Bill Text: IL HB0303 | 2017-2018 | 100th General Assembly | Chaptered


Bill Title: Amends the Unified Code of Corrections. Provides that it is an aggravating factor in sentencing that the defendant committed the offense of driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof in violation of the Illinois Vehicle Code or a similar provision of a local ordinance and the defendant during the commission of the offense was driving his or her vehicle upon a roadway designated for one-way traffic in the opposite direction of the direction indicated by official traffic control devices.

Spectrum: Slight Partisan Bill (Democrat 29-17)

Status: (Passed) 2017-09-19 - Public Act . . . . . . . . . 100-0512 [HB0303 Detail]

Download: Illinois-2017-HB0303-Chaptered.html



Public Act 100-0512
HB0303 EnrolledLRB100 05313 RLC 15324 b
AN ACT concerning criminal law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Seizure and Forfeiture Reporting Act.
Section 5. Applicability. This Act is applicable to
property seized or forfeited under the following provisions of
law:
(1) Section 3.23 of the Illinois Food, Drug and
Cosmetic Act;
(2) Section 44.1 of the Environmental Protection Act;
(3) Section 105-55 of the Herptiles-Herps Act;
(4) Section 1-215 of the Fish and Aquatic Life Code;
(5) Section 1.25 of the Wildlife Code;
(6) Section 17-10.6 of the Criminal Code of 2012
(financial institution fraud);
(7) Section 28-5 of the Criminal Code of 2012
(gambling);
(8) Article 29B of the Criminal Code of 2012 (money
laundering);
(9) Article 33G of the Criminal Code of 2012 (Illinois
Street Gang and Racketeer Influenced And Corrupt
Organizations Law);
(10) Article 36 of the Criminal Code of 2012 (seizure
and forfeiture of vessels, vehicles, and aircraft);
(11) Section 47-15 of the Criminal Code of 2012
(dumping garbage upon real property);
(12) Article 124B of the Code of Criminal procedure
(forfeiture);
(13) Drug Asset Forfeiture Procedure Act;
(14) Narcotics Profit Forfeiture Act;
(15) Illinois Streetgang Terrorism Omnibus Prevention
Act; and
(16) Illinois Securities Law of 1953.
Section 10. Reporting by law enforcement agency.
(a) Each law enforcement agency that seizes property
subject to reporting under this Act shall report the following
information about property seized or forfeited under State law:
(1) the name of the law enforcement agency that seized
the property;
(2) the date of the seizure;
(3) the type of property seized, including a building,
vehicle, boat, cash, negotiable security, or firearm,
except reporting is not required for seizures of contraband
including alcohol, gambling devices, drug paraphernalia,
and controlled substances;
(4) a description of the property seized and the
estimated value of the property and if the property is a
conveyance, the description shall include the make, model,
year, and vehicle identification number or serial number;
and
(5) the location where the seizure occurred.
The filing requirement shall be met upon filing the form
4-64 with the State's Attorney's Office in the county where the
forfeiture action is being commenced or with the Attorney
General's Office if the forfeiture action is being commenced by
that office, and the forwarding of the form 4-64 upon approval
of the State's Attorney's Office or the Attorney General's
Office to the Department of State Police Asset Forfeiture
Section. With regard to seizures for which form 4-64 is not
required to be filed, the filing requirement shall be met by
the filing of an annual summary report with the Department of
State Police no later than 60 days after December 31 of that
year.
(b) Each law enforcement agency, including a drug task
force or Metropolitan Enforcement Group (MEG) unit, that
receives proceeds from forfeitures subject to reporting under
this Act shall file an annual report with the Department of
State Police no later than 60 days after December 31 of that
year. The format of the report shall be developed by the
Department of State Police and shall be completed by the law
enforcement agency. The report shall include, at a minimum, the
amount of funds and other property distributed to the law
enforcement agency by the Department of State Police, the
amount of funds expended by the law enforcement agency, and the
category of expenditure, including:
(1) crime, gang, or abuse prevention or intervention
programs;
(2) compensation or services for crime victims;
(3) witness protection, informant fees, and controlled
purchases of contraband;
(4) salaries, overtime, and benefits, as permitted by
law;
(5) operating expenses, including but not limited to,
capital expenditures for vehicles, firearms, equipment,
computers, furniture, office supplies, postage, printing,
membership fees paid to trade associations, and fees for
professional services including auditing, court reporting,
expert witnesses, and attorneys;
(6) travel, meals, entertainment, conferences,
training, and continuing education seminars; and
(7) other expenditures of forfeiture proceeds.
(c) The Department of State Police shall establish and
maintain on its official website a public database that
includes annual aggregate data for each law enforcement agency
that reports seizures of property under subsection (a) of this
Section, that receives distributions of forfeiture proceeds
subject to reporting under this Act, or reports expenditures
under subsection (b) of this Section. This aggregate data shall
include, for each law enforcement agency:
(1) the total number of asset seizures reported by each
law enforcement agency during the calendar year;
(2) the monetary value of all currency or its
equivalent seized by the law enforcement agency during the
calendar year;
(3) the number of conveyances seized by the law
enforcement agency during the calendar year, and the
aggregate estimated value;
(4) the aggregate estimated value of all other property
seized by the law enforcement agency during the calendar
year;
(5) the monetary value of distributions by the
Department of State Police of forfeited currency or auction
proceeds from forfeited property to the law enforcement
agency during the calendar year; and
(6) the total amount of the law enforcement agency's
expenditures of forfeiture proceeds during the calendar
year, categorized as provided under subsection (b) of this
Section.
The database shall not provide names, addresses, phone
numbers, or other personally identifying information of owners
or interest holders, persons, business entities, covert office
locations, or business entities involved in the forfeiture
action and shall not disclose the vehicle identification number
or serial number of any conveyance.
(d) The Department of State Police shall adopt rules to
administer the asset forfeiture program, including the
categories of authorized expenditures consistent with the
statutory guidelines for each of the included forfeiture
statutes, the use of forfeited funds, other expenditure
requirements, and the reporting of seizure and forfeiture
information. The Department may adopt rules necessary to
implement this Act through the use of emergency rulemaking
under Section 5-45 of the Illinois Administrative Procedure Act
for a period not to exceed 180 days after the effective date of
this Act.
(e) The Department of State Police shall have authority and
oversight over all law enforcement agencies receiving
forfeited funds from the Department. This authority shall
include enforcement of rules and regulations adopted by the
Department and sanctions for violations of any rules and
regulations, including the withholding of distributions of
forfeiture proceeds from the law enforcement agency in
violation.
(f) Upon application by a law enforcement agency to the
Department of State Police, the reporting of a particular asset
forfeited under this Section may be delayed if the asset in
question was seized from a person who has become a confidential
informant under the agency's confidential informant policy, or
if the asset was seized as part of an ongoing investigation.
This delayed reporting shall be granted by the Department of
State Police for a maximum period of 6 months if the
confidential informant is still providing cooperation to law
enforcement or the investigation is still ongoing, and at that
time the asset shall be reported as required under this Act.
(g) The Department of State Police shall on or before
January 1, 2019, establish and implement the requirements of
this Act. In order to implement the reporting and public
database requirements under this Act, the Department of State
Police Asset Forfeiture Section requires a one-time upgrade of
its information technology software and hardware. This
one-time upgrade shall be funded by a temporary allocation of
5% of all forfeited currency and 5% of the auction proceeds
from each forfeited asset, which are to be distributed after
the effective date of this Act. The Department of State Police
shall transfer these funds at the time of distribution to a
separate fund established by the Department of State Police.
Monies deposited in this fund shall be accounted for and shall
be used only to pay for the actual one-time cost of purchasing
and installing the hardware and software required to comply
with this new reporting and public database requirement. Monies
deposited in the fund shall not be subject to re-appropriation,
reallocation, or redistribution for any other purpose. After
sufficient funds are transferred to the fund to cover the
actual one-time cost of purchasing and installing the hardware
and software required to comply with this new reporting and
public database requirement, no additional funds shall be
transferred to the fund for any purpose. At the completion of
the one-time upgrade of the information technology hardware and
software to comply with this new reporting and public database
requirement, any remaining funds in the fund shall be returned
to the participating agencies under the distribution
requirements of the statutes from which the funds were
transferred, and the fund shall no longer exist.
(h)(1) The Department of State Police, in consultation with
and subject to the approval of the Chief Procurement Officer,
may procure a single contract or multiple contracts to
implement the provisions of this Act.
(2) A contract or contracts under this subsection (h)
are not subject to the Illinois Procurement Code, except
for Sections 20-60, 20-65, 20-70, and 20-160 and Article 50
of that Code, provided that the Chief Procurement Officer
may, in writing with justification, waive any
certification required under Article 50 of the Illinois
Procurement Code. The provisions of this paragraph (2),
other than this sentence, are inoperative on and after July
1, 2019.
Section 15. Fund audits.
(a) The Auditor General shall conduct as a part of its 2
year compliance audit, an audit of the State Asset Forfeiture
Fund for compliance with the requirements of this Act. The
audit shall include, but not be limited to, the following
determinations:
(1) if detailed records of all receipts and
disbursements from the State Asset Forfeiture Fund are
being maintained;
(2) if administrative costs charged to the fund are
adequately documented and are reasonable; and
(3) if the procedures for making disbursements under
the Act are adequate.
(b) The Department of State Police, and any other entity or
person that may have information relevant to the audit, shall
cooperate fully and promptly with the Office of the Auditor
General in conducting the audit. The Auditor General shall
begin the audit during the next regular two year compliance
audit of the Department of State Police and distribute the
report upon completion under Section 3-14 of the Illinois State
Auditing Act.
Section 105. The Freedom of Information Act is amended by
changing Section 7.5 as follows:
(5 ILCS 140/7.5)
Sec. 7.5. Statutory exemptions. To the extent provided for
by the statutes referenced below, the following shall be exempt
from inspection and copying:
(a) All information determined to be confidential
under Section 4002 of the Technology Advancement and
Development Act.
(b) Library circulation and order records identifying
library users with specific materials under the Library
Records Confidentiality Act.
(c) Applications, related documents, and medical
records received by the Experimental Organ Transplantation
Procedures Board and any and all documents or other records
prepared by the Experimental Organ Transplantation
Procedures Board or its staff relating to applications it
has received.
(d) Information and records held by the Department of
Public Health and its authorized representatives relating
to known or suspected cases of sexually transmissible
disease or any information the disclosure of which is
restricted under the Illinois Sexually Transmissible
Disease Control Act.
(e) Information the disclosure of which is exempted
under Section 30 of the Radon Industry Licensing Act.
(f) Firm performance evaluations under Section 55 of
the Architectural, Engineering, and Land Surveying
Qualifications Based Selection Act.
(g) Information the disclosure of which is restricted
and exempted under Section 50 of the Illinois Prepaid
Tuition Act.
(h) Information the disclosure of which is exempted
under the State Officials and Employees Ethics Act, and
records of any lawfully created State or local inspector
general's office that would be exempt if created or
obtained by an Executive Inspector General's office under
that Act.
(i) Information contained in a local emergency energy
plan submitted to a municipality in accordance with a local
emergency energy plan ordinance that is adopted under
Section 11-21.5-5 of the Illinois Municipal Code.
(j) Information and data concerning the distribution
of surcharge moneys collected and remitted by wireless
carriers under the Wireless Emergency Telephone Safety
Act.
(k) Law enforcement officer identification information
or driver identification information compiled by a law
enforcement agency or the Department of Transportation
under Section 11-212 of the Illinois Vehicle Code.
(l) Records and information provided to a residential
health care facility resident sexual assault and death
review team or the Executive Council under the Abuse
Prevention Review Team Act.
(m) Information provided to the predatory lending
database created pursuant to Article 3 of the Residential
Real Property Disclosure Act, except to the extent
authorized under that Article.
(n) Defense budgets and petitions for certification of
compensation and expenses for court appointed trial
counsel as provided under Sections 10 and 15 of the Capital
Crimes Litigation Act. This subsection (n) shall apply
until the conclusion of the trial of the case, even if the
prosecution chooses not to pursue the death penalty prior
to trial or sentencing.
(o) Information that is prohibited from being
disclosed under Section 4 of the Illinois Health and
Hazardous Substances Registry Act.
(p) Security portions of system safety program plans,
investigation reports, surveys, schedules, lists, data, or
information compiled, collected, or prepared by or for the
Regional Transportation Authority under Section 2.11 of
the Regional Transportation Authority Act or the St. Clair
County Transit District under the Bi-State Transit Safety
Act.
(q) Information prohibited from being disclosed by the
Personnel Records Review Act.
(r) Information prohibited from being disclosed by the
Illinois School Student Records Act.
(s) Information the disclosure of which is restricted
under Section 5-108 of the Public Utilities Act.
(t) All identified or deidentified health information
in the form of health data or medical records contained in,
stored in, submitted to, transferred by, or released from
the Illinois Health Information Exchange, and identified
or deidentified health information in the form of health
data and medical records of the Illinois Health Information
Exchange in the possession of the Illinois Health
Information Exchange Authority due to its administration
of the Illinois Health Information Exchange. The terms
"identified" and "deidentified" shall be given the same
meaning as in the Health Insurance Portability and
Accountability Act of 1996, Public Law 104-191, or any
subsequent amendments thereto, and any regulations
promulgated thereunder.
(u) Records and information provided to an independent
team of experts under Brian's Law.
(v) Names and information of people who have applied
for or received Firearm Owner's Identification Cards under
the Firearm Owners Identification Card Act or applied for
or received a concealed carry license under the Firearm
Concealed Carry Act, unless otherwise authorized by the
Firearm Concealed Carry Act; and databases under the
Firearm Concealed Carry Act, records of the Concealed Carry
Licensing Review Board under the Firearm Concealed Carry
Act, and law enforcement agency objections under the
Firearm Concealed Carry Act.
(w) Personally identifiable information which is
exempted from disclosure under subsection (g) of Section
19.1 of the Toll Highway Act.
(x) Information which is exempted from disclosure
under Section 5-1014.3 of the Counties Code or Section
8-11-21 of the Illinois Municipal Code.
(y) Confidential information under the Adult
Protective Services Act and its predecessor enabling
statute, the Elder Abuse and Neglect Act, including
information about the identity and administrative finding
against any caregiver of a verified and substantiated
decision of abuse, neglect, or financial exploitation of an
eligible adult maintained in the Registry established
under Section 7.5 of the Adult Protective Services Act.
(z) Records and information provided to a fatality
review team or the Illinois Fatality Review Team Advisory
Council under Section 15 of the Adult Protective Services
Act.
(aa) Information which is exempted from disclosure
under Section 2.37 of the Wildlife Code.
(bb) Information which is or was prohibited from
disclosure by the Juvenile Court Act of 1987.
(cc) Recordings made under the Law Enforcement
Officer-Worn Body Camera Act, except to the extent
authorized under that Act.
(dd) Information that is prohibited from being
disclosed under Section 45 of the Condominium and Common
Interest Community Ombudsperson Act.
(ee) (dd) Information that is exempted from disclosure
under Section 30.1 of the Pharmacy Practice Act.
(ff) Information prohibited from disclosure under the
Seizure and Forfeiture Reporting Act.
(Source: P.A. 98-49, eff. 7-1-13; 98-63, eff. 7-9-13; 98-756,
eff. 7-16-14; 98-1039, eff. 8-25-14; 98-1045, eff. 8-25-14;
99-78, eff. 7-20-15; 99-298, eff. 8-6-15; 99-352, eff. 1-1-16;
99-642, eff. 7-28-16; 99-776, eff. 8-12-16; 99-863, eff.
8-19-16; revised 9-1-16.)
Section 110. The Illinois Food, Drug and Cosmetic Act is
amended by changing Section 3.23 as follows:
(410 ILCS 620/3.23)
Sec. 3.23. Legend drug prohibition.
(a) In this Section:
"Legend drug" means a drug limited by the Federal Food,
Drug and Cosmetic Act to being dispensed by or upon a medical
practitioner's prescription because the drug is:
(1) habit forming;
(2) toxic or having potential for harm; or
(3) limited in use by the new drug application for the
drug to use only under a medical practitioner's
supervision.
"Medical practitioner" means any person licensed to
practice medicine in all its branches in the State.
"Deliver" or "delivery" means the actual, constructive, or
attempted transfer of possession of a legend drug, with or
without consideration, whether or not there is an agency
relationship.
"Manufacture" means the production, preparation,
propagation, compounding, conversion, or processing of a
legend drug, either directly or indirectly, by extraction from
substances of natural origin, or independently by means of
chemical synthesis, or by a combination of extraction and
chemical synthesis, and includes any packaging or repackaging
of the substance or labeling of its container. "Manufacture"
does not include:
(1) by an ultimate user, the preparation or compounding
of a legend drug for his own use; or
(2) by a medical practitioner, or his authorized agent
under his supervision, the preparation, compounding,
packaging, or labeling of a legend drug:
(A) as an incident to his administering or
dispensing of a legend drug in the course of his
professional practice; or
(B) as an incident to lawful research, teaching, or
chemical analysis and not for sale.
"Prescription" has the same meaning ascribed to it in
Section 3 of the Pharmacy Practice Act.
(b) It is unlawful for any person to knowingly manufacture
or deliver or possess with the intent to manufacture or deliver
a legend drug of 6 or more pills, tablets, capsules, or caplets
or 30 ml or more of a legend drug in liquid form who is not
licensed by applicable law to prescribe or dispense legend
drugs or is not an employee of the licensee operating in the
normal course of business under the supervision of the
licensee. Any person who violates this Section is guilty of a
Class 3 felony, the fine for which shall not exceed $100,000. A
person convicted of a second or subsequent violation of this
Section is guilty of a Class 1 felony, the fine for which shall
not exceed $250,000.
(c) The following are subject to forfeiture:
(1) (blank); all substances that have been
manufactured, distributed, dispensed, or possessed in
violation of this Act;
(2) all raw materials, products, and equipment of any
kind which are used, or intended for use in manufacturing,
distributing, dispensing, administering, or possessing any
substance in violation of this Section Act;
(3) all conveyances, including aircraft, vehicles, or
vessels, which are used, or intended for use, to transport,
or in any manner to facilitate the transportation, sale,
receipt, possession, or concealment of any substance
manufactured, distributed, dispensed, or possessed in
violation of this Section or property described in
paragraph items (1) and (2) of this subsection (c), but:
(A) no conveyance used by any person as a common
carrier in the transaction of business as a common
carrier is subject to forfeiture under this Section
unless it appears that the owner or other person in
charge of the conveyance is a consenting party or privy
to the a violation of this Act;
(B) no conveyance is subject to forfeiture under
this Section by reason of any act or omission which the
owner proves to have been committed or omitted without
his knowledge or consent; and
(C) a forfeiture of a conveyance encumbered by a
bona fide security interest is subject to the interest
of the secured party if he neither had knowledge of nor
consented to the act or omission;
(4) all money, things of value, books, records, and
research products and materials including formulas,
microfilm, tapes, and data that are used, or intended to be
used in violation of this Section Act;
(5) everything of value furnished, or intended to be
furnished, in exchange for a substance in violation of this
Section Act, all proceeds traceable to such an exchange,
and all moneys, negotiable instruments, and securities
used, or intended to be used, to commit or in any manner to
facilitate any violation of this Section Act; and
(6) all real property, including any right, title, and
interest, including, but not limited to, any leasehold
interest or the beneficial interest in a land trust, in the
whole of any lot or tract of land and any appurtenances or
improvements, which is used or intended to be used, in any
manner or part, to commit, or in any manner to facilitate
the commission of, any violation or act that constitutes a
violation of this Section 33.1 of this Act or that is the
proceeds of any violation or act that constitutes a
violation of this Section 33.1 of this Act.
(d) Property subject to forfeiture under this Act may be
seized under the Drug Asset Forfeiture Procedure Act. In the
event of seizure, forfeiture proceedings shall be instituted
under the Drug Asset Forfeiture Procedure Act. by the Director
of the Department of State Police or any peace officer upon
process or seizure warrant issued by any court having
jurisdiction over the property. Seizure by the Director of the
Department of State Police or any peace officer without process
may be made:
(1) if the seizure is incident to inspection under an
administrative inspection warrant;
(2) if the property subject to seizure has been the
subject of a prior judgment in favor of the State in a
criminal proceeding, or in an injunction or forfeiture
proceeding based upon this Act or the Drug Asset Forfeiture
Procedure Act;
(3) if there is probable cause to believe that the
property is directly or indirectly dangerous to health or
safety;
(4) if there is probable cause to believe that the
property is subject to forfeiture under this Act and the
property is seized under circumstances in which a
warrantless seizure or arrest would be reasonable; or
(5) in accordance with the Code of Criminal Procedure
of 1963.
