State or federal law; or | 19 | | (2) A financial transaction was conducted or attempted | 20 | | with the use of a false or fictitious name or a forged | 21 | | instrument; or | 22 | | (3) A falsely altered or completed written instrument | 23 | | or a written instrument that contains any materially false | 24 | | personal identifying information was made, used, offered | 25 | | or presented, whether accepted or not, in connection with a | 26 | | financial transaction; or |
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| 1 | | (4) A financial transaction was structured or | 2 | | attempted to be structured so as to falsely report the | 3 | | actual consideration or value of the transaction; or | 4 | | (5) A money transmitter, a person engaged in a trade or | 5 | | business or any employee of a money transmitter or a person | 6 | | engaged in a trade or business, knows or reasonably should | 7 | | know that false personal identifying information has been | 8 | | presented and incorporates the false personal identifying | 9 | | information into any report or record; or | 10 | | (6) The criminally derived property is transported or | 11 | | possessed in a fashion inconsistent with the ordinary or | 12 | | usual means of transportation or possession of such | 13 | | property and where the property is discovered in the | 14 | | absence of any documentation or other indicia of legitimate | 15 | | origin or right to such property; or | 16 | | (7) A person pays or receives substantially less than | 17 | | face value for one or more monetary instruments; or | 18 | | (8) A person engages in a transaction involving one or | 19 | | more monetary instruments, where the physical condition or | 20 | | form of the monetary instrument or instruments makes it | 21 | | apparent that they are not the product of bona fide | 22 | | business or financial transactions. | 23 | | (e) Duty to enforce this Article. | 24 | | (1) It is the duty of the Department of State Police, | 25 | | and its agents, officers, and investigators, to enforce all | 26 | | provisions of this Article, except those specifically |
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| 1 | | delegated, and to cooperate with all agencies charged with | 2 | | the enforcement of the laws of the United States, or of any | 3 | | state, relating to money laundering. Only an agent, | 4 | | officer, or investigator designated by the Director may be | 5 | | authorized in accordance with this Section to serve seizure | 6 | | notices, warrants, subpoenas, and summonses under the | 7 | | authority of this State. | 8 | | (2) Any agent, officer, investigator, or peace officer | 9 | | designated by the Director may: (A) make seizure of | 10 | | property pursuant to the provisions of this Article; and | 11 | | (B) perform such other law enforcement duties as the | 12 | | Director designates. It is the duty of all State's | 13 | | Attorneys to prosecute violations of this Article and | 14 | | institute legal proceedings as authorized under this | 15 | | Article. | 16 | | (f) Protective orders. | 17 | | (1) Upon application of the State, the court may enter | 18 | | a restraining order or injunction, require the execution of | 19 | | a satisfactory performance bond, or take any other action | 20 | | to preserve the availability of property described in | 21 | | subsection (h) for forfeiture under this Article: | 22 | | (A) upon the filing of an indictment, information, | 23 | | or complaint charging a violation of this Article for | 24 | | which forfeiture may be ordered under this Article and | 25 | | alleging that the property with respect to which the | 26 | | order is sought would be subject to forfeiture under |
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| 1 | | this Article; or
| 2 | | (B) prior to the filing of such an indictment, | 3 | | information, or complaint, if, after notice to persons | 4 | | appearing to have an interest in the property and | 5 | | opportunity for a hearing, the court determines that: | 6 | | (i) there is probable cause to believe that the | 7 | | State will prevail on the issue of forfeiture and | 8 | | that failure to enter the order will result in the | 9 | | property being destroyed, removed from the | 10 | | jurisdiction of the court, or otherwise made | 11 | | unavailable for forfeiture; and | 12 | | (ii) the need to preserve the availability of | 13 | | the property through the entry of the requested | 14 | | order outweighs the hardship on any party against | 15 | | whom the order is to be entered. | 16 | | Provided, however, that an order entered pursuant | 17 | | to subparagraph (B) shall be effective for not more | 18 | | than 90 days, unless extended by the court for good | 19 | | cause shown or unless an indictment, information, | 20 | | complaint, or administrative notice has been filed. | 21 | | (2) A temporary restraining order under this | 22 | | subsection may be entered upon application of the State | 23 | | without notice or opportunity for a hearing when an | 24 | | indictment, information, complaint, or administrative | 25 | | notice has not yet been filed with respect to the property, | 26 | | if the State demonstrates that there is probable cause to |
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| 1 | | believe that the property with respect to which the order | 2 | | is sought would be subject to forfeiture under this Section | 3 | | and that provision of notice will jeopardize the | 4 | | availability of the property for forfeiture. Such a | 5 | | temporary order shall expire not more than 30 days after | 6 | | the date on which it is entered, unless extended for good | 7 | | cause shown or unless the party against whom it is entered | 8 | | consents to an extension for a longer period. A hearing | 9 | | requested concerning an order entered under this paragraph | 10 | | shall be held at the earliest possible time and prior to | 11 | | the expiration of the temporary order. | 12 | | (3) The court may receive and consider, at a hearing | 13 | | held pursuant to this subsection (f), evidence and | 14 | | information that would be inadmissible under the Illinois | 15 | | rules of evidence.
| 16 | | (4) Order to repatriate and deposit. | 17 | | (A) In general. Pursuant to its authority to enter | 18 | | a pretrial restraining order under this Section, the | 19 | | court may order a defendant to repatriate any property | 20 | | that may be seized and forfeited and to deposit that | 21 | | property pending trial with the Illinois State Police | 22 | | or another law enforcement agency designated by the | 23 | | Illinois State Police. | 24 | | (B) Failure to comply. Failure to comply with an | 25 | | order under this subsection (f) is punishable as a | 26 | | civil or criminal contempt of court.
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| 1 | | (g) Warrant of seizure. The State may request the issuance | 2 | | of a warrant authorizing the seizure of property described in | 3 | | subsection (h) in the same manner as provided for a search | 4 | | warrant. If the court determines that there is probable cause | 5 | | to believe that the property to be seized would be subject to | 6 | | forfeiture, the court shall issue a warrant authorizing the | 7 | | seizure of such property. | 8 | | (h) Forfeiture. | 9 | | (1) The following are subject to forfeiture: | 10 | | (A) any property, real or personal, constituting, | 11 | | derived from, or traceable to any proceeds the person | 12 | | obtained directly or indirectly, as a result of a | 13 | | violation of this Article; | 14 | | (B) any of the person's property used, or intended | 15 | | to be used, in any manner or part, to commit, or to | 16 | | facilitate the commission of, a violation of this | 17 | | Article; | 18 | | (C) all conveyances, including aircraft, vehicles | 19 | | or vessels, which are used, or intended for use, to | 20 | | transport, or in any manner to facilitate the | 21 | | transportation, sale, receipt, possession, or | 22 | | concealment of property described in subparagraphs (A) | 23 | | and (B), but: | 24 | | (i) no conveyance used by any person as a | 25 | | common carrier in the transaction of business as a | 26 | | common carrier is subject to forfeiture under this |
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| 1 | | Section unless it appears that the owner or other | 2 | | person in charge of the conveyance is a consenting | 3 | | party or privy to a violation of this Article; | 4 | | (ii) no conveyance is subject to forfeiture | 5 | | under this Section by reason of any act or omission | 6 | | which the owner proves to have been committed or | 7 | | omitted without his or her knowledge or consent; | 8 | | (iii) a forfeiture of a conveyance encumbered | 9 | | by a bona fide security interest is subject to the | 10 | | interest of the secured party if he or she neither | 11 | | had knowledge of nor consented to the act or | 12 | | omission; | 13 | | (D) all real property, including any right, title, | 14 | | and interest (including, but not limited to, any | 15 | | leasehold interest or the beneficial interest in a land | 16 | | trust) in the whole of any lot or tract of land and any | 17 | | appurtenances or improvements, which is used or | 18 | | intended to be used, in any manner or part, to commit, | 19 | | or in any manner to facilitate the commission of, any | 20 | | violation of this Article or that is the proceeds of | 21 | | any violation or act that constitutes a violation of | 22 | | this Article.
