Full Text of HB4937 97th General Assembly
HB4937ham001 97TH GENERAL ASSEMBLY | Rep. Renée Kosel Filed: 3/15/2012
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| 1 | | AMENDMENT TO HOUSE BILL 4937
| 2 | | AMENDMENT NO. ______. Amend House Bill 4937 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Cannabis Control Act is amended by changing | 5 | | Section 12 as follows:
| 6 | | (720 ILCS 550/12) (from Ch. 56 1/2, par. 712)
| 7 | | Sec. 12. (a) The following are subject to forfeiture:
| 8 | | (1) all substances containing cannabis which have been | 9 | | produced,
manufactured, delivered, or possessed in | 10 | | violation of this Act;
| 11 | | (2) all raw materials, products and equipment of any | 12 | | kind which are
produced, delivered, or possessed in | 13 | | connection with any substance
containing cannabis in | 14 | | violation of this Act;
| 15 | | (3) all conveyances, including aircraft, vehicles or | 16 | | vessels, which
are used, or intended for use, to transport, |
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| 1 | | or in any manner to
facilitate the transportation, sale, | 2 | | receipt, possession, or
concealment of property described | 3 | | in paragraph (1) or (2) that constitutes
a felony violation | 4 | | of the Act, but:
| 5 | | (i) no conveyance used by any person as a common | 6 | | carrier in the
transaction of business as a common | 7 | | carrier is subject to forfeiture
under this Section | 8 | | unless it appears that the owner or other person in
| 9 | | charge of the conveyance is a consenting party or privy | 10 | | to a violation
of this Act;
| 11 | | (ii) no conveyance is subject to forfeiture under | 12 | | this Section by
reason of any act or omission which the | 13 | | owner proves to have been
committed or omitted without | 14 | | his knowledge or consent;
| 15 | | (iii) a forfeiture of a conveyance encumbered by a | 16 | | bona fide
security interest is subject to the interest | 17 | | of the secured party if he
neither had knowledge of nor | 18 | | consented to the act or omission;
| 19 | | (4) all money, things of value, books, records, and | 20 | | research
products and materials including formulas, | 21 | | microfilm, tapes, and data
which are used, or intended for | 22 | | use in a felony violation of this Act;
| 23 | | (5) everything of value furnished or intended to be | 24 | | furnished by any
person in exchange for a substance in | 25 | | violation of this Act, all proceeds
traceable to such an | 26 | | exchange, and all moneys, negotiable instruments, and
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| 1 | | securities used, or intended to be used, to commit or in | 2 | | any manner to
facilitate any felony violation of this Act;
| 3 | | (6) all real property, including any right, title, and | 4 | | interest including, but not limited to, any leasehold | 5 | | interest or the beneficial interest to a land trust, in the | 6 | | whole of any lot or tract of land and any appurtenances or | 7 | | improvements, that is used or intended to be used to | 8 | | facilitate the manufacture, distribution, sale, receipt, | 9 | | or concealment of property described in paragraph (1) or | 10 | | (2) of this subsection (a) that constitutes a felony | 11 | | violation of more than 2,000 grams of a substance | 12 | | containing cannabis or that is the proceeds of any felony | 13 | | violation of this Act. | 14 | | (b) Property subject to forfeiture under this Act may be | 15 | | seized by
the Director or any peace officer upon process or | 16 | | seizure warrant issued by
any court having jurisdiction over | 17 | | the property. Seizure by the Director
or any peace officer | 18 | | without process may be made:
| 19 | | (1) if the property subject to seizure has been the | 20 | | subject of a
prior judgment in favor of the State in a | 21 | | criminal proceeding or
in an injunction or forfeiture | 22 | | proceeding based upon this Act or the Drug
Asset Forfeiture | 23 | | Procedure Act;
| 24 | | (2) if there is probable cause to believe that the | 25 | | property is
directly or indirectly dangerous to health or | 26 | | safety;
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| 1 | | (3) if there is probable cause to believe that the | 2 | | property is subject
to forfeiture under this Act and the | 3 | | property is seized under
circumstances in which a | 4 | | warrantless seizure or arrest would be reasonable; or
| 5 | | (4) in accordance with the Code of Criminal Procedure | 6 | | of 1963.
| 7 | | (c) In the event of seizure pursuant to subsection (b), | 8 | | notice shall be given forthwith to all known interest holders | 9 | | that forfeiture
proceedings, including a preliminary review, | 10 | | shall be instituted in accordance with the
Drug Asset | 11 | | Forfeiture Procedure Act and such proceedings shall thereafter | 12 | | be instituted in accordance with that Act. Upon a showing of | 13 | | good cause, the notice required for a preliminary review under | 14 | | this Section may be postponed.