(e) Forfeiture under this Act is subject to an 8th
amendment to the United States Constitution disproportionate
penalties analysis as provided under Section 9.5 of the Drug
Asset Forfeiture Procedure Act. In the event of seizure
pursuant to subsection (c) of this Section, forfeiture
proceedings shall be instituted in accordance with the Drug
Asset Forfeiture Procedure Act.
(f) With regard to possession of legend drug offenses only,
a sum of currency with a value of less than $500 shall not be
subject to forfeiture under this Act. For all other offenses
under this Act, currency with a value of under $100 shall not
be subject to forfeiture under this Act. Property taken or
detained under this Section shall not be subject to replevin,
but is deemed to be in the custody of the Director of the
Department of State Police subject only to the order and
judgments of the circuit court having jurisdiction over the
forfeiture proceedings and the decisions of the State's
Attorney under the Drug Asset Forfeiture Procedure Act. If
property is seized under this Act, then the seizing agency
shall promptly conduct an inventory of the seized property and
estimate the property's value, and shall forward a copy of the
inventory of seized property and the estimate of the property's
value to the Director of the Department of State Police. Upon
receiving notice of seizure, the Secretary may:
(1) place the property under seal;
(2) remove the property to a place designated by the
Secretary;
(3) keep the property in the possession of the seizing
agency;
(4) remove the property to a storage area for
safekeeping or, if the property is a negotiable instrument
or money and is not needed for evidentiary purposes,
deposit it in an interest bearing account;
(5) place the property under constructive seizure by
posting notice of pending forfeiture on it, by giving
notice of pending forfeiture to its owners and interest
holders, or by filing notice of pending forfeiture in any
appropriate public record relating to the property; or
(6) provide for another agency or custodian, including
an owner, secured party, or lienholder, to take custody of
the property upon the terms and conditions set by the
Director of the Department of State Police.
(f-5) For felony offenses involving possession of legend
drug only, no property shall be subject to forfeiture under
this Act because of the possession of less than 2 single unit
doses of a controlled substance. This exemption shall not apply
in instances when the possessor, or another person at the
direction of the possessor, is engaged in the destruction of
any amount of a legend drug. The amount of a single unit dose
shall be the State's burden to prove in their case in chief.
(g) If the Department suspends or revokes a registration,
all legend drugs owned or possessed by the registrant at the
time of suspension or the effective date of the revocation
order may be placed under seal. No disposition may be made of
substances under seal until the time for taking an appeal has
elapsed or until all appeals have been concluded unless a
court, upon application therefor, orders the sale of perishable
substances and the deposit of the proceeds of the sale with the
court. Upon a revocation rule becoming final, all substances
are subject to seizure and forfeiture under the Drug Asset
Forfeiture Procedure Act may be forfeited to the Department.
(h) (Blank). If property is forfeited under this Act, then
the Director of the Department of State Police must sell all
such property unless such property is required by law to be
destroyed or is harmful to the public, and shall distribute the
proceeds of the sale, together with any moneys forfeited or
seized, in accordance with subsection (i) of this Section. Upon
the application of the seizing agency or prosecutor who was
responsible for the investigation, arrest or arrests, and
prosecution that led to the forfeiture, the Director of the
Department of State Police may return any item of forfeited
property to the seizing agency or prosecutor for official use
in the enforcement of laws if the agency or prosecutor can
demonstrate that the item requested would be useful to the
agency or prosecutor in their enforcement efforts. If any
forfeited conveyance, including an aircraft, vehicle, or
vessel, is returned to the seizing agency or prosecutor, then
the conveyance may be used immediately in the enforcement of
the criminal laws of the State. Upon disposal, all proceeds
from the sale of the conveyance must be used for drug
enforcement purposes. If any real property returned to the
seizing agency is sold by the agency or its unit of government,
then the proceeds of the sale shall be delivered to the
Director of the Department of State Police and distributed in
accordance with subsection (i) of this Section.
(i) (Blank). All moneys and the sale proceeds of all other
property forfeited and seized under this Act shall be
distributed as follows:
(1) 65% shall be distributed to the metropolitan
enforcement group, local, municipal, county, or State law
enforcement agency or agencies which conducted or
participated in the investigation resulting in the
forfeiture. The distribution shall bear a reasonable
relationship to the degree of direct participation of the
law enforcement agency in the effort resulting in the
forfeiture, taking into account the total value of the
property forfeited and the total law enforcement effort
with respect to the violation of the law upon which the
forfeiture is based. Amounts distributed to the agency or
agencies shall be used for the enforcement of laws.
(2) 12.5% shall be distributed to the Office of the
State's Attorney of the county in which the prosecution
resulting in the forfeiture was instituted, deposited in a
special fund in the county treasury and appropriated to the
State's Attorney for use in the enforcement of laws. In
counties over 3,000,000 population, 25% will be
distributed to the Office of the State's Attorney for use
in the enforcement of laws governing cannabis and
controlled substances. If the prosecution is undertaken
solely by the Attorney General, the portion provided
hereunder shall be distributed to the Attorney General for
use in the enforcement of laws.
(3) 12.5% shall be distributed to the Office of the
State's Attorneys Appellate Prosecutor and deposited in a
separate fund of that office to be used for additional
expenses incurred in the investigation, prosecution and
appeal of cases. The Office of the State's Attorneys
Appellate Prosecutor shall not receive distribution from
cases brought in counties with over 3,000,000 population.
(4) 10% shall be retained by the Department of State
Police for expenses related to the administration and sale
of seized and forfeited property.
(j) Contraband, including legend drugs possessed without a
prescription or other authorization under State or federal law,
is not subject to forfeiture. No property right exists in
contraband. Contraband is subject to seizure and shall be
disposed of according to State law.
(Source: P.A. 96-573, eff. 8-18-09.)
Section 115. The Environmental Protection Act is amended by
changing Section 44.1 as follows:
(415 ILCS 5/44.1) (from Ch. 111 1/2, par. 1044.1)
Sec. 44.1. (a) In addition to all other civil and criminal
penalties provided by law, any person convicted of a criminal
violation of this Act or the regulations adopted thereunder
shall forfeit to the State (1) an amount equal to the value of
all profits earned, savings realized, and benefits incurred as
a direct or indirect result of such violation, and (2) any
vehicle or conveyance used in the perpetration of such
violation, except as provided in subsection (b).
(b) Forfeiture of conveyances shall be subject to the
following exceptions:
(1) No conveyance used by any person as a common
carrier in the transaction of business as a common carrier
is subject to forfeiture under this Section unless it is
proven that the owner or other person in charge of the
conveyance consented to or was privy to the covered
violation.
(2) No conveyance is subject to forfeiture under this
Section by reason of any covered violation which the owner
proves to have been committed without his knowledge or
consent.
(3) A forfeiture of a conveyance encumbered by a bona
fide security interest is subject to the interest of the
secured party if he neither had knowledge of nor consented
to the covered violation.
(c) Except as provided in subsection (d), all property
subject to forfeiture under this Section shall be seized
pursuant to the order of a circuit court.
(d) Property subject to forfeiture under this Section may
be seized by the Director or any peace officer without process:
(1) if the seizure is incident to an inspection under
an administrative inspection warrant, or incident to the
execution of a criminal search or arrest warrant;
(2) if the property subject to seizure has been the
subject of a prior judgment in favor of the State in a
criminal proceeding, or in an injunction or forfeiture
proceeding based upon this Act; or
(3) if there is probable cause to believe that the
property is directly or indirectly dangerous to health or
safety.
(e) Property taken or detained under this Section shall not
be subject to forcible entry and detainer or replevin, but is
deemed to be in the custody of the Director subject only to the
order and judgments of the circuit court having jurisdiction
over the forfeiture proceedings. When property is seized under
this Act, the Director may:
(1) place the property under seal;
(2) secure the property or remove the property to a
place designated by him; or
(3) require the sheriff of the county in which the
seizure occurs to take custody of the property and secure
or remove it to an appropriate location for disposition in
accordance with law.
(f) All amounts forfeited under item (1) of subsection (a)
shall be apportioned in the following manner:
(1) 40% shall be deposited in the Hazardous Waste Fund
created in Section 22.2;
(2) 30% shall be paid to the office of the Attorney
General or the State's Attorney of the county in which the
violation occurred, whichever brought and prosecuted the
action; and
(3) 30% shall be paid to the law enforcement agency
which investigated the violation.
Any funds received under this subsection (f) shall be used
solely for the enforcement of the environmental protection laws
of this State.
(g) When property is forfeited under this Section the court
may order:
(1) that the property shall be made available for the
official use of the Agency, the Office of the Attorney
General, the State's Attorney of the county in which the
violation occurred, or the law enforcement agency which
investigated the violation, to be used solely for the
enforcement of the environmental protection laws of this
State;
(2) the sheriff of the county in which the forfeiture
occurs to take custody of the property and remove it for
disposition in accordance with law; or
(3) the sheriff of the county in which the forfeiture
occurs to sell that which is not required to be destroyed
by law and which is not harmful to the public. The proceeds
of such sale shall be used for payment of all proper
expenses of the proceedings for forfeiture and sale,
including expenses of seizure, maintenance of custody,
advertising and court costs, and the balance, if any, shall
be apportioned pursuant to subsection (f).
(h) Property seized or forfeited under this Section is
subject to reporting under the Seizure and Forfeiture Reporting
Act.
(Source: P.A. 85-487.)
Section 120. The Herptiles-Herps Act is amended by changing
Section 105-55 as follows:
(510 ILCS 68/105-55)
Sec. 105-55. Illegal collecting devices; public nuisance.
Every collecting device, including seines, nets, traps,
pillowcases, bags, snake hooks or tongs, or any electrical
device or any other devices including vehicles or conveyance,
watercraft, or aircraft used or operated illegally or attempted
to be used or operated illegally by any person in taking,
transporting, holding, or conveying any reptile or amphibian
life or any part of reptile or amphibian life, contrary to this
Act, including administrative rules, shall be deemed a public
nuisance and therefore illegal and subject to seizure and
confiscation by any authorized employee of the Department. Upon
the seizure of this item, the Department shall take and hold
the item until disposed of as provided in this Act.
Upon the seizure of any device because of its illegal use,
the officer or authorized employee of the Department making the
seizure shall, as soon as reasonably possible, cause a
complaint to be filed before the circuit court and a summons to
be issued requiring the owner or person in possession of the
property to appear in court and show cause why the device
seized should not be forfeited to the State. Upon the return of
the summons duly served or upon posting or publication of
notice as provided in this Act, the court shall proceed to
determine the question of the illegality of the use of the
seized property. Upon judgment being entered that the property
was illegally used, an order shall be entered providing for the
forfeiture of the seized property to the State. The owner of
the property may have a jury determine the illegality of its
use and shall have the right of an appeal as in other civil
cases. Confiscation or forfeiture shall not preclude or
mitigate against prosecution and assessment of penalties
provided in Article 90 of this Act.
Upon seizure of any property under circumstances
supporting a reasonable belief that the property was abandoned,
lost, stolen, or otherwise illegally possessed or used contrary
to this Act, except property seized during a search or arrest,
and ultimately returned, destroyed, or otherwise disposed of
under order of a court in accordance with this Act, the
authorized employee of the Department shall make reasonable
inquiry and efforts to identify and notify the owner or other
person entitled to possession of the property and shall return
the property after the person provides reasonable and
satisfactory proof of his or her ownership or right to
possession and reimburses the Department for all reasonable
expenses of custody. If the identity or location of the owner
or other person entitled to possession of the property has not
been ascertained within 6 months after the Department obtains
possession, the Department shall effectuate the sale of the
property for cash to the highest bidder at a public auction.
The owner or other person entitled to possession of the
property may claim and recover possession of the property at
any time before its sale at public auction upon providing
reasonable and satisfactory proof of ownership or right of
possession and reimbursing the Department for all reasonable
expenses of custody.
Any property forfeited to the State by court order under
this Section may be disposed of by public auction, except that
any property that is the subject of a court order shall not be
disposed of pending appeal of the order. The proceeds of the
sales at auction shall be deposited in the Wildlife and Fish
Fund.
The Department shall pay all costs of posting or
publication of notices required by this Section.
Property seized or forfeited under this Section is subject
to reporting under the Seizure and Forfeiture Reporting Act.
(Source: P.A. 98-752, eff. 1-1-15.)
Section 125. The Fish and Aquatic Life Code is amended by
changing Section 1-215 as follows:
(515 ILCS 5/1-215) (from Ch. 56, par. 1-215)
Sec. 1-215. Illegal fishing devices; public nuisance.
Every fishing device, including seines, nets, or traps, or any
electrical device or any other devices, including vehicles,
watercraft, or aircraft, used or operated illegally or
attempted to be used or operated illegally by any person in
taking, transporting, holding, or conveying any aquatic life
contrary to this Code, including administrative rules, shall be
deemed a public nuisance and therefore illegal and subject to
seizure and confiscation by any authorized employee of the
Department. Upon the seizure of such an item the Department
shall take and hold the item until disposed of as provided in
this Code.
Upon the seizure of any device because of its illegal use,
the officer or authorized employee of the Department making the
seizure shall, as soon as reasonably possible, cause a
complaint to be filed before the Circuit Court and a summons to
be issued requiring the owner or person in possession of the
property to appear in court and show cause why the device
seized should not be forfeited to the State. Upon the return of
the summons duly served or upon posting or publication of
notice as provided in this Code, the court shall proceed to
determine the question of the illegality of the use of the
seized property. Upon judgment being entered to the effect that
the property was illegally used, an order shall be entered
providing for the forfeiture of the seized property to the
State. The owner of the property, however, may have a jury
determine the illegality of its use, and shall have the right
of an appeal as in other civil cases. Confiscation or
forfeiture shall not preclude or mitigate against prosecution
and assessment of penalties provided in Section 20-35 of this
Code.
Upon seizure of any property under circumstances
supporting a reasonable belief that the property was abandoned,
lost, stolen, or otherwise illegally possessed or used contrary
to this Code, except property seized during a search or arrest,
and ultimately returned, destroyed, or otherwise disposed of
under order of a court in accordance with this Code, the
authorized employee of the Department shall make reasonable
inquiry and efforts to identify and notify the owner or other
person entitled to possession of the property and shall return
the property after the person provides reasonable and
satisfactory proof of his or her ownership or right to
possession and reimburses the Department for all reasonable
expenses of custody. If the identity or location of the owner
or other person entitled to possession of the property has not
been ascertained within 6 months after the Department obtains
possession, the Department shall effectuate the sale of the
property for cash to the highest bidder at a public auction.
The owner or other person entitled to possession of the
property may claim and recover possession of the property at
any time before its sale at public auction upon providing
reasonable and satisfactory proof of ownership or right of
possession and reimbursing the Department for all reasonable
expenses of custody.
Any property forfeited to the State by court order under
this Section may be disposed of by public auction, except that
any property that is the subject of a court order shall not be
disposed of pending appeal of the order. The proceeds of the
sales at auction shall be deposited in the Wildlife and Fish
Fund.
The Department shall pay all costs of posting or
publication of notices required by this Section.
Property seized or forfeited under this Section is subject
to reporting under the Seizure and Forfeiture Reporting Act.
(Source: P.A. 87-833.)
Section 130. The Wildlife Code is amended by changing
Section 1.25 as follows:
(520 ILCS 5/1.25) (from Ch. 61, par. 1.25)
Sec. 1.25. Every hunting or trapping device, vehicle or
conveyance, when used or operated illegally, or attempted to be
used or operated illegally by any person in taking,
transporting, holding, or conveying any wild bird or wild
mammal, contrary to the provisions of this Act, including
administrative rules, is a public nuisance and subject to
seizure and confiscation by any authorized employee of the
Department; upon the seizure of such item the Department shall
take and hold the same until disposed of as hereinafter
provided.
Upon the seizure of any property as herein provided, the
authorized employee of the Department making such seizure shall
forthwith cause a complaint to be filed before the Circuit
Court and a summons to be issued requiring the person who
illegally used or operated or attempted to use or operate such
property and the owner and person in possession of such
property to appear in court and show cause why the property
seized should not be forfeited to the State. Upon the return of
the summons duly served or other notice as herein provided, the
court shall proceed to determine the question of the illegality
of the use of the seized property and upon judgment being
entered to the effect that such property was illegally used, an
order may be entered providing for the forfeiture of such
seized property to the Department and shall thereupon become
the property of the Department; but the owner of such property
may have a jury determine the illegality of its use, and shall
have the right of an appeal, as in other cases. Such
confiscation or forfeiture shall not preclude or mitigate
against prosecution and assessment of penalties otherwise
provided in this Act.
Upon seizure of any property under circumstances
supporting a reasonable belief that such property was
abandoned, lost or stolen or otherwise illegally possessed or
used contrary to the provisions of this Act, except property
seized during a search or arrest, and ultimately returned,
destroyed, or otherwise disposed of pursuant to order of a
court in accordance with this Act, the authorized employee of
the Department shall make reasonable inquiry and efforts to
identify and notify the owner or other person entitled to
possession thereof, and shall return the property after such
person provides reasonable and satisfactory proof of his
ownership or right to possession and reimburses the Department
for all reasonable expenses of such custody. If the identity or
location of the owner or other person entitled to possession of
the property has not been ascertained within 6 months after the
Department obtains such possession, the Department shall
effectuate the sale of the property for cash to the highest
bidder at a public auction. The owner or other person entitled
to possession of such property may claim and recover possession
of the property at any time before its sale at public auction,
upon providing reasonable and satisfactory proof of ownership
or right of possession and reimbursing the Department for all
reasonable expenses of custody thereof.
Any property, including guns, forfeited to the State by
court order pursuant to this Section, may be disposed of by
public auction, except that any property which is the subject
of such a court order shall not be disposed of pending appeal
of the order. The proceeds of the sales at auction shall be
deposited in the Wildlife and Fish Fund.
The Department shall pay all costs of notices required by
this Section.
Property seized or forfeited under this Section is subject
to reporting under the Seizure and Forfeiture Reporting Act.
(Source: P.A. 85-152.)
Section 135. The Criminal Code of 2012 is amended by
changing Sections 17-10.6, 28-5, 29B-1, 33G-6, 36-1, 36-1.5,
36-2, 36-3, and 47-15 and by adding Sections 36-1.1, 36-1.2,
36-1.3, 36-1.4, 36-2.1, 36-2.2, 36-2.5, 36-2.7, 36-3.1, 36-6,
36-7, and 36-9 as follows:
(720 ILCS 5/17-10.6)
Sec. 17-10.6. Financial institution fraud.
(a) Misappropriation of financial institution property. A
person commits misappropriation of a financial institution's
property whenever he or she knowingly obtains or exerts
unauthorized control over any of the moneys, funds, credits,
assets, securities, or other property owned by or under the
custody or control of a financial institution, or under the
custody or care of any agent, officer, director, or employee of
such financial institution.
(b) Commercial bribery of a financial institution.
(1) A person commits commercial bribery of a financial
institution when he or she knowingly confers or offers or
agrees to confer any benefit upon any employee, agent, or
fiduciary without the consent of the latter's employer or
principal, with the intent to influence his or her conduct
in relation to his or her employer's or principal's
affairs.
(2) An employee, agent, or fiduciary of a financial
institution commits commercial bribery of a financial
institution when, without the consent of his or her
employer or principal, he or she knowingly solicits,
accepts, or agrees to accept any benefit from another
person upon an agreement or understanding that such benefit
will influence his or her conduct in relation to his or her
employer's or principal's affairs.
(c) Financial institution fraud. A person commits
financial institution fraud when he or she knowingly executes
or attempts to execute a scheme or artifice:
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds, credits,
assets, securities, or other property owned by or under the
custody or control of a financial institution, by means of
pretenses, representations, or promises he or she knows to
be false.