| 23 | | (2) Property subject to forfeiture under this Article | 24 | | may be seized by the Director or any peace officer upon | 25 | | process or seizure warrant issued by any court having | 26 | | jurisdiction over the property. Seizure by the Director or |
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| 1 | | any peace officer without process may be made: | 2 | | (A) if the seizure is incident to a seizure | 3 | | warrant; | 4 | | (B) if the property subject to seizure has been the | 5 | | subject of a prior judgment in favor of the State in a | 6 | | criminal proceeding, or in an injunction or forfeiture | 7 | | proceeding based upon this Article; | 8 | | (C) if there is probable cause to believe that the | 9 | | property is directly or indirectly dangerous to health | 10 | | or safety; | 11 | | (D) if there is probable cause to believe that the | 12 | | property is subject to forfeiture under this Article | 13 | | and the property is seized under circumstances in which | 14 | | a warrantless seizure or arrest would be reasonable; or | 15 | | (E) in accordance with the Code of Criminal | 16 | | Procedure of 1963. | 17 | | (3) In the event of seizure pursuant to paragraph (2), | 18 | | forfeiture proceedings shall be instituted in accordance | 19 | | with subsections (i) through (r). | 20 | | (4) Property taken or detained under this Section shall | 21 | | not be subject to replevin, but is deemed to be in the | 22 | | custody of the Director subject only to the order and | 23 | | judgments of the circuit court having jurisdiction over the | 24 | | forfeiture proceedings and the decisions of the State's | 25 | | Attorney under this Article. When property is seized under | 26 | | this Article, the seizing agency shall promptly conduct an |
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| 1 | | inventory of the seized property and estimate the | 2 | | property's value and shall forward a copy of the inventory | 3 | | of seized property and the estimate of the property's value | 4 | | to the Director. Upon receiving notice of seizure, the | 5 | | Director may: | 6 | | (A) place the property under seal; | 7 | | (B) remove the property to a place designated by | 8 | | the Director; | 9 | | (C) keep the property in the possession of the | 10 | | seizing agency; | 11 | | (D) remove the property to a storage area for | 12 | | safekeeping or, if the property is a negotiable | 13 | | instrument or money and is not needed for evidentiary | 14 | | purposes, deposit it in an interest bearing account; | 15 | | (E) place the property under constructive seizure | 16 | | by posting notice of pending forfeiture on it, by | 17 | | giving notice of pending forfeiture to its owners and | 18 | | interest holders, or by filing notice of pending | 19 | | forfeiture in any appropriate public record relating | 20 | | to the property; or | 21 | | (F) provide for another agency or custodian, | 22 | | including an owner, secured party, or lienholder, to | 23 | | take custody of the property upon the terms and | 24 | | conditions set by the Director. | 25 | | (5) When property is forfeited under this Article, the | 26 | | Director shall sell all such property unless such property |
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| 1 | | is required by law to be destroyed or is harmful to the | 2 | | public, and shall distribute the proceeds of the sale, | 3 | | together with any moneys forfeited or seized, in accordance | 4 | | with paragraph (6). However, upon the application of the | 5 | | seizing agency or prosecutor who was responsible for the | 6 | | investigation, arrest or arrests and prosecution which | 7 | | lead to the forfeiture, the Director may return any item of | 8 | | forfeited property to the seizing agency or prosecutor for | 9 | | official use in the enforcement of laws, if the agency or | 10 | | prosecutor can demonstrate that the item requested would be | 11 | | useful to the agency or prosecutor in its enforcement | 12 | | efforts. When any real property returned to the seizing | 13 | | agency is sold by the agency or its unit of government, the | 14 | | proceeds of the sale shall be delivered to the Director and | 15 | | distributed in accordance with paragraph (6). | 16 | | (6) All monies and the sale proceeds of all other | 17 | | property forfeited and seized under this Article shall be | 18 | | distributed as follows: | 19 | | (A) 65% shall be distributed to the metropolitan | 20 | | enforcement group, local, municipal, county, or State | 21 | | law enforcement agency or agencies which conducted or | 22 | | participated in the investigation resulting in the | 23 | | forfeiture. The distribution shall bear a reasonable | 24 | | relationship to the degree of direct participation of | 25 | | the law enforcement agency in the effort resulting in | 26 | | the forfeiture, taking into account the total value of |
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| 1 | | the property forfeited and the total law enforcement | 2 | | effort with respect to the violation of the law upon | 3 | | which the forfeiture is based. Amounts distributed to | 4 | | the agency or agencies shall be used for the | 5 | | enforcement of laws. | 6 | | (B)(i) 12.5% shall be distributed to the Office of | 7 | | the State's Attorney of the county in which the | 8 | | prosecution resulting in the forfeiture was | 9 | | instituted, deposited in a special fund in the county | 10 | | treasury and appropriated to the State's Attorney for | 11 | | use in the enforcement of laws. In counties over | 12 | | 3,000,000 population, 25% shall be distributed to the | 13 | | Office of the State's Attorney for use in the | 14 | | enforcement of laws. If the prosecution is undertaken | 15 | | solely by the Attorney General, the portion provided | 16 | | hereunder shall be distributed to the Attorney General | 17 | | for use in the enforcement of laws. | 18 | | (ii) 12.5% shall be distributed to the Office of | 19 | | the State's Attorneys Appellate Prosecutor and | 20 | | deposited in the Narcotics Profit Forfeiture Fund of | 21 | | that office to be used for additional expenses incurred | 22 | | in the investigation, prosecution and appeal of cases | 23 | | arising under laws. The Office of the State's Attorneys | 24 | | Appellate Prosecutor shall not receive distribution | 25 | | from cases brought in counties with over 3,000,000 | 26 | | population. |
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| 1 | | (C) 10% shall be retained by the Department of | 2 | | State Police for expenses related to the | 3 | | administration and sale of seized and forfeited | 4 | | property. | 5 | | Moneys and the sale proceeds distributed to the | 6 | | Department of State Police under this Article shall be | 7 | | deposited in the Money Laundering Asset Recovery Fund | 8 | | created in the State treasury and shall be used by the | 9 | | Department of State Police for State law enforcement | 10 | | purposes. | 11 | | (7) All moneys and sale proceeds of property forfeited | 12 | | and seized under this Article and distributed according to | 13 | | paragraph (6) may also be used to purchase opioid | 14 | | antagonists as defined in Section 5-23 of the Alcoholism | 15 | | and Other Drug Abuse and Dependency Act. | 16 | | (i) Notice to owner or interest holder. | 17 | | (1) Whenever notice of pending forfeiture or service of | 18 | | an in rem complaint is required under the provisions of | 19 | | this Article, such notice or service shall be given as | 20 | | follows: | 21 | | (A) If the owner's or interest holder's name and | 22 | | current address are known, then by either personal | 23 | | service or mailing a copy of the notice by certified | 24 | | mail, return receipt requested, to that address. For | 25 | | purposes of notice under this Section, if a person has | 26 | | been arrested for the conduct giving rise to the |
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| 1 | | forfeiture, then the address provided to the arresting | 2 | | agency at the time of arrest shall be deemed to be that | 3 | | person's known address. Provided, however, if an owner | 4 | | or interest holder's address changes prior to the | 5 | | effective date of the notice of pending forfeiture, the | 6 | | owner or interest holder shall promptly notify the | 7 | | seizing agency of the change in address or, if the | 8 | | owner or interest holder's address changes subsequent | 9 | | to the effective date of the notice of pending | 10 | | forfeiture, the owner or interest holder shall | 11 | | promptly notify the State's Attorney of the change in | 12 | | address; or | 13 | | (B) If the property seized is a conveyance, to the | 14 | | address reflected in the office of the agency or | 15 | | official in which title or interest to the conveyance | 16 | | is required by law to be recorded, then by mailing a | 17 | | copy of the notice by certified mail, return receipt | 18 | | requested, to that address; or | 19 | | (C) If the owner's or interest holder's address is | 20 | | not known, and is not on record as provided in | 21 | | paragraph (B), then by publication for 3 successive | 22 | | weeks in a newspaper of general circulation in the | 23 | | county in which the seizure occurred. | 24 | | (2) Notice served under this Article is effective upon | 25 | | personal service, the last date of publication, or the | 26 | | mailing of written notice, whichever is earlier. |
