Full Text of SB2268 97th General Assembly
SB2268enr 97TH GENERAL ASSEMBLY |
| | SB2268 Enrolled | | LRB097 10022 RLC 50193 b |
|
| 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 1961 is amended by adding | 5 | | Section 36-1.5 as follows: | 6 | | (720 ILCS 5/36-1.5 new) | 7 | | Sec. 36-1.5. Preliminary Review. | 8 | | (a) Within 14 days of the seizure, the State shall seek a | 9 | | preliminary determination from the circuit court as to whether | 10 | | there is probable cause that the property may be subject to | 11 | | forfeiture. | 12 | | (b) The rules of evidence shall not apply to any proceeding | 13 | | conducted under this Section. | 14 | | (c) The court may conduct the review under subsection (a) | 15 | | simultaneously with a proceeding pursuant to Section 109-1 of | 16 | | the Code of Criminal Procedure of 1963 for a related criminal | 17 | | offense if a prosecution is commenced by information or | 18 | | complaint. | 19 | | (d) The court may accept a finding of probable cause at a | 20 | | preliminary hearing following the filing of an information or | 21 | | complaint charging a related criminal offense or following the | 22 | | return of indictment by a grand jury charging the related | 23 | | offense as sufficient evidence of probable cause as required |
| | | SB2268 Enrolled | - 2 - | LRB097 10022 RLC 50193 b |
|
| 1 | | under subsection (a). | 2 | | (e) Upon making a finding of probable cause as required | 3 | | under this Section, and after taking into account the | 4 | | respective interests of all known claimants to the property | 5 | | including the State, the circuit court shall enter a | 6 | | restraining order or injunction, or take other appropriate | 7 | | action, as necessary to ensure that the property is not removed | 8 | | from the court's jurisdiction and is not concealed, destroyed, | 9 | | or otherwise disposed of by the property owner or interest | 10 | | holder before a forfeiture hearing is conducted. | 11 | | Section 6. The Cannabis Control Act is amended by changing | 12 | | Section 12 as follows:
| 13 | | (720 ILCS 550/12) (from Ch. 56 1/2, par. 712)
| 14 | | Sec. 12. (a) The following are subject to forfeiture:
| 15 | | (1) all substances containing cannabis which have been | 16 | | produced,
manufactured, delivered, or possessed in | 17 | | violation of this Act;
| 18 | | (2) all raw materials, products and equipment of any | 19 | | kind which are
produced, delivered, or possessed in | 20 | | connection with any substance
containing cannabis in | 21 | | violation of this Act;
| 22 | | (3) all conveyances, including aircraft, vehicles or | 23 | | vessels, which
are used, or intended for use, to transport, | 24 | | or in any manner to
facilitate the transportation, sale, |
| | | SB2268 Enrolled | - 3 - | LRB097 10022 RLC 50193 b |
|
| 1 | | receipt, possession, or
concealment of property described | 2 | | in paragraph (1) or (2) that constitutes
a felony violation | 3 | | of the Act, but:
| 4 | | (i) no conveyance used by any person as a common | 5 | | carrier in the
transaction of business as a common | 6 | | carrier is subject to forfeiture
under this Section | 7 | | unless it appears that the owner or other person in
| 8 | | charge of the conveyance is a consenting party or privy | 9 | | to a violation
of this Act;
| 10 | | (ii) no conveyance is subject to forfeiture under | 11 | | this Section by
reason of any act or omission which the | 12 | | owner proves to have been
committed or omitted without | 13 | | his knowledge or consent;
| 14 | | (iii) a forfeiture of a conveyance encumbered by a | 15 | | bona fide
security interest is subject to the interest | 16 | | of the secured party if he
neither had knowledge of nor | 17 | | consented to the act or omission;
| 18 | | (4) all money, things of value, books, records, and | 19 | | research
products and materials including formulas, | 20 | | microfilm, tapes, and data
which are used, or intended for | 21 | | use in a felony violation of this Act;
| 22 | | (5) everything of value furnished or intended to be | 23 | | furnished by any
person in exchange for a substance in | 24 | | violation of this Act, all proceeds
traceable to such an | 25 | | exchange, and all moneys, negotiable instruments, and
| 26 | | securities used, or intended to be used, to commit or in |
| | | SB2268 Enrolled | - 4 - | LRB097 10022 RLC 50193 b |
|
| 1 | | any manner to
facilitate any felony violation of this Act;
| 2 | | (6) all real property, including any right, title, and | 3 | | interest including, but not limited to, any leasehold | 4 | | interest or the beneficial interest to a land trust, in the | 5 | | whole of any lot or tract of land and any appurtenances or | 6 | | improvements, that is used or intended to be used to | 7 | | facilitate the manufacture, distribution, sale, receipt, | 8 | | or concealment of property described in paragraph (1) or | 9 | | (2) of this subsection (a) that constitutes a felony | 10 | | violation of more than 2,000 grams of a substance | 11 | | containing cannabis or that is the proceeds of any felony | 12 | | violation of this Act. | 13 | | (b) Property subject to forfeiture under this Act may be | 14 | | seized by
the Director or any peace officer upon process or | 15 | | seizure warrant issued by
any court having jurisdiction over | 16 | | the property. Seizure by the Director
or any peace officer | 17 | | without process may be made:
| 18 | | (1) if the property subject to seizure has been the | 19 | | subject of a
prior judgment in favor of the State in a | 20 | | criminal proceeding or
in an injunction or forfeiture | 21 | | proceeding based upon this Act or the Drug
Asset Forfeiture | 22 | | Procedure Act;
| 23 | | (2) if there is probable cause to believe that the | 24 | | property is
directly or indirectly dangerous to health or | 25 | | safety;
| 26 | | (3) if there is probable cause to believe that the |
| | | SB2268 Enrolled | - 5 - | LRB097 10022 RLC 50193 b |
|
| 1 | | property is subject
to forfeiture under this Act and the | 2 | | property is seized under
circumstances in which a | 3 | | warrantless seizure or arrest would be reasonable; or
| 4 | | (4) in accordance with the Code of Criminal Procedure | 5 | | of 1963.