(d) Loan fraud. A person commits loan fraud when he or she
knowingly, with intent to defraud, makes any false statement or
report, or overvalues any land, property, or security, with the
intent to influence in any way the action of a financial
institution to act upon any application, advance, discount,
purchase, purchase agreement, repurchase agreement,
commitment, or loan, or any change or extension of any of the
same, by renewal, deferment of action, or otherwise, or the
acceptance, release, or substitution of security.
(e) Concealment of collateral. A person commits
concealment of collateral when he or she, with intent to
defraud, knowingly conceals, removes, disposes of, or converts
to the person's own use or to that of another any property
mortgaged or pledged to or held by a financial institution.
(f) Financial institution robbery. A person commits
robbery when he or she knowingly, by force or threat of force,
or by intimidation, takes, or attempts to take, from the person
or presence of another, or obtains or attempts to obtain by
extortion, any property or money or any other thing of value
belonging to, or in the care, custody, control, management, or
possession of, a financial institution.
(g) Conspiracy to commit a financial crime.
(1) A person commits conspiracy to commit a financial
crime when, with the intent that any violation of this
Section be committed, he or she agrees with another person
to the commission of that offense.
(2) No person may be convicted of conspiracy to commit
a financial crime unless an overt act or acts in
furtherance of the agreement is alleged and proved to have
been committed by that person or by a co-conspirator and
the accused is a part of a common scheme or plan to engage
in the unlawful activity.
(3) It shall not be a defense to conspiracy to commit a
financial crime that the person or persons with whom the
accused is alleged to have conspired:
(A) has not been prosecuted or convicted;
(B) has been convicted of a different offense;
(C) is not amenable to justice;
(D) has been acquitted; or
(E) lacked the capacity to commit the offense.
(h) Continuing financial crimes enterprise. A person
commits a continuing financial crimes enterprise when he or she
knowingly, within an 18-month period, commits 3 or more
separate offenses constituting any combination of the
following:
(1) an offense under this Section;
(2) a felony offense in violation of Section 16A-3 or
subsection (a) of Section 16-25 or paragraph (4) or (5) of
subsection (a) of Section 16-1 of this Code for the purpose
of reselling or otherwise re-entering the merchandise in
commerce, including conveying the merchandise to a
merchant in exchange for anything of value; or
(3) if involving a financial institution, any other
felony offense under this Code.
(i) Organizer of a continuing financial crimes enterprise.
(1) A person commits being an organizer of a continuing
financial crimes enterprise when he or she:
(A) with the intent to commit any offense, agrees
with another person to the commission of any
combination of the following offenses on 3 or more
separate occasions within an 18-month period:
(i) an offense under this Section;
(ii) a felony offense in violation of Section
16A-3 or subsection (a) of Section 16-25 or
paragraph (4) or (5) of subsection (a) of Section
16-1 of this Code for the purpose of reselling or
otherwise re-entering the merchandise in commerce,
including conveying the merchandise to a merchant
in exchange for anything of value; or
(iii) if involving a financial institution,
any other felony offense under this Code; and
(B) with respect to the other persons within the
conspiracy, occupies a position of organizer,
supervisor, or financier or other position of
management.
(2) The person with whom the accused agreed to commit
the 3 or more offenses under this Section, or, if involving
a financial institution, any other felony offenses under
this Code, need not be the same person or persons for each
offense, as long as the accused was a part of the common
scheme or plan to engage in each of the 3 or more alleged
offenses.
(j) Sentence.
(1) Except as otherwise provided in this subsection, a
violation of this Section, the full value of which:
(A) does not exceed $500, is a Class A misdemeanor;
(B) does not exceed $500, and the person has been
previously convicted of a financial crime or any type
of theft, robbery, armed robbery, burglary,
residential burglary, possession of burglary tools, or
home invasion, is guilty of a Class 4 felony;
(C) exceeds $500 but does not exceed $10,000, is a
Class 3 felony;
(D) exceeds $10,000 but does not exceed $100,000,
is a Class 2 felony;
(E) exceeds $100,000 but does not exceed $500,000,
is a Class 1 felony;
(F) exceeds $500,000 but does not exceed
$1,000,000, is a Class 1 non-probationable felony;
when a charge of financial crime, the full value of
which exceeds $500,000 but does not exceed $1,000,000,
is brought, the value of the financial crime involved
is an element of the offense to be resolved by the
trier of fact as either exceeding or not exceeding
$500,000;
(G) exceeds $1,000,000, is a Class X felony; when a
charge of financial crime, the full value of which
exceeds $1,000,000, is brought, the value of the
financial crime involved is an element of the offense
to be resolved by the trier of fact as either exceeding
or not exceeding $1,000,000.
(2) A violation of subsection (f) is a Class 1 felony.
(3) A violation of subsection (h) is a Class 1 felony.
(4) A violation for subsection (i) is a Class X felony.
(k) A "financial crime" means an offense described in this
Section.
(l) Period of limitations. The period of limitations for
prosecution of any offense defined in this Section begins at
the time when the last act in furtherance of the offense is
committed.
(m) Forfeiture. Any violation of subdivision (2) of
subsection (h) or subdivision (i)(1)(A)(ii) shall be subject to
the remedies, procedures, and forfeiture as set forth in
subsections (f) through (s) of Section 29B-1 of this Code.
Property seized or forfeited under this Section is subject
to reporting under the Seizure and Forfeiture Reporting Act.
(Source: P.A. 96-1551, eff. 7-1-11; incorporates P.A. 96-1532,
eff. 1-1-12, and 97-147, eff. 1-1-12; 97-1109, eff. 1-1-13.)
(720 ILCS 5/28-5) (from Ch. 38, par. 28-5)
Sec. 28-5. Seizure of gambling devices and gambling funds.
(a) Every device designed for gambling which is incapable
of lawful use or every device used unlawfully for gambling
shall be considered a "gambling device", and shall be subject
to seizure, confiscation and destruction by the Department of
State Police or by any municipal, or other local authority,
within whose jurisdiction the same may be found. As used in
this Section, a "gambling device" includes any slot machine,
and includes any machine or device constructed for the
reception of money or other thing of value and so constructed
as to return, or to cause someone to return, on chance to the
player thereof money, property or a right to receive money or
property. With the exception of any device designed for
gambling which is incapable of lawful use, no gambling device
shall be forfeited or destroyed unless an individual with a
property interest in said device knows of the unlawful use of
the device.
(b) Every gambling device shall be seized and forfeited to
the county wherein such seizure occurs. Any money or other
thing of value integrally related to acts of gambling shall be
seized and forfeited to the county wherein such seizure occurs.
(c) If, within 60 days after any seizure pursuant to
subparagraph (b) of this Section, a person having any property
interest in the seized property is charged with an offense, the
court which renders judgment upon such charge shall, within 30
days after such judgment, conduct a forfeiture hearing to
determine whether such property was a gambling device at the
time of seizure. Such hearing shall be commenced by a written
petition by the State, including material allegations of fact,
the name and address of every person determined by the State to
have any property interest in the seized property, a
representation that written notice of the date, time and place
of such hearing has been mailed to every such person by
certified mail at least 10 days before such date, and a request
for forfeiture. Every such person may appear as a party and
present evidence at such hearing. The quantum of proof required
shall be a preponderance of the evidence, and the burden of
proof shall be on the State. If the court determines that the
seized property was a gambling device at the time of seizure,
an order of forfeiture and disposition of the seized property
shall be entered: a gambling device shall be received by the
State's Attorney, who shall effect its destruction, except that
valuable parts thereof may be liquidated and the resultant
money shall be deposited in the general fund of the county
wherein such seizure occurred; money and other things of value
shall be received by the State's Attorney and, upon
liquidation, shall be deposited in the general fund of the
county wherein such seizure occurred. However, in the event
that a defendant raises the defense that the seized slot
machine is an antique slot machine described in subparagraph
(b) (7) of Section 28-1 of this Code and therefore he is exempt
from the charge of a gambling activity participant, the seized
antique slot machine shall not be destroyed or otherwise
altered until a final determination is made by the Court as to
whether it is such an antique slot machine. Upon a final
determination by the Court of this question in favor of the
defendant, such slot machine shall be immediately returned to
the defendant. Such order of forfeiture and disposition shall,
for the purposes of appeal, be a final order and judgment in a
civil proceeding.
(d) If a seizure pursuant to subparagraph (b) of this
Section is not followed by a charge pursuant to subparagraph
(c) of this Section, or if the prosecution of such charge is
permanently terminated or indefinitely discontinued without
any judgment of conviction or acquittal (1) the State's
Attorney shall commence an in rem proceeding for the forfeiture
and destruction of a gambling device, or for the forfeiture and
deposit in the general fund of the county of any seized money
or other things of value, or both, in the circuit court and (2)
any person having any property interest in such seized gambling
device, money or other thing of value may commence separate
civil proceedings in the manner provided by law.
(e) Any gambling device displayed for sale to a riverboat
gambling operation or used to train occupational licensees of a
riverboat gambling operation as authorized under the Riverboat
Gambling Act is exempt from seizure under this Section.
(f) Any gambling equipment, devices and supplies provided
by a licensed supplier in accordance with the Riverboat
Gambling Act which are removed from the riverboat for repair
are exempt from seizure under this Section.
(g) The following video gaming terminals are exempt from
seizure under this Section:
(1) Video gaming terminals for sale to a licensed
distributor or operator under the Video Gaming Act.
(2) Video gaming terminals used to train licensed
technicians or licensed terminal handlers.
(3) Video gaming terminals that are removed from a
licensed establishment, licensed truck stop establishment,
licensed fraternal establishment, or licensed veterans
establishment for repair.
(h) Property seized or forfeited under this Section is
subject to reporting under the Seizure and Forfeiture Reporting
Act.
(Source: P.A. 98-31, eff. 6-24-13.)
(720 ILCS 5/29B-1) (from Ch. 38, par. 29B-1)
Sec. 29B-1. (a) A person commits the offense of money
laundering:
(1) when, knowing that the property involved in a
financial transaction represents the proceeds of some form
of unlawful activity, he or she conducts or attempts to
conduct such a financial transaction which in fact involves
criminally derived property:
(A) with the intent to promote the carrying on of
the unlawful activity from which the criminally
derived property was obtained; or
(B) where he or she knows or reasonably should know
that the financial transaction is designed in whole or
in part:
(i) to conceal or disguise the nature, the
location, the source, the ownership or the control
of the criminally derived property; or
(ii) to avoid a transaction reporting
requirement under State law; or
(1.5) when he or she transports, transmits, or
transfers, or attempts to transport, transmit, or transfer
a monetary instrument:
(A) with the intent to promote the carrying on of
the unlawful activity from which the criminally
derived property was obtained; or
(B) knowing, or having reason to know, that the
financial transaction is designed in whole or in part:
(i) to conceal or disguise the nature, the
location, the source, the ownership or the control
of the criminally derived property; or
(ii) to avoid a transaction reporting
requirement under State law; or
(2) when, with the intent to:
(A) promote the carrying on of a specified criminal
activity as defined in this Article; or
(B) conceal or disguise the nature, location,
source, ownership, or control of property believed to
be the proceeds of a specified criminal activity as
defined by subdivision (b)(6); or
(C) avoid a transaction reporting requirement
under State law,
he or she conducts or attempts to conduct a financial
transaction involving property he or she believes to be the
proceeds of specified criminal activity as defined by
subdivision (b)(6) or property used to conduct or
facilitate specified criminal activity as defined by
subdivision (b)(6).
(b) As used in this Section:
(0.5) "Knowing that the property involved in a
financial transaction represents the proceeds of some form
of unlawful activity" means that the person knew the
property involved in the transaction represented proceeds
from some form, though not necessarily which form, of
activity that constitutes a felony under State, federal, or
foreign law.
(1) "Financial transaction" means a purchase, sale,
loan, pledge, gift, transfer, delivery or other
disposition utilizing criminally derived property, and
with respect to financial institutions, includes a
deposit, withdrawal, transfer between accounts, exchange
of currency, loan, extension of credit, purchase or sale of
any stock, bond, certificate of deposit or other monetary
instrument, use of safe deposit box, or any other payment,
transfer or delivery by, through, or to a financial
institution. For purposes of clause (a)(2) of this Section,
the term "financial transaction" also means a transaction
which without regard to whether the funds, monetary
instruments, or real or personal property involved in the
transaction are criminally derived, any transaction which
in any way or degree: (1) involves the movement of funds by
wire or any other means; (2) involves one or more monetary
instruments; or (3) the transfer of title to any real or
personal property. The receipt by an attorney of bona fide
fees for the purpose of legal representation is not a
financial transaction for purposes of this Section.
(2) "Financial institution" means any bank; saving and
loan association; trust company; agency or branch of a
foreign bank in the United States; currency exchange;
credit union, mortgage banking institution; pawnbroker;
loan or finance company; operator of a credit card system;
issuer, redeemer or cashier of travelers checks, checks or
money orders; dealer in precious metals, stones or jewels;
broker or dealer in securities or commodities; investment
banker; or investment company.
(3) "Monetary instrument" means United States coins
and currency; coins and currency of a foreign country;
travelers checks; personal checks, bank checks, and money
orders; investment securities; bearer negotiable
instruments; bearer investment securities; or bearer
securities and certificates of stock in such form that
title thereto passes upon delivery.
(4) "Criminally derived property" means: (A) any
property, real or personal, constituting or derived from
proceeds obtained, directly or indirectly, from activity
that constitutes a felony under State, federal, or foreign
law; or (B) any property represented to be property
constituting or derived from proceeds obtained, directly
or indirectly, from activity that constitutes a felony
under State, federal, or foreign law.
(5) "Conduct" or "conducts" includes, in addition to
its ordinary meaning, initiating, concluding, or
participating in initiating or concluding a transaction.
(6) "Specified criminal activity" means any violation
of Section 29D-15.1 (720 ILCS 5/29D-15.1) and any violation
of Article 29D of this Code.
(7) "Director" means the Director of State Police or
his or her designated agents.
(8) "Department" means the Department of State Police
of the State of Illinois or its successor agency.
(9) "Transaction reporting requirement under State
law" means any violation as defined under the Currency
Reporting Act.
(c) Sentence.
(1) Laundering of criminally derived property of a
value not exceeding $10,000 is a Class 3 felony;
(2) Laundering of criminally derived property of a
value exceeding $10,000 but not exceeding $100,000 is a
Class 2 felony;
(3) Laundering of criminally derived property of a
value exceeding $100,000 but not exceeding $500,000 is a
Class 1 felony;
(4) Money laundering in violation of subsection (a)(2)
of this Section is a Class X felony;
(5) Laundering of criminally derived property of a
value exceeding $500,000 is a Class 1 non-probationable
felony;
(6) In a prosecution under clause (a)(1.5)(B)(ii) of
this Section, the sentences are as follows:
(A) Laundering of property of a value not exceeding
$10,000 is a Class 3 felony;
(B) Laundering of property of a value exceeding
$10,000 but not exceeding $100,000 is a Class 2 felony;
(C) Laundering of property of a value exceeding
$100,000 but not exceeding $500,000 is a Class 1
felony;
(D) Laundering of property of a value exceeding
$500,000 is a Class 1 non-probationable felony.
(d) Evidence. In a prosecution under this Article, either
party may introduce the following evidence pertaining to the
issue of whether the property or proceeds were known to be some
form of criminally derived property or from some form of
unlawful activity:
(1) A financial transaction was conducted or
structured or attempted in violation of the reporting
requirements of any State or federal law; or
(2) A financial transaction was conducted or attempted
with the use of a false or fictitious name or a forged
instrument; or
(3) A falsely altered or completed written instrument
or a written instrument that contains any materially false
personal identifying information was made, used, offered
or presented, whether accepted or not, in connection with a
financial transaction; or
(4) A financial transaction was structured or
attempted to be structured so as to falsely report the
actual consideration or value of the transaction; or
(5) A money transmitter, a person engaged in a trade or
business or any employee of a money transmitter or a person
engaged in a trade or business, knows or reasonably should
know that false personal identifying information has been
presented and incorporates the false personal identifying
information into any report or record; or
(6) The criminally derived property is transported or
possessed in a fashion inconsistent with the ordinary or
usual means of transportation or possession of such
property and where the property is discovered in the
absence of any documentation or other indicia of legitimate
origin or right to such property; or
(7) A person pays or receives substantially less than
face value for one or more monetary instruments; or
(8) A person engages in a transaction involving one or
more monetary instruments, where the physical condition or
form of the monetary instrument or instruments makes it
apparent that they are not the product of bona fide
business or financial transactions.
(e) Duty to enforce this Article.
(1) It is the duty of the Department of State Police,
and its agents, officers, and investigators, to enforce all
provisions of this Article, except those specifically
delegated, and to cooperate with all agencies charged with
the enforcement of the laws of the United States, or of any
state, relating to money laundering. Only an agent,
officer, or investigator designated by the Director may be
authorized in accordance with this Section to serve seizure
notices, warrants, subpoenas, and summonses under the
authority of this State.
(2) Any agent, officer, investigator, or peace officer
designated by the Director may: (A) make seizure of
property pursuant to the provisions of this Article; and
(B) perform such other law enforcement duties as the
Director designates. It is the duty of all State's
Attorneys to prosecute violations of this Article and
institute legal proceedings as authorized under this
Article.
(f) Protective orders.
(1) Upon application of the State, the court may enter
a restraining order or injunction, require the execution of
a satisfactory performance bond, or take any other action
to preserve the availability of property described in
subsection (h) for forfeiture under this Article:
(A) upon the filing of an indictment, information,
or complaint charging a violation of this Article for
which forfeiture may be ordered under this Article and
alleging that the property with respect to which the
order is sought would be subject to forfeiture under
this Article; or
(B) prior to the filing of such an indictment,
information, or complaint, if, after notice to persons
appearing to have an interest in the property and
opportunity for a hearing, the court determines that:
(i) there is probable cause to believe that the
State will prevail on the issue of forfeiture and
that failure to enter the order will result in the
property being destroyed, removed from the
jurisdiction of the court, or otherwise made
unavailable for forfeiture; and
(ii) the need to preserve the availability of
the property through the entry of the requested
order outweighs the hardship on any party against
whom the order is to be entered.
Provided, however, that an order entered pursuant
to subparagraph (B) shall be effective for not more
than 90 days, unless extended by the court for good
cause shown or unless an indictment, information,
complaint, or administrative notice has been filed.
(2) A temporary restraining order under this
subsection may be entered upon application of the State
without notice or opportunity for a hearing when an
indictment, information, complaint, or administrative
notice has not yet been filed with respect to the property,
if the State demonstrates that there is probable cause to
believe that the property with respect to which the order
is sought would be subject to forfeiture under this Section
and that provision of notice will jeopardize the
availability of the property for forfeiture. Such a
temporary order shall expire not more than 30 days after
the date on which it is entered, unless extended for good
cause shown or unless the party against whom it is entered
consents to an extension for a longer period. A hearing
requested concerning an order entered under this paragraph
shall be held at the earliest possible time and prior to
the expiration of the temporary order.
(3) The court may receive and consider, at a hearing
held pursuant to this subsection (f), evidence and
information that would be inadmissible under the Illinois
rules of evidence.
(4) Order to repatriate and deposit.
(A) In general. Pursuant to its authority to enter
a pretrial restraining order under this Section, the
court may order a defendant to repatriate any property
that may be seized and forfeited and to deposit that
property pending trial with the Illinois State Police
or another law enforcement agency designated by the
Illinois State Police.
(B) Failure to comply. Failure to comply with an
order under this subsection (f) is punishable as a
civil or criminal contempt of court.
(g) Warrant of seizure. The State may request the issuance
of a warrant authorizing the seizure of property described in
subsection (h) in the same manner as provided for a search
warrant. If the court determines that there is probable cause
to believe that the property to be seized would be subject to
forfeiture, the court shall issue a warrant authorizing the
seizure of such property.
(h) Forfeiture.