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| 1 | | (j) Notice to State's Attorney. The law enforcement agency | 2 | | seizing property for forfeiture under this Article shall, | 3 | | within 90 days after seizure, notify the State's Attorney for | 4 | | the county, either where an act or omission giving rise to the | 5 | | forfeiture occurred or where the property was seized, of the | 6 | | seizure of the property and the facts and circumstances giving | 7 | | rise to the seizure and shall provide the State's Attorney with | 8 | | the inventory of the property and its estimated value. When the | 9 | | property seized for forfeiture is a vehicle, the law | 10 | | enforcement agency seizing the property shall immediately | 11 | | notify the Secretary of State that forfeiture proceedings are | 12 | | pending regarding such vehicle. | 13 | | (k) Non-judicial forfeiture. If non-real property that | 14 | | exceeds $20,000 in value excluding the value of any conveyance, | 15 | | or if real property is seized under the provisions of this | 16 | | Article, the State's Attorney shall institute judicial in rem | 17 | | forfeiture proceedings as described in subsection (l) of this | 18 | | Section within 45 days from receipt of notice of seizure from | 19 | | the seizing agency under subsection (j) of this Section. | 20 | | However, if non-real property that does not exceed $20,000 in | 21 | | value excluding the value of any conveyance is seized, the | 22 | | following procedure shall be used: | 23 | | (1) If, after review of the facts surrounding the | 24 | | seizure, the State's Attorney is of the opinion that the | 25 | | seized property is subject to forfeiture, then within 45 | 26 | | days after the receipt of notice of seizure from the |
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| 1 | | seizing agency, the State's Attorney shall cause notice of | 2 | | pending forfeiture to be given to the owner of the property | 3 | | and all known interest holders of the property in | 4 | | accordance with subsection (i) of this Section. | 5 | | (2) The notice of pending forfeiture must include a | 6 | | description of the property, the estimated value of the | 7 | | property, the date and place of seizure, the conduct giving | 8 | | rise to forfeiture or the violation of law alleged, and a | 9 | | summary of procedures and procedural rights applicable to | 10 | | the forfeiture action. | 11 | | (3)(A) Any person claiming an interest in property | 12 | | which is the subject of notice under paragraph (1) of this | 13 | | subsection (k), must, in order to preserve any rights or | 14 | | claims to the property, within 45 days after the effective | 15 | | date of notice as described in subsection (i) of this | 16 | | Section, file a verified claim with the State's Attorney | 17 | | expressing his or her interest in the property. The claim | 18 | | must set forth: | 19 | | (i) the caption of the proceedings as set forth on | 20 | | the notice of pending forfeiture and the name of the | 21 | | claimant; | 22 | | (ii) the address at which the claimant will accept | 23 | | mail; | 24 | | (iii) the nature and extent of the claimant's | 25 | | interest in the property; | 26 | | (iv) the date, identity of the transferor, and |
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| 1 | | circumstances of the claimant's acquisition of the | 2 | | interest in the property;
| 3 | | (v) the name and address of all other persons known | 4 | | to have an interest in the property; | 5 | | (vi) the specific provision of law relied on in | 6 | | asserting the property is not subject to forfeiture; | 7 | | (vii) all essential facts supporting each | 8 | | assertion; and | 9 | | (viii) the relief sought. | 10 | | (B) If a claimant files the claim and deposits with the | 11 | | State's Attorney a cost bond, in the form of a cashier's | 12 | | check payable to the clerk of the court, in the sum of 10% | 13 | | of the reasonable value of the property as alleged by the | 14 | | State's Attorney or the sum of $100, whichever is greater, | 15 | | upon condition that, in the case of forfeiture, the | 16 | | claimant must pay all costs and expenses of forfeiture | 17 | | proceedings, then the State's Attorney shall institute | 18 | | judicial in rem forfeiture proceedings and deposit the cost | 19 | | bond with the clerk of the court as described in subsection | 20 | | (l) of this Section within 45 days after receipt of the | 21 | | claim and cost bond. In lieu of a cost bond, a person | 22 | | claiming interest in the seized property may file, under | 23 | | penalty of perjury, an indigency affidavit which has been | 24 | | approved by a circuit court judge. | 25 | | (C) If none of the seized property is forfeited in the | 26 | | judicial in rem proceeding, the clerk of the court shall |
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| 1 | | return to the claimant, unless the court orders otherwise, | 2 | | 90% of the sum which has been deposited and shall retain as | 3 | | costs 10% of the money deposited. If any of the seized | 4 | | property is forfeited under the judicial forfeiture | 5 | | proceeding, the clerk of the court shall transfer 90% of | 6 | | the sum which has been deposited to the State's Attorney | 7 | | prosecuting the civil forfeiture to be applied to the costs | 8 | | of prosecution and the clerk shall retain as costs 10% of | 9 | | the sum deposited. | 10 | | (4) If no claim is filed or bond given within the 45 | 11 | | day period as described in paragraph (3) of this subsection | 12 | | (k), the State's Attorney shall declare the property | 13 | | forfeited and shall promptly notify the owner and all known | 14 | | interest holders of the property and the Director of State | 15 | | Police of the declaration of forfeiture and the Director | 16 | | shall dispose of the property in accordance with law. | 17 | | (l) Judicial in rem procedures. If property seized under | 18 | | the provisions of this Article is non-real property that | 19 | | exceeds $20,000 in value excluding the value of any conveyance, | 20 | | or is real property, or a claimant has filed a claim and a cost | 21 | | bond under paragraph (3) of subsection (k) of this Section, the | 22 | | following judicial in rem procedures shall apply: | 23 | | (1) If, after a review of the facts surrounding the | 24 | | seizure, the State's Attorney is of the opinion that the | 25 | | seized property is subject to forfeiture, then within 45 | 26 | | days of the receipt of notice of seizure by the seizing |
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| 1 | | agency or the filing of the claim and cost bond, whichever | 2 | | is later, the State's Attorney shall institute judicial | 3 | | forfeiture proceedings by filing a verified complaint for | 4 | | forfeiture and, if the claimant has filed a claim and cost | 5 | | bond, by depositing the cost bond with the clerk of the | 6 | | court. When authorized by law, a forfeiture must be ordered | 7 | | by a court on an action in rem brought by a State's | 8 | | Attorney under a verified complaint for forfeiture. | 9 | | (2) During the probable cause portion of the judicial | 10 | | in rem proceeding wherein the State presents its | 11 | | case-in-chief, the court must receive and consider, among | 12 | | other things, all relevant hearsay evidence and | 13 | | information. The laws of evidence relating to civil actions | 14 | | apply to all other portions of the judicial in rem | 15 | | proceeding. | 16 | | (3) Only an owner of or interest holder in the property | 17 | | may file an answer asserting a claim against the property | 18 | | in the action in rem. For purposes of this Section, the | 19 | | owner or interest holder shall be referred to as claimant. | 20 | | Upon motion of the State, the court shall first hold a | 21 | | hearing, wherein any claimant must establish by a | 22 | | preponderance of the evidence, that he or she has a lawful, | 23 | | legitimate ownership interest in the property and that it | 24 | | was obtained through a lawful source. | 25 | | (4) The answer must be signed by the owner or interest | 26 | | holder under penalty of perjury and must set forth: |
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| 1 | | (A) the caption of the proceedings as set forth on | 2 | | the notice of pending forfeiture and the name of the | 3 | | claimant; | 4 | | (B) the address at which the claimant will accept | 5 | | mail; | 6 | | (C) the nature and extent of the claimant's | 7 | | interest in the property; | 8 | | (D) the date, identity of transferor, and | 9 | | circumstances of the claimant's acquisition of the | 10 | | interest in the property; | 11 | | (E) the name and address of all other persons known | 12 | | to have an interest in the property; | 13 | | (F) all essential facts supporting each assertion; | 14 | | and | 15 | | (G) the precise relief sought.