| 6 | | (c) In the event of seizure pursuant to subsection (b), | 7 | | notice shall be given forthwith to all known interest holders | 8 | | that forfeiture
proceedings , including a preliminary review, | 9 | | shall be instituted in accordance with the
Drug Asset | 10 | | Forfeiture Procedure Act and such proceedings shall thereafter | 11 | | be instituted in accordance with that Act. Upon a showing of | 12 | | good cause, the notice required for a preliminary review under | 13 | | this Section may be postponed .
| 14 | | (c-1) In the event the State's Attorney is of the opinion | 15 | | that real property is subject to forfeiture under this Act, | 16 | | forfeiture proceedings shall be instituted in accordance with | 17 | | the Drug Asset Forfeiture Procedure Act. The exemptions from | 18 | | forfeiture provisions of Section 8 of the Drug Asset Forfeiture | 19 | | Procedure Act are applicable. | 20 | | (d) Property taken or detained under this Section shall not | 21 | | be
subject to replevin, but is deemed to be in the custody of | 22 | | the Director
subject only to the order and judgments of the | 23 | | circuit court having
jurisdiction over the forfeiture | 24 | | proceedings and the decisions of the
State's Attorney under the | 25 | | Drug Asset Forfeiture Procedure Act. When
property is seized | 26 | | under this Act, the seizing agency shall promptly
conduct an |
| | | SB2268 Enrolled | - 6 - | LRB097 10022 RLC 50193 b |
|
| 1 | | inventory of the seized property, estimate the property's | 2 | | value,
and shall forward a copy of the inventory of seized | 3 | | property and the
estimate of the property's value to the | 4 | | Director. Upon receiving notice of
seizure, the Director may:
| 5 | | (1) place the property under seal;
| 6 | | (2) remove the property to a place designated by him;
| 7 | | (3) keep the property in the possession of the seizing | 8 | | agency;
| 9 | | (4) remove the property to a storage area for | 10 | | safekeeping or, if the
property is a negotiable instrument | 11 | | or money and is not needed for
evidentiary purposes, | 12 | | deposit it in an interest bearing account;
| 13 | | (5) place the property under constructive seizure by | 14 | | posting notice of
pending forfeiture on it, by giving | 15 | | notice of pending forfeiture to its
owners and interest | 16 | | holders, or by filing notice of pending forfeiture in
any | 17 | | appropriate public record relating to the property; or
| 18 | | (6) provide for another agency or custodian, including | 19 | | an owner, secured
party, or lienholder, to take custody of | 20 | | the property upon the terms and
conditions set by the | 21 | | Director.
| 22 | | (e) No disposition may be made of property under seal until | 23 | | the time
for taking an appeal has elapsed or until all appeals | 24 | | have been
concluded unless a court, upon application therefor, | 25 | | orders the sale of
perishable substances and the deposit of the | 26 | | proceeds of the sale with
the court.
|
| | | SB2268 Enrolled | - 7 - | LRB097 10022 RLC 50193 b |
|
| 1 | | (f) When property is forfeited under this Act the Director | 2 | | shall
sell all such property unless such property is required | 3 | | by law to be
destroyed or is harmful to the public, and shall | 4 | | distribute the proceeds of
the sale, together with any moneys | 5 | | forfeited or seized, in accordance
with subsection (g). | 6 | | However, upon the application of the seizing agency or
| 7 | | prosecutor who was responsible for the investigation, arrest or | 8 | | arrests and
prosecution which lead to the forfeiture, the | 9 | | Director may return any item
of forfeited property to the | 10 | | seizing agency or prosecutor for official use
in the | 11 | | enforcement of laws relating to cannabis or controlled | 12 | | substances,
if the agency or prosecutor can demonstrate that | 13 | | the item requested would
be useful to the agency or prosecutor | 14 | | in their enforcement efforts. When any forfeited conveyance, | 15 | | including an aircraft, vehicle, or vessel, is returned to the | 16 | | seizing agency or prosecutor, the conveyance may be used | 17 | | immediately in the enforcement of the criminal laws of this | 18 | | State. Upon disposal, all proceeds from the sale of the | 19 | | conveyance must be used for drug enforcement purposes. When
any | 20 | | real property returned to the seizing agency is sold by the | 21 | | agency or
its unit of government, the proceeds of the sale | 22 | | shall be delivered to the
Director and distributed in | 23 | | accordance with subsection (g).
| 24 | | (g) All monies and the sale proceeds of all other property | 25 | | forfeited and
seized under this Act shall be distributed as | 26 | | follows:
|
| | | SB2268 Enrolled | - 8 - | LRB097 10022 RLC 50193 b |
|
| 1 | | (1) 65% shall be distributed to the metropolitan | 2 | | enforcement group,
local, municipal, county, or state law | 3 | | enforcement agency or agencies which
conducted or | 4 | | participated in the investigation resulting in the | 5 | | forfeiture.
