Illinois General Assembly - Full Text of Public Act 098-1020
Illinois General Assembly

Previous General Assemblies

Public Act 098-1020


 

Public Act 1020 98TH GENERAL ASSEMBLY

  
  
  

 


 
Public Act 098-1020
 
HB5523 EnrolledLRB098 17373 RLC 52471 b

    AN ACT concerning criminal law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Criminal Code of 2012 is amended by changing
Sections 36-1, 36-1.5, 36-2, and 36-5 as follows:
 
    (720 ILCS 5/36-1)  (from Ch. 38, par. 36-1)
    Sec. 36-1. Seizure.
    (a) Any vessel, vehicle, or aircraft may be seized and
impounded by the law enforcement agency if the vessel, vehicle,
or aircraft is used with the knowledge and consent of the owner
in the commission of, or in the attempt to commit as defined in
Section 8-4 of this Code, an offense prohibited by:
        (1) (a) Section 9-1 (first degree murder), 9-3
    (involuntary manslaughter and reckless homicide), 10-2
    (aggravated kidnaping), 11-1.20 (criminal sexual assault),
    11-1.30 (aggravated criminal sexual assault), 11-1.40
    (predatory criminal sexual assault of a child), subsection
    (a) of Section 11-1.50 (criminal sexual abuse), subsection
    (a), (c), or (d) of Section 11-1.60 (aggravated criminal
    sexual abuse), Section 11-6 (indecent solicitation of a
    child), 11-14.4 (promoting juvenile prostitution except
    for keeping a place of juvenile prostitution), 11-15.1,
    11-19.1, 11-19.2, 11-20.1 (child pornography), paragraph
    (a)(1), (a)(2), (a)(4), (b)(1), (b)(2), (e)(1), (e)(2),
    (e)(3), (e)(4), (e)(5), (e)(6), or (e)(7) of Section
    12-3.05 (aggravated battery), 11-20.1B, 11-20.3, 12-4.1,
    12-4.2, 12-4.2-5, 12-4.3, 12-4.6, 12-7.3 (stalking),
    12-7.4 (aggravated stalking), 12-13, 12-14, 16-1 (theft if
    the theft is of precious metal or of scrap metal),
    subdivision (f)(2) or (f)(3) of Section 16-25 (retail
    theft), Section 18-2 (armed robbery), 19-1 (burglary),
    19-2 (possession of burglary tools), 19-3 (residential
    burglary), 20-1 (arson; residential arson; place of
    worship arson), 20-2 (possession of explosives or
    explosive or incendiary devices), subdivision (a)(6) or
    (a)(7) of Section 24-1 (unlawful use of weapons), Section ,
    24-1.2 (aggravated discharge of a firearm), 24-1.2-5
    (aggravated discharge of a machine gun or a firearm
    equipped with a device designed or used for silencing the
    report of a firearm), 24-1.5 (reckless discharge of a
    firearm), 28-1 (gambling), or 29D-15.2 (possession of a
    deadly substance) of this Code; , subdivision (a)(1),
    (a)(2), (a)(4), (b)(1), (e)(1), (e)(2), (e)(3), (e)(4),
    (e)(5), (e)(6), or (e)(7) of Section 12-3.05, paragraph (a)
    of Section 12-4 of this Code, paragraph (a) of Section
    11-1.50, paragraph (a) of Section 12-15, paragraph (a),
    (c), or (d) of Section 11-1.60, or paragraphs (a), (c) or
    (d) of Section 12-16 of this Code, or paragraph (a)(6) or
    (a)(7) of Section 24-1 of this Code;
        (2) (b) Section 21, 22, 23, 24 or 26 of the Cigarette
    Tax Act if the vessel, vehicle, or aircraft contains more
    than 10 cartons of such cigarettes;
        (3) (c) Section 28, 29, or 30 of the Cigarette Use Tax
    Act if the vessel, vehicle, or aircraft contains more than
    10 cartons of such cigarettes;
        (4) (d) Section 44 of the Environmental Protection Act;
        (5) (e) Section 11-204.1 of the Illinois Vehicle Code
    (aggravated fleeing or attempting to elude a peace
    officer);
        (6) Section 11-501 of the Illinois Vehicle Code
    (driving while under the influence of alcohol or other drug
    or drugs, intoxicating compound or compounds or any
    combination thereof) or a similar provision of a local
    ordinance, and:
        (f) (1) driving under the influence of alcohol or other drug or
        drugs, intoxicating compound or compounds or any
        combination thereof under Section 11-501 of the
        Illinois Vehicle Code during a period in which
            (A) during a period in which his or her driving
        privileges are revoked or suspended if where the
        revocation or suspension was for:
                (i) Section 11-501 (driving under the
            influence of alcohol or other drug or drugs,
            intoxicating compound or compounds or any
            combination thereof),
                (ii) Section 11-501.1 (statutory summary
            suspension or revocation),
                (iii) paragraph (b) of Section 11-401 (motor
            vehicle accidents involving death or personal
            injuries), or for
                (iv) reckless homicide as defined in Section
            9-3 of this the Criminal Code of 1961 or the
            Criminal Code of 2012;
            (B) (2) driving while under the influence of
        alcohol, other drug or drugs, intoxicating compound or
        compounds or any combination thereof and has been
        previously convicted of reckless homicide or a similar
        provision of a law of another state relating to
        reckless homicide in which the person was determined to
        have been under the influence of alcohol, other drug or
        drugs, or intoxicating compound or compounds as an
        element of the offense or the person has previously
        been convicted of committing a violation of driving