(1) The following are subject to forfeiture:
(A) any property, real or personal, constituting,
derived from, or traceable to any proceeds the person
obtained directly or indirectly, as a result of a
violation of this Article;
(B) any of the person's property used, or intended
to be used, in any manner or part, to commit, or to
facilitate the commission of, a violation of this
Article;
(C) all conveyances, including aircraft, vehicles
or vessels, which are used, or intended for use, to
transport, or in any manner to facilitate the
transportation, sale, receipt, possession, or
concealment of property described in subparagraphs (A)
and (B), but:
(i) no conveyance used by any person as a
common carrier in the transaction of business as a
common carrier is subject to forfeiture under this
Section unless it appears that the owner or other
person in charge of the conveyance is a consenting
party or privy to a violation of this Article;
(ii) no conveyance is subject to forfeiture
under this Section by reason of any act or omission
which the owner proves to have been committed or
omitted without his or her knowledge or consent;
(iii) a forfeiture of a conveyance encumbered
by a bona fide security interest is subject to the
interest of the secured party if he or she neither
had knowledge of nor consented to the act or
omission;
(D) all real property, including any right, title,
and interest (including, but not limited to, any
leasehold interest or the beneficial interest in a land
trust) in the whole of any lot or tract of land and any
appurtenances or improvements, which is used or
intended to be used, in any manner or part, to commit,
or in any manner to facilitate the commission of, any
violation of this Article or that is the proceeds of
any violation or act that constitutes a violation of
this Article.
(2) Property subject to forfeiture under this Article
may be seized by the Director or any peace officer upon
process or seizure warrant issued by any court having
jurisdiction over the property. Seizure by the Director or
any peace officer without process may be made:
(A) if the seizure is incident to a seizure
warrant;
(B) if the property subject to seizure has been the
subject of a prior judgment in favor of the State in a
criminal proceeding, or in an injunction or forfeiture
proceeding based upon this Article;
(C) if there is probable cause to believe that the
property is directly or indirectly dangerous to health
or safety;
(D) if there is probable cause to believe that the
property is subject to forfeiture under this Article
and the property is seized under circumstances in which
a warrantless seizure or arrest would be reasonable; or
(E) in accordance with the Code of Criminal
Procedure of 1963.
(3) In the event of seizure pursuant to paragraph (2),
forfeiture proceedings shall be instituted in accordance
with subsections (i) through (r).
(4) Property taken or detained under this Section shall
not be subject to replevin, but is deemed to be in the
custody of the Director subject only to the order and
judgments of the circuit court having jurisdiction over the
forfeiture proceedings and the decisions of the State's
Attorney under this Article. When property is seized under
this Article, the seizing agency shall promptly conduct an
inventory of the seized property and estimate the
property's value and shall forward a copy of the inventory
of seized property and the estimate of the property's value
to the Director. Upon receiving notice of seizure, the
Director may:
(A) place the property under seal;
(B) remove the property to a place designated by
the Director;
(C) keep the property in the possession of the
seizing agency;
(D) remove the property to a storage area for
safekeeping or, if the property is a negotiable
instrument or money and is not needed for evidentiary
purposes, deposit it in an interest bearing account;
(E) place the property under constructive seizure
by posting notice of pending forfeiture on it, by
giving notice of pending forfeiture to its owners and
interest holders, or by filing notice of pending
forfeiture in any appropriate public record relating
to the property; or
(F) provide for another agency or custodian,
including an owner, secured party, or lienholder, to
take custody of the property upon the terms and
conditions set by the Director.
(5) When property is forfeited under this Article, the
Director shall sell all such property unless such property
is required by law to be destroyed or is harmful to the
public, and shall distribute the proceeds of the sale,
together with any moneys forfeited or seized, in accordance
with paragraph (6). However, upon the application of the
seizing agency or prosecutor who was responsible for the
investigation, arrest or arrests and prosecution which
lead to the forfeiture, the Director may return any item of
forfeited property to the seizing agency or prosecutor for
official use in the enforcement of laws, if the agency or
prosecutor can demonstrate that the item requested would be
useful to the agency or prosecutor in its enforcement
efforts. When any real property returned to the seizing
agency is sold by the agency or its unit of government, the
proceeds of the sale shall be delivered to the Director and
distributed in accordance with paragraph (6).
(6) All monies and the sale proceeds of all other
property forfeited and seized under this Article shall be
distributed as follows:
(A) 65% shall be distributed to the metropolitan
enforcement group, local, municipal, county, or State
law enforcement agency or agencies which conducted or
participated in the investigation resulting in the
forfeiture. The distribution shall bear a reasonable
relationship to the degree of direct participation of
the law enforcement agency in the effort resulting in
the forfeiture, taking into account the total value of
the property forfeited and the total law enforcement
effort with respect to the violation of the law upon
which the forfeiture is based. Amounts distributed to
the agency or agencies shall be used for the
enforcement of laws.
(B)(i) 12.5% shall be distributed to the Office of
the State's Attorney of the county in which the
prosecution resulting in the forfeiture was
instituted, deposited in a special fund in the county
treasury and appropriated to the State's Attorney for
use in the enforcement of laws. In counties over
3,000,000 population, 25% shall be distributed to the
Office of the State's Attorney for use in the
enforcement of laws. If the prosecution is undertaken
solely by the Attorney General, the portion provided
hereunder shall be distributed to the Attorney General
for use in the enforcement of laws.
(ii) 12.5% shall be distributed to the Office of
the State's Attorneys Appellate Prosecutor and
deposited in the Narcotics Profit Forfeiture Fund of
that office to be used for additional expenses incurred
in the investigation, prosecution and appeal of cases
arising under laws. The Office of the State's Attorneys
Appellate Prosecutor shall not receive distribution
from cases brought in counties with over 3,000,000
population.
(C) 10% shall be retained by the Department of
State Police for expenses related to the
administration and sale of seized and forfeited
property.
Moneys and the sale proceeds distributed to the
Department of State Police under this Article shall be
deposited in the Money Laundering Asset Recovery Fund
created in the State treasury and shall be used by the
Department of State Police for State law enforcement
purposes.
(7) All moneys and sale proceeds of property forfeited
and seized under this Article and distributed according to
paragraph (6) may also be used to purchase opioid
antagonists as defined in Section 5-23 of the Alcoholism
and Other Drug Abuse and Dependency Act.
(7.5) Preliminary Review.
(A) Within 14 days of the seizure, the 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
subparagraph (A) of this paragraph (7.5)
simultaneously with a proceeding under 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 subparagraph (A) of this paragraph (7.5).
(E) Upon a finding of probable cause as required
under this Section, the circuit court shall order the
property subject to the applicable forfeiture Act held
until the conclusion of any forfeiture proceeding.
(i) Notice to owner or interest holder.
(1) The first attempted service shall be commenced
within 28 days of the latter of filing of the verified
claim or the receipt of the notice from seizing agency by
form 4-64. A complaint for forfeiture or a notice of
pending forfeiture shall be served on a claimant if the
owner's or interest holder's name and current address are
known, then by either: (i) personal service or; (ii)
mailing a copy of the notice by certified mail, return
receipt requested and first class mail, to that address. If
no signed return receipt is received by the State's
Attorney within 28 days of mailing or no communication from
the owner or interest holder is received by the State's
Attorney documenting actual notice by the parties, the
State's Attorney shall, within a reasonable period of time,
mail a second copy of the notice by certified mail, return
receipt requested and first class mail, to that address. If
no signed return receipt is received by the State's
Attorney within 28 days of the second mailing, or no
communication from the owner or interest holder is received
by the State's Attorney documenting actual notice by the
parties, the State's Attorney shall have 60 days to attempt
to personally serve the notice by personal service,
including substitute service by leaving a copy at the usual
place of abode with some person of the family or a person
residing there, of the age of 13 years or upwards. If after
3 attempts at service in this manner, and no service of the
notice is accomplished, the notice shall be posted in a
conspicuous manner at this address and service shall be
made by the posting. The attempts at service and the
posting if required, shall be documented by the person
attempting service and the documentation shall be made part
of a return of service returned to the State's Attorney.
The State's Attorney may utilize any Sheriff or Deputy
Sheriff, a peace officer, a private process server or
investigator, or an employee, agent, or investigator of the
State's Attorney's Office to attempt service without
seeking leave of court. After the procedures listed are
followed, service shall be effective on the owner or
interest holder on the date of receipt by the State's
Attorney of a returned return receipt requested, or on the
date of receipt of a communication from an owner or
interest holder documenting actual notice, whichever is
first in time, or on the date of the last act performed by
the State's Attorney in attempting personal service. For
purposes of notice under this Section, if a person has been
arrested for the conduct giving rise to the forfeiture, the
address provided to the arresting agency at the time of
arrest shall be deemed to be that person's known address.
Provided, however, if an owner or interest holder's address
changes prior to the effective date of the notice of
pending forfeiture, the owner or interest holder shall
promptly notify the seizing agency of the change in address
or, if the owner or interest holder's address changes
subsequent to the effective date of the notice of pending
forfeiture, the owner or interest holder shall promptly
notify the State's Attorney of the change in address. If
the property seized is a conveyance, notice shall also be
directed to the address reflected in the office of the
agency or official in which title or interest to the
conveyance is required by law to be recorded. Whenever
notice of pending forfeiture or service of an in rem
complaint is required under the provisions of this Article,
such notice or service shall be given as follows:
(A) (Blank); If the owner's or interest holder's
name and current address are known, then by either
personal service or mailing a copy of the notice by
certified mail, return receipt requested, to that
address. For purposes of notice under this Section, if
a person has been arrested for the conduct giving rise
to the forfeiture, then the address provided to the
arresting agency at the time of arrest shall be deemed
to be that person's known address. Provided, however,
if an owner or interest holder's address changes prior
to the effective date of the notice of pending
forfeiture, the owner or interest holder shall
promptly notify the seizing agency of the change in
address or, if the owner or interest holder's address
changes subsequent to the effective date of the notice
of pending forfeiture, the owner or interest holder
shall promptly notify the State's Attorney of the
change in address; or
(A-5) If the owner's or interest holder's address
is not known, and is not on record as provided in
paragraph (1), service by publication for 3 successive
weeks in a newspaper of general circulation in the
county in which the seizure occurred shall suffice for
service requirements.
(A-10) Notice to any business entity, corporation,
LLC, LLP, or partnership shall be complete by a single
mailing of a copy of the notice by certified mail,
return receipt requested and first class mail, to that
address. This notice is complete regardless of the
return of a signed "return receipt requested".
(A-15) Notice to a person whose address is not
within the State shall be completed by a single mailing
of a copy of the notice by certified mail, return
receipt requested and first class mail to that address.
This notice is complete regardless of the return of a
signed "return receipt requested".
(A-20) Notice to a person whose address is not
within the United States shall be completed by a single
mailing of a copy of the notice by certified mail,
return receipt requested and first class mail to that
address. This notice is complete regardless of the
return of a signed "return receipt requested". If
certified mail is not available in the foreign country
where the person has an address, notice shall proceed
by paragraph (A-15) publication requirements.
(A-25) A person who the State's Attorney
reasonably should know is incarcerated within this
State, shall also include, mailing a copy of the notice
by certified mail, return receipt requested and first
class mail, to the address of the detention facility
with the inmate's name clearly marked on the envelope.
After a claimant files a verified claim with the
State's Attorney and provides an address at which they
will accept service, the complaint shall be served and
notice shall be complete upon the mailing of the
complaint to the claimant at the address the claimant
provided via certified mail, return receipt requested
and first class mail. No return receipt card need be
received, or any other attempts at service need be made
to comply with service and notice requirements under
this Section. This certified mailing, return receipt
requested shall be proof of service of the complaint on
the claimant. If notice is to be shown by actual notice
from communication with a claimant, then the State's
Attorney shall file an affidavit as proof of service
providing details of the communication which shall be
accepted as proof of service by the court.
(B) If the property seized is a conveyance, to the
address reflected in the office of the agency or
official in which title or interest to the conveyance
is required by law to be recorded, then by mailing a
copy of the notice by certified mail, return receipt
requested, to that address; or
(C) (Blank). If the owner's or interest holder's
address is not known, and is not on record as provided
in paragraph (B), then by publication for 3 successive
weeks in a newspaper of general circulation in the
county in which the seizure occurred.
(2) Notice served under this Article is effective upon
personal service, the last date of publication, or the
mailing of written notice, whichever is earlier.
(j) Notice to State's Attorney. The law enforcement agency
seizing property for forfeiture under this Article shall,
within 60 90 days after seizure, notify the State's Attorney
for the county, either where an act or omission giving rise to
the forfeiture occurred or where the property was seized, of
the seizure of the property and the facts and circumstances
giving rise to the seizure and shall provide the State's
Attorney with the inventory of the property and its estimated
value. When the property seized for forfeiture is a vehicle,
the law enforcement agency seizing the property shall
immediately notify the Secretary of State that forfeiture
proceedings are pending regarding such vehicle. This notice
shall be by the form 4-64.
(k) Non-judicial forfeiture. If non-real property that
exceeds $20,000 in value excluding the value of any conveyance,
or if real property is seized under the provisions of this
Article, the State's Attorney shall institute judicial in rem
forfeiture proceedings as described in subsection (l) of this
Section within 28 45 days from receipt of notice of seizure
from the seizing agency under subsection (j) of this Section.
However, if non-real property that does not exceed $20,000 in
value excluding the value of any conveyance is seized, the
following procedure shall be used:
(1) If, after review of the facts surrounding the
seizure, the State's Attorney is of the opinion that the
seized property is subject to forfeiture, then within 45
days after the receipt of notice of seizure from the
seizing agency, the State's Attorney shall cause notice of
pending forfeiture to be given to the owner of the property
and all known interest holders of the property in
accordance with subsection (i) of this Section.
(2) The notice of pending forfeiture must include a
description of the property, the estimated value of the
property, the date and place of seizure, the conduct giving
rise to forfeiture or the violation of law alleged, and a
summary of procedures and procedural rights applicable to
the forfeiture action.
(3)(A) Any person claiming an interest in property
which is the subject of notice under paragraph (1) of this
subsection (k), must, in order to preserve any rights or
claims to the property, within 45 days after the effective
date of notice as described in subsection (i) of this
Section, file a verified claim with the State's Attorney
expressing his or her interest in the property. The claim
must set forth:
(i) the caption of the proceedings as set forth on
the notice of pending forfeiture and the name of the
claimant;
(ii) the address at which the claimant will accept
mail;
(iii) the nature and extent of the claimant's
interest in the property;
(iv) the date, identity of the transferor, and
circumstances of the claimant's acquisition of the
interest in the property;
(v) the name and address of all other persons known
to have an interest in the property;
(vi) the specific provision of law relied on in
asserting the property is not subject to forfeiture;
(vii) all essential facts supporting each
assertion; and
(viii) the relief sought.
(B) If a claimant files the claim and deposits with the
State's Attorney a cost bond, in the form of a cashier's
check payable to the clerk of the court, in the sum of 10%
of the reasonable value of the property as alleged by the
State's Attorney or the sum of $100, whichever is greater,
upon condition that, in the case of forfeiture, the
claimant must pay all costs and expenses of forfeiture
proceedings, then the State's Attorney shall institute
judicial in rem forfeiture proceedings and deposit the cost
bond with the clerk of the court as described in subsection
(l) of this Section within 45 days after receipt of the
claim and cost bond. In lieu of a cost bond, a person
claiming interest in the seized property may file, under
penalty of perjury, an indigency affidavit which has been
approved by a circuit court judge.
(C) (Blank). If none of the seized property is
forfeited in the judicial in rem proceeding, the clerk of
the court shall return to the claimant, unless the court
orders otherwise, 90% of the sum which has been deposited
and shall retain as costs 10% of the money deposited. If
any of the seized property is forfeited under the judicial
forfeiture proceeding, the clerk of the court shall
transfer 90% of the sum which has been deposited to the
State's Attorney prosecuting the civil forfeiture to be
applied to the costs of prosecution and the clerk shall
retain as costs 10% of the sum deposited.
(4) If no claim is filed or bond given within the 45
day period as described in paragraph (3) of this subsection
(k), the State's Attorney shall declare the property
forfeited and shall promptly notify the owner and all known
interest holders of the property and the Director of State
Police of the declaration of forfeiture and the Director
shall dispose of the property in accordance with law.
(l) Judicial in rem procedures. If property seized under
the provisions of this Article is non-real property that
exceeds $20,000 in value excluding the value of any conveyance,
or is real property, or a claimant has filed a claim and a cost
bond under paragraph (3) of subsection (k) of this Section, the
following judicial in rem procedures shall apply:
(1) If, after a review of the facts surrounding the
seizure, the State's Attorney is of the opinion that the
seized property is subject to forfeiture, then within 28 45
days of the receipt of notice of seizure by the seizing
agency or the filing of the claim and cost bond, whichever
is later, the State's Attorney shall institute judicial
forfeiture proceedings by filing a verified complaint for
forfeiture and, if the claimant has filed a claim and cost
bond, by depositing the cost bond with the clerk of the
court. When authorized by law, a forfeiture must be ordered
by a court on an action in rem brought by a State's
Attorney under a verified complaint for forfeiture.
(1.5) A complaint of forfeiture shall include:
(i) a description of the property seized;
(ii) the date and place of seizure of the property;
(iii) the name and address of the law enforcement
agency making the seizure; and
(iv) the specific statutory and factual grounds
for the seizure.
(1.10) The complaint shall be served upon the person
from whom the property was seized and all persons known or
reasonably believed by the State to claim an interest in
the property, as provided in subsection (i) of this
Section. The complaint shall be accompanied by the
following written notice:
"This is a civil court proceeding subject to the Code
of Civil Procedure. You received this Complaint of
Forfeiture because the State's Attorney's office has
brought a legal action seeking forfeiture of your seized
property. This complaint starts the court process where the
State seeks to prove that your property should be forfeited
and not returned to you. This process is also your
opportunity to try to prove to a judge that you should get
your property back. The complaint lists the date, time, and
location of your first court date. You must appear in court
on that day, or you may lose the case automatically. You
must also file an appearance and answer. If you are unable
to pay the appearance fee, you may qualify to have the fee
waived. If there is a criminal case related to the seizure
of your property, your case may be set for trial after the
criminal case has been resolved. Before trial, the judge
may allow discovery, where the State can ask you to respond
in writing to questions and give them certain documents,
and you can make similar requests of the State. The trial
is your opportunity to explain what happened when your
property was seized and why you should get the property
back."
(2) The laws of evidence relating to civil actions
shall apply to proceedings under this Article with the
following exception. The parties shall be allowed to use,
and the court shall receive and consider all relevant
hearsay evidence which relates to evidentiary foundation,
chain of custody, business records, recordings, laboratory
analysis, laboratory reports, and relevant hearsay related
to the use of technology in the investigation which
resulted in the seizure of property which is now subject to
this forfeiture action. During the probable cause portion
of the judicial in rem proceeding wherein the State
presents its case-in-chief, the court must receive and
consider, among other things, all relevant hearsay
evidence and information. The laws of evidence relating to
civil actions apply to all other portions of the judicial
in rem proceeding.
(3) Only an owner of or interest holder in the property
may file an answer asserting a claim against the property
in the action in rem. For purposes of this Section, the
owner or interest holder shall be referred to as claimant.
Upon motion of the State, the court shall first hold a
hearing, wherein any claimant must establish by a
preponderance of the evidence, that he or she has a lawful,
legitimate ownership interest in the property and that it
was obtained through a lawful source.
(4) The answer must be signed by the owner or interest
holder under penalty of perjury and must set forth:
(A) the caption of the proceedings as set forth on
the notice of pending forfeiture and the name of the
claimant;
(B) the address at which the claimant will accept
mail;
(C) the nature and extent of the claimant's
interest in the property;
(D) the date, identity of transferor, and
circumstances of the claimant's acquisition of the
interest in the property;
(E) the name and address of all other persons known
to have an interest in the property;
(F) all essential facts supporting each assertion;
and
(G) the precise relief sought; and .
(H) the answer shall follow the rules under the
Code of Civil Procedure.
(5) The answer must be filed with the court within 45
days after service of the civil in rem complaint.
(6) The hearing must be held within 60 days after
filing of the answer unless continued for good cause.