The distribution shall bear a reasonable | 6 | | relationship to the degree of
direct participation of the | 7 | | law enforcement agency in the effort resulting
in the | 8 | | forfeiture, taking into account the total value of the | 9 | | property
forfeited and the total law enforcement effort | 10 | | with respect to the
violation of the law upon which the | 11 | | forfeiture is based.
Amounts distributed to the agency or | 12 | | agencies shall be used for the
enforcement of laws | 13 | | governing cannabis and controlled substances or for | 14 | | security cameras used for the prevention or detection of | 15 | | violence, except
that amounts distributed to the Secretary | 16 | | of State shall be deposited into
the Secretary of State | 17 | | Evidence Fund to be used as provided in Section
2-115 of | 18 | | the Illinois Vehicle Code.
| 19 | | (2)(i) 12.5% shall be distributed to the Office of the | 20 | | State's
Attorney of the county in which the prosecution | 21 | | resulting in the forfeiture
was instituted, deposited in a | 22 | | special fund in the county treasury and
appropriated to the | 23 | | State's Attorney for use in the enforcement of laws
| 24 | | governing cannabis and controlled substances. In counties | 25 | | over 3,000,000
population, 25% will be distributed to the | 26 | | Office of the State's Attorney for use in the
enforcement |
| | | SB2268 Enrolled | - 9 - | LRB097 10022 RLC 50193 b |
|
| 1 | | of laws governing cannabis and controlled substances. If | 2 | | the
prosecution is undertaken solely by the Attorney | 3 | | General, the portion
provided hereunder shall be | 4 | | distributed to the Attorney General for use in
the | 5 | | enforcement of laws governing cannabis and controlled | 6 | | substances.
| 7 | | (ii) 12.5% shall be distributed to the Office of the | 8 | | State's Attorneys
Appellate Prosecutor and deposited in | 9 | | the Narcotics Profit Forfeiture Fund
of that Office to be | 10 | | used for additional expenses incurred in the
| 11 | | investigation, prosecution and appeal of cases arising | 12 | | under laws governing
cannabis and controlled substances. | 13 | | The Office of the State's Attorneys
Appellate Prosecutor | 14 | | shall not receive distribution from cases brought in
| 15 | | counties with over 3,000,000 population.
| 16 | | (3) 10% shall be retained by the Department of State | 17 | | Police for expenses
related to the administration and sale | 18 | | of seized and forfeited property.
| 19 | | (Source: P.A. 94-1004, eff. 7-3-06; 95-989, eff. 10-3-08.)
| 20 | | Section 7. The Illinois Controlled Substances Act is | 21 | | amended by changing Section 505 as follows:
| 22 | | (720 ILCS 570/505) (from Ch. 56 1/2, par. 1505)
| 23 | | Sec. 505. (a) The following are subject to forfeiture:
| 24 | | (1) all substances which have been manufactured, |
| | | SB2268 Enrolled | - 10 - | LRB097 10022 RLC 50193 b |
|
| 1 | | distributed,
dispensed, or possessed in violation of this | 2 | | Act;
| 3 | | (2) all raw materials, products and equipment of any | 4 | | kind which are
used, or intended for use in manufacturing, | 5 | | distributing, dispensing,
administering or possessing any | 6 | | substance in violation of this Act;
| 7 | | (3) all conveyances, including aircraft, vehicles or | 8 | | vessels, which are
used, or intended for use, to transport, | 9 | | or in any manner to facilitate
the transportation, sale, | 10 | | receipt, possession, or concealment of property
described | 11 | | in paragraphs (1) and (2), but:
| 12 | | (i) no conveyance used by any person as a common | 13 | | carrier in the
transaction of business as a common | 14 | | carrier is subject to forfeiture under
this Section | 15 | | unless it appears that the owner or other person in | 16 | | charge of
the conveyance is a consenting party or privy | 17 | | to a violation of this Act;
| 18 | | (ii) no conveyance is subject to forfeiture under | 19 | | this Section by reason
of any act or omission which the | 20 | | owner proves to have been committed or
omitted without | 21 | | his knowledge or consent;
| 22 | | (iii) a forfeiture of a conveyance encumbered by a | 23 | | bona fide security
interest is subject to the interest | 24 | | of the secured party if he neither had
knowledge of nor | 25 | | consented to the act or omission;
| 26 | | (4) all money, things of value, books, records, and |
| | | SB2268 Enrolled | - 11 - | LRB097 10022 RLC 50193 b |
|
| 1 | | research
products and materials including formulas, | 2 | | microfilm, tapes, and data which
are used, or intended to | 3 | | be used in violation of this Act;
| 4 | | (5) everything of value furnished, or intended to be | 5 | | furnished, in
exchange for a substance in violation of this | 6 | | Act, all proceeds traceable
to such an exchange, and all | 7 | | moneys, negotiable instruments, and securities
used, or | 8 | | intended to be used, to commit or in any manner to | 9 | | facilitate
any violation of this Act;
| 10 | | (6) all real property, including any right, title, and | 11 | | interest
(including, but not limited to, any leasehold | 12 | | interest or the beneficial
interest in a land trust) in the | 13 | | whole of any lot or tract of land and any
appurtenances or | 14 | | improvements, which is used or intended to be used, in any
| 15 | | manner or part, to commit, or in any manner to facilitate | 16 | | the commission
of, any violation or act that constitutes a | 17 | | violation of Section 401 or 405
of this Act or that is the | 18 | | proceeds of any violation or act that
constitutes a | 19 | | violation of Section 401 or 405 of this Act.