| 15 | | (c-1) In the event the State's Attorney is of the opinion | 16 | | that real property is subject to forfeiture under this Act, | 17 | | forfeiture proceedings shall be instituted in accordance with | 18 | | the Drug Asset Forfeiture Procedure Act. The exemptions from | 19 | | forfeiture provisions of Section 8 of the Drug Asset Forfeiture | 20 | | Procedure Act are applicable. | 21 | | (d) Property taken or detained under this Section shall not | 22 | | be
subject to replevin, but is deemed to be in the custody of | 23 | | the Director
subject only to the order and judgments of the | 24 | | circuit court having
jurisdiction over the forfeiture | 25 | | proceedings and the decisions of the
State's Attorney under the | 26 | | Drug Asset Forfeiture Procedure Act. When
property is seized |
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| 1 | | under this Act, the seizing agency shall promptly
conduct an | 2 | | inventory of the seized property, estimate the property's | 3 | | value,
and shall forward a copy of the inventory of seized | 4 | | property and the
estimate of the property's value to the | 5 | | Director. Upon receiving notice of
seizure, the Director may:
| 6 | | (1) place the property under seal;
| 7 | | (2) remove the property to a place designated by him;
| 8 | | (3) keep the property in the possession of the seizing | 9 | | agency;
| 10 | | (4) remove the property to a storage area for | 11 | | safekeeping or, if the
property is a negotiable instrument | 12 | | or money and is not needed for
evidentiary purposes, | 13 | | deposit it in an interest bearing account;
| 14 | | (5) place the property under constructive seizure by | 15 | | posting notice of
pending forfeiture on it, by giving | 16 | | notice of pending forfeiture to its
owners and interest | 17 | | holders, or by filing notice of pending forfeiture in
any | 18 | | appropriate public record relating to the property; or
| 19 | | (6) provide for another agency or custodian, including | 20 | | an owner, secured
party, or lienholder, to take custody of | 21 | | the property upon the terms and
conditions set by the | 22 | | Director.
| 23 | | (e) No disposition may be made of property under seal until | 24 | | the time
for taking an appeal has elapsed or until all appeals | 25 | | have been
concluded unless a court, upon application therefor, | 26 | | orders the sale of
perishable substances and the deposit of the |
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| 1 | | proceeds of the sale with
the court.
| 2 | | (f) When property is forfeited under this Act the Director | 3 | | shall
sell all such property unless such property is required | 4 | | by law to be
destroyed or is harmful to the public, and shall | 5 | | distribute the proceeds of
the sale, together with any moneys | 6 | | forfeited or seized, in accordance
with subsection (g). | 7 | | However, upon the application of the seizing agency or
| 8 | | prosecutor who was responsible for the investigation, arrest or | 9 | | arrests and
prosecution which lead to the forfeiture, the | 10 | | Director may return any item
of forfeited property to the | 11 | | seizing agency or prosecutor for official use
in the | 12 | | enforcement of laws relating to cannabis or controlled | 13 | | substances,
if the agency or prosecutor can demonstrate that | 14 | | the item requested would
be useful to the agency or prosecutor | 15 | | in their enforcement efforts. When any forfeited conveyance, | 16 | | including an aircraft, vehicle, or vessel, is returned to the | 17 | | seizing agency or prosecutor, the conveyance may be used | 18 | | immediately in the enforcement of the criminal laws of this | 19 | | State. Upon disposal, all proceeds from the sale of the | 20 | | conveyance must be used for drug enforcement purposes. When
any | 21 | | real property returned to the seizing agency is sold by the | 22 | | agency or
its unit of government, the proceeds of the sale | 23 | | shall be delivered to the
Director and distributed in | 24 | | accordance with subsection (g).
| 25 | | (g) All monies and the sale proceeds of all other property | 26 | | forfeited and
seized under this Act shall be distributed as |
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| 1 | | follows:
| 2 | | (1) (i) 65% shall be distributed to the metropolitan | 3 | | enforcement group,
local, municipal, county, or state law | 4 | | enforcement agency or agencies which
conducted or | 5 | | participated in the investigation resulting in the | 6 | | forfeiture.
The distribution shall bear a reasonable | 7 | | relationship to the degree of
direct participation of the | 8 | | law enforcement agency in the effort resulting
in the | 9 | | forfeiture, taking into account the total value of the | 10 | | property
forfeited and the total law enforcement effort | 11 | | with respect to the
violation of the law upon which the | 12 | | forfeiture is based.