| 16 | | (5) The answer must be filed with the court within 45 | 17 | | days after service of the civil in rem complaint. | 18 | | (6) The hearing must be held within 60 days after | 19 | | filing of the answer unless continued for good cause.
| 20 | | (7) The State shall show the existence of probable | 21 | | cause for forfeiture of the property. If the State shows | 22 | | probable cause, the claimant has the burden of showing by a | 23 | | preponderance of the evidence that the claimant's interest | 24 | | in the property is not subject to forfeiture.
| 25 | | (7.5) The court shall admit a signed statement by a | 26 | | person who is 65 years old or older to demonstrate that the |
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| 1 | | conveyance or other property was used without his or her | 2 | | consent. The claimant may file a temporary restraining | 3 | | order against the person who allegedly used his or her | 4 | | property without his or her consent under Section 11-101 of | 5 | | the Code of Civil Procedure. | 6 | | (8) If the State does not show existence of probable | 7 | | cause, the court shall order the interest in the property | 8 | | returned or conveyed to the claimant and shall order all | 9 | | other property forfeited to the State. If the State does | 10 | | show existence of probable cause, the court shall order all | 11 | | property forfeited to the State. | 12 | | (9) A defendant convicted in any criminal proceeding is | 13 | | precluded from later denying the essential allegations of | 14 | | the criminal offense of which the defendant was convicted | 15 | | in any proceeding under this Article regardless of the | 16 | | pendency of an appeal from that conviction. However, | 17 | | evidence of the pendency of an appeal is admissible. | 18 | | (10) An acquittal or dismissal in a criminal proceeding | 19 | | does not preclude civil proceedings under this Article; | 20 | | however, for good cause shown, on a motion by the State's | 21 | | Attorney, the court may stay civil forfeiture proceedings | 22 | | during the criminal trial for a related criminal indictment | 23 | | or information alleging a money laundering violation. Such | 24 | | a stay shall not be available pending an appeal. Property | 25 | | subject to forfeiture under this Article shall not be | 26 | | subject to return or release by a court exercising |
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| 1 | | jurisdiction over a criminal case involving the seizure of | 2 | | such property unless such return or release is consented to | 3 | | by the State's Attorney. | 4 | | (11) All property declared forfeited under this | 5 | | Article vests in this State on the commission of the | 6 | | conduct giving rise to forfeiture together with the | 7 | | proceeds of the property after that time. Any such property | 8 | | or proceeds subsequently transferred to any person remain | 9 | | subject to forfeiture and thereafter shall be ordered | 10 | | forfeited. | 11 | | (12) A civil action under this Article must be | 12 | | commenced within 5 years after the last conduct giving rise | 13 | | to forfeiture became known or should have become known or 5 | 14 | | years after the forfeitable property is discovered, | 15 | | whichever is later, excluding any time during which either | 16 | | the property or claimant is out of the State or in | 17 | | confinement or during which criminal proceedings relating | 18 | | to the same conduct are in progress. | 19 | | (m) Stay of time periods. If property is seized for | 20 | | evidence and for forfeiture, the time periods for instituting | 21 | | judicial and non-judicial forfeiture proceedings shall not | 22 | | begin until the property is no longer necessary for evidence. | 23 | | (n) Settlement of claims. Notwithstanding other provisions | 24 | | of this Article, the State's Attorney and a claimant of seized | 25 | | property may enter into an agreed-upon settlement concerning | 26 | | the seized property in such an amount and upon such terms as |
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| 1 | | are set out in writing in a settlement agreement. | 2 | | (o) Property constituting attorney fees. Nothing in this | 3 | | Article applies to property which constitutes reasonable bona | 4 | | fide attorney's fees paid to an attorney for services rendered | 5 | | or to be rendered in the forfeiture proceeding or criminal | 6 | | proceeding relating directly thereto where such property was | 7 | | paid before its seizure, before the issuance of any seizure | 8 | | warrant or court order prohibiting transfer of the property and | 9 | | where the attorney, at the time he or she received the property | 10 | | did not know that it was property subject to forfeiture under | 11 | | this Article. | 12 | | (p) Construction. It is the intent of the General Assembly | 13 | | that the forfeiture provisions of this Article be liberally | 14 | | construed so as to effect their remedial purpose. The | 15 | | forfeiture of property and other remedies hereunder shall be | 16 | | considered to be in addition to, and not exclusive of, any | 17 | | sentence or other remedy provided by law. | 18 | | (q) Judicial review. If property has been declared | 19 | | forfeited under subsection (k) of this Section, any person who | 20 | | has an interest in the property declared forfeited may, within | 21 | | 30 days after the effective date of the notice of the | 22 | | declaration of forfeiture, file a claim and cost bond as | 23 | | described in paragraph (3) of subsection (k) of this Section. | 24 | | If a claim and cost bond is filed under this Section, then the | 25 | | procedures described in subsection (l) of this Section apply. | 26 | | (r) Burden of proof of exemption or exception. It is not |
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| 1 | | necessary for the State to negate any exemption or exception in | 2 | | this Article in any complaint, information, indictment or other | 3 | | pleading or in any trial, hearing, or other proceeding under | 4 | | this Article. The burden of proof of any exemption or exception | 5 | | is upon the person claiming it. | 6 | | (s) Review of administrative decisions.
All administrative | 7 | | findings, rulings, final determinations, findings, and | 8 | | conclusions of the State's Attorney's Office under this Article | 9 | | are final and conclusive decisions of the matters involved. Any | 10 | | person aggrieved by the decision may obtain review of the | 11 | | decision pursuant to the provisions of the Administrative | 12 | | Review Law and the rules adopted pursuant to that Law. Pending | 13 | | final decision on such review, the administrative acts, orders, | 14 | | and rulings of the State's Attorney's Office remain in full | 15 | | force and effect unless modified or suspended by order of court | 16 | | pending final judicial decision. Pending final decision on such | 17 | | review, the acts, orders, and rulings of the State's Attorney's | 18 | | Office remain in full force and effect, unless stayed by order | 19 | | of court. However, no stay of any decision of the | 20 | | administrative agency shall issue unless the person aggrieved | 21 | | by the decision establishes by a preponderance of the evidence | 22 | | that good cause exists for the stay. In determining good cause, | 23 | | the court shall find that the aggrieved party has established a | 24 | | substantial likelihood of prevailing on the merits and that | 25 | | granting the stay will not have an injurious effect on the | 26 | | general public.