| 20 | | (b) Property subject to forfeiture under this Act may be | 21 | | seized by the
Director or any peace officer upon process or | 22 | | seizure warrant issued by
any court having jurisdiction over | 23 | | the property. Seizure by the Director
or any peace officer | 24 | | without process may be made:
| 25 | | (1) if the seizure is incident to inspection under an | 26 | | administrative
inspection warrant;
|
| | | SB2268 Enrolled | - 12 - | LRB097 10022 RLC 50193 b |
|
| 1 | | (2) if the property subject to seizure has been the | 2 | | subject of a prior
judgment in favor of the State in a | 3 | | criminal proceeding, or in an injunction
or forfeiture | 4 | | proceeding based upon this Act or the Drug Asset Forfeiture
| 5 | | Procedure Act;
| 6 | | (3) if there is probable cause to believe that the | 7 | | property is directly
or indirectly dangerous to health or | 8 | | safety;
| 9 | | (4) if there is probable cause to believe that the | 10 | | property is subject
to forfeiture under this Act and the | 11 | | property is seized under
circumstances in which a | 12 | | warrantless seizure or arrest would be reasonable; or
| 13 | | (5) in accordance with the Code of Criminal Procedure | 14 | | of 1963.
| 15 | | (c) In the event of seizure pursuant to subsection (b), | 16 | | notice shall be given forthwith to all known interest holders | 17 | | that forfeiture
proceedings , including a preliminary review, | 18 | | shall be instituted in accordance with the Drug
Asset | 19 | | Forfeiture Procedure Act and such proceedings shall thereafter | 20 | | be instituted in accordance with that Act. Upon a showing of | 21 | | good cause, the notice required for a preliminary review under | 22 | | this Section may be postponed .
| 23 | | (d) Property taken or detained under this Section shall not | 24 | | be subject
to replevin, but is deemed to be in the custody of | 25 | | the Director subject
only to the order and judgments of the | 26 | | circuit court having jurisdiction over
the forfeiture |
| | | SB2268 Enrolled | - 13 - | LRB097 10022 RLC 50193 b |
|
| 1 | | proceedings and the decisions of the State's Attorney
under the | 2 | | Drug Asset Forfeiture Procedure Act. When property is seized
| 3 | | under this Act, the seizing agency shall promptly conduct an | 4 | | inventory of
the seized property and estimate the property's | 5 | | value, and shall forward a
copy of the inventory of seized | 6 | | property and the estimate of the property's
value to the | 7 | | Director. Upon receiving notice of seizure, the Director may:
| 8 | | (1) place the property under seal;
| 9 | | (2) remove the property to a place designated by the | 10 | | Director;
| 11 | | (3) keep the property in the possession of the seizing | 12 | | agency;
| 13 | | (4) remove the property to a storage area for | 14 | | safekeeping or, if the
property is a negotiable instrument | 15 | | or money and is not needed for
evidentiary purposes, | 16 | | deposit it in an interest bearing account;
| 17 | | (5) place the property under constructive seizure by | 18 | | posting notice of
pending forfeiture on it, by giving | 19 | | notice of pending forfeiture to its
owners and interest | 20 | | holders, or by filing notice of pending forfeiture in
any | 21 | | appropriate public record relating to the property; or
| 22 | | (6) provide for another agency or custodian, including | 23 | | an owner, secured
party, or lienholder, to take custody of | 24 | | the property upon the terms and
conditions set by the | 25 | | Director.
| 26 | | (e) If the Department of Professional Regulation suspends |
| | | SB2268 Enrolled | - 14 - | LRB097 10022 RLC 50193 b |
|
| 1 | | or revokes
a registration, all controlled substances owned or | 2 | | possessed by the
registrant at the time of suspension or the | 3 | | effective date of the
revocation order may be placed under | 4 | | seal. No disposition may be made of
substances under seal until | 5 | | the time for taking an appeal has elapsed or
until all appeals | 6 | | have been concluded unless a court, upon application
therefor, | 7 | | orders the sale of perishable substances and the deposit of the
| 8 | | proceeds of the sale with the court. Upon a revocation rule | 9 | | becoming final,
all substances may be forfeited to the | 10 | | Department of Professional
Regulation.
| 11 | | (f) When property is forfeited under this Act the Director | 12 | | shall
sell all such property unless such property is required | 13 | | by law to be
destroyed or is harmful to the public, and shall | 14 | | distribute the proceeds of
the sale, together with any moneys | 15 | | forfeited or seized, in accordance
with subsection (g). | 16 | | However, upon the application of the seizing agency or
| 17 | | prosecutor who was responsible for the investigation, arrest or | 18 | | arrests and
prosecution which lead to the forfeiture, the | 19 | | Director may return any item
of forfeited property to the | 20 | | seizing agency or prosecutor for official use
in the | 21 | | enforcement of laws relating to cannabis or controlled | 22 | | substances,
if the agency or prosecutor can demonstrate that | 23 | | the item requested would
be useful to the agency or prosecutor | 24 | | in their enforcement efforts. When any forfeited conveyance, | 25 | | including an aircraft, vehicle, or vessel, is returned to the | 26 | | seizing agency or prosecutor, the conveyance may be used |
| | | SB2268 Enrolled | - 15 - | LRB097 10022 RLC 50193 b |
|
| 1 | | immediately in the enforcement of the criminal laws of this | 2 | | State. Upon disposal, all proceeds from the sale of the | 3 | | conveyance must be used for drug enforcement purposes. When
any | 4 | | real property returned to the seizing agency is sold by the | 5 | | agency or
its unit of government, the proceeds of the sale | 6 | | shall be delivered to the
Director and distributed in | 7 | | accordance with subsection (g).
| 8 | | (g) All monies and the sale proceeds of all other property | 9 | | forfeited and
seized under this Act shall be distributed as | 10 | | follows:
| 11 | | (1) 65% shall be distributed to the metropolitan | 12 | | enforcement group,
local, municipal, county, or state law | 13 | | enforcement agency or agencies which
conducted or | 14 | | participated in the investigation resulting in the | 15 | | forfeiture.