        under the influence of alcohol or other drug or drugs,
        intoxicating compound or compounds or any combination
        thereof and was involved in a motor vehicle accident
        that resulted in death, great bodily harm, or permanent
        disability or disfigurement to another, when the
        violation was a proximate cause of the death or
        injuries;
            (C) (3) the person committed a violation of driving
        under the influence of alcohol or other drug or drugs,
        intoxicating compound or compounds or any combination
        thereof under Section 11-501 of the Illinois Vehicle
        Code or a similar provision for the third or subsequent
        time;
            (D) (4) the person committed the violation while he
        or she did not possess a valid driver's license or
        permit or a valid restricted driving permit or a valid
        judicial driving permit or a valid monitoring device
        driving permit; or
            (E) (5) the person committed the violation while he
        or she knew or should have known that the vehicle he or
        she was driving was not covered by a liability
        insurance policy;
        (7) (g) an offense described in subsection (g) of
    Section 6-303 of the Illinois Vehicle Code; or
        (8) (h) an offense described in subsection (e) of
    Section 6-101 of the Illinois Vehicle Code; may be seized
    and delivered forthwith to the sheriff of the county of
    seizure.
    Within 15 days after such delivery the sheriff shall give
notice of seizure to each person according to the following
method: Upon each such person whose right, title or interest is
of record in the office of the Secretary of State, the
Secretary of Transportation, the Administrator of the Federal
Aviation Agency, or any other Department of this State, or any
other state of the United States if such vessel, vehicle or
aircraft is required to be so registered, as the case may be,
by mailing a copy of the notice by certified mail to the
address as given upon the records of the Secretary of State,
the Department of Aeronautics, Department of Public Works and
Buildings or any other Department of this State or the United
States if such vessel, vehicle or aircraft is required to be so
registered. Within that 15 day period the sheriff shall also
notify the State's Attorney of the county of seizure about the
seizure.
    (b) In addition, any mobile or portable equipment used in
the commission of an act which is in violation of Section 7g of
the Metropolitan Water Reclamation District Act shall be
subject to seizure and forfeiture under the same procedures
provided in this Article for the seizure and forfeiture of
vessels, vehicles, and aircraft, and any such equipment shall
be deemed a vessel, vehicle, or aircraft for purposes of this
Article.
    (c) In addition, when When a person discharges a firearm at
another individual from a vehicle with the knowledge and
consent of the owner of the vehicle and with the intent to
cause death or great bodily harm to that individual and as a
result causes death or great bodily harm to that individual,
the vehicle shall be subject to seizure and forfeiture under
the same procedures provided in this Article for the seizure
and forfeiture of vehicles used in violations of clauses (1),
(2), (3), or (4) of subsection (a) (a), (b), (c), or (d) of
this Section.
    (d) If the spouse of the owner of a vehicle seized for an
offense described in subsection (g) of Section 6-303 of the
Illinois Vehicle Code, a violation of subdivision (d)(1)(A),
(d)(1)(D), (d)(1)(G), (d)(1)(H), or (d)(1)(I) of Section
11-501 of the Illinois Vehicle Code, or Section 9-3 of this
Code makes a showing that the seized vehicle is the only source
of transportation and it is determined that the financial
hardship to the family as a result of the seizure outweighs the
benefit to the State from the seizure, the vehicle may be
forfeited to the spouse or family member and the title to the
vehicle shall be transferred to the spouse or family member who
is properly licensed and who requires the use of the vehicle
for employment or family transportation purposes. A written
declaration of forfeiture of a vehicle under this Section shall
be sufficient cause for the title to be transferred to the
spouse or family member. The provisions of this paragraph shall
apply only to one forfeiture per vehicle. If the vehicle is the
subject of a subsequent forfeiture proceeding by virtue of a
subsequent conviction of either spouse or the family member,
the spouse or family member to whom the vehicle was forfeited
under the first forfeiture proceeding may not utilize the
provisions of this paragraph in another forfeiture proceeding.
If the owner of the vehicle seized owns more than one vehicle,
the procedure set out in this paragraph may be used for only
one vehicle.
    (e) In addition, property Property declared contraband
under Section 40 of the Illinois Streetgang Terrorism Omnibus
Prevention Act may be seized and forfeited under this Article.
(Source: P.A. 96-313, eff. 1-1-10; 96-710, eff. 1-1-10;
96-1000, eff. 7-2-10; 96-1267, eff. 7-26-10; 96-1289, eff.
1-1-11; 96-1551, Article 1, Section 960, eff. 7-1-11; 96-1551,
Article 2, Section 1035, eff. 7-1-11; 97-333, eff. 8-12-11;
97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)
 