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| 1 | | (Source: P.A. 99-480, eff. 9-9-15.)
| 2 | | (720 ILCS 5/36-2) (from Ch. 38, par. 36-2)
| 3 | | Sec. 36-2. Action for forfeiture. | 4 | | (a) The State's Attorney in the county in which such | 5 | | seizure occurs
if he or she finds that the forfeiture was | 6 | | incurred without willful negligence
or without any intention on | 7 | | the part of the owner of the vessel or watercraft, vehicle
or | 8 | | aircraft or any person whose right, title or interest is of | 9 | | record as
described in Section 36-1, to violate the law, or | 10 | | finds the existence of
such mitigating circumstances as to | 11 | | justify remission of the forfeiture,
may cause the law | 12 | | enforcement agency to remit the same upon such terms and | 13 | | conditions
as the State's Attorney deems reasonable and just. | 14 | | The State's Attorney
shall exercise his or her discretion under | 15 | | the foregoing provision of this
Section 36-2(a) prior to or | 16 | | promptly after the preliminary review under Section 36-1.5. | 17 | | (b) If the State's Attorney does not cause the forfeiture | 18 | | to
be remitted he or she shall forthwith bring an action for | 19 | | forfeiture in the
Circuit Court within whose jurisdiction the | 20 | | seizure and confiscation has
taken place. The State's Attorney | 21 | | shall give notice of seizure and the forfeiture proceeding to | 22 | | each person according to the following method: upon each person | 23 | | whose right, title, or interest is of record in the office of | 24 | | the Secretary of State, the Secretary of Transportation, the | 25 | | Administrator of the Federal Aviation Agency, or any other |
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| 1 | | department of this State, or any other state of the United | 2 | | States if the vessel or watercraft, vehicle, or aircraft is | 3 | | required to be so registered, as the case may be, by delivering | 4 | | the notice and complaint in open court or by certified mail to | 5 | | the address as given upon the records of the Secretary of | 6 | | State, the Division of Aeronautics of the Department of | 7 | | Transportation, the Capital Development Board, or any other | 8 | | department of this State or the United States if the vessel or | 9 | | watercraft, vehicle, or aircraft is required to be so | 10 | | registered. | 11 | | (c) The owner of the seized vessel or watercraft, vehicle, | 12 | | or aircraft or any person
whose right, title, or interest is of | 13 | | record as described in Section
36-1, may within 20 days after | 14 | | delivery in open court or the mailing of such notice file a
| 15 | | verified answer to the Complaint and may appear at the hearing | 16 | | on the
action for forfeiture. | 17 | | (d) The State shall show at such hearing by a
preponderance | 18 | | of the evidence, that such vessel or watercraft, vehicle, or | 19 | | aircraft was
used in the commission of an offense described in | 20 | | Section 36-1. | 21 | | (e) The
owner of such vessel or watercraft, vehicle, or | 22 | | aircraft or any person whose right,
title, or interest is of | 23 | | record as described in Section 36-1, may show
by a | 24 | | preponderance of the evidence that he did not know, and did not
| 25 | | have reason to know, that the vessel or watercraft, vehicle, or | 26 | | aircraft was to be used
in the commission of such an offense or |
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| 1 | | that any of the exceptions set
forth in Section 36-3 are | 2 | | applicable. | 3 | | (e-5) The court shall admit a signed statement by a person | 4 | | who is 65 years old or older to demonstrate that the conveyance | 5 | | or other property was used without his or her consent. The | 6 | | claimant may file a temporary restraining order against the | 7 | | person who allegedly used his or her property without his or | 8 | | her consent under Section 11-101 of the Code of Civil | 9 | | Procedure. | 10 | | (f) Unless the State shall make such
showing, the Court | 11 | | shall order such vessel or watercraft, vehicle, or aircraft | 12 | | released
to the owner. Where the State has made such showing, | 13 | | the Court may order
the vessel or watercraft, vehicle, or | 14 | | aircraft destroyed or may order it forfeited to
any local, | 15 | | municipal or county law enforcement agency, or the Department
| 16 | | of State Police or the Department of Revenue of
the State of | 17 | | Illinois.
| 18 | | (g) A copy of the order shall be filed with the law | 19 | | enforcement agency, and with each Federal or State office
or | 20 | | agency with which such vessel or watercraft, vehicle, or | 21 | | aircraft is required to be
registered. Such order, when filed, | 22 | | constitutes authority for the
issuance of clear title to such | 23 | | vessel or watercraft, vehicle, or aircraft, to the
department | 24 | | or agency to whom it is delivered or any purchaser thereof.
The | 25 | | law enforcement agency shall comply promptly with instructions | 26 | | to remit received
from the State's Attorney or Attorney General |
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| 1 | | in accordance with
Sections 36-2(a) or 36-3.
| 2 | | (h) The proceeds of any sale at public auction pursuant to | 3 | | Section
36-2 of this Act, after payment of all liens and | 4 | | deduction of the
reasonable charges and expenses incurred by | 5 | | the State's Attorney's Office shall be paid to the law | 6 | | enforcement agency having seized the vehicle for forfeiture.
| 7 | | (Source: P.A. 98-699, eff. 1-1-15; 98-1020, eff. 8-22-14; | 8 | | 99-78, eff. 7-20-15.)
| 9 | | (720 ILCS 5/47-15)
| 10 | | Sec. 47-15. Dumping garbage upon real property.
| 11 | | (a) It is unlawful for a person to dump, deposit, or place | 12 | | garbage,
rubbish, trash, or refuse upon real property not owned | 13 | | by
that person without the consent of the owner or person in | 14 | | possession of the
real property.
| 15 | | (b) A person who violates this Section is liable to the | 16 | | owner or person in
possession of the real property on which the | 17 | | garbage, rubbish,
trash, or refuse is dumped, deposited, or | 18 | | placed for the reasonable costs
incurred by the owner or person | 19 | | in possession for cleaning up and properly
disposing of the | 20 | | garbage, rubbish, trash, or refuse, and for
reasonable | 21 | | attorneys' fees.
| 22 | | (c) A person violating this Section is guilty of a Class B | 23 | | misdemeanor for
which the court must impose a minimum fine of | 24 | | $500. A
second conviction for an offense committed after the | 25 | | first conviction is a
Class A misdemeanor for which the court |
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| 1 | | must impose a minimum fine of $500.
A third or subsequent | 2 | | violation, committed after a second
conviction, is a Class 4 | 3 | | felony for which the court must impose a minimum
fine of $500.
| 4 | | A person who violates this Section and who has an equity | 5 | | interest in a motor
vehicle used in violation of this Section | 6 | | is presumed to have the financial
resources to pay the minimum | 7 | | fine not exceeding his or her equity interest in
the vehicle.
| 8 | | Personal property used by a person in
violation of this Section | 9 | | shall on the third or subsequent conviction of the
person be | 10 | | forfeited to the county where the violation occurred and | 11 | | disposed of
at a public sale. Before the forfeiture, the court | 12 | | shall conduct a hearing to
determine whether property is | 13 | | subject to forfeiture under this Section. At the
forfeiture | 14 | | hearing the State has the burden of establishing by a | 15 | | preponderance
of the evidence that property is subject to | 16 | | forfeiture under this Section. The court shall admit a signed | 17 | | statement by a person who is 65 years old or older to | 18 | | demonstrate that the conveyance or other property was used | 19 | | without his or her consent. The claimant may file a temporary | 20 | | restraining order against the person who allegedly used his or | 21 | | her property without his or her consent under Section 11-101 of | 22 | | the Code of Civil Procedure.
| 23 | | (d) The statutory minimum fine required by subsection (c) | 24 | | is not subject
to reduction or suspension unless the defendant | 25 | | is indigent.