The distribution shall bear a reasonable | 16 | | relationship to the degree of
direct participation of the | 17 | | law enforcement agency in the effort resulting
in the | 18 | | forfeiture, taking into account the total value of the | 19 | | property
forfeited and the total law enforcement effort | 20 | | with respect to the
violation of the law upon which the | 21 | | forfeiture is based.
Amounts distributed to the agency or | 22 | | agencies shall be used for the
enforcement of laws | 23 | | governing cannabis and controlled substances or for | 24 | | security cameras used for the prevention or detection of | 25 | | violence, except that
amounts distributed to the Secretary | 26 | | of State shall be deposited into the
Secretary of State |
| | | SB2268 Enrolled | - 16 - | LRB097 10022 RLC 50193 b |
|
| 1 | | Evidence Fund to be used as provided in Section 2-115 of | 2 | | the
Illinois Vehicle Code.
| 3 | | (2)(i) 12.5% shall be distributed to the Office of the | 4 | | State's
Attorney of the county in which the prosecution | 5 | | resulting in the forfeiture
was instituted, deposited in a | 6 | | special fund in the county treasury and
appropriated to the | 7 | | State's Attorney for use in the enforcement of laws
| 8 | | governing cannabis and controlled substances. In counties | 9 | | over 3,000,000
population, 25% will be distributed to the | 10 | | Office of the State's Attorney for
use in the
enforcement | 11 | | of laws governing cannabis and controlled substances. If | 12 | | the
prosecution is undertaken solely by the Attorney | 13 | | General, the portion
provided hereunder shall be | 14 | | distributed to the Attorney General for use in
the | 15 | | enforcement of laws governing cannabis and controlled | 16 | | substances.
| 17 | | (ii) 12.5% shall be distributed to the Office of the | 18 | | State's Attorneys
Appellate Prosecutor and deposited in | 19 | | the Narcotics Profit Forfeiture Fund
of that office to be | 20 | | used for additional expenses incurred in the
| 21 | | investigation, prosecution and appeal of cases arising | 22 | | under laws governing
cannabis and controlled substances. | 23 | | The Office of the State's Attorneys
Appellate Prosecutor | 24 | | shall not receive distribution from cases brought in
| 25 | | counties with over 3,000,000 population.
| 26 | | (3) 10% shall be retained by the Department of State |
| | | SB2268 Enrolled | - 17 - | LRB097 10022 RLC 50193 b |
|
| 1 | | Police for expenses
related to the administration and sale | 2 | | of seized and forfeited property.
| 3 | | (h) Species of plants from which controlled substances in | 4 | | Schedules I
and II may be derived which have been planted or | 5 | | cultivated in violation of
this Act, or of which the owners or | 6 | | cultivators are unknown, or which are
wild growths, may be | 7 | | seized and summarily forfeited to the State. The
failure, upon | 8 | | demand by the Director or any peace officer, of the person in
| 9 | | occupancy or in control of land or premises upon which the | 10 | | species of
plants are growing or being stored, to produce | 11 | | registration, or proof that
he is the holder thereof, | 12 | | constitutes authority for the seizure and
forfeiture of the | 13 | | plants.
| 14 | | (Source: P.A. 94-1004, eff. 7-3-06.)
| 15 | | Section 8. The Methamphetamine Control and Community | 16 | | Protection Act is amended by changing Section 85 as follows: | 17 | | (720 ILCS 646/85)
| 18 | | Sec. 85. Forfeiture. | 19 | | (a) The following are subject to forfeiture:
| 20 | | (1) all substances containing methamphetamine which | 21 | | have
been produced, manufactured, delivered, or possessed | 22 | | in violation of this Act;
| 23 | | (2) all methamphetamine manufacturing materials which | 24 | | have
been produced, delivered, or possessed in connection |
| | | SB2268 Enrolled | - 18 - | LRB097 10022 RLC 50193 b |
|
| 1 | | with any substance containing methamphetamine in violation | 2 | | of this Act;
| 3 | | (3) all conveyances, including aircraft, vehicles or
| 4 | | vessels, which are used, or intended for use, to transport, | 5 | | or in any manner to facilitate the transportation, sale, | 6 | | receipt, possession, or concealment of property described | 7 | | in paragraph (1) or (2) that constitutes a felony violation | 8 | | of the Act, but:
| 9 | | (i) no conveyance used by any person as a common
| 10 | | carrier in the transaction of business as a common | 11 | | carrier is subject to forfeiture under this Section | 12 | | unless it appears that the owner or other person in | 13 | | charge of the conveyance is a consenting party or privy | 14 | | to a violation of this Act;
| 15 | | (ii) no conveyance is subject to forfeiture
under | 16 | | this Section by reason of any act or omission which the | 17 | | owner proves to have been committed or omitted without | 18 | | his or her knowledge or consent;
| 19 | | (iii) a forfeiture of a conveyance encumbered by
a | 20 | | bona fide security interest is subject to the interest | 21 | | of the secured party if he or she neither had knowledge | 22 | | of nor consented to the act or omission;
| 23 | | (4) all money, things of value, books, records, and
| 24 | | research products and materials including formulas, | 25 | | microfilm, tapes, and data which are used, or intended for | 26 | | use in a felony violation of this Act;
|
| | | SB2268 Enrolled | - 19 - | LRB097 10022 RLC 50193 b |
|
| 1 | | (5) everything of value furnished or intended to be
| 2 | | furnished by any person in exchange for a substance in | 3 | | violation of this Act, all proceeds traceable to such an | 4 | | exchange, and all moneys, negotiable instruments, and | 5 | | securities used, or intended to be used, to commit or in | 6 | | any manner to facilitate any felony violation of this Act.