    (720 ILCS 5/36-1.5)
    Sec. 36-1.5. Preliminary Review.
    (a) Within 14 days of the seizure, the State's Attorney in
the county in which the seizure occurred State shall seek a
preliminary determination from the circuit court as to whether
there is probable cause that the property may be subject to
forfeiture.
    (b) The rules of evidence shall not apply to any proceeding
conducted under this Section.
    (c) The court may conduct the review under subsection (a)
simultaneously with a proceeding pursuant to Section 109-1 of
the Code of Criminal Procedure of 1963 for a related criminal
offense if a prosecution is commenced by information or
complaint.
    (d) The court may accept a finding of probable cause at a
preliminary hearing following the filing of an information or
complaint charging a related criminal offense or following the
return of indictment by a grand jury charging the related
offense as sufficient evidence of probable cause as required
under subsection (a).
    (e) Upon making a finding of probable cause as required
under this Section, the circuit court shall order the property
subject to the provisions of the applicable forfeiture Act held
until the conclusion of any forfeiture proceeding.
    For seizures of conveyances, within 7 days of a finding of
probable cause under subsection (a), the registered owner or
other claimant may file a motion in writing supported by sworn
affidavits claiming that denial of the use of the conveyance
during the pendency of the forfeiture proceedings creates a
substantial hardship. The court shall consider the following
factors in determining whether a substantial hardship has been
proven:
        (1) the nature of the claimed hardship;
        (2) the availability of public transportation or other
    available means of transportation; and
        (3) any available alternatives to alleviate the
    hardship other than the return of the seized conveyance.
    If the court determines that a substantial hardship has
been proven, the court shall then balance the nature of the
hardship against the State's interest in safeguarding the
conveyance. If the court determines that the hardship outweighs
the State's interest in safeguarding the conveyance, the court
may temporarily release the conveyance to the registered owner
or the registered owner's authorized designee, or both, until
the conclusion of the forfeiture proceedings or for such
shorter period as ordered by the court provided that the person
to whom the conveyance is released provides proof of insurance
and a valid driver's license and all State and local
registrations for operation of the conveyance are current. The
court shall place conditions on the conveyance limiting its use
to the stated hardship and restricting the conveyance's use to
only those individuals authorized to use the conveyance by the
registered owner. The court shall revoke the order releasing
the conveyance and order that the conveyance be reseized by law
enforcement if the conditions of release are violated or if the
conveyance is used in the commission of any offense identified
in subsection (a) of Section 6-205 of the Illinois Vehicle
Code.
    If the court orders the release of the conveyance during
the pendency of the forfeiture proceedings, the registered
owner or his or her authorized designee shall post a cash
security with the Clerk of the Court as ordered by the court.
The court shall consider the following factors in determining
the amount of the cash security:
        (A) the full market value of the conveyance;
        (B) the nature of the hardship;
        (C) the extent and length of the usage of the
    conveyance; and
        (D) such other conditions as the court deems necessary
    to safeguard the conveyance.
    If the conveyance is released, the court shall order that
the registered owner or his or her designee safeguard the
conveyance, not remove the conveyance from the jurisdiction,
not conceal, destroy, or otherwise dispose of the conveyance,
not encumber the conveyance, and not diminish the value of the
conveyance in any way. The court shall also make a
determination of the full market value of the conveyance prior
to it being released based on a source or sources defined in 50
Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B).
    If the conveyance subject to forfeiture is released under
this Section and is subsequently forfeited, the person to whom
the conveyance was released shall return the conveyance to the
law enforcement agency that seized the conveyance within 7 days
from the date of the declaration of forfeiture or order of
forfeiture. If the conveyance is not returned within 7 days,
the cash security shall be forfeited in the same manner as the
conveyance subject to forfeiture. If the cash security was less
than the full market value, a judgment shall be entered against
the parties to whom the conveyance was released and the
registered owner, jointly and severally, for the difference
between the full market value and the amount of the cash
security. If the conveyance is returned in a condition other
than the condition in which it was released, the cash security
shall be returned to the surety who posted the security minus
the amount of the diminished value, and that amount shall be
forfeited in the same manner as the conveyance subject to
forfeiture. Additionally, the court may enter an order allowing
any law enforcement agency in the State of Illinois to seize
the conveyance wherever it may be found in the State to satisfy
the judgment if the cash security was less than the full market
value of the conveyance.
(Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12.)
 