(7) At the judicial in rem proceeding, in the State's
case in chief, the State shall show by a preponderance of
the evidence that the property is subject to forfeiture. If
the State makes such a showing, the claimant shall have the
burden of production to set forth evidence that the
property is not related to the alleged factual basis of the
forfeiture. After this production of evidence, the State
shall maintain the burden of proof to overcome this
assertion. A claimant shall provide the State notice of its
intent to allege that the currency or its equivalent is not
related to the alleged factual basis of the forfeiture and
why. As to conveyances, at the judicial in rem proceeding,
in their case in chief, the State shall show by a
preponderance of the evidence, that (1) the property is
subject to forfeiture; and (2) at least one of the
following:
(i) that the claimant was legally accountable for
the conduct giving rise to the forfeiture;
(ii) that the claimant knew or reasonably should
have known of the conduct giving rise to the
forfeiture;
(iii) that the claimant knew or reasonable should
have known that the conduct giving rise to the
forfeiture was likely to occur;
(iv) that the claimant held the property for the
benefit of, or as nominee for, any person whose conduct
gave rise to its forfeiture;
(v) that if the claimant acquired their interest
through any person engaging in any of the conduct
described above or conduct giving rise to the
forfeiture;
(1) the claimant did not acquire it as a bona
fide purchaser for value; or
(2) the claimant acquired the interest under
the circumstances that they reasonably should have
known the property was derived from, or used in,
the conduct giving rise to the forfeiture; or
(vii) that the claimant is not the true owner of
the property that is subject to forfeiture. The State
shall show the existence of probable cause for
forfeiture of the property. If the State shows probable
cause, the claimant has the burden of showing by a
preponderance of the evidence that the claimant's
interest in the property is not subject to forfeiture.
(8) If the State does not meet its burden to show that
the property is subject to forfeiture show existence of
probable cause, the court shall order the interest in the
property returned or conveyed to the claimant and shall
order all other property forfeited to the State. If the
State does meet its burden to show that the property is
subject to forfeiture If the State does show existence of
probable cause, the court shall order all property
forfeited to the State.
(9) A defendant convicted in any criminal proceeding is
precluded from later denying the essential allegations of
the criminal offense of which the defendant was convicted
in any proceeding under this Article regardless of the
pendency of an appeal from that conviction. However,
evidence of the pendency of an appeal is admissible.
(10) On An acquittal or dismissal in a criminal
proceeding does not preclude civil proceedings under this
Article; however, for good cause shown, on a motion by the
the parties State's Attorney, the court may stay civil
forfeiture proceedings during the criminal trial for a
related criminal indictment or information alleging a
money laundering violation. Such a stay shall not be
available pending an appeal. Property subject to
forfeiture under this Article shall not be subject to
return or release by a court exercising jurisdiction over a
criminal case involving the seizure of such property unless
such return or release is consented to by the State's
Attorney.
Notwithstanding any other provision of this Section,
the State's burden of proof at the trial of the forfeiture
action shall be by clear and convincing evidence if: (1) a
finding of not guilty is entered as to all counts and all
defendants in a criminal proceeding relating to the conduct
giving rise to the forfeiture action; or (2) the State
receives an adverse finding at a preliminary hearing and
fails to secure an indictment in a criminal proceeding
relating to the factual allegations of the forfeiture
action.
(11) All property declared forfeited under this
Article vests in this State on the commission of the
conduct giving rise to forfeiture together with the
proceeds of the property after that time. Except as
otherwise provided in this Article, title to any Any such
property or proceeds subsequently transferred to any
person remain subject to forfeiture and thereafter shall be
ordered forfeited unless the person to whom the property
was transferred makes an appropriate claim and has his or
her claim adjudicated at the judicial in rem hearing.
(12) A civil action under this Article must be
commenced within 5 years after the last conduct giving rise
to forfeiture became known or should have become known or 5
years after the forfeitable property is discovered,
whichever is later, excluding any time during which either
the property or claimant is out of the State or in
confinement or during which criminal proceedings relating
to the same conduct are in progress.
(m) Stay of time periods. If property is seized for
evidence and for forfeiture, the time periods for instituting
judicial and non-judicial forfeiture proceedings shall not
begin until the property is no longer necessary for evidence.
(n) Settlement of claims. Notwithstanding other provisions
of this Article, the State's Attorney and a claimant of seized
property may enter into an agreed-upon settlement concerning
the seized property in such an amount and upon such terms as
are set out in writing in a settlement agreement. All proceeds
from a settlement agreement shall be tendered to the Department
of State Police and distributed under paragraph (6) of
subsection (h) of this Section.
(o) Property constituting attorney fees. Nothing in this
Article applies to property which constitutes reasonable bona
fide attorney's fees paid to an attorney for services rendered
or to be rendered in the forfeiture proceeding or criminal
proceeding relating directly thereto where such property was
paid before its seizure, before the issuance of any seizure
warrant or court order prohibiting transfer of the property and
where the attorney, at the time he or she received the property
did not know that it was property subject to forfeiture under
this Article.
(p) Construction. It is the intent of the General Assembly
that the forfeiture provisions of this Article be liberally
construed so as to effect their remedial purpose. The
forfeiture of property and other remedies hereunder shall be
considered to be in addition to, and not exclusive of, any
sentence or other remedy provided by law.
(q) Judicial review. If property has been declared
forfeited under subsection (k) of this Section, any person who
has an interest in the property declared forfeited may, within
30 days after the effective date of the notice of the
declaration of forfeiture, file a claim and cost bond as
described in paragraph (3) of subsection (k) of this Section.
If a claim and cost bond is filed under this Section, then the
procedures described in subsection (l) of this Section apply.
(r) (Blank). Burden of proof of exemption or exception. It
is not necessary for the State to negate any exemption or
exception in this Article in any complaint, information,
indictment or other pleading or in any trial, hearing, or other
proceeding under this Article. The burden of proof of any
exemption or exception is upon the person claiming it.
(s) Review of administrative decisions. All administrative
findings, rulings, final determinations, findings, and
conclusions of the State's Attorney's Office under this Article
are final and conclusive decisions of the matters involved. Any
person aggrieved by the decision may obtain review of the
decision pursuant to the provisions of the Administrative
Review Law and the rules adopted pursuant to that Law. Pending
final decision on such review, the administrative acts, orders,
and rulings of the State's Attorney's Office remain in full
force and effect unless modified or suspended by order of court
pending final judicial decision. Pending final decision on such
review, the acts, orders, and rulings of the State's Attorney's
Office remain in full force and effect, unless stayed by order
of court. However, no stay of any decision of the
administrative agency shall issue unless the person aggrieved
by the decision establishes by a preponderance of the evidence
that good cause exists for the stay. In determining good cause,
the court shall find that the aggrieved party has established a
substantial likelihood of prevailing on the merits and that
granting the stay will not have an injurious effect on the
general public.
(t) Actual physical seizure of real property subject to
forfeiture under this Act requires the issuance of a seizure
warrant. Nothing in this Section prohibits the constructive
seizure of real property through the filing of a complaint for
forfeiture in circuit court and the recording of a lis pendens
against the real property which is subject to forfeiture
without any hearing, warrant application, or judicial
approval.
(u) Property which is forfeited shall be subject to an 8th
amendment to the United States Constitution disproportionate
penalties analysis and the property forfeiture may be denied in
whole or in part if the court finds that the forfeiture would
constitute an excessive fine in violation of the 8th amendment
as interpreted by case law.
(v) If property is ordered forfeited under this Section
from a claimant who held title to the property in joint tenancy
or tenancy in common with another claimant, the court shall
determine the amount of each owner's interest in the property
according to principles of property law.
(w) A claimant or a party interested in personal property
contained within a seized conveyance may file a request with
the State's Attorney in a non-judicial forfeiture action, or a
motion with the court in a judicial forfeiture action for the
return of any personal property contained within a conveyance
which is seized under this Article. The return of personal
property shall not be unreasonably withheld if the personal
property is not mechanically or electrically coupled to the
conveyance, needed for evidentiary purposes, or otherwise
contraband. Any law enforcement agency that returns property
under a court order under this Section shall not be liable to
any person who claims ownership to the property if it is
returned to an improper party.
(x) Innocent owner hearing.
(1) After a complaint for forfeiture has been filed and
all claimants have appeared and answered, a claimant may
file a motion with the court for an innocent owner hearing
prior to trial. This motion shall be made and supported by
sworn affidavit and shall assert the following along with
specific facts which support each assertion:
(i) that the claimant filing the motion is the true
owner of the conveyance as interpreted by case law;
(ii) that the claimant was not legally accountable
for the conduct giving rise to the forfeiture or
acquiesced in the conduct;
(iii) that the claimant did not solicit, conspire,
or attempt to commit the conduct giving rise to the
forfeiture;
(iv) that the claimant did not know or did not have
reason to know that the conduct giving rise to the
forfeiture was likely to occur; and
(v) that the claimant did not hold the property for
the benefit of, or as nominee for any person whose
conduct gave rise to its forfeiture or if the owner or
interest holder acquired the interest through any
person, the owner or interest holder did not acquire it
as a bona fide purchaser for value or acquired the
interest without knowledge of the seizure of the
property for forfeiture.
(2) The claimant shall include specific facts which
support these assertions in their motion.
(3) Upon this filing, a hearing may only be conducted
after the parties have been given the opportunity to
conduct limited discovery as to the ownership and control
of the property, the claimant's knowledge, or any matter
relevant to the issues raised or facts alleged in the
claimant's motion. Discovery shall be limited to the
People's requests in these areas but may proceed by any
means allowed in the Code of Civil Procedure.
(i) After discovery is complete and the court has
allowed for sufficient time to review and investigate
the discovery responses, the court shall conduct a
hearing. At the hearing, the fact that the conveyance
is subject to forfeiture shall not be at issue. The
court shall only hear evidence relating to the issue of
innocent ownership.
(ii) At the hearing on the motion, it shall be the
burden of the claimant to prove each of the assertions
listed in paragraph (1) of this subsection (x) by a
preponderance of the evidence.
(iii) If a claimant meets his burden of proof, the
court shall grant the motion and order the property
returned to the claimant. If the claimant fails to meet
his or her burden of proof then the court shall deny
the motion.
(y) No property shall be forfeited under this Section from
a person who, without actual or constructive notice that the
property was the subject of forfeiture proceedings, obtained
possession of the property as a bona fide purchaser for value.
A person who purports to affect transfer of property after
receiving actual or constructive notice that the property is
subject to seizure or forfeiture is guilty of contempt of
court, and shall be liable to the State for a penalty in the
amount of the fair market value of the property.
(z) Forfeiture proceedings under this Section shall be
subject to the Code of Civil Procedure and the rules of
evidence relating to civil actions.
(aa) Return of property, damages, and costs.
(1) The law enforcement agency that holds custody of
property seized for forfeiture shall deliver property
ordered by the court to be returned or conveyed to the
claimant within a reasonable time not to exceed 7 days,
unless the order is stayed by the trial court or a
reviewing court pending an appeal, motion to reconsider, or
other reason.
(2) The law enforcement agency that holds custody of
property is responsible for any damages, storage fees, and
related costs applicable to property returned. The
claimant shall not be subject to any charges by the State
for storage of the property or expenses incurred in the
preservation of the property. Charges for the towing of a
conveyance shall be borne by the claimant unless the
conveyance was towed for the sole reason of seizure for
forfeiture. This Section does not prohibit the imposition
of any fees or costs by a home rule unit of local
government related to the impoundment of a conveyance under
an ordinance enacted by the unit of government.
(3) A law enforcement agency shall not retain forfeited
property for its own use or transfer the property to any
person or entity, except as provided under this Section. A
law enforcement agency may apply in writing to the Director
of State Police to request that a forfeited property be
awarded to the agency for a specifically articulated
official law enforcement use in an investigation. The
Director of State Police shall provide a written
justification in each instance detailing the reasons why
the forfeited property was placed into official use and the
justification shall be retained for a period of not less
than 3 years.
(bb) The changes made to this Section by this amendatory
Act of the 100th General Assembly are subject to Sections 2 and
4 of the Statute on Statutes.
(Source: P.A. 99-480, eff. 9-9-15.)
(720 ILCS 5/33G-6)
(Section scheduled to be repealed on June 11, 2017)
Sec. 33G-6. Remedial proceedings, procedures, and
forfeiture. Under this Article:
(a) The circuit court shall have jurisdiction to prevent
and restrain violations of this Article by issuing appropriate
orders, including:
(1) ordering any person to disgorge illicit proceeds
obtained by a violation of this Article or divest himself
or herself of any interest, direct or indirect, in any
enterprise or real or personal property of any character,
including money, obtained, directly or indirectly, by a
violation of this Article;
(2) imposing reasonable restrictions on the future
activities or investments of any person or enterprise,
including prohibiting any person or enterprise from
engaging in the same type of endeavor as the person or
enterprise engaged in, that violated this Article; or
(3) ordering dissolution or reorganization of any
enterprise, making due provision for the rights of innocent
persons.
(b) Any violation of this Article is subject to the
remedies, procedures, and forfeiture as set forth in
subsections (f) through (s) of Section 29B-1 of this Code.
(c) Property seized or forfeited under this Article is
subject to reporting under the Seizure and Forfeiture Reporting
Act.
(Source: P.A. 97-686, eff. 6-11-12.)
(720 ILCS 5/36-1) (from Ch. 38, par. 36-1)
Sec. 36-1. Property subject to forfeiture Seizure.
(a) Any vessel or watercraft, vehicle, or aircraft is
subject to forfeiture under this Article may be seized and
impounded by the law enforcement agency if the vessel or
watercraft, 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:
(1) an offense prohibited by Section 9-1 (first degree
murder), Section 9-3 (involuntary manslaughter and
reckless homicide), Section 10-2 (aggravated kidnaping),
Section 11-1.20 (criminal sexual assault), Section 11-1.30
(aggravated criminal sexual assault), Section 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), Section 11-14.4 (promoting juvenile prostitution
except for keeping a place of juvenile prostitution),
Section 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), Section 12-7.3 (stalking), Section
12-7.4 (aggravated stalking), Section 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), Section 19-1 (burglary), Section
19-2 (possession of burglary tools), Section 19-3
(residential burglary), Section 20-1 (arson; residential
arson; place of worship arson), Section 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), Section 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), Section 24-1.5
(reckless discharge of a firearm), Section 28-1
(gambling), or Section 29D-15.2 (possession of a deadly
substance) of this Code;
(2) an offense prohibited by Section 21, 22, 23, 24 or
26 of the Cigarette Tax Act if the vessel or watercraft,
vehicle, or aircraft contains more than 10 cartons of such
cigarettes;
(3) an offense prohibited by Section 28, 29, or 30 of
the Cigarette Use Tax Act if the vessel or watercraft,
vehicle, or aircraft contains more than 10 cartons of such
cigarettes;
(4) an offense prohibited by Section 44 of the
Environmental Protection Act;
(5) an offense prohibited by Section 11-204.1 of the
Illinois Vehicle Code (aggravated fleeing or attempting to
elude a peace officer);
(6) an offense prohibited by 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:
(A) during a period in which his or her driving
privileges are revoked or suspended if 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
(iv) reckless homicide as defined in Section
9-3 of this Code;
(B) 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) 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) 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) 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) an offense described in subsection (g) of Section
6-303 of the Illinois Vehicle Code;
(8) an offense described in subsection (e) of Section
6-101 of the Illinois Vehicle Code; or
(9)(A) operating a watercraft under the influence of
alcohol, other drug or drugs, intoxicating compound or
compounds, or combination thereof under Section 5-16 of the
Boat Registration and Safety Act during a period in which
his or her privileges to operate a watercraft are revoked
or suspended and the revocation or suspension was for
operating a watercraft under the influence of alcohol,
other drug or drugs, intoxicating compound or compounds, or
combination thereof; (B) operating a watercraft under the
influence of alcohol, other drug or drugs, intoxicating
compound or compounds, or combination thereof and has been
previously convicted of reckless homicide or a similar
provision of a law in another state relating to reckless
homicide in which the person was determined to have been
under the influence of alcohol, other drug or drugs,
intoxicating compound or compounds, or combination thereof
as an element of the offense or the person has previously
been convicted of committing a violation of operating a
watercraft under the influence of alcohol, other drug or
drugs, intoxicating compound or compounds, or combination
thereof and was involved in an 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; or (C) the person
committed a violation of operating a watercraft under the
influence of alcohol, other drug or drugs, intoxicating
compound or compounds, or combination thereof under
Section 5-16 of the Boat Registration and Safety Act or a
similar provision for the third or subsequent time.
(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 or watercraft, vehicles, and aircraft, and any such
equipment shall be deemed a vessel or watercraft, vehicle, or
aircraft for purposes of this Article.
(c) In addition, 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) 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 subject to forfeiture declared
contraband under Section 40 of the Illinois Streetgang
Terrorism Omnibus Prevention Act may be seized and forfeited
under this Article.
(Source: P.A. 98-699, eff. 1-1-15; 98-1020, eff. 8-22-14;
99-78, eff. 7-20-15.)
(720 ILCS 5/36-1.1 new)
Sec. 36-1.1. Seizure.
(a) Any property subject to forfeiture under this Article
may be seized and impounded by the Director of State Police or
any peace officer upon process or seizure warrant issued by any
court having jurisdiction over the property.
(b) Any property subject to forfeiture under this Article
may be seized and impounded by the Director of State Police or
any peace officer without process if there is probable cause to
believe that the property is subject to forfeiture under
Section 36-1 of this Article and the property is seized under
circumstances in which a warrantless seizure or arrest would be
reasonable.
(c) If the seized property is a conveyance, an
investigation shall be made by the law enforcement agency as to
any person whose right, title, interest, or lien is of record
in the office of the agency or official in which title or
interest to the conveyance is required by law to be recorded.
(d) After seizure under this Section, notice shall be given
to all known interest holders that forfeiture proceedings,
including a preliminary review, may be instituted and the
proceedings may be instituted under this Article.
(720 ILCS 5/36-1.2 new)
Sec. 36-1.2. Receipt for seized property. If a law
enforcement officer seizes property for forfeiture under this
Article, the officer shall provide an itemized receipt to the
person possessing the property or, in the absence of a person
to whom the receipt could be given, shall leave the receipt in
the place where the property was found, if possible.
(720 ILCS 5/36-1.3 new)
Sec. 36-1.3. Safekeeping of seized property pending
disposition.
(a) Property seized under this Article is deemed to be in
the custody of the Director of State Police subject only to the
order and judgments of the circuit court having jurisdiction
over the forfeiture proceedings and the decisions of the
State's Attorney under this Article.
(b) If property is seized under this Article, the seizing
agency shall promptly conduct an inventory of the seized
property and estimate the property's value, and shall forward a
copy of the inventory of seized property and the estimate of
the property's value to the Director of State Police. Upon
receiving notice of seizure, the Director of State Police may:
(1) place the property under seal;
(2) remove the property to a place designated by the
Director of State Police;
(3) keep the property in the possession of the seizing
agency;
(4) remove the property to a storage area for
safekeeping; or
(5) place the property under constructive seizure by
posting notice of pending forfeiture on it, by giving
notice of pending forfeiture to its owners and interest
holders, or by filing notice of pending forfeiture in any
appropriate public record relating to the property; or
(6) provide for another agency or custodian, including
an owner, secured party, or lienholder, to take custody of
the property upon the terms and conditions set by the
seizing agency.
(c) The seizing agency shall exercise ordinary care to
protect the subject of the forfeiture from negligent loss,
damage, or destruction.
(d) Property seized or forfeited under this Article is
subject to reporting under the Seizure and Forfeiture Reporting
Act.
(720 ILCS 5/36-1.4 new)
Sec. 36-1.4. Notice to State's Attorney. The law
enforcement agency seizing property for forfeiture under this
Article shall, as soon as practicable but not later than 28
days after the seizure, notify the State's Attorney for the
county in which an act or omission giving rise to the seizure
occurred or in which the property was seized and the facts and
circumstances giving rise to the seizure, and shall provide the
State's Attorney with the inventory of the property and its
estimated value. The notice shall be by the delivery of the
form 4-64. If the property seized for forfeiture is a vehicle,
the law enforcement agency seizing the property shall
immediately notify the Secretary of State that forfeiture
proceedings are pending regarding the vehicle.
(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 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 28 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 and alleges facts showing that the delay
was not due to his or her culpable negligence. 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 providing transportation for
employment, religious purposes, medical needs, child care, and
restricting the conveyance's use to only those individuals
authorized to use the conveyance by the registered owner. The
use of the vehicle shall be further restricted to exclude all
recreational and entertainment purposes. The court may order
additional restrictions it deems reasonable and just on its own
motion or on motion of the People. 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 court may order
the registered owner or his or her authorized designee to shall
post a cash security with the Clerk of the Court as ordered by
the court. If cash security is ordered, the 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) the ability of the owner or designee to pay; and
such other conditions as the court deems necessary to
safeguard the conveyance.