| 7 | | (6) all real property, including any right, title, and | 8 | | interest (including, but not limited to, any leasehold | 9 | | interest or the beneficial interest in a land trust) in the | 10 | | whole of any lot or tract of land and any appurtenances or | 11 | | improvements, which is used, or intended to be used, in any | 12 | | manner or part, to commit, or in any manner to facilitate | 13 | | the commission of, any violation or act that constitutes a | 14 | | violation of this Act or that is the proceeds of any | 15 | | violation or act that constitutes a violation of this Act.
| 16 | | (b) Property subject to forfeiture under this Act may be | 17 | | seized by the Director or any peace officer upon process or | 18 | | seizure warrant issued by any court having jurisdiction over | 19 | | the property. Seizure by the Director or any peace officer | 20 | | without process may be made:
| 21 | | (1) if the property subject to seizure has been the
| 22 | | subject of a prior judgment in favor of the State in a | 23 | | criminal proceeding or in an injunction or forfeiture | 24 | | proceeding based upon this Act or the Drug Asset Forfeiture | 25 | | Procedure Act;
| 26 | | (2) if there is probable cause to believe that the
|
| | | SB2268 Enrolled | - 20 - | LRB097 10022 RLC 50193 b |
|
| 1 | | property is directly or indirectly dangerous to health or | 2 | | safety;
| 3 | | (3) if there is probable cause to believe that the
| 4 | | property is subject to forfeiture under this Act and the | 5 | | property is seized under circumstances in which a | 6 | | warrantless seizure or arrest would be reasonable; or
| 7 | | (4) in accordance with the Code of Criminal
Procedure | 8 | | of 1963.
| 9 | | (c) In the event of seizure pursuant to subsection (b), | 10 | | notice shall be given forthwith to all known interest holders | 11 | | that forfeiture proceedings , including a preliminary review, | 12 | | shall be instituted in accordance with the Drug Asset | 13 | | Forfeiture Procedure Act and such proceedings shall thereafter | 14 | | be instituted in accordance with that Act. Upon a showing of | 15 | | good cause, the notice required for a preliminary review under | 16 | | this Section may be postponed .
| 17 | | (d) Property taken or detained under this Section is not | 18 | | subject to replevin, but is deemed to be in the custody of the | 19 | | Director subject only to the order and judgments of the circuit | 20 | | court having jurisdiction over the forfeiture proceedings and | 21 | | the decisions of the State's Attorney under the Drug Asset | 22 | | Forfeiture Procedure Act. When property is seized under this | 23 | | Act, the seizing agency shall promptly conduct an inventory of | 24 | | the seized property, estimate the property's value, and forward | 25 | | a copy of the inventory of seized property and the estimate of | 26 | | the property's value to the Director. Upon receiving notice of |
| | | SB2268 Enrolled | - 21 - | LRB097 10022 RLC 50193 b |
|
| 1 | | seizure, the Director may:
| 2 | | (1) place the property under seal;
| 3 | | (2) remove the property to a place designated by him or | 4 | | her;
| 5 | | (3) keep the property in the possession of the
seizing | 6 | | agency;
| 7 | | (4) remove the property to a storage area for
| 8 | | safekeeping or, if the property is a negotiable instrument | 9 | | or money and is not needed for evidentiary purposes, | 10 | | deposit it in an interest bearing account;
| 11 | | (5) place the property under constructive seizure by
| 12 | | posting notice of pending forfeiture on it, by giving | 13 | | notice of pending forfeiture to its owners and interest | 14 | | holders, or by filing notice of pending forfeiture in any | 15 | | appropriate public record relating to the property; or
| 16 | | (6) provide for another agency or custodian,
including | 17 | | an owner, secured party, or lienholder, to take custody of | 18 | | the property upon the terms and conditions set by the | 19 | | Director.
| 20 | | (e) No disposition may be made of property under seal until | 21 | | the time for taking an appeal has elapsed or until all appeals | 22 | | have been concluded unless a court, upon application therefor, | 23 | | orders the sale of perishable substances and the deposit of the | 24 | | proceeds of the sale with the court.