    (720 ILCS 5/36-2)  (from Ch. 38, par. 36-2)
    Sec. 36-2. Action for forfeiture.
    (a) The State's Attorney in the county in which such
seizure occurs if he or she finds that the such forfeiture was
incurred without willful negligence or without any intention on
the part of the owner of the vessel, vehicle or aircraft or any
person whose right, title or interest is of record as described
in Section 36-1, to violate the law, or finds the existence of
such mitigating circumstances as to justify remission of the
forfeiture, may cause the law enforcement agency sheriff to
remit the same upon such terms and conditions as the State's
Attorney deems reasonable and just. The State's Attorney shall
exercise his or her discretion under the foregoing provision of
this Section 36-2(a) prior to or promptly after the preliminary
review under Section 36-1.5 notice is given in accordance with
Section 36-1.
    (b) If the State's Attorney does not cause the forfeiture
to be remitted he or she shall forthwith bring an action for
forfeiture in the Circuit Court within whose jurisdiction the
seizure and confiscation has taken place. The State's Attorney
shall give notice of seizure and the forfeiture proceeding to
each person according to the following method: Upon each person
whose right, title, or interest is of record in the office of
the Secretary of State, the Secretary of Transportation, the
Administrator of the Federal Aviation Agency, or any other
Department of this State, or any other state of the United
States if the vessel, vehicle, or aircraft is required to be so
registered, as the case may be, by delivering the notice and
complaint in open court or by certified mail to the address as
given upon the records of the Secretary of State, the Division
of Aeronautics of the Department of Transportation, the Capital
Development Board, or any other Department of this State or the
United States if the vessel, vehicle, or aircraft is required
to be so registered the forfeiture proceeding by mailing a copy
of the Complaint in the forfeiture proceeding to the persons,
and upon the manner, set forth in Section 36-1.
    (c) The owner of the seized vessel, vehicle, or aircraft or
any person whose right, title, or interest is of record as
described in Section 36-1, may within 20 days after delivery in
open court or the mailing of such notice file a verified answer
to the Complaint and may appear at the hearing on the action
for forfeiture.
    (d) The State shall show at such hearing by a preponderance
of the evidence, that such vessel, vehicle, or aircraft was
used in the commission of an offense described in Section 36-1.
    (e) The owner of such vessel, vehicle, or aircraft or any
person whose right, title, or interest is of record as
described in Section 36-1, may show by a preponderance of the
evidence that he did not know, and did not have reason to know,
that the vessel, vehicle, or aircraft was to be used in the
commission of such an offense or that any of the exceptions set
forth in Section 36-3 are applicable.
    (f) Unless the State shall make such showing, the Court
shall order such vessel, vehicle, or aircraft released to the
owner. Where the State has made such showing, the Court may
order the vessel, vehicle, or aircraft destroyed or ; may order
it forfeited delivered to any local, municipal or county law
enforcement agency, or the Department of State Police or the
Department of Revenue of the State of Illinois; or may order it
sold at public auction.
    (g) (b) A copy of the order shall be filed with the law
enforcement agency, sheriff of the county in which the seizure
occurs and with each Federal or State office or agency with
which such vessel, vehicle, or aircraft is required to be
registered. Such order, when filed, constitutes authority for
the issuance of clear title to such vessel, vehicle, or
aircraft, or boat to the department or agency to whom it is
delivered or any purchaser thereof. The law enforcement agency
sheriff shall comply promptly with instructions to remit
received from the State's Attorney or Attorney General in
accordance with Sections 36-2(a) or 36-3.
    (h) (c) The proceeds of any sale at public auction pursuant
to Section 36-2 of this Act, after payment of all liens and
deduction of the reasonable charges and expenses incurred by
the State's Attorney's Office sheriff in storing and selling
such vehicle, shall be paid to into the law enforcement agency
having seized the vehicle for forfeiture general fund of the
county of seizure.
(Source: P.A. 84-25.)
 
    (720 ILCS 5/36-5)
    Sec. 36-5. The law enforcement agency, county or sheriff
not liable for stored forfeited vehicle. A law enforcement
agency, county, sheriff, law enforcement officer or employee of
the law enforcement agency or deputy sheriff, or employee of
the county sheriff shall not be civilly or criminally liable
for any damage to a forfeited vehicle stored with a commercial
vehicle safety relocator.
(Source: P.A. 96-1274, eff. 7-26-10.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.

Effective Date: 8/22/2014