(E) 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;
98-1020, eff. 8-22-14.)
(720 ILCS 5/36-2) (from Ch. 38, par. 36-2)
Sec. 36-2. Complaint Action for forfeiture.
(a) If the The State's Attorney in the county in which such
seizure occurs if he or she finds that the alleged violation of
law giving rise to the seizure forfeiture was incurred without
willful negligence or without any intention on the part of the
owner of the vessel or watercraft, vehicle or aircraft or any
person whose right, title or interest is of record as described
in Section 36-1 of this Article, to violate the law, or finds
the existence of such mitigating circumstances as to justify
remission of the forfeiture, he or she may cause the law
enforcement agency having custody of the property to return the
property to the owner within a reasonable time not to exceed 7
days 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 this
subsection (a) the foregoing provision of this Section 36-2(a)
prior to or promptly after the preliminary review under Section
36-1.5.
(b) If, after review of the facts surrounding the seizure,
the State's Attorney is of the opinion that the seized property
is subject to forfeiture and the State's Attorney does not
cause the forfeiture to be remitted under subsection (a) of
this Section, he or she shall forthwith bring an action for
forfeiture in the Circuit Court within whose jurisdiction the
seizure and confiscation has taken place by filing a verified
complaint of forfeiture in the circuit court within whose
jurisdiction the seizure occurred, or within whose
jurisdiction an act or omission giving rise to the seizure
occurred, subject to Supreme Court Rule 187. The complaint
shall be filed as soon as practicable but not less than 28 days
after a finding of probable cause at a preliminary review under
Section 36-1.5 of this Article. A complaint of forfeiture shall
include:
(1) a description of the property seized;
(2) the date and place of seizure of the property;
(3) the name and address of the law enforcement agency
making the seizure; and
(4) the specific statutory and factual grounds for the
seizure.
The complaint shall be served 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 or
watercraft, vehicle, or aircraft is required to be so
registered, as the case may be, the person from whom the
property was seized, and all persons known or reasonably
believed by the State to claim an interest in the property, as
provided in this Article. The complaint shall be accompanied by
the following written notice:
"This is a civil court proceeding subject to the Code of
Civil Procedure. You received this Complaint of Forfeiture
because the State's Attorney's office has brought a legal
action seeking forfeiture of your seized property. This
complaint starts the court process where the State seeks to
prove that your property should be forfeited and not returned
to you. This process is also your opportunity to try to prove
to a judge that you should get your property back. The
complaint lists the date, time, and location of your first
court date. You must appear in court on that day, or you may
lose the case automatically. You must also file an appearance
and answer. If you are unable to pay the appearance fee, you
may qualify to have the fee waived. If there is a criminal case
related to the seizure of your property, your case may be set
for trial after the criminal case has been resolved. Before
trial, the judge may allow discovery, where the State can ask
you to respond in writing to questions and give them certain
documents, and you can make similar requests of the State. The
trial is your opportunity to explain what happened when your
property was seized and why you should get the property back." .
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 or watercraft,
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 or watercraft, vehicle, or aircraft is
required to be so registered.
(c) (Blank). The owner of the seized vessel or watercraft,
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) (Blank). The State shall show at such hearing by a
preponderance of the evidence, that such vessel or watercraft,
vehicle, or aircraft was used in the commission of an offense
described in Section 36-1.
(e) (Blank). The owner of such vessel or watercraft,
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 or watercraft,
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) (Blank). Unless the State shall make such showing, the
Court shall order such vessel or watercraft, vehicle, or
aircraft released to the owner. Where the State has made such
showing, the Court may order the vessel or watercraft, vehicle,
or aircraft destroyed or may order it forfeited 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.
(g) (Blank). A copy of the order shall be filed with the
law enforcement agency, and with each Federal or State office
or agency with which such vessel or watercraft, vehicle, or
aircraft is required to be registered. Such order, when filed,
constitutes authority for the issuance of clear title to such
vessel or watercraft, vehicle, or aircraft, to the department
or agency to whom it is delivered or any purchaser thereof. The
law enforcement agency 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) (Blank). 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 shall be paid to the
law enforcement agency having seized the vehicle for
forfeiture.
(Source: P.A. 98-699, eff. 1-1-15; 98-1020, eff. 8-22-14;
99-78, eff. 7-20-15.)
(720 ILCS 5/36-2.1 new)
Sec. 36-2.1. Notice to Owner or Interest Holder. The first
attempted service shall be commenced within 28 days of the
receipt of the notice from the seizing agency by the form 4-64.
If the property seized is a conveyance, notice shall also be
directed to the address reflected in the office of the agency
or official in which title or interest to the conveyance is
required by law to be recorded. A complaint for forfeiture
shall be served upon the property owner or interest holder in
the following manner:
(1) If the owner's or interest holder's name and
current address are known, then by either:
(A) personal service; or
(B) mailing a copy of the notice by certified mail,
return receipt requested and first class mail, to that
address.
(i) If notice is sent by certified mail and no
signed return receipt is received by the State's
Attorney within 28 days of mailing, and no
communication from the owner or interest holder is
received by the State's Attorney documenting
actual notice by said parties, the State's
Attorney shall, within a reasonable period of
time, mail a second copy of the notice by certified
mail, return receipt requested and first class
mail, to that address.
(ii) If no signed return receipt is received by
the State's Attorney within 28 days of the second
attempt at service by certified mail, and no
communication from the owner or interest holder is
received by the State's Attorney documenting
actual notice by said parties, the State's
Attorney shall have 60 days to attempt to serve the
notice by personal service, which also includes
substitute service by leaving a copy at the usual
place of abode, with some person of the family or a
person residing there, of the age of 13 years or
upwards. If after 3 attempts at service in this
manner, no service of the notice is accomplished,
then the notice shall be posted in a conspicuous
manner at this address and service shall be made by
the posting.
The attempts at service and the posting if
required, shall be documented by the person attempting
service and said documentation shall be made part of a
return of service returned to the State's Attorney.
The State's Attorney may utilize a Sheriff or
Deputy Sheriff, any peace officer, a private process
server or investigator, or any employee, agent, or
investigator of the State's Attorney's office to
attempt service without seeking leave of court.
After the procedures are followed, service shall
be effective on an owner or interest holder on the date
of receipt by the State's Attorney of a returned return
receipt requested, or on the date of receipt of a
communication from an owner or interest holder
documenting actual notice, whichever is first in time,
or on the date of the last act performed by the State's
Attorney in attempting personal service under item
(ii) of this paragraph (1). If notice is to be shown by
actual notice from communication with a claimant, then
the State's Attorney shall file an affidavit providing
details of the communication, which shall be accepted
as sufficient proof of service by the court.
For purposes of notice under this Section, if a
person has been arrested for the conduct giving rise to
the forfeiture, the address provided to the arresting
agency at the time of arrest shall be deemed to be that
person's known address. Provided, however, if an owner
or interest holder's address changes prior to the
effective date of the complaint for forfeiture, the
owner or interest holder shall promptly notify the
seizing agency of the change in address or, if the
owner or interest holder's address changes subsequent
to the effective date of the notice of pending
forfeiture, the owner or interest holder shall
promptly notify the State's Attorney of the change in
address; or if the property seized is a conveyance, to
the address reflected in the office of the agency or
official in which title or interest to the conveyance
is required by law to be recorded.
(2) If the owner's or interest holder's address is not
known, and is not on record, then notice shall be served by
publication for 3 successive weeks in a newspaper of
general circulation in the county in which the seizure
occurred.
(3) Notice to any business entity, corporation, LLC,
LLP, or partnership shall be complete by a single mailing
of a copy of the notice by certified mail, return receipt
requested and first class mail, to that address. This
notice is complete regardless of the return of a signed
"return receipt requested".
(4) Notice to a person whose address is not within the
State shall be complete by a single mailing of a copy of
the notice by certified mail, return receipt requested and
first class mail, to that address. This notice is complete
regardless of the return of a signed "return receipt
requested".
(5) Notice to a person whose address is not within the
United States shall be complete by a single mailing of a
copy of the notice by certified mail, return receipt
requested and first class mail, to that address. This
notice shall be complete regardless of the return of a
signed "return receipt requested". If certified mail is not
available in the foreign country where the person has an
address, then notice shall proceed by publication under
paragraph (2) of this Section.
(6) Notice to any person whom the State's Attorney
reasonably should know is incarcerated within the State
shall also include the mailing a copy of the notice by
certified mail, return receipt requested and first class
mail, to the address of the detention facility with the
inmate's name clearly marked on the envelope.
(720 ILCS 5/36-2.2 new)
Sec. 36-2.2. Replevin prohibited; return of personal
property inside seized conveyance.
(a) Property seized under this Article shall not be subject
to replevin, but is deemed to be in the custody of the Director
of State Police subject only to the order and judgments of the
circuit court having jurisdiction over the forfeiture
proceedings and the decisions of the State's Attorney.
(b) A claimant or a party interested in personal property
contained within a seized conveyance may file a motion with the
court in a judicial forfeiture action for the return of any
personal property contained within a conveyance seized under
this Article. The return of personal property shall not be
unreasonably withheld if the personal property is not
mechanically or electrically coupled to the conveyance, needed
for evidentiary purposes, or otherwise contraband. A law
enforcement agency that returns property under a court order
under this Section shall not be liable to any person who claims
ownership to the property if the property is returned to an
improper party.
(720 ILCS 5/36-2.5 new)
Sec. 36-2.5. Judicial in rem procedures.
(a) The laws of evidence relating to civil actions shall
apply to judicial in rem proceedings under this Article.
(b) Only an owner of or interest holder in the property may
file an answer asserting a claim against the property in the
action in rem. For purposes of this Section, the owner or
interest holder shall be referred to as claimant. A person not
named in the forfeiture complaint who claims to have an
interest in the property may petition to intervene as a
claimant under Section 2-408 of the Code of Civil Procedure.
(c) The answer shall be filed with the court within 45 days
after service of the civil in rem complaint.
(d) The trial shall be held within 60 days after filing of
the answer unless continued for good cause.
(e) In its case in chief, the State shall show by a
preponderance of the evidence that:
(1) the property is subject to forfeiture; and
(2) at least one of the following:
(i) the claimant knew or should have known that the
conduct was likely to occur; or
(ii) the claimant is not the true owner of the
property that is subject to forfeiture.
In any forfeiture case under this Article, a claimant may
present evidence to overcome evidence presented by the State
that the property is subject to forfeiture.
(f) Notwithstanding any other provision of this Section,
the State's burden of proof at the trial of the forfeiture
action shall be by clear and convincing evidence if:
(1) a finding of not guilty is entered as to all counts
and all defendants in a criminal proceeding relating to the
conduct giving rise to the forfeiture action; or
(2) the State receives an adverse finding at a
preliminary hearing and fails to secure an indictment in a
criminal proceeding related to the factual allegations of
the forfeiture action.
(g) If the State does not meet its burden of proof, the
court shall order the interest in the property returned or
conveyed to the claimant and shall order all other property in
which the State does meet its burden of proof forfeited to the
State. If the State does meet its burden of proof, the court
shall order all property forfeited to the State.
(h) A defendant convicted in any criminal proceeding is
precluded from later denying the essential allegations of the
criminal offense of which the defendant was convicted in any
proceeding under this Article regardless of the pendency of an
appeal from that conviction. However, evidence of the pendency
of an appeal is admissible.
(i) An acquittal or dismissal in a criminal proceeding
shall not preclude civil proceedings under this Act; however,
for good cause shown, on a motion by either party, the court
may stay civil forfeiture proceedings during the criminal trial
for a related criminal indictment or information alleging a
violation of law authorizing forfeiture under Section 36-1 of
this Article.
(j) Title to all property declared forfeited under this Act
vests in this State on the commission of the conduct giving
rise to forfeiture together with the proceeds of the property
after that time. Except as otherwise provided in this Article,
any property or proceeds subsequently transferred to any person
remain subject to forfeiture unless a person to whom the
property was transferred makes an appropriate claim under or
has their claim adjudicated at the judicial in rem hearing.
(k) No property shall be forfeited under this Article from
a person who, without actual or constructive notice that the
property was the subject of forfeiture proceedings, obtained
possession of the property as a bona fide purchaser for value.
A person who purports to transfer property after receiving
actual or constructive notice that the property is subject to
seizure or forfeiture is guilty of contempt of court, and shall
be liable to the State for a penalty in the amount of the fair
market value of the property.
(l) A civil action under this Article shall be commenced
within 5 years after the last conduct giving rise to forfeiture
became known or should have become known or 5 years after the
forfeitable property is discovered, whichever is later,
excluding any time during which either the property or claimant
is out of the State or in confinement or during which criminal
proceedings relating to the same conduct are in progress.
(m) If property is ordered forfeited under this Article
from a claimant who held title to the property in joint tenancy
or tenancy in common with another claimant, the court shall
determine the amount of each owner's interest in the property
according to principles of property law.
(720 ILCS 5/36-2.7 new)
Sec. 36-2.7. Innocent owner hearing.
(a) After a complaint for forfeiture has been filed and all
claimants have appeared and answered, a claimant may file a
motion with the court for an innocent owner hearing prior to
trial. This motion shall be made and supported by sworn
affidavit and shall assert the following along with specific
facts which support each assertion:
(1) that the claimant filing the motion is the true
owner of the conveyance as interpreted by case law; and
(2) that the claimant did not know or did not have
reason to know the conduct giving rise to the forfeiture
was likely to occur.
(b) The claimant shall include specific facts which support
these assertions in their motion.
(c) Upon the filing, a hearing may only be conducted after
the parties have been given the opportunity to conduct limited
discovery as to the ownership and control of the property, the
claimant's knowledge, or any matter relevant to the issues
raised or facts alleged in the claimant's motion. Discovery
shall be limited to the People's requests in these areas but
may proceed by any means allowed in the Code of Civil
Procedure.
(d) After discovery is complete and the court has allowed
for sufficient time to review and investigate the discovery
responses, the court shall conduct a hearing. At the hearing,
the fact that the conveyance is subject to forfeiture shall not
be at issue. The court shall only hear evidence relating to the
issue of innocent ownership.
(e) At the hearing on the motion, the claimant shall bear
the burden of proving each of the assertions listed in
subsection (a) of this Section by a preponderance of the
evidence.
(f) If a claimant meets their burden of proof, the court
shall grant the motion and order the conveyance returned to the
claimant. If the claimant fails to meet their burden of proof,
the court shall deny the motion and the forfeiture case shall
proceed according to the Rules of Civil Procedure.
(720 ILCS 5/36-3) (from Ch. 38, par. 36-3)
Sec. 36-3. Exemptions from Exceptions to forfeiture.
(a) No vessel or watercraft, vehicle, or aircraft used by
any person as a common carrier in the transaction of business
as such common carrier may be forfeited under the provisions of
Section 36-2 unless the State proves by a preponderance of the
evidence it appears that (1) in the case of a railway car or
engine, the owner, or (2) in the case of any other such vessel
or watercraft, vehicle or aircraft, the owner or the master of
such vessel or watercraft or the owner or conductor, driver,
pilot, or other person in charge of such vehicle or aircraft
was at the time of the alleged illegal act a consenting party
or privy thereto.
(b) No vessel or watercraft, vehicle, or aircraft shall be
forfeited under the provisions of Section 36-2 of this Article
by reason of any act or omission established by the owner
thereof to have been committed or omitted by any person other
than such owner while such vessel or watercraft, vehicle, or
aircraft was unlawfully in the possession of a person who
acquired possession thereof in violation of the criminal laws
of the United States, or of any state.
(Source: P.A. 98-699, eff. 1-1-15.)
(720 ILCS 5/36-3.1 new)
Sec. 36-3.1. Proportionality. Property forfeited under
this Article shall be subject to an 8th Amendment to the United
States Constitution disproportionate penalties analysis, and
the property forfeiture may be denied in whole or in part if
the court finds that the forfeiture would constitute an
excessive fine in violation of the 8th Amendment to the United
States Constitution, as interpreted by case law.
(720 ILCS 5/36-6 new)
Sec. 36-6. Return of property, damages and costs.
(a) The law enforcement agency that holds custody of
property seized for forfeiture shall return to the claimant,
within a reasonable period of time not to exceed 7 days unless
the order is stayed by the trial court or a reviewing court
pending an appeal, motion to reconsider, or other reason after
the court orders the property to be returned or conveyed to the
claimant:
(1) property ordered by the court to be conveyed or
returned to the claimant; and
(2) property ordered by the court to be conveyed or
returned to the claimant under subsection (d) of Section
36-3.1 of this Article.
(b) The law enforcement agency that holds custody of
property seized under this Article is responsible for any
damages, storage fees, and related costs applicable to property
returned to a claimant under this Article. The claimant shall
not be subject to any charges by the State for storage of the
property or expenses incurred in the preservation of the
property. Charges for the towing of a conveyance shall be borne
by the claimant unless the conveyance was towed for the sole
reason of seizure for forfeiture. This subsection does not
prohibit the imposition of any fees or costs by a home rule
unit of local government related to the impoundment of a
conveyance under an ordinance enacted by the unit of
government.
(720 ILCS 5/36-7 new)
Sec. 36-7. Distribution of proceeds; selling or retaining
seized property prohibited.
(a) Except as otherwise provided in this Section, the court
shall order that property forfeited under this Article be
delivered to the Department of State Police within 60 days.
(b) The Department of State Police or its designee shall
dispose of all property at public auction and shall distribute
the proceeds of the sale, together with any moneys forfeited or
seized, under subsection (c) of this Section.
(c) All monies and the sale proceeds of all other property
forfeited and seized under this Act shall be distributed as
follows:
(1) 65% shall be distributed to the drug task force,
metropolitan enforcement group, local, municipal, county,
or state law enforcement agency or agencies which conducted
or participated in the investigation resulting in the
forfeiture. The distribution shall bear a reasonable
relationship to the degree of direct participation of the
law enforcement agency in the effort resulting in the
forfeiture, taking into account the total value of the
property forfeited and the total law enforcement effort
with respect to the violation of the law upon which the
forfeiture is based. Amounts distributed to the agency or
agencies shall be used, at the discretion of the agency,
for the enforcement of criminal laws; or for public
education in the community or schools in the prevention or
detection of the abuse of drugs or alcohol; or for security
cameras used for the prevention or detection of violence,
except that amounts distributed to the Secretary of State
shall be deposited into the Secretary of State Evidence
Fund to be used as provided in Section 2-115 of the
Illinois Vehicle Code.
Any local, municipal, or county law enforcement agency
entitled to receive a monetary distribution of forfeiture
proceeds may share those forfeiture proceeds pursuant to
the terms of an intergovernmental agreement with a
municipality that has a population in excess of 20,000 if:
(A) the receiving agency has entered into an
intergovernmental agreement with the municipality to
provide police services;
(B) the intergovernmental agreement for police
services provides for consideration in an amount of not
less than $1,000,000 per year;
(C) the seizure took place within the geographical
limits of the municipality; and
(D) the funds are used only for the enforcement of
criminal laws; for public education in the community or
schools in the prevention or detection of the abuse of
drugs or alcohol; or for security cameras used for the
prevention or detection of violence or the
establishment of a municipal police force, including
the training of officers, construction of a police
station, the purchase of law enforcement equipment, or
vehicles.
(2) 12.5% shall be distributed to the Office of the
State's Attorney of the county in which the prosecution
resulting in the forfeiture was instituted, deposited in a
special fund in the county treasury and appropriated to the
State's Attorney for use, at the discretion of the State's
Attorney, in the enforcement of criminal laws; or for
public education in the community or schools in the
prevention or detection of the abuse of drugs or alcohol;
or at the discretion of the State's Attorney, in addition
to other authorized purposes, to make grants to local
substance abuse treatment facilities and half-way houses.
In counties over 3,000,000 population, 25% will be
distributed to the Office of the State's Attorney for use,
at the discretion of the State's Attorney, in the
enforcement of criminal laws; or for public education in
the community or schools in the prevention or detection of
the abuse of drugs or alcohol; or at the discretion of the
State's Attorney, in addition to other authorized
purposes, to make grants to local substance abuse treatment
facilities and half-way houses. If the prosecution is
undertaken solely by the Attorney General, the portion
provided shall be distributed to the Attorney General for
use in the enforcement of criminal laws governing cannabis
and controlled substances or for public education in the
community or schools in the prevention or detection of the
abuse of drugs or alcohol.