Amounts distributed to the agency or | 13 | | agencies shall be used for the
enforcement of laws | 14 | | governing cannabis and controlled substances or for | 15 | | security cameras used for the prevention or detection of | 16 | | violence, except
that amounts distributed to the Secretary | 17 | | of State shall be deposited into
the Secretary of State | 18 | | Evidence Fund to be used as provided in Section
2-115 of | 19 | | the Illinois Vehicle Code.
| 20 | | (ii) Any local, municipal, or county law enforcement | 21 | | agency entitled to receive a monetary distribution of | 22 | | forfeiture proceeds shall share those forfeiture proceeds | 23 | | pursuant to the terms of an intergovernmental agreement | 24 | | with a municipality that has a population in excess of | 25 | | 20,000 if: | 26 | | (I) the receiving agency has entered into an |
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| 1 | | intergovernmental agreement with the municipality to | 2 | | provide police services; | 3 | | (II) the intergovernmental agreement for police | 4 | | services provides for consideration in an amount of not | 5 | | less than $1,000,000 per year; | 6 | | (III) the seizure took place within the | 7 | | geographical limits of the municipality; and | 8 | | (IV) the funds are used only for the enforcement
of | 9 | | laws governing cannabis and controlled substances or
| 10 | | for security cameras used for the prevention or | 11 | | detection
of violence or the establishment of a | 12 | | municipal police
force, including the training of | 13 | | officers, construction of
a police station, the | 14 | | purchase of law enforcement
equipment, or vehicles.
| 15 | | (2)(i) 12.5% shall be distributed to the Office of the | 16 | | State's
Attorney of the county in which the prosecution | 17 | | resulting in the forfeiture
was instituted, deposited in a | 18 | | special fund in the county treasury and
appropriated to the | 19 | | State's Attorney for use in the enforcement of laws
| 20 | | governing cannabis and controlled substances, or at the | 21 | | discretion of the State's Attorney, in addition to other | 22 | | authorized purposes, to make grants to local substance | 23 | | abuse treatment facilities and half-way houses. In | 24 | | counties over 3,000,000
population, 25% will be | 25 | | distributed to the Office of the State's Attorney for use | 26 | | in the
enforcement of laws governing cannabis and |
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| 1 | | controlled substances, or at the discretion of the State's | 2 | | Attorney, in addition to other authorized purposes, to make | 3 | | grants to local substance abuse treatment facilities and | 4 | | half-way houses. If the
prosecution is undertaken solely by | 5 | | the Attorney General, the portion
provided hereunder shall | 6 | | be distributed to the Attorney General for use in
the | 7 | | enforcement of laws governing cannabis and controlled | 8 | | substances.
| 9 | | (ii) 12.5% shall be distributed to the Office of the | 10 | | State's Attorneys
Appellate Prosecutor and deposited in | 11 | | the Narcotics Profit Forfeiture Fund
of that Office to be | 12 | | used for additional expenses incurred in the
| 13 | | investigation, prosecution and appeal of cases arising | 14 | | under laws governing
cannabis and controlled substances. | 15 | | The Office of the State's Attorneys
Appellate Prosecutor | 16 | | shall not receive distribution from cases brought in
| 17 | | counties with over 3,000,000 population.
| 18 | | (3) 10% shall be retained by the Department of State | 19 | | Police for expenses
related to the administration and sale | 20 | | of seized and forfeited property.
| 21 | | (Source: P.A. 97-253, eff. 1-1-12; 97-544, eff. 1-1-12; revised | 22 | | 9-14-11.)