If the defendant files a motion with the court | 26 | | asserting his or her inability
to pay the mandatory fine |
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| 1 | | required by this Section, the court must set a
hearing on the | 2 | | motion before sentencing. The court must require an affidavit
| 3 | | signed by the defendant containing sufficient information to | 4 | | ascertain the
assets and liabilities of the defendant. If the | 5 | | court determines that the
defendant is indigent, the court must | 6 | | require that the defendant choose
either to pay the minimum | 7 | | fine of $500 or to perform 100 hours of community
service.
| 8 | | (Source: P.A. 90-655, eff. 7-30-98; 91-409, eff. 1-1-00.)
| 9 | | Section 10. The Code of Criminal Procedure of 1963 is | 10 | | amended by changing Section 124B-160 as follows: | 11 | | (725 ILCS 5/124B-160)
| 12 | | Sec. 124B-160. Petition for forfeiture; forfeiture | 13 | | hearing; burden of proof. | 14 | | (a) The Attorney General or State's Attorney may file a | 15 | | petition for forfeiture of property in connection with an | 16 | | offense as defined in this Article, and, within a reasonable | 17 | | time after sentencing, the court shall conduct a hearing to | 18 | | determine whether any property is subject to forfeiture under | 19 | | this Article. Every person with any property interest in the | 20 | | property alleged to be subject to forfeiture may appear as a | 21 | | party and present evidence at the hearing. | 22 | | (b) At the forfeiture hearing, the State has the burden of | 23 | | establishing, by a preponderance of the evidence, that the | 24 | | property is subject to forfeiture under this Article. The court |
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| 1 | | shall admit a signed statement by a person who is 65 years old | 2 | | or older to demonstrate that the conveyance or other property | 3 | | was used without his or her consent. The claimant may file a | 4 | | temporary restraining order against the person who allegedly | 5 | | used his or her property without his or her consent under | 6 | | Section 11-101 of the Code of Civil Procedure.
| 7 | | (Source: P.A. 96-712, eff. 1-1-10.) | 8 | | Section 15. The Drug Asset Forfeiture Procedure Act is | 9 | | amended by changing Section 9 as follows:
| 10 | | (725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)
| 11 | | Sec. 9. Judicial in rem procedures. If property seized | 12 | | under the
provisions of the Illinois Controlled Substances Act, | 13 | | the Cannabis Control
Act, or the Methamphetamine Control and | 14 | | Community Protection Act is non-real property that exceeds | 15 | | $20,000 in value excluding the value
of any conveyance, or is | 16 | | real property, or a claimant has filed a claim and
a cost bond | 17 | | under subsection (C) of Section 6 of this Act, the following
| 18 | | judicial in rem procedures shall apply:
| 19 | | (A) If, after a review of the facts surrounding the | 20 | | seizure, the State's
Attorney is of the opinion that the seized | 21 | | property is subject to
forfeiture, then within 45 days of the | 22 | | receipt of notice of seizure by the
seizing agency or the | 23 | | filing of the claim and cost bond, whichever is
later, the | 24 | | State's Attorney shall institute judicial forfeiture |
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| 1 | | proceedings
by filing a verified complaint for forfeiture and, | 2 | | if the claimant has
filed a claim and cost bond, by depositing | 3 | | the cost bond with the clerk of
the court. When authorized by | 4 | | law, a forfeiture must be ordered by a court
on an action in | 5 | | rem brought by a State's Attorney under a verified
complaint | 6 | | for forfeiture.
| 7 | | (B) During the probable cause portion of the judicial in | 8 | | rem
proceeding wherein the State presents its case-in-chief, | 9 | | the court must
receive and consider, among other things, all | 10 | | relevant hearsay evidence and
information. The laws of evidence | 11 | | relating to civil actions shall apply to
all other portions of | 12 | | the judicial in rem proceeding.
| 13 | | (C) Only an owner of or interest holder in the property may | 14 | | file an
answer asserting a claim against the property in the | 15 | | action in rem. For
purposes of this Section, the owner or | 16 | | interest holder shall be referred
to as claimant.
| 17 | | (D) The answer must be signed by the owner or interest | 18 | | holder under
penalty of perjury and must set forth:
| 19 | | (i) the caption of the proceedings as set forth on the | 20 | | notice of pending
forfeiture and the name of the claimant;
| 21 | | (ii) the address at which the claimant will accept | 22 | | mail;
| 23 | | (iii) the nature and extent of the claimant's interest | 24 | | in the property;
| 25 | | (iv) the date, identity of transferor, and | 26 | | circumstances of the
claimant's acquisition of the |
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| 1 | | interest in the property;
| 2 | | (v) the name and address of all other persons known to | 3 | | have an interest
in the property;
| 4 | | (vi) the specific provisions of Section 8 of this Act
| 5 | | relied on in asserting it
is not subject to forfeiture;
| 6 | | (vii) all essential facts supporting each assertion; | 7 | | and
| 8 | | (viii) the precise relief sought.
| 9 | | (E) The answer must be filed with the court within 45 days | 10 | | after service
of the civil in rem complaint.
| 11 | | (F) The hearing must be held within 60 days after filing of | 12 | | the answer
unless continued for good cause.
| 13 | | (G) The State shall show the existence of probable cause | 14 | | for forfeiture
of the property. If the State shows probable | 15 | | cause, the claimant has the
burden of showing by a | 16 | | preponderance of the evidence that the claimant's
interest in | 17 | | the property is not subject to forfeiture.
| 18 | | (G-5) The court shall admit a signed statement by a person | 19 | | who is 65 years old or older to demonstrate that the conveyance | 20 | | or other property was used without his or her consent. The | 21 | | claimant may file a temporary restraining order against the | 22 | | person who allegedly used his or her property without his or | 23 | | her consent under Section 11-101 of the Code of Civil | 24 | | Procedure. | 25 | | (H) If the State does not show existence of probable cause | 26 | | or a claimant
has established by a preponderance of evidence |
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| 1 | | that the claimant has an
interest that is exempt under Section | 2 | | 8 of this Act, the court shall order
the interest in the | 3 | | property returned or conveyed to the claimant and shall
order | 4 | | all other property forfeited to the State. If the State does | 5 | | show
existence of probable cause and the claimant does not | 6 | | establish by a
preponderance of evidence that the claimant has | 7 | | an interest that is exempt
under Section 8 of this Act, the | 8 | | court shall order all property forfeited
to the State.
| 9 | | (I) A defendant convicted in any criminal proceeding is | 10 | | precluded from
later denying the essential allegations of the | 11 | | criminal offense of which
the defendant was convicted in any | 12 | | proceeding under this Act
regardless of the pendency of an | 13 | | appeal from that conviction. However,
evidence of the pendency | 14 | | of an appeal is admissible.
| 15 | | (J) An acquittal or dismissal in a criminal proceeding | 16 | | shall not
preclude civil proceedings under this Act; however, | 17 | | for good cause shown,
on a motion by the State's Attorney, the | 18 | | court may stay civil forfeiture
proceedings during the criminal | 19 | | trial for a related criminal indictment or
information alleging | 20 | | a violation of the Illinois Controlled Substances Act,
the | 21 | | Cannabis Control Act, or the Methamphetamine Control and | 22 | | Community Protection Act. Such a stay shall not be available | 23 | | pending an
appeal. Property subject to forfeiture under the | 24 | | Illinois Controlled
Substances Act, the Cannabis Control Act, | 25 | | or the Methamphetamine Control and Community Protection Act | 26 | | shall not be subject to return
or release by a court exercising |
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| 1 | | jurisdiction over a criminal case
involving the seizure of such | 2 | | property unless such return or release is
consented to by the | 3 | | State's Attorney.