12.5% shall be distributed to the Office of the State's
Attorneys Appellate Prosecutor and shall be used at the
discretion of the State's Attorneys Appellate Prosecutor
for additional expenses incurred in the investigation,
prosecution and appeal of cases arising in the enforcement
of criminal laws; or for public education in the community
or schools in the prevention or detection of the abuse of
drugs or alcohol. The Office of the State's Attorneys
Appellate Prosecutor shall not receive distribution from
cases brought in counties with over 3,000,000 population.
(3) 10% shall be retained by the Department of State
Police for expenses related to the administration and sale
of seized and forfeited property.
(d) A law enforcement agency shall not retain forfeited
property for its own use or transfer the property to any person
or entity, except as provided under this Section. A law
enforcement agency may apply in writing to the Director of
State Police to request that a forfeited property be awarded to
the agency for a specifically articulated official law
enforcement use in an investigation. The Director of State
Police shall provide a written justification in each instance
detailing the reasons why the forfeited property was placed
into official use, and the justification shall be retained for
a period of not less than 3 years.
(720 ILCS 5/36-9 new)
Sec. 36-9. Reporting. Property seized or forfeited under
this Article is subject to reporting under the Seizure and
Forfeiture Reporting Act.
(720 ILCS 5/47-15)
Sec. 47-15. Dumping garbage upon real property.
(a) It is unlawful for a person to dump, deposit, or place
garbage, rubbish, trash, or refuse upon real property not owned
by that person without the consent of the owner or person in
possession of the real property.
(b) A person who violates this Section is liable to the
owner or person in possession of the real property on which the
garbage, rubbish, trash, or refuse is dumped, deposited, or
placed for the reasonable costs incurred by the owner or person
in possession for cleaning up and properly disposing of the
garbage, rubbish, trash, or refuse, and for reasonable
attorneys' fees.
(c) A person violating this Section is guilty of a Class B
misdemeanor for which the court must impose a minimum fine of
$500. A second conviction for an offense committed after the
first conviction is a Class A misdemeanor for which the court
must impose a minimum fine of $500. A third or subsequent
violation, committed after a second conviction, is a Class 4
felony for which the court must impose a minimum fine of $500.
A person who violates this Section and who has an equity
interest in a motor vehicle used in violation of this Section
is presumed to have the financial resources to pay the minimum
fine not exceeding his or her equity interest in the vehicle.
Personal property used by a person in violation of this Section
shall on the third or subsequent conviction of the person be
forfeited to the county where the violation occurred and
disposed of at a public sale. Before the forfeiture, the court
shall conduct a hearing to determine whether property is
subject to forfeiture under this Section. At the forfeiture
hearing the State has the burden of establishing by a
preponderance of the evidence that property is subject to
forfeiture under this Section. Property seized or forfeited
under this Section is subject to reporting under the Seizure
and Forfeiture Reporting Act.
(d) The statutory minimum fine required by subsection (c)
is not subject to reduction or suspension unless the defendant
is indigent. If the defendant files a motion with the court
asserting his or her inability to pay the mandatory fine
required by this Section, the court must set a hearing on the
motion before sentencing. The court must require an affidavit
signed by the defendant containing sufficient information to
ascertain the assets and liabilities of the defendant. If the
court determines that the defendant is indigent, the court must
require that the defendant choose either to pay the minimum
fine of $500 or to perform 100 hours of community service.
(Source: P.A. 90-655, eff. 7-30-98; 91-409, eff. 1-1-00.)
(720 ILCS 5/36-1a rep.)
(720 ILCS 5/36-5 rep.)
Section 140. The Criminal Code of 2012 is amended by
repealing Sections 36-1a and 36-5.
Section 145. The Cannabis Control Act is amended by
changing Section 12 as follows:
(720 ILCS 550/12) (from Ch. 56 1/2, par. 712)
Sec. 12. (a) The following are subject to forfeiture:
(1) (blank); all substances containing cannabis which
have been produced, manufactured, delivered, or possessed
in violation of this Act;
(2) all raw materials, products and equipment of any
kind which are produced, delivered, or possessed in
connection with any substance containing cannabis in a
felony violation of this Act;
(3) all conveyances, including aircraft, vehicles or
vessels, which are used, or intended for use, to transport,
or in any manner to facilitate the transportation, sale,
receipt, possession, or concealment of any substance
containing cannabis or property described in paragraph (1)
or (2) of this subsection (a) that constitutes a felony
violation of the Act, but:
(i) no conveyance used by any person as a common
carrier in the transaction of business as a common
carrier is subject to forfeiture under this Section
unless it appears that the owner or other person in
charge of the conveyance is a consenting party or privy
to the a violation of this Act;
(ii) no conveyance is subject to forfeiture under
this Section by reason of any act or omission which the
owner proves to have been committed or omitted without
his knowledge or consent;
(iii) a forfeiture of a conveyance encumbered by a
bona fide security interest is subject to the interest
of the secured party if he neither had knowledge of nor
consented to the act or omission;
(4) all money, things of value, books, records, and
research products and materials including formulas,
microfilm, tapes, and data which are used, or intended for
use in a felony violation of this Act;
(5) everything of value furnished or intended to be
furnished by any person in exchange for a substance in
violation of this Act, all proceeds traceable to such an
exchange, and all moneys, negotiable instruments, and
securities used, or intended to be used, to commit or in
any manner to facilitate any felony violation of this Act;
(6) all real property, including any right, title, and
interest including, but not limited to, any leasehold
interest or the beneficial interest to a land trust, in the
whole of any lot or tract of land and any appurtenances or
improvements, that is used or intended to be used to
facilitate the manufacture, distribution, sale, receipt,
or concealment of a substance containing cannabis or
property described in paragraph (1) or (2) of this
subsection (a) that constitutes a felony violation of this
Act involving more than 2,000 grams of a substance
containing cannabis or that is the proceeds of any felony
violation of this Act.
(b) Property subject to forfeiture under this Act may be
seized under the Drug Asset Forfeiture Procedure Act. In the
event of seizure, forfeiture proceedings shall be instituted
under the Drug Asset Forfeiture Procedure Act. by the Director
or any peace officer upon process or seizure warrant issued by
any court having jurisdiction over the property. Seizure by the
Director or any peace officer without process may be made:
(1) if the property subject to seizure has been the
subject of a prior judgment in favor of the State in a
criminal proceeding or in an injunction or forfeiture
proceeding based upon this Act or the Drug Asset Forfeiture
Procedure Act;
(2) if there is probable cause to believe that the
property is directly or indirectly dangerous to health or
safety;
(3) if there is probable cause to believe that the
property is subject to forfeiture under this Act and the
property is seized under circumstances in which a
warrantless seizure or arrest would be reasonable; or
(4) in accordance with the Code of Criminal Procedure
of 1963.
(c) Forfeiture under this Act is subject to subject to an
8th amendment to the United States Constitution
disproportionate penalties analysis as provided under Section
9.5 of the Drug Asset Forfeiture Procedure Act. In the event of
seizure pursuant to subsection (b), notice shall be given
forthwith to all known interest holders that forfeiture
proceedings, including a preliminary review, shall be
instituted in accordance with the Drug Asset Forfeiture
Procedure Act and such proceedings shall thereafter be
instituted in accordance with that Act. Upon a showing of good
cause, the notice required for a preliminary review under this
Section may be postponed.
(c-1) With regard to possession of cannabis offenses only,
a sum of currency with a value of less than $500 shall not be
subject to forfeiture under this Act. For all other offenses
under this Act, a sum of currency with a value of less than
$100 shall not be subject to forfeiture under this Act. In
seizures of currency in excess of these amounts, this Section
shall not create an exemption for these amounts. In the event
the State's Attorney is of the opinion that real property is
subject to forfeiture under this Act, forfeiture proceedings
shall be instituted in accordance with the Drug Asset
Forfeiture Procedure Act. The exemptions from forfeiture
provisions of Section 8 of the Drug Asset Forfeiture Procedure
Act are applicable.
(d) (Blank). Property taken or detained under this Section
shall not be subject to replevin, but is deemed to be in the
custody of the Director subject only to the order and judgments
of the circuit court having jurisdiction over the forfeiture
proceedings and the decisions of the State's Attorney under the
Drug Asset Forfeiture Procedure Act. When property is seized
under this Act, the seizing agency shall promptly conduct an
inventory of the seized property, estimate the property's
value, and shall forward a copy of the inventory of seized
property and the estimate of the property's value to the
Director. Upon receiving notice of seizure, the Director may:
(1) place the property under seal;
(2) remove the property to a place designated by him;
(3) keep the property in the possession of the seizing
agency;
(4) remove the property to a storage area for
safekeeping or, if the property is a negotiable instrument
or money and is not needed for evidentiary purposes,
deposit it in an interest bearing account;
(5) place the property under constructive seizure by
posting notice of pending forfeiture on it, by giving
notice of pending forfeiture to its owners and interest
holders, or by filing notice of pending forfeiture in any
appropriate public record relating to the property; or
(6) provide for another agency or custodian, including
an owner, secured party, or lienholder, to take custody of
the property upon the terms and conditions set by the
Director.
(e) (Blank). No disposition may be made of property under
seal until the time for taking an appeal has elapsed or until
all appeals have been concluded unless a court, upon
application therefor, orders the sale of perishable substances
and the deposit of the proceeds of the sale with the court.
(f) (Blank). When property is forfeited under this Act the
Director shall sell all such property unless such property is
required by law to be destroyed or is harmful to the public,
and shall distribute the proceeds of the sale, together with
any moneys forfeited or seized, in accordance with subsection
(g). However, upon the application of the seizing agency or
prosecutor who was responsible for the investigation, arrest or
arrests and prosecution which lead to the forfeiture, the
Director may return any item of forfeited property to the
seizing agency or prosecutor for official use in the
enforcement of laws relating to cannabis or controlled
substances, if the agency or prosecutor can demonstrate that
the item requested would be useful to the agency or prosecutor
in their enforcement efforts. When any forfeited conveyance,
including an aircraft, vehicle, or vessel, is returned to the
seizing agency or prosecutor, the conveyance may be used
immediately in the enforcement of the criminal laws of this
State. Upon disposal, all proceeds from the sale of the
conveyance must be used for drug enforcement purposes. When any
real property returned to the seizing agency is sold by the
agency or its unit of government, the proceeds of the sale
shall be delivered to the Director and distributed in
accordance with subsection (g).
(g) (Blank). All monies and the sale proceeds of all other
property forfeited and seized under this Act shall be
distributed as follows:
(1)(i) 65% shall be distributed to the metropolitan
enforcement group, local, municipal, county, or state law
enforcement agency or agencies which conducted or
participated in the investigation resulting in the
forfeiture. The distribution shall bear a reasonable
relationship to the degree of direct participation of the
law enforcement agency in the effort resulting in the
forfeiture, taking into account the total value of the
property forfeited and the total law enforcement effort
with respect to the violation of the law upon which the
forfeiture is based. Amounts distributed to the agency or
agencies shall be used for the enforcement of laws
governing cannabis and controlled substances; for public
education in the community or schools in the prevention or
detection of the abuse of drugs or alcohol; or for security
cameras used for the prevention or detection of violence,
except that amounts distributed to the Secretary of State
shall be deposited into the Secretary of State Evidence
Fund to be used as provided in Section 2-115 of the
Illinois Vehicle Code.
(ii) Any local, municipal, or county law enforcement
agency entitled to receive a monetary distribution of
forfeiture proceeds may share those forfeiture proceeds
pursuant to the terms of an intergovernmental agreement
with a municipality that has a population in excess of
20,000 if:
(I) the receiving agency has entered into an
intergovernmental agreement with the municipality to
provide police services;
(II) the intergovernmental agreement for police
services provides for consideration in an amount of not
less than $1,000,000 per year;
(III) the seizure took place within the
geographical limits of the municipality; and
(IV) the funds are used only for the enforcement of
laws governing cannabis and controlled substances; for
public education in the community or schools in the
prevention or detection of the abuse of drugs or
alcohol; or for security cameras used for the
prevention or detection of violence or the
establishment of a municipal police force, including
the training of officers, construction of a police
station, the purchase of law enforcement equipment, or
vehicles.
(2)(i) 12.5% shall be distributed to the Office of the
State's Attorney of the county in which the prosecution
resulting in the forfeiture was instituted, deposited in a
special fund in the county treasury and appropriated to the
State's Attorney for use in the enforcement of laws
governing cannabis and controlled substances; for public
education in the community or schools in the prevention or
detection of the abuse of drugs or alcohol; or at the
discretion of the State's Attorney, in addition to other
authorized purposes, to make grants to local substance
abuse treatment facilities and half-way houses. In
counties over 3,000,000 population, 25% will be
distributed to the Office of the State's Attorney for use
in the enforcement of laws governing cannabis and
controlled substances; for public education in the
community or schools in the prevention or detection of the
abuse of drugs or alcohol; or at the discretion of the
State's Attorney, in addition to other authorized
purposes, to make grants to local substance abuse treatment
facilities and half-way houses. If the prosecution is
undertaken solely by the Attorney General, the portion
provided hereunder shall be distributed to the Attorney
General for use in the enforcement of laws governing
cannabis and controlled substances.
(ii) 12.5% shall be distributed to the Office of the
State's Attorneys Appellate Prosecutor and deposited in
the Narcotics Profit Forfeiture Fund of that Office to be
used for additional expenses incurred in the
investigation, prosecution and appeal of cases arising
under laws governing cannabis and controlled substances or
for public education in the community or schools in the
prevention or detection of the abuse of drugs or alcohol.
The Office of the State's Attorneys Appellate Prosecutor
shall not receive distribution from cases brought in
counties with over 3,000,000 population.
(3) 10% shall be retained by the Department of State
Police for expenses related to the administration and sale
of seized and forfeited property.
(h) Contraband, including cannabis possessed without
authorization under State or federal law, is not subject to
forfeiture. No property right exists in contraband. Contraband
is subject to seizure and shall be disposed of according to
State law.
(Source: P.A. 99-686, eff. 7-29-16.)
Section 150. The Illinois Controlled Substances Act is
amended by changing Section 505 as follows:
(720 ILCS 570/505) (from Ch. 56 1/2, par. 1505)
Sec. 505. (a) The following are subject to forfeiture:
(1) (blank); all substances which have been
manufactured, distributed, dispensed, or possessed in
violation of this Act;
(2) all raw materials, products and equipment of any
kind which are used, or intended for use in manufacturing,
distributing, dispensing, administering or possessing any
substance in violation of this Act;
(3) all conveyances, including aircraft, vehicles or
vessels, which are used, or intended for use, to transport,
or in any manner to facilitate the transportation, sale,
receipt, possession, or concealment of substances
manufactured, distributed, dispensed, or possessed in
violation of this Act, or property described in paragraphs
(1) and (2)of this subsection (a), but:
(i) no conveyance used by any person as a common
carrier in the transaction of business as a common
carrier is subject to forfeiture under this Section
unless it appears that the owner or other person in
charge of the conveyance is a consenting party or privy
to a violation of this Act;
(ii) no conveyance is subject to forfeiture under
this Section by reason of any act or omission which the
owner proves to have been committed or omitted without
his or her knowledge or consent;
(iii) a forfeiture of a conveyance encumbered by a
bona fide security interest is subject to the interest
of the secured party if he or she neither had knowledge
of nor consented to the act or omission;
(4) all money, things of value, books, records, and
research products and materials including formulas,
microfilm, tapes, and data which are used, or intended to
be used in violation of this Act;
(5) everything of value furnished, or intended to be
furnished, in exchange for a substance in violation of this
Act, all proceeds traceable to such an exchange, and all
moneys, negotiable instruments, and securities used, or
intended to be used, to commit or in any manner to
facilitate any violation of this Act;
(6) all real property, including any right, title, and
interest (including, but not limited to, any leasehold
interest or the beneficial interest in a land trust) in the
whole of any lot or tract of land and any appurtenances or
improvements, which is used or intended to be used, in any
manner or part, to commit, or in any manner to facilitate
the commission of, any violation or act that constitutes a
violation of Section 401 or 405 of this Act or that is the
proceeds of any violation or act that constitutes a
violation of Section 401 or 405 of this Act.
(b) Property subject to forfeiture under this Act may be
seized under the Drug Asset Forfeiture Procedure Act. In the
event of seizure, forfeiture proceedings shall be instituted
under the Drug Asset Forfeiture Procedure Act. seized by the
Director or any peace officer upon process or seizure warrant
issued by any court having jurisdiction over the property.
Seizure by the Director or any peace officer without process
may be made:
(1) if the seizure is incident to inspection under an
administrative inspection warrant;
(2) if the property subject to seizure has been the
subject of a prior judgment in favor of the State in a
criminal proceeding, or in an injunction or forfeiture
proceeding based upon this Act or the Drug Asset Forfeiture
Procedure Act;
(3) if there is probable cause to believe that the
property is directly or indirectly dangerous to health or
safety;
(4) if there is probable cause to believe that the
property is subject to forfeiture under this Act and the
property is seized under circumstances in which a
warrantless seizure or arrest would be reasonable; or
(5) in accordance with the Code of Criminal Procedure
of 1963.
(c) Forfeiture under this Act is subject to subject to an
8th amendment to the United States Constitution
disproportionate penalties analysis as provided under Section
9.5 of the Drug Asset Forfeiture Procedure Act. In the event of
seizure pursuant to subsection (b), notice shall be given
forthwith to all known interest holders that forfeiture
proceedings, including a preliminary review, shall be
instituted in accordance with the Drug Asset Forfeiture
Procedure Act and such proceedings shall thereafter be
instituted in accordance with that Act. Upon a showing of good
cause, the notice required for a preliminary review under this
Section may be postponed.
(d) With regard to possession of controlled substances
offenses only, a sum of currency with a value of less than $500
shall not be subject to forfeiture under this Act. For all
other offenses under this Act, currency with a value of under
$100 shall not be subject to forfeiture under this Act.
Property taken or detained under this Section shall not be
subject to replevin, but is deemed to be in the custody of the
Director subject only to the order and judgments of the circuit
court having jurisdiction over the forfeiture proceedings and
the decisions of the State's Attorney under the Drug Asset
Forfeiture Procedure Act. When property is seized under this
Act, the seizing agency shall promptly conduct an inventory of
the seized property and estimate the property's value, and
shall forward a copy of the inventory of seized property and
the estimate of the property's value to the Director. Upon
receiving notice of seizure, the Director may:
(1) place the property under seal;
(2) remove the property to a place designated by the
Director;
(3) keep the property in the possession of the seizing
agency;
(4) remove the property to a storage area for
safekeeping or, if the property is a negotiable instrument
or money and is not needed for evidentiary purposes,
deposit it in an interest bearing account;
(5) place the property under constructive seizure by
posting notice of pending forfeiture on it, by giving
notice of pending forfeiture to its owners and interest
holders, or by filing notice of pending forfeiture in any
appropriate public record relating to the property; or
(6) provide for another agency or custodian, including
an owner, secured party, or lienholder, to take custody of
the property upon the terms and conditions set by the
Director.
(d-5) For felony offenses involving possession of
controlled substances only, no property shall be subject to
forfeiture under this Act because of the possession of less
than 2 single unit doses of a controlled substance. This
exemption shall not apply in instances when the possessor, or
another person at the direction of the possessor, engaged in
the destruction of any amount of a controlled substance. The
amount of a single unit dose shall be the State's burden to
prove in their case in chief.
(e) If the Department of Financial and Professional
Regulation suspends or revokes a registration, all controlled
substances owned or possessed by the registrant at the time of
suspension or the effective date of the revocation order may be
placed under seal by the Director. No disposition may be made
of substances under seal until the time for taking an appeal
has elapsed or until all appeals have been concluded unless a
court, upon application therefor, orders the sale of perishable
substances and the deposit of the proceeds of the sale with the
court. Upon a suspension or revocation order becoming final,
all substances are subject to seizure and forfeiture under the
Drug Asset Forfeiture Procedure Act may be forfeited to the
Illinois State Police.