| 23 | | Section 10. The Illinois Controlled Substances Act is | 24 | | amended by changing Section 505 as follows:
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| 1 | | (720 ILCS 570/505) (from Ch. 56 1/2, par. 1505)
| 2 | | Sec. 505. (a) The following are subject to forfeiture:
| 3 | | (1) all substances which have been manufactured, | 4 | | distributed,
dispensed, or possessed in violation of this | 5 | | Act;
| 6 | | (2) all raw materials, products and equipment of any | 7 | | kind which are
used, or intended for use in manufacturing, | 8 | | distributing, dispensing,
administering or possessing any | 9 | | substance in violation of this Act;
| 10 | | (3) all conveyances, including aircraft, vehicles or | 11 | | vessels, which are
used, or intended for use, to transport, | 12 | | or in any manner to facilitate
the transportation, sale, | 13 | | receipt, possession, or concealment of property
described | 14 | | in paragraphs (1) and (2), but:
| 15 | | (i) no conveyance used by any person as a common | 16 | | carrier in the
transaction of business as a common | 17 | | carrier is subject to forfeiture under
this Section | 18 | | unless it appears that the owner or other person in | 19 | | charge of
the conveyance is a consenting party or privy | 20 | | to a violation of this Act;
| 21 | | (ii) no conveyance is subject to forfeiture under | 22 | | this Section by reason
of any act or omission which the | 23 | | owner proves to have been committed or
omitted without | 24 | | his or her knowledge or consent;
| 25 | | (iii) a forfeiture of a conveyance encumbered by a | 26 | | bona fide security
interest is subject to the interest |
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| 1 | | of the secured party if he or she neither had
knowledge | 2 | | of nor consented to the act or omission;
| 3 | | (4) all money, things of value, books, records, and | 4 | | research
products and materials including formulas, | 5 | | microfilm, tapes, and data which
are used, or intended to | 6 | | be used in violation of this Act;
| 7 | | (5) everything of value furnished, or intended to be | 8 | | furnished, in
exchange for a substance in violation of this | 9 | | Act, all proceeds traceable
to such an exchange, and all | 10 | | moneys, negotiable instruments, and securities
used, or | 11 | | intended to be used, to commit or in any manner to | 12 | | facilitate
any violation of this Act;
| 13 | | (6) all real property, including any right, title, and | 14 | | interest
(including, but not limited to, any leasehold | 15 | | interest or the beneficial
interest in a land trust) in the | 16 | | whole of any lot or tract of land and any
appurtenances or | 17 | | improvements, which is used or intended to be used, in any
| 18 | | manner or part, to commit, or in any manner to facilitate | 19 | | the commission
of, any violation or act that constitutes a | 20 | | violation of Section 401 or 405
of this Act or that is the | 21 | | proceeds of any violation or act that
constitutes a | 22 | | violation of Section 401 or 405 of this Act.
| 23 | | (b) Property subject to forfeiture under this Act may be | 24 | | seized by the
Director or any peace officer upon process or | 25 | | seizure warrant issued by
any court having jurisdiction over | 26 | | the property. Seizure by the Director
or any peace officer |
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| 1 | | without process may be made:
| 2 | | (1) if the seizure is incident to inspection under an | 3 | | administrative
inspection warrant;
| 4 | | (2) 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 Act or the Drug Asset Forfeiture
| 8 | | Procedure Act;
| 9 | | (3) if there is probable cause to believe that the | 10 | | property is directly
or indirectly dangerous to health or | 11 | | safety;
| 12 | | (4) if there is probable cause to believe that the | 13 | | property is subject
to forfeiture under this Act and the | 14 | | property is seized under
circumstances in which a | 15 | | warrantless seizure or arrest would be reasonable; or
| 16 | | (5) in accordance with the Code of Criminal Procedure | 17 | | of 1963.
| 18 | | (c) In the event of seizure pursuant to subsection (b), | 19 | | notice shall be given forthwith to all known interest holders | 20 | | that forfeiture
proceedings, including a preliminary review, | 21 | | shall be instituted in accordance with the Drug
Asset | 22 | | Forfeiture Procedure Act and such proceedings shall thereafter | 23 | | be instituted in accordance with that Act. Upon a showing of | 24 | | good cause, the notice required for a preliminary review under | 25 | | this Section may be postponed.
| 26 | | (d) Property taken or detained under this Section shall not |
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| 1 | | be subject
to replevin, but is deemed to be in the custody of | 2 | | the Director subject
only to the order and judgments of the | 3 | | circuit court having jurisdiction over
the forfeiture | 4 | | proceedings and the decisions of the State's Attorney
under the | 5 | | Drug Asset Forfeiture Procedure Act. When property is seized
| 6 | | under this Act, the seizing agency shall promptly conduct an | 7 | | inventory of
the seized property and estimate the property's | 8 | | value, and shall forward a
copy of the inventory of seized | 9 | | property and the estimate of the property's
value to the | 10 | | Director. Upon receiving notice of seizure, the Director may:
| 11 | | (1) place the property under seal;
| 12 | | (2) remove the property to a place designated by the | 13 | | Director;
| 14 | | (3) keep the property in the possession of the seizing | 15 | | agency;
| 16 | | (4) remove the property to a storage area for | 17 | | safekeeping or, if the
property is a negotiable instrument | 18 | | or money and is not needed for
evidentiary purposes, | 19 | | deposit it in an interest bearing account;
| 20 | | (5) place the property under constructive seizure by | 21 | | posting notice of
pending forfeiture on it, by giving | 22 | | notice of pending forfeiture to its
owners and interest | 23 | | holders, or by filing notice of pending forfeiture in
any | 24 | | appropriate public record relating to the property; or
| 25 | | (6) provide for another agency or custodian, including | 26 | | an owner, secured
party, or lienholder, to take custody of |
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| 1 | | the property upon the terms and
conditions set by the | 2 | | Director.