| 4 | | (K) All property declared forfeited under this Act vests in | 5 | | this State
on the commission of the conduct giving rise to | 6 | | forfeiture together with
the proceeds of the property after | 7 | | that time. Any such property or
proceeds subsequently | 8 | | transferred to any person remain subject to
forfeiture and | 9 | | thereafter shall be ordered forfeited unless the transferee
| 10 | | claims and establishes in a hearing under the provisions of | 11 | | this Act that
the transferee's interest is exempt under Section | 12 | | 8 of this Act.
| 13 | | (L) A civil action under this Act must be commenced within | 14 | | 5 years
after the last conduct giving rise to forfeiture became | 15 | | known or should
have become known or 5 years after the | 16 | | forfeitable property is
discovered, whichever is later, | 17 | | excluding any time during which either the
property or claimant | 18 | | is out of the State or in confinement or during which
criminal | 19 | | proceedings relating to the same conduct are in progress.
| 20 | | (Source: P.A. 94-556, eff. 9-11-05.)
| 21 | | Section 20. The Narcotics Profit Forfeiture Act is amended | 22 | | by changing Section 5 as follows:
| 23 | | (725 ILCS 175/5) (from Ch. 56 1/2, par. 1655)
| 24 | | Sec. 5. Forfeiture procedures. |
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| 1 | | (a) A person who commits the offense of narcotics | 2 | | racketeering
shall:
| 3 | | (1) be guilty of a Class 1 felony; and
| 4 | | (2) be subject to a fine of up to $250,000.
| 5 | | A person who commits the offense of narcotics racketeering | 6 | | or
who violates Section 3 of the Drug Paraphernalia Control Act | 7 | | shall forfeit
to the State of Illinois: (A) any profits or | 8 | | proceeds and any property or
property interest he has acquired | 9 | | or maintained in violation of this Act or
Section 3 of the Drug | 10 | | Paraphernalia Control Act or has used to facilitate a
violation | 11 | | of this Act that the court determines, after a forfeiture
| 12 | | hearing, under subsection (b) of this Section to have been | 13 | | acquired or
maintained as a result of narcotics racketeering or | 14 | | violating Section 3 of
the Drug Paraphernalia Control Act, or | 15 | | used to facilitate narcotics
racketeering; and (B) any interest | 16 | | in, security of, claim against, or
property or contractual | 17 | | right of any kind affording a source of influence
over, any | 18 | | enterprise which he has established, operated, controlled,
| 19 | | conducted, or participated in the conduct of, in violation of | 20 | | this Act or
Section 3 of the Drug Paraphernalia Control Act, | 21 | | that the court determines,
after a forfeiture hearing, under | 22 | | subsection (b) of this Section
to have been acquired or | 23 | | maintained as a result of narcotics racketeering
or violating | 24 | | Section 3 of the
Drug Paraphernalia Control Act or used to | 25 | | facilitate narcotics racketeering.
| 26 | | (b) The court shall, upon petition by the Attorney General |
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| 1 | | or State's
Attorney, at any time subsequent to the filing of an | 2 | | information or return
of an indictment, conduct a hearing to | 3 | | determine whether any property or
property interest is subject | 4 | | to forfeiture under this Act. At the
forfeiture hearing the | 5 | | people shall have the burden of establishing, by a
| 6 | | preponderance of the evidence, that property or property | 7 | | interests are
subject to forfeiture under this Act. The court | 8 | | shall admit a signed statement by a person who is 65 years old | 9 | | or older to demonstrate that the conveyance or other property | 10 | | was used without his or her consent. The claimant may file a | 11 | | temporary restraining order against the person who allegedly | 12 | | used his or her property without his or her consent under | 13 | | Section 11-101 of the Code of Civil Procedure. There is a | 14 | | rebuttable presumption at
such hearing that any property or | 15 | | property interest of a person charged by
information or | 16 | | indictment with narcotics racketeering or who is convicted
of a | 17 | | violation of Section 3 of the Drug Paraphernalia Control Act is
| 18 | | subject to forfeiture under this Section if the State | 19 | | establishes by a
preponderance of the evidence that:
| 20 | | (1) such property or property interest was acquired by | 21 | | such person
during the period of the violation of this Act | 22 | | or Section 3 of the Drug
Paraphernalia Control Act or | 23 | | within a reasonable time
after such period; and
| 24 | | (2) there was no likely source for such property or | 25 | | property interest
other than the violation of this Act or | 26 | | Section 3 of the Drug
Paraphernalia Control Act.
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| 1 | | (c) In an action brought by the People of the State of | 2 | | Illinois under
this Act, wherein any restraining order, | 3 | | injunction or prohibition or
any other action in connection | 4 | | with any property or property interest
subject to forfeiture | 5 | | under this Act is sought, the circuit court which
shall preside | 6 | | over the trial of the person or persons charged with
narcotics | 7 | | racketeering as defined in Section 4 of this Act or violating
| 8 | | Section 3 of the Drug Paraphernalia Control Act shall first | 9 | | determine
whether there is probable cause to believe that the | 10 | | person or persons so
charged has committed the offense of | 11 | | narcotics racketeering as defined in
Section 4 of this Act or a | 12 | | violation of Section 3 of the Drug Paraphernalia
Control Act | 13 | | and whether the property or property interest is subject to
| 14 | | forfeiture pursuant to this Act.
| 15 | | In order to make such a determination,
prior to entering | 16 | | any such order, the court shall conduct a hearing without
a | 17 | | jury, wherein the People shall establish that there is: (i) | 18 | | probable
cause that the person or persons so charged have | 19 | | committed the offense of
narcotics racketeering or violating | 20 | | Section 3 of the Drug Paraphernalia
Control Act and (ii) | 21 | | probable cause that any
property or property interest may be | 22 | | subject to forfeiture
pursuant to this Act. Such hearing may be | 23 | | conducted simultaneously with a
preliminary hearing, if the | 24 | | prosecution is commenced by information or
complaint, or by | 25 | | motion of the People, at any stage in the proceedings.
The | 26 | | court may accept a finding of probable cause at a preliminary |
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| 1 | | hearing
following the filing of an information charging the | 2 | | offense
of narcotics racketeering as defined in Section 4 of | 3 | | this Act or the return of
an indictment by a grand jury | 4 | | charging the offense of narcotics
racketeering as defined in | 5 | | Section 4 of this Act or after a charge is
filed for violating | 6 | | Section 3 of the Drug Paraphernalia Control Act as
sufficient | 7 | | evidence of probable cause as provided in item (i) above.
| 8 | | Upon such a finding, the circuit court shall enter such | 9 | | restraining
order, injunction or prohibition, or shall take | 10 | | such other action in connection
with any such property or | 11 | | property interest subject to forfeiture under this
Act, as is | 12 | | necessary to insure that such property is not removed from the
| 13 | | jurisdiction of the court, concealed, destroyed or otherwise | 14 | | disposed of by
the owner of that property or property interest | 15 | | prior to a forfeiture
hearing under subsection (b) of this | 16 | | Section. The Attorney General or
State's Attorney shall file a | 17 | | certified copy of
such restraining order, injunction or other | 18 | | prohibition with the recorder
of deeds or registrar of titles | 19 | | of each county where any such property of
the defendant may be | 20 | | located. No such injunction, restraining order or
other | 21 | | prohibition shall affect the rights of any bona fide purchaser,
| 22 | | mortgagee, judgment creditor or other lien holder arising prior | 23 | | to the date
of such filing.
| 24 | | The court may, at any
time, upon verified petition by the | 25 | | defendant, conduct a hearing to release
all or portions of any | 26 | | such property or interest which the court
previously determined |
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| 1 | | to be subject to forfeiture or subject to any
restraining | 2 | | order, injunction, or prohibition or other action. The
court | 3 | | may release such property to the defendant for good cause shown | 4 | | and
within the sound discretion of the court.
| 5 | | (d) Prosecution under this Act may be commenced by the | 6 | | Attorney General
or a State's Attorney.
| 7 | | (e) Upon an order of forfeiture being entered pursuant to | 8 | | subsection
(b) of this Section, the
court shall authorize the | 9 | | Attorney General to seize any property or property
interest | 10 | | declared forfeited under this Act and under such terms and | 11 | | conditions
as the court shall deem proper.