| 25 | | (f) When property is forfeited under this Act, the Director | 26 | | shall sell the property unless the property is required by law |
| | | SB2268 Enrolled | - 22 - | LRB097 10022 RLC 50193 b |
|
| 1 | | to be destroyed or is harmful to the public, and shall | 2 | | distribute the proceeds of the sale, together with any moneys | 3 | | forfeited or seized, in accordance with subsection (g). | 4 | | However, upon the application of the seizing agency or | 5 | | prosecutor who was responsible for the investigation, arrest or | 6 | | arrests and prosecution which lead to the forfeiture, the | 7 | | Director may return any item of forfeited property to the | 8 | | seizing agency or prosecutor for official use in the | 9 | | enforcement of laws relating to methamphetamine, cannabis, or | 10 | | controlled substances, if the agency or prosecutor | 11 | | demonstrates that the item requested would be useful to the | 12 | | agency or prosecutor in their enforcement efforts. When any | 13 | | forfeited conveyance, including an aircraft, vehicle, or | 14 | | vessel, is returned to the seizing agency or prosecutor, the | 15 | | conveyance may be used immediately in the enforcement of the | 16 | | criminal laws of this State. Upon disposal, all proceeds from | 17 | | the sale of the conveyance must be used for drug enforcement | 18 | | purposes. When any real property returned to the seizing agency | 19 | | is sold by the agency or its unit of government, the proceeds | 20 | | of the sale shall be delivered to the Director and distributed | 21 | | in accordance with subsection (g).
| 22 | | (g) All moneys and the sale proceeds of all other property | 23 | | forfeited and seized under this Act shall be distributed as | 24 | | follows:
| 25 | | (1) 65% shall be distributed to the metropolitan
| 26 | | enforcement group, local, municipal, county, or State law |
| | | SB2268 Enrolled | - 23 - | LRB097 10022 RLC 50193 b |
|
| 1 | | enforcement agency or agencies which conducted or | 2 | | participated in the investigation resulting in the | 3 | | forfeiture. The distribution shall bear a reasonable | 4 | | relationship to the degree of direct participation of the | 5 | | law enforcement agency in the effort resulting in the | 6 | | forfeiture, taking into account the total value of the | 7 | | property forfeited and the total law enforcement effort | 8 | | with respect to the violation of the law upon which the | 9 | | forfeiture is based. Amounts distributed to the agency or | 10 | | agencies shall be used for the enforcement of laws | 11 | | governing methamphetamine, cannabis, and controlled | 12 | | substances or for security cameras used for the prevention | 13 | | or detection of violence, except that amounts distributed | 14 | | to the Secretary of State shall be deposited into the | 15 | | Secretary of State Evidence Fund to be used as provided in | 16 | | Section 2-115 of the Illinois Vehicle Code.
| 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. In counties with a population over 3,000,000, | 24 | | 25% shall be distributed to the Office of the State's | 25 | | Attorney for use in the enforcement of laws governing | 26 | | methamphetamine, cannabis, and controlled substances. If |
| | | SB2268 Enrolled | - 24 - | LRB097 10022 RLC 50193 b |
|
| 1 | | the prosecution is undertaken solely by the Attorney | 2 | | General, the portion provided hereunder shall be | 3 | | distributed to the Attorney General for use in the | 4 | | enforcement of laws governing methamphetamine, cannabis, | 5 | | and controlled substances.
| 6 | | (ii) 12.5% shall be distributed to the Office of
the | 7 | | State's Attorneys Appellate Prosecutor and deposited in | 8 | | the Narcotics Profit Forfeiture Fund of that Office to be | 9 | | used for additional expenses incurred in the | 10 | | investigation, prosecution and appeal of cases arising | 11 | | under laws governing methamphetamine, cannabis, and | 12 | | controlled substances. The Office of the State's Attorneys | 13 | | Appellate Prosecutor shall not receive distribution from | 14 | | cases brought in counties with a population over 3,000,000.
| 15 | | (3) 10% shall be retained by the Department of State
| 16 | | Police for expenses related to the administration and sale | 17 | | of seized and forfeited property.
| 18 | | (Source: P.A. 94-556, eff. 9-11-05; 94-1004, eff. 7-3-06.) | 19 | | Section 10. The Drug Asset Forfeiture Procedure Act is | 20 | | amended by changing Section 6 and by adding Section 3.5 as | 21 | | follows: | 22 | | (725 ILCS 150/3.5 new) | 23 | | Sec. 3.5. Preliminary Review. | 24 | | (a) Within 14 days of the seizure, the State shall seek a |
| | | SB2268 Enrolled | - 25 - | LRB097 10022 RLC 50193 b |
|
| 1 | | preliminary determination from the circuit court as to whether | 2 | | there is probable cause that the property may be subject to | 3 | | forfeiture. | 4 | | (b) The rules of evidence shall not apply to any proceeding | 5 | | conducted under this Section. | 6 | | (c) The court may conduct the review under subsection (a) | 7 | | simultaneously with a proceeding pursuant to Section 109-1 of | 8 | | the Code of Criminal Procedure of 1963 for a related criminal | 9 | | offense if a prosecution is commenced by information or | 10 | | complaint. | 11 | | (d) The court may accept a finding of probable cause at a | 12 | | preliminary hearing following the filing of an information or | 13 | | complaint charging a related criminal offense or following the | 14 | | return of indictment by a grand jury charging the related | 15 | | offense as sufficient evidence of probable cause as required | 16 | | under subsection (a). | 17 | | (e) Upon making a finding of probable cause as required | 18 | | under this Section, and after taking into account the | 19 | | respective interests of all known claimants to the property | 20 | | including the State, the circuit court shall enter a | 21 | | restraining order or injunction, or take other appropriate | 22 | | action, as necessary to ensure that the property is not removed | 23 | | from the court's jurisdiction and is not concealed, destroyed, | 24 | | or otherwise disposed of by the property owner or interest | 25 | | holder before a forfeiture hearing is conducted.