| 3 | | (e) If the Department of Financial and Professional | 4 | | Regulation suspends or revokes
a registration, all controlled | 5 | | substances owned or possessed by the
registrant at the time of | 6 | | suspension or the effective date of the
revocation order may be | 7 | | placed under seal by the Director. No disposition may be made | 8 | | of
substances under seal until the time for taking an appeal | 9 | | has elapsed or
until all appeals have been concluded unless a | 10 | | court, upon application
therefor, orders the sale of perishable | 11 | | substances and the deposit of the
proceeds of the sale with the | 12 | | court. Upon a suspension or revocation order becoming final,
| 13 | | all substances may be forfeited to the Illinois State Police.
| 14 | | (f) When property is forfeited under this Act the Director | 15 | | shall
sell all such property unless such property is required | 16 | | by law to be
destroyed or is harmful to the public, and shall | 17 | | distribute the proceeds of
the sale, together with any moneys | 18 | | forfeited or seized, in accordance
with subsection (g). | 19 | | However, upon the application of the seizing agency or
| 20 | | prosecutor who was responsible for the investigation, arrest or | 21 | | arrests and
prosecution which lead to the forfeiture, the | 22 | | Director may return any item
of forfeited property to the | 23 | | seizing agency or prosecutor for official use
in the | 24 | | enforcement of laws relating to cannabis or controlled | 25 | | substances,
if the agency or prosecutor can demonstrate that | 26 | | the item requested would
be useful to the agency or prosecutor |
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| 1 | | in their enforcement efforts. When any forfeited conveyance, | 2 | | including an aircraft, vehicle, or vessel, is returned to the | 3 | | seizing agency or prosecutor, the conveyance may be used | 4 | | immediately in the enforcement of the criminal laws of this | 5 | | State. Upon disposal, all proceeds from the sale of the | 6 | | conveyance must be used for drug enforcement purposes. When
any | 7 | | real property returned to the seizing agency is sold by the | 8 | | agency or
its unit of government, the proceeds of the sale | 9 | | shall be delivered to the
Director and distributed in | 10 | | accordance with subsection (g).
| 11 | | (g) All monies and the sale proceeds of all other property | 12 | | forfeited and
seized under this Act shall be distributed as | 13 | | follows:
| 14 | | (1) (i) 65% shall be distributed to the metropolitan | 15 | | enforcement group,
local, municipal, county, or state law | 16 | | enforcement agency or agencies which
conducted or | 17 | | participated in the investigation resulting in the | 18 | | forfeiture.
The distribution shall bear a reasonable | 19 | | relationship to the degree of
direct participation of the | 20 | | law enforcement agency in the effort resulting
in the | 21 | | forfeiture, taking into account the total value of the | 22 | | property
forfeited and the total law enforcement effort | 23 | | with respect to the
violation of the law upon which the | 24 | | forfeiture is based.
Amounts distributed to the agency or | 25 | | agencies shall be used for the
enforcement of laws | 26 | | governing cannabis and controlled substances or for |
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| 1 | | security cameras used for the prevention or detection of | 2 | | violence, except that
amounts distributed to the Secretary | 3 | | of State shall be deposited into the
Secretary of State | 4 | | Evidence Fund to be used as provided in Section 2-115 of | 5 | | the
Illinois Vehicle Code.
| 6 | | (ii) Any local, municipal, or county law enforcement | 7 | | agency entitled to receive a monetary distribution of | 8 | | forfeiture proceeds shall share those forfeiture proceeds | 9 | | pursuant to the terms of an intergovernmental agreement | 10 | | with a municipality that has a population in excess of | 11 | | 20,000 if: | 12 | | (I) the receiving agency has entered into an | 13 | | intergovernmental agreement with the municipality to | 14 | | provide police services; | 15 | | (II) the intergovernmental agreement for police | 16 | | services provides for consideration in an amount of not | 17 | | less than $1,000,000 per year; | 18 | | (III) the seizure took place within the | 19 | | geographical limits of the municipality; and | 20 | | (IV) the funds are used only for the enforcement
of | 21 | | laws governing cannabis and controlled substances or
| 22 | | for security cameras used for the prevention or | 23 | | detection
of violence or the establishment of a | 24 | | municipal police
force, including the training of | 25 | | officers, construction of
a police station, the | 26 | | purchase of law enforcement
equipment, or vehicles.