Any property or | 12 | | property interest that has been the subject of an
entered | 13 | | restraining order, injunction or prohibition or any other | 14 | | action
filed under subsection (c) shall be forfeited unless the | 15 | | claimant can show
by a preponderance of the evidence that the | 16 | | property or property interest
has not been acquired or | 17 | | maintained as a result of narcotics racketeering
or has not | 18 | | been used to facilitate narcotics racketeering.
| 19 | | (f) The Attorney General or his designee is authorized to | 20 | | sell all property forfeited
and seized pursuant to this Act, | 21 | | unless such property is required by law
to be destroyed or is | 22 | | harmful to the public, and, after the deduction of
all | 23 | | requisite expenses of administration and sale, shall | 24 | | distribute the
proceeds of such sale, along with any moneys | 25 | | forfeited or seized, in accordance
with subsection (g) or (h), | 26 | | whichever is applicable.
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| 1 | | (g) All monies and the sale proceeds of all other property | 2 | | forfeited and
seized pursuant to this Act shall be distributed | 3 | | as follows:
| 4 | | (1) An amount equal to 50% shall be distributed to the | 5 | | unit of
local government whose
officers or employees | 6 | | conducted the investigation into narcotics
racketeering | 7 | | and caused the arrest or arrests and prosecution leading to
| 8 | | the forfeiture. Amounts distributed to units of local | 9 | | government shall be
used for enforcement of laws governing | 10 | | narcotics activity or for public education in the community | 11 | | or schools in the
prevention or detection of the abuse of | 12 | | drugs or
alcohol. In the event,
however, that the | 13 | | investigation, arrest or arrests and prosecution leading
| 14 | | to the forfeiture
were undertaken solely by a State agency, | 15 | | the portion provided hereunder
shall be paid into the Drug | 16 | | Traffic Prevention Fund in the State treasury
to be used | 17 | | for enforcement of laws governing narcotics activity.
| 18 | | (2) An amount equal to 12.5% shall be distributed to | 19 | | the
county in which the prosecution resulting in the | 20 | | forfeiture was instituted,
deposited in a special fund in | 21 | | the county treasury and appropriated to the
State's | 22 | | Attorney for use in the enforcement of laws governing | 23 | | narcotics
activity or for public education in the community | 24 | | or schools in the
prevention or detection of the abuse of | 25 | | drugs or
alcohol.
| 26 | | An amount equal to 12.5% shall be distributed to the |
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| 1 | | Office
of the State's Attorneys Appellate Prosecutor and | 2 | | deposited in the
Narcotics Profit Forfeiture Fund, which is | 3 | | hereby created in the State
treasury, to be used by the | 4 | | Office of the State's Attorneys Appellate
Prosecutor for | 5 | | additional expenses incurred in prosecuting appeals | 6 | | arising
under this Act. Any amounts remaining in the Fund | 7 | | after all additional
expenses have been paid shall be used | 8 | | by the Office to reduce the
participating county | 9 | | contributions to the Office on a pro-rated basis as
| 10 | | determined by the
board of governors of the Office of the | 11 | | State's Attorneys Appellate
Prosecutor based on the | 12 | | populations of the participating counties.
| 13 | | (3) An amount equal to 25% shall be paid into the Drug | 14 | | Traffic
Prevention Fund in the State
treasury to be used by | 15 | | the Department of State Police for funding Metropolitan
| 16 | | Enforcement Groups created pursuant to the | 17 | | Intergovernmental Drug Laws Enforcement
Act. Any amounts | 18 | | remaining in the Fund after full funding of Metropolitan
| 19 | | Enforcement Groups shall be used for enforcement, by the | 20 | | State or any unit
of local government, of laws governing | 21 | | narcotics activity or for public education in the community | 22 | | or schools in the
prevention or detection of the abuse of | 23 | | drugs or
alcohol.
| 24 | | (h) Where the investigation or indictment for the offense | 25 | | of narcotics
racketeering or a violation of Section 3 of the | 26 | | Drug Paraphernalia Control
Act has occurred under the |
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| 1 | | provisions of the Statewide Grand Jury Act, all
monies and the | 2 | | sale proceeds of all other property shall be distributed as | 3 | | follows:
| 4 | | (1) 60% shall be distributed to the metropolitan | 5 | | enforcement group,
local, municipal, county, or State law | 6 | | enforcement agency or agencies which
conducted or | 7 | | participated in the investigation resulting in the | 8 | | forfeiture.
The distribution shall bear a reasonable | 9 | | relationship to the degree of
direct participation of the | 10 | | law enforcement agency in the effort resulting
in the | 11 | | forfeiture, taking into account the total value of the | 12 | | property
forfeited and the total law enforcement effort | 13 | | with respect to the
violation of the law on which the | 14 | | forfeiture is based. Amounts distributed
to the agency or | 15 | | agencies shall be used for the enforcement of laws
| 16 | | governing cannabis and controlled substances or for public | 17 | | education in the community or schools in the
prevention or | 18 | | detection of the abuse of drugs or
alcohol.
| 19 | | (2) 25% shall be distributed by the Attorney General as | 20 | | grants to
drug education, treatment and prevention | 21 | | programs licensed or approved by the Department of Human | 22 | | Services. In making these grants, the Attorney General | 23 | | shall take
into account the plans and service priorities | 24 | | of, and the needs identified
by, the Department of Human | 25 | | Services.
| 26 | | (3) 15% shall be distributed to the Attorney General |
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| 1 | | and the State's
Attorney, if any, participating in the | 2 | | prosecution resulting in the
forfeiture. The distribution | 3 | | shall bear a reasonable relationship to the
degree of | 4 | | direct participation in the prosecution of the offense, | 5 | | taking
into account the total value of the property | 6 | | forfeited and the total amount
of time spent in preparing | 7 | | and presenting the case, the complexity of the
case and | 8 | | other similar factors. Amounts distributed to the Attorney
| 9 | | General under this paragraph shall be retained in a fund | 10 | | held by the State
Treasurer as ex-officio custodian to be | 11 | | designated as the Statewide Grand
Jury Prosecution Fund and | 12 | | paid out upon the direction of the Attorney
General for | 13 | | expenses incurred in criminal prosecutions arising under | 14 | | the
Statewide Grand Jury Act. Amounts distributed to a | 15 | | State's Attorney shall
be deposited in a special fund in | 16 | | the county treasury and appropriated to
the State's | 17 | | Attorney for use in the enforcement of laws governing | 18 | | narcotics activity or for public education in the community | 19 | | or schools in the
prevention or detection of the abuse of | 20 | | drugs or
alcohol.
| 21 | | (i) All monies deposited pursuant to this Act in the Drug | 22 | | Traffic Prevention
Fund established under Section 5-9-1.2 of | 23 | | the Unified Code of Corrections
are appropriated, on a | 24 | | continuing basis, to the Department of State Police
to be used | 25 | | for funding Metropolitan Enforcement Groups created pursuant
| 26 | | to the Intergovernmental Drug Laws Enforcement Act or otherwise |
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| 1 | | for the
enforcement of laws governing narcotics activity or for | 2 | | public education in the community or schools in the
prevention | 3 | | or detection of the abuse of drugs or
alcohol.
| 4 | | (Source: P.A. 99-686, eff. 7-29-16.)
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