(f) (Blank). When property is forfeited under this Act the
Director shall sell all such property unless such property is
required by law to be destroyed or is harmful to the public,
and shall distribute the proceeds of the sale, together with
any moneys forfeited or seized, in accordance with subsection
(g). However, upon the application of the seizing agency or
prosecutor who was responsible for the investigation, arrest or
arrests and prosecution which lead to the forfeiture, the
Director may return any item of forfeited property to the
seizing agency or prosecutor for official use in the
enforcement of laws relating to cannabis or controlled
substances, if the agency or prosecutor can demonstrate that
the item requested would be useful to the agency or prosecutor
in their enforcement efforts. When any forfeited conveyance,
including an aircraft, vehicle, or vessel, is returned to the
seizing agency or prosecutor, the conveyance may be used
immediately in the enforcement of the criminal laws of this
State. Upon disposal, all proceeds from the sale of the
conveyance must be used for drug enforcement purposes. When any
real property returned to the seizing agency is sold by the
agency or its unit of government, the proceeds of the sale
shall be delivered to the Director and distributed in
accordance with subsection (g).
(g) (Blank). All monies and the sale proceeds of all other
property forfeited and seized under this Act shall be
distributed as follows:
(1)(i) 65% shall be distributed to the metropolitan
enforcement group, local, municipal, county, or state law
enforcement agency or agencies which conducted or
participated in the investigation resulting in the
forfeiture. The distribution shall bear a reasonable
relationship to the degree of direct participation of the
law enforcement agency in the effort resulting in the
forfeiture, taking into account the total value of the
property forfeited and the total law enforcement effort
with respect to the violation of the law upon which the
forfeiture is based. Amounts distributed to the agency or
agencies shall be used for the enforcement of laws
governing cannabis and controlled substances; for public
education in the community or schools in the prevention or
detection of the abuse of drugs or alcohol; or for security
cameras used for the prevention or detection of violence,
except that amounts distributed to the Secretary of State
shall be deposited into the Secretary of State Evidence
Fund to be used as provided in Section 2-115 of the
Illinois Vehicle Code.
(ii) Any local, municipal, or county law enforcement
agency entitled to receive a monetary distribution of
forfeiture proceeds may share those forfeiture proceeds
pursuant to the terms of an intergovernmental agreement
with a municipality that has a population in excess of
20,000 if:
(I) the receiving agency has entered into an
intergovernmental agreement with the municipality to
provide police services;
(II) the intergovernmental agreement for police
services provides for consideration in an amount of not
less than $1,000,000 per year;
(III) the seizure took place within the
geographical limits of the municipality; and
(IV) the funds are used only for the enforcement of
laws governing cannabis and controlled substances; for
public education in the community or schools in the
prevention or detection of the abuse of drugs or
alcohol; or for security cameras used for the
prevention or detection of violence or the
establishment of a municipal police force, including
the training of officers, construction of a police
station, the purchase of law enforcement equipment, or
vehicles.
(2)(i) 12.5% shall be distributed to the Office of the
State's Attorney of the county in which the prosecution
resulting in the forfeiture was instituted, deposited in a
special fund in the county treasury and appropriated to the
State's Attorney for use in the enforcement of laws
governing cannabis and controlled substances; for public
education in the community or schools in the prevention or
detection of the abuse of drugs or alcohol; or at the
discretion of the State's Attorney, in addition to other
authorized purposes, to make grants to local substance
abuse treatment facilities and half-way houses. In
counties over 3,000,000 population, 25% will be
distributed to the Office of the State's Attorney for use
in the enforcement of laws governing cannabis and
controlled substances; for public education in the
community or schools in the prevention or detection of the
abuse of drugs or alcohol; or at the discretion of the
State's Attorney, in addition to other authorized
purposes, to make grants to local substance abuse treatment
facilities and half-way houses. If the prosecution is
undertaken solely by the Attorney General, the portion
provided hereunder shall be distributed to the Attorney
General for use in the enforcement of laws governing
cannabis and controlled substances or for public education
in the community or schools in the prevention or detection
of the abuse of drugs or alcohol.
(ii) 12.5% shall be distributed to the Office of the
State's Attorneys Appellate Prosecutor and deposited in
the Narcotics Profit Forfeiture Fund of that office to be
used for additional expenses incurred in the
investigation, prosecution and appeal of cases arising
under laws governing cannabis and controlled substances or
for public education in the community or schools in the
prevention or detection of the abuse of drugs or alcohol.
The Office of the State's Attorneys Appellate Prosecutor
shall not receive distribution from cases brought in
counties with over 3,000,000 population.
(3) 10% shall be retained by the Department of State
Police for expenses related to the administration and sale
of seized and forfeited property.
(h) (Blank). Species of plants from which controlled
substances in Schedules I and II may be derived which have been
planted or cultivated in violation of this Act, or of which the
owners or cultivators are unknown, or which are wild growths,
may be seized and summarily forfeited to the State. The
failure, upon demand by the Director or any peace officer, of
the person in occupancy or in control of land or premises upon
which the species of plants are growing or being stored, to
produce registration, or proof that he or she is the holder
thereof, constitutes authority for the seizure and forfeiture
of the plants.
(i) Contraband, including controlled substances possessed
without authorization under State or federal law, is not
subject to forfeiture. No property right exists in contraband.
Contraband is subject to seizure and shall be disposed of
according to State law.
(Source: P.A. 99-686, eff. 7-29-16.)
Section 155. The Methamphetamine Control and Community
Protection Act is amended by changing Section 85 as follows:
(720 ILCS 646/85)
Sec. 85. Forfeiture.
(a) The following are subject to forfeiture:
(1) (blank); all substances containing methamphetamine
which have been produced, manufactured, delivered, or
possessed in violation of this Act;
(2) all methamphetamine manufacturing materials which
have been produced, delivered, or possessed in connection
with any substance containing methamphetamine in violation
of this Act;
(3) all conveyances, including aircraft, vehicles or
vessels, which are used, or intended for use, to transport,
or in any manner to facilitate the transportation, sale,
receipt, possession, or concealment of any substance
containing methamphetamine or property described in
paragraph (1) or (2) of this subsection (a) that
constitutes a felony violation of the Act, but:
(i) no conveyance used by any person as a common
carrier in the transaction of business as a common
carrier is subject to forfeiture under this Section
unless it appears that the owner or other person in
charge of the conveyance is a consenting party or privy
to the a violation of this Act;
(ii) no conveyance is subject to forfeiture under
this Section by reason of any act or omission which the
owner proves to have been committed or omitted without
his or her knowledge or consent;
(iii) a forfeiture of a conveyance encumbered by a
bona fide security interest is subject to the interest
of the secured party if he or she neither had knowledge
of nor consented to the act or omission;
(4) all money, things of value, books, records, and
research products and materials including formulas,
microfilm, tapes, and data which are used, or intended for
use in a felony violation of this Act;
(5) everything of value furnished or intended to be
furnished by any person in exchange for a substance in
violation of this Act, all proceeds traceable to such an
exchange, and all moneys, negotiable instruments, and
securities used, or intended to be used, to commit or in
any manner to facilitate any felony violation of this Act.
(6) all real property, including any right, title, and
interest (including, but not limited to, any leasehold
interest or the beneficial interest in a land trust) in the
whole of any lot or tract of land and any appurtenances or
improvements, which is used, or intended to be used, in any
manner or part, to commit, or in any manner to facilitate
the commission of, any violation or act that constitutes a
violation of this Act or that is the proceeds of any
violation or act that constitutes a violation of this Act.
(b) Property subject to forfeiture under this Act may be
seized under the Drug Asset Forfeiture Procedure Act. In the
event of seizure, forfeiture proceedings shall be instituted
under the Drug Asset Forfeiture Procedure Act. by the Director
or any peace officer upon process or seizure warrant issued by
any court having jurisdiction over the property. Seizure by the
Director or any peace officer without process may be made:
(1) if the property subject to seizure has been the
subject of a prior judgment in favor of the State in a
criminal proceeding or in an injunction or forfeiture
proceeding based upon this Act or the Drug Asset Forfeiture
Procedure Act;
(2) if there is probable cause to believe that the
property is directly or indirectly dangerous to health or
safety;
(3) if there is probable cause to believe that the
property is subject to forfeiture under this Act and the
property is seized under circumstances in which a
warrantless seizure or arrest would be reasonable; or
(4) in accordance with the Code of Criminal Procedure
of 1963.
(c) Forfeiture under this Act is subject to subject to an
8th amendment to the United States Constitution
disproportionate penalties analysis as provided under Section
9.5 of the Drug Asset Forfeiture Procedure Act. In the event of
seizure pursuant to subsection (b), notice shall be given
forthwith to all known interest holders that forfeiture
proceedings, including a preliminary review, shall be
instituted in accordance with the Drug Asset Forfeiture
Procedure Act and such proceedings shall thereafter be
instituted in accordance with that Act. Upon a showing of good
cause, the notice required for a preliminary review under this
Section may be postponed.
(d) With regard to possession of methamphetamine offenses
only, a sum of currency with a value of less than $500 shall
not be subject to forfeiture under this Act. For all other
offenses under this Act, currency with a value of under $100
shall not be subject to forfeiture under this Act. Property
taken or detained under this Section is not subject to
replevin, but is deemed to be in the custody of the Director
subject only to the order and judgments of the circuit court
having jurisdiction over the forfeiture proceedings and the
decisions of the State's Attorney under the Drug Asset
Forfeiture Procedure Act. When property is seized under this
Act, the seizing agency shall promptly conduct an inventory of
the seized property, estimate the property's value, and forward
a copy of the inventory of seized property and the estimate of
the property's value to the Director. Upon receiving notice of
seizure, the Director may:
(1) place the property under seal;
(2) remove the property to a place designated by him or
her;
(3) keep the property in the possession of the seizing
agency;
(4) remove the property to a storage area for
safekeeping or, if the property is a negotiable instrument
or money and is not needed for evidentiary purposes,
deposit it in an interest bearing account;
(5) place the property under constructive seizure by
posting notice of pending forfeiture on it, by giving
notice of pending forfeiture to its owners and interest
holders, or by filing notice of pending forfeiture in any
appropriate public record relating to the property; or
(6) provide for another agency or custodian, including
an owner, secured party, or lienholder, to take custody of
the property upon the terms and conditions set by the
Director.
(e) For felony offenses involving possession of a substance
containing methamphetamine only, no property shall be subject
to forfeiture under this Act because of the possession of less
than 2 single unit doses of a substance. This exemption shall
not apply in instances when the possessor, or another person at
the direction of the possessor, is engaged in the destruction
of any amount of a substance containing methamphetamine. The
amount of a single unit dose shall be the State's burden to
prove in their case in chief. No disposition may be made of
property under seal until the time for taking an appeal has
elapsed or until all appeals have been concluded unless a
court, upon application therefor, orders the sale of perishable
substances and the deposit of the proceeds of the sale with the
court.
(f) (Blank). When property is forfeited under this Act, the
Director shall sell the property unless the property is
required by law to be destroyed or is harmful to the public,
and shall distribute the proceeds of the sale, together with
any moneys forfeited or seized, in accordance with subsection
(g). However, upon the application of the seizing agency or
prosecutor who was responsible for the investigation, arrest or
arrests and prosecution which lead to the forfeiture, the
Director may return any item of forfeited property to the
seizing agency or prosecutor for official use in the
enforcement of laws relating to methamphetamine, cannabis, or
controlled substances, if the agency or prosecutor
demonstrates that the item requested would be useful to the
agency or prosecutor in their enforcement efforts. When any
forfeited conveyance, including an aircraft, vehicle, or
vessel, is returned to the seizing agency or prosecutor, the
conveyance may be used immediately in the enforcement of the
criminal laws of this State. Upon disposal, all proceeds from
the sale of the conveyance must be used for drug enforcement
purposes. When any real property returned to the seizing agency
is sold by the agency or its unit of government, the proceeds
of the sale shall be delivered to the Director and distributed
in accordance with subsection (g).
(g) (Blank). All moneys and the sale proceeds of all other
property forfeited and seized under this Act shall be
distributed as follows:
(1)(i) 65% shall be distributed to the metropolitan
enforcement group, local, municipal, county, or State law
enforcement agency or agencies which conducted or
participated in the investigation resulting in the
forfeiture. The distribution shall bear a reasonable
relationship to the degree of direct participation of the
law enforcement agency in the effort resulting in the
forfeiture, taking into account the total value of the
property forfeited and the total law enforcement effort
with respect to the violation of the law upon which the
forfeiture is based. Amounts distributed to the agency or
agencies shall be used for the enforcement of laws
governing methamphetamine, cannabis, and controlled
substances; for public education in the community or
schools in the prevention or detection of the abuse of
drugs or alcohol; or for security cameras used for the
prevention or detection of violence, except that amounts
distributed to the Secretary of State shall be deposited
into the Secretary of State Evidence Fund to be used as
provided in Section 2-115 of the Illinois Vehicle Code.
(ii) Any local, municipal, or county law enforcement
agency entitled to receive a monetary distribution of
forfeiture proceeds may share those forfeiture proceeds
pursuant to the terms of an intergovernmental agreement
with a municipality that has a population in excess of
20,000 if:
(I) the receiving agency has entered into an
intergovernmental agreement with the municipality to
provide police services;
(II) the intergovernmental agreement for police
services provides for consideration in an amount of not
less than $1,000,000 per year;
(III) the seizure took place within the
geographical limits of the municipality; and
(IV) the funds are used only for the enforcement of
laws governing cannabis and controlled substances; for
public education in the community or schools in the
prevention or detection of the abuse of drugs or
alcohol; or for security cameras used for the
prevention or detection of violence or the
establishment of a municipal police force, including
the training of officers, construction of a police
station, the purchase of law enforcement equipment, or
vehicles.
(2)(i) 12.5% shall be distributed to the Office of the
State's Attorney of the county in which the prosecution
resulting in the forfeiture was instituted, deposited in a
special fund in the county treasury and appropriated to the
State's Attorney for use in the enforcement of laws
governing methamphetamine, cannabis, and controlled
substances; for public education in the community or
schools in the prevention or detection of the abuse of
drugs or alcohol; or at the discretion of the State's
Attorney, in addition to other authorized purposes, to make
grants to local substance abuse treatment facilities and
half-way houses. In counties with a population over
3,000,000, 25% shall be distributed to the Office of the
State's Attorney for use in the enforcement of laws
governing methamphetamine, cannabis, and controlled
substances; for public education in the community or
schools in the prevention or detection of the abuse of
drugs or alcohol; or at the discretion of the State's
Attorney, in addition to other authorized purposes, to make
grants to local substance abuse treatment facilities and
half-way houses. If the prosecution is undertaken solely by
the Attorney General, the portion provided hereunder shall
be distributed to the Attorney General for use in the
enforcement of laws governing methamphetamine, cannabis,
and controlled substances or for public education in the
community or schools in the prevention or detection of the
abuse of drugs or alcohol.
(ii) 12.5% shall be distributed to the Office of the
State's Attorneys Appellate Prosecutor and deposited in
the Narcotics Profit Forfeiture Fund of that Office to be
used for additional expenses incurred in the
investigation, prosecution and appeal of cases arising
under laws governing methamphetamine, cannabis, and
controlled substances or for public education in the
community or schools in the prevention or detection of the
abuse of drugs or alcohol. The Office of the State's
Attorneys Appellate Prosecutor shall not receive
distribution from cases brought in counties with a
population over 3,000,000.
(3) 10% shall be retained by the Department of State
Police for expenses related to the administration and sale
of seized and forfeited property.
(h) Contraband, including methamphetamine or any
controlled substance possessed without authorization under
State or federal law, is not subject to forfeiture. No property
right exists in contraband. Contraband is subject to seizure
and shall be disposed of according to State law.
(Source: P.A. 99-686, eff. 7-29-16.)
Section 160. The Code of Criminal Procedure of 1963 is
amended by changing Sections 124B-710 and 124B-715 and by
adding Section 124B-195 as follows:
(725 ILCS 5/124B-195 new)
Sec. 124B-195. Reporting. Property seized or forfeited
under this Article is subject to reporting under the Seizure
and Forfeiture Reporting Act.
(725 ILCS 5/124B-710)
Sec. 124B-710. Sale of forfeited property by Director of
State Police; return to seizing agency or prosecutor.
(a) The court shall authorize the Director of State Police
to seize any property declared forfeited under this Article on
terms and conditions the court deems proper.
(b) When property is forfeited under this Part 700, the
Director of State Police shall sell the property unless the
property is required by law to be destroyed or is harmful to
the public. The Director shall distribute the proceeds of the
sale, together with any moneys forfeited or seized, in
accordance with Section 124B-715.
(c) (Blank). On the application of the seizing agency or
prosecutor who was responsible for the investigation, arrest,
and prosecution that lead to the forfeiture, however, the
Director may return any item of forfeited property to the
seizing agency or prosecutor for official use in the
enforcement of laws relating to Article 17B or Section 17-6.3
of the Criminal Code of 1961 or the Criminal Code of 2012 if
the agency or prosecutor can demonstrate that the item
requested would be useful to the agency or prosecutor in their
enforcement efforts. When any real property returned to the
seizing agency is sold by the agency or its unit of government,
the proceeds of the sale shall be delivered to the Director and
distributed in accordance with Section 124B-715.
(Source: P.A. 96-712, eff. 1-1-10; 97-1108, eff. 1-1-13;
97-1150, eff. 1-25-13.)
(725 ILCS 5/124B-715)
Sec. 124B-715. Distribution of all other property and sale
proceeds. All moneys and the sale proceeds of all property
forfeited and seized under this Part 700 and not returned to a
seizing agency or prosecutor under subsection (c) of Section
124B-705 shall be distributed to the Special Supplemental Food
Program for Women, Infants and Children (WIC) program
administered by the Illinois Department of Human Services.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-1030 rep.)
Section 165. The Code of Criminal Procedure of 1963 is
amended by repealing Section 124B-1030.
Section 170. The Drug Asset Forfeiture Procedure Act is
amended by changing Sections 3.5, 4, 5, 6, 7, 8, 9, 11, and 14
and by adding Sections 3.1, 3.2, 3.3, 5.1, 9.1, 9.5, 15, 17,
and 20 as follows:
(725 ILCS 150/3.1 new)
Sec. 3.1. Seizure.
(a) Actual physical seizure of real property subject to
forfeiture under this Act requires the issuance of a seizure
warrant. Nothing in this Section prohibits the constructive
seizure of real property through the filing of a complaint for
forfeiture in circuit court and the recording of a lis pendens
against the real property without a hearing, warrant
application, or judicial approval.
(b) Personal property subject to forfeiture under the
Illinois Controlled Substances Act, the Cannabis Control Act,
the Illinois Food, Drug and Cosmetic Act, or the
Methamphetamine Control and Community Protection Act may be
seized by the Director of State Police or any peace officer
upon process or seizure warrant issued by any court having
jurisdiction over the property.
(c) Personal property subject to forfeiture under the
Illinois Controlled Substances Act, the Cannabis Control Act,
the Illinois Food, Drug and Cosmetic Act, or the
Methamphetamine Control and Community Protection Act may be
seized by the Director of State Police or any peace officer
without process:
(1) if the seizure is incident to inspection under an
administrative inspection warrant;
(2) if the property subject to seizure has been the
subject of a prior judgment in favor of the State in a
criminal proceeding or in an injunction or forfeiture
proceeding based upon this Act;
(3) if there is probable cause to believe that the
property is directly or indirectly dangerous to health or
safety;
(4) if there is probable cause to believe that the
property is subject to forfeiture under the Illinois
Controlled Substances Act, the Cannabis Control Act, the
Illinois Food, Drug and Cosmetic Act, or the
Methamphetamine Control and Community Protection Act, and
the property is seized under circumstances in which a
warrantless seizure or arrest would be reasonable; or
(5) under the Code of Criminal Procedure of 1963.
(d) If a conveyance is seized under this Act, an
investigation shall be made by the law enforcement agency as to
any person whose right, title, interest, or lien is of record
in the office of the agency or official in which title or
interest to the conveyance is required by law to be recorded.
(e) After seizure under this Section, notice shall be given
to all known interest holders that forfeiture proceedings,
including a preliminary review, may be instituted and the
proceedings may be instituted under this Act. Upon a showing of
good cause related to an ongoing investigation, the notice
required for a preliminary review under this Section may be
postponed.
(725 ILCS 150/3.2 new)
Sec. 3.2. Receipt for seized property. If a law enforcement
officer seizes property that is subject to forfeiture, the
officer