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| 1 | | (2)(i) 12.5% shall be distributed to the Office of the | 2 | | State's
Attorney of the county in which the prosecution | 3 | | resulting in the forfeiture
was instituted, deposited in a | 4 | | special fund in the county treasury and
appropriated to the | 5 | | State's Attorney for use in the enforcement of laws
| 6 | | governing cannabis and controlled substances, or at the | 7 | | discretion of the State's Attorney, in addition to other | 8 | | authorized purposes, to make grants to local substance | 9 | | abuse treatment facilities and half-way houses. In | 10 | | counties over 3,000,000
population, 25% will be | 11 | | distributed to the Office of the State's Attorney for
use | 12 | | in the
enforcement of laws governing cannabis and | 13 | | controlled substances, or at the discretion of the State's | 14 | | Attorney, in addition to other authorized purposes, to make | 15 | | grants to local substance abuse treatment facilities and | 16 | | half-way houses. If the
prosecution is undertaken solely by | 17 | | the Attorney General, the portion
provided hereunder shall | 18 | | be distributed to the Attorney General for use in
the | 19 | | enforcement of laws governing cannabis and controlled | 20 | | substances.
| 21 | | (ii) 12.5% shall be distributed to the Office of the | 22 | | State's Attorneys
Appellate Prosecutor and deposited in | 23 | | the Narcotics Profit Forfeiture Fund
of that office to be | 24 | | used for additional expenses incurred in the
| 25 | | investigation, prosecution and appeal of cases arising | 26 | | under laws governing
cannabis and controlled substances. |
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| 1 | | The Office of the State's Attorneys
Appellate Prosecutor | 2 | | shall not receive distribution from cases brought in
| 3 | | counties with over 3,000,000 population.
| 4 | | (3) 10% shall be retained by the Department of State | 5 | | Police for expenses
related to the administration and sale | 6 | | of seized and forfeited property.
| 7 | | (h) Species of plants from which controlled substances in | 8 | | Schedules I
and II may be derived which have been planted or | 9 | | cultivated in violation of
this Act, or of which the owners or | 10 | | cultivators are unknown, or which are
wild growths, may be | 11 | | seized and summarily forfeited to the State. The
failure, upon | 12 | | demand by the Director or any peace officer, of the person in
| 13 | | occupancy or in control of land or premises upon which the | 14 | | species of
plants are growing or being stored, to produce | 15 | | registration, or proof that
he or she is the holder thereof, | 16 | | constitutes authority for the seizure and
forfeiture of the | 17 | | plants.
| 18 | | (Source: P.A. 94-1004, eff. 7-3-06; 97-253, eff. 1-1-12; | 19 | | 97-334, eff. 1-1-12; 97-544, eff. 1-1-12; revised 9-14-11.)
| 20 | | Section 15. The Methamphetamine Control and Community | 21 | | Protection Act is amended by changing Section 85 as follows: | 22 | | (720 ILCS 646/85)
| 23 | | Sec. 85. Forfeiture. | 24 | | (a) The following are subject to forfeiture:
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| 1 | | (1) all substances containing methamphetamine which | 2 | | have
been produced, manufactured, delivered, or possessed | 3 | | in violation of this Act;
| 4 | | (2) all methamphetamine manufacturing materials which | 5 | | have
been produced, delivered, or possessed in connection | 6 | | with any substance containing methamphetamine in violation | 7 | | of this Act;
| 8 | | (3) all conveyances, including aircraft, vehicles or
| 9 | | vessels, which are used, or intended for use, to transport, | 10 | | or in any manner to facilitate the transportation, sale, | 11 | | receipt, possession, or concealment of property described | 12 | | in paragraph (1) or (2) that constitutes a felony violation | 13 | | of the Act, but:
| 14 | | (i) no conveyance used by any person as a common
| 15 | | carrier in the transaction of business as a common | 16 | | carrier is subject to forfeiture under this Section | 17 | | unless it appears that the owner or other person in | 18 | | charge of the conveyance is a consenting party or privy | 19 | | to a violation of this Act;
| 20 | | (ii) no conveyance is subject to forfeiture
under | 21 | | this Section by reason of any act or omission which the | 22 | | owner proves to have been committed or omitted without | 23 | | his or her knowledge or consent;
| 24 | | (iii) a forfeiture of a conveyance encumbered by
a | 25 | | bona fide security interest is subject to the interest | 26 | | of the secured party if he or she neither had knowledge |
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| 1 | | of nor consented to the act or omission;
| 2 | | (4) all money, things of value, books, records, and
| 3 | | research products and materials including formulas, | 4 | | microfilm, tapes, and data which are used, or intended for | 5 | | use in a felony violation of this Act;
| 6 | | (5) everything of value furnished or intended to be
| 7 | | furnished by any person in exchange for a substance in | 8 | | violation of this Act, all proceeds traceable to such an | 9 | | exchange, and all moneys, negotiable instruments, and | 10 | | securities used, or intended to be used, to commit or in | 11 | | any manner to facilitate any felony violation of this Act.