|
| | | SB2268 Enrolled | - 26 - | LRB097 10022 RLC 50193 b |
|
| 1 | | (725 ILCS 150/6) (from Ch. 56 1/2, par. 1676)
| 2 | | Sec. 6. Non-Judicial Forfeiture. If non-real property that | 3 | | exceeds $150,000
$20,000 in value excluding the value of any | 4 | | conveyance, or if real property
is seized under the provisions | 5 | | of the Illinois Controlled Substances Act,
the Cannabis Control | 6 | | Act, or the Methamphetamine Control and Community Protection | 7 | | Act, the State's Attorney shall institute judicial in
rem | 8 | | forfeiture proceedings as described in Section 9 of this Act | 9 | | within 45
days from receipt of notice of seizure from the | 10 | | seizing agency under
Section 5 of this Act. However, if | 11 | | non-real property that does not exceed
$150,000 $20,000 in | 12 | | value excluding the value of any conveyance is seized, the
| 13 | | following procedure shall be used:
| 14 | | (A) If, after review of the facts surrounding the seizure, | 15 | | the State's
Attorney is of the opinion that the seized property | 16 | | is subject to
forfeiture, then within 45 days of the receipt of | 17 | | notice of seizure from the
seizing agency, the State's Attorney | 18 | | shall cause notice of pending
forfeiture to be given to the | 19 | | owner of the property and all known interest
holders of the | 20 | | property in accordance with Section 4 of this Act.
| 21 | | (B) The notice of pending forfeiture must include a | 22 | | description of the
property, the estimated value of the | 23 | | property, the date and place of
seizure, the conduct giving | 24 | | rise to forfeiture or the violation of law
alleged, and a | 25 | | summary of procedures and procedural rights applicable to
the | 26 | | forfeiture action.
|
| | | SB2268 Enrolled | - 27 - | LRB097 10022 RLC 50193 b |
|
| 1 | | (C) (1) Any person claiming an interest in property which | 2 | | is the
subject of notice under subsection (A) of Section 6 | 3 | | of this Act, may,
within 45 days after the effective date | 4 | | of notice as described in Section 4
of this Act, file a | 5 | | verified claim with the State's Attorney expressing his
or | 6 | | her interest in the property. The claim must set forth:
| 7 | | (i) the caption of the proceedings as set forth on | 8 | | the notice of
pending forfeiture and the name of the | 9 | | claimant;
| 10 | | (ii) the address at which the claimant will accept | 11 | | mail;
| 12 | | (iii) the nature and extent of the claimant's | 13 | | interest in the property;
| 14 | | (iv) the date, identity of the transferor, and | 15 | | circumstances of the
claimant's acquisition of the | 16 | | interest in the property;
| 17 | | (v) the name and address of all other persons known | 18 | | to have an
interest in the property;
| 19 | | (vi) the specific provision of law relied on in | 20 | | asserting the property
is not subject to forfeiture;
| 21 | | (vii) all essential facts supporting each | 22 | | assertion; and
| 23 | | (viii) the relief sought.
| 24 | | (2) If a claimant files the claim and deposits with the | 25 | | State's Attorney
a cost bond, in the form of a cashier's | 26 | | check payable to the clerk of the
court, in the sum of 10 |
| | | SB2268 Enrolled | - 28 - | LRB097 10022 RLC 50193 b |
|
| 1 | | percent of the reasonable value of the property as
alleged | 2 | | by the State's Attorney or the sum of $100, whichever is | 3 | | greater,
upon condition that, in the case of forfeiture, | 4 | | the claimant must pay all
costs and expenses of forfeiture | 5 | | proceedings, then the State's Attorney
shall institute | 6 | | judicial in rem forfeiture proceedings and deposit the cost
| 7 | | bond with the clerk of the court as described in Section 9 | 8 | | of this Act
within 45 days after receipt of the claim and | 9 | | cost bond. In lieu of a cost
bond, a person claiming | 10 | | interest in the seized property may file, under
penalty of | 11 | | perjury, an indigency affidavit.
| 12 | | (3) If none of the seized property is forfeited in the | 13 | | judicial in rem
proceeding, the clerk of the court shall | 14 | | return to the claimant, unless the
court orders otherwise, | 15 | | 90% of the sum which has been deposited and shall
retain as | 16 | | costs 10% of the money deposited. If any of the seized | 17 | | property
is forfeited under the judicial forfeiture | 18 | | proceeding, the clerk of
the court shall transfer 90% of | 19 | | the sum which has been deposited to the
State's Attorney | 20 | | prosecuting the civil forfeiture to be applied to the
costs | 21 | | of prosecution and the clerk shall retain as costs 10% of | 22 | | the sum
deposited.
| 23 | | (D) If no claim is filed or bond given within the 45 day | 24 | | period as
described in subsection (C) of Section 6 of this Act, | 25 | | the State's Attorney
shall declare the property forfeited and | 26 | | shall promptly notify the
owner and all known interest holders |
| | | SB2268 Enrolled | - 29 - | LRB097 10022 RLC 50193 b |
|
| 1 | | of the property and the Director of the
Illinois Department of | 2 | | State Police of the declaration of forfeiture and
the Director | 3 | | shall dispose of the property in accordance with law.
| 4 | | (Source: P.A. 94-556, eff. 9-11-05.)
|
|