| 12 | | (6) all real property, including any right, title, and | 13 | | interest (including, but not limited to, any leasehold | 14 | | interest or the beneficial interest in a land trust) in the | 15 | | whole of any lot or tract of land and any appurtenances or | 16 | | improvements, which is used, or intended to be used, in any | 17 | | manner or part, to commit, or in any manner to facilitate | 18 | | the commission of, any violation or act that constitutes a | 19 | | violation of this Act or that is the proceeds of any | 20 | | violation or act that constitutes a violation of this Act.
| 21 | | (b) Property subject to forfeiture under this Act may be | 22 | | seized by the Director or any peace officer upon process or | 23 | | seizure warrant issued by any court having jurisdiction over | 24 | | the property. Seizure by the Director or any peace officer | 25 | | without process may be made:
| 26 | | (1) if the property subject to seizure has been the
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| 1 | | subject of a prior judgment in favor of the State in a | 2 | | criminal proceeding or in an injunction or forfeiture | 3 | | proceeding based upon this Act or the Drug Asset Forfeiture | 4 | | Procedure Act;
| 5 | | (2) if there is probable cause to believe that the
| 6 | | property is directly or indirectly dangerous to health or | 7 | | safety;
| 8 | | (3) if there is probable cause to believe that the
| 9 | | property is subject to forfeiture under this Act and the | 10 | | property is seized under circumstances in which a | 11 | | warrantless seizure or arrest would be reasonable; or
| 12 | | (4) in accordance with the Code of Criminal
Procedure | 13 | | of 1963.
| 14 | | (c) In the event of seizure pursuant to subsection (b), | 15 | | notice shall be given forthwith to all known interest holders | 16 | | that forfeiture proceedings, including a preliminary review, | 17 | | shall be instituted in accordance with the Drug Asset | 18 | | Forfeiture Procedure Act and such proceedings shall thereafter | 19 | | be instituted in accordance with that Act. Upon a showing of | 20 | | good cause, the notice required for a preliminary review under | 21 | | this Section may be postponed.
| 22 | | (d) Property taken or detained under this Section is not | 23 | | subject to replevin, but is deemed to be in the custody of the | 24 | | Director subject only to the order and judgments of the circuit | 25 | | court having jurisdiction over the forfeiture proceedings and | 26 | | the decisions of the State's Attorney under the Drug Asset |
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| 1 | | Forfeiture Procedure Act. When property is seized under this | 2 | | Act, the seizing agency shall promptly conduct an inventory of | 3 | | the seized property, estimate the property's value, and forward | 4 | | a copy of the inventory of seized property and the estimate of | 5 | | the property's value to the Director. Upon receiving notice of | 6 | | seizure, the Director may:
| 7 | | (1) place the property under seal;
| 8 | | (2) remove the property to a place designated by him or | 9 | | her;
| 10 | | (3) keep the property in the possession of the
seizing | 11 | | agency;
| 12 | | (4) remove the property to a storage area for
| 13 | | safekeeping or, if the property is a negotiable instrument | 14 | | or money and is not needed for evidentiary purposes, | 15 | | deposit it in an interest bearing account;
| 16 | | (5) place the property under constructive seizure by
| 17 | | posting notice of pending forfeiture on it, by giving | 18 | | notice of pending forfeiture to its owners and interest | 19 | | holders, or by filing notice of pending forfeiture in any | 20 | | appropriate public record relating to the property; or
| 21 | | (6) provide for another agency or custodian,
including | 22 | | an owner, secured party, or lienholder, to take custody of | 23 | | the property upon the terms and conditions set by the | 24 | | Director.
| 25 | | (e) No disposition may be made of property under seal until | 26 | | the time for taking an appeal has elapsed or until all appeals |
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| 1 | | have been concluded unless a court, upon application therefor, | 2 | | orders the sale of perishable substances and the deposit of the | 3 | | proceeds of the sale with the court.
| 4 | | (f) When property is forfeited under this Act, the Director | 5 | | shall sell the property unless the property is required by law | 6 | | to be destroyed or is harmful to the public, and shall | 7 | | distribute the proceeds of the sale, together with any moneys | 8 | | forfeited or seized, in accordance with subsection (g). | 9 | | However, upon the application of the seizing agency or | 10 | | prosecutor who was responsible for the investigation, arrest or | 11 | | arrests and prosecution which lead to the forfeiture, the | 12 | | Director may return any item of forfeited property to the | 13 | | seizing agency or prosecutor for official use in the | 14 | | enforcement of laws relating to methamphetamine, cannabis, or | 15 | | controlled substances, if the agency or prosecutor | 16 | | demonstrates that the item requested would be useful to the | 17 | | agency or prosecutor in their enforcement efforts. When any | 18 | | forfeited conveyance, including an aircraft, vehicle, or | 19 | | vessel, is returned to the seizing agency or prosecutor, the | 20 | | conveyance may be used immediately in the enforcement of the | 21 | | criminal laws of this State. Upon disposal, all proceeds from | 22 | | the sale of the conveyance must be used for drug enforcement | 23 | | purposes. When any real property returned to the seizing agency | 24 | | is sold by the agency or its unit of government, the proceeds | 25 | | of the sale shall be delivered to the Director and distributed | 26 | | in accordance with subsection (g).
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| 1 | | (g) All moneys and the sale proceeds of all other property | 2 | | forfeited and seized under this Act shall be distributed as | 3 | | follows:
| 4 | | (1) (i) 65% 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 upon which the | 14 | | forfeiture is based. Amounts distributed to the agency or | 15 | | agencies shall be used for the enforcement of laws | 16 | | governing methamphetamine, cannabis, and controlled | 17 | | substances or for security cameras used for the prevention | 18 | | or detection of violence, except that amounts distributed | 19 | | to the Secretary of State shall be deposited into the | 20 | | Secretary of State Evidence Fund to be used as provided in | 21 | | Section 2-115 of the Illinois Vehicle Code.
| 22 | | (ii) Any local, municipal, or county law enforcement | 23 | | agency entitled to receive a monetary distribution of | 24 | | forfeiture proceeds shall share those forfeiture proceeds | 25 | | pursuant to the terms of an intergovernmental agreement | 26 | | with a municipality that has a population in excess of |
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| 1 | | 20,000 if: | 2 | | (I) the receiving agency has entered into an | 3 | | intergovernmental agreement with the municipality to | 4 | | provide police services; | 5 | | (II) the intergovernmental agreement for police | 6 | | services provides for consideration in an amount of not | 7 | | less than $1,000,000 per year; | 8 | | (III) the seizure took place within the | 9 | | geographical limits of the municipality; and | 10 | | (IV) the funds are used only for the enforcement
of | 11 | | laws governing cannabis and controlled substances or
| 12 | | for security cameras used for the prevention or | 13 | | detection
of violence or the establishment of a | 14 | | municipal police
force, including the training of | 15 | | officers, construction of
a police station, the | 16 | | purchase of law enforcement
equipment, or vehicles. | 17 | | (2)(i) 12.5% shall be distributed to the Office of
the | 18 | | State's Attorney of the county in which the prosecution | 19 | | resulting in the forfeiture was instituted, deposited in a | 20 | | special fund in the county treasury and appropriated to the | 21 | | State's Attorney for use in the enforcement of laws | 22 | | governing methamphetamine, cannabis, and controlled | 23 | | substances, or at the discretion of the State's Attorney, | 24 | | in addition to other authorized purposes, to make grants to | 25 | | local substance abuse treatment facilities and half-way | 26 | | houses. In counties with a population over 3,000,000, 25% |
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| 1 | | shall be distributed to the Office of the State's Attorney | 2 | | for use in the enforcement of laws governing | 3 | | methamphetamine, cannabis, and controlled substances, or | 4 | | at the discretion of the State's Attorney, in addition to | 5 | | other authorized purposes, to make grants to local | 6 | | substance abuse treatment facilities and half-way houses. | 7 | | If the prosecution is undertaken solely by the Attorney | 8 | | General, the portion provided hereunder shall be | 9 | | distributed to the Attorney General for use in the | 10 | | enforcement of laws governing methamphetamine, cannabis, | 11 | | and controlled substances.
| 12 | | (ii) 12.5% shall be distributed to the Office of
the | 13 | | State's Attorneys Appellate Prosecutor and deposited in | 14 | | the Narcotics Profit Forfeiture Fund of that Office to be | 15 | | used for additional expenses incurred in the | 16 | | investigation, prosecution and appeal of cases arising | 17 | | under laws governing methamphetamine, cannabis, and | 18 | | controlled substances. The Office of the State's Attorneys | 19 | | Appellate Prosecutor shall not receive distribution from | 20 | | cases brought in counties with a population over 3,000,000.
| 21 | | (3) 10% shall be retained by the Department of State
| 22 | | Police for expenses related to the administration and sale | 23 | | of seized and forfeited property.
| 24 | | (Source: P.A. 97-253, eff. 1-1-12; 97-544, eff. 1-1-12; revised | 25 | | 9-14-11.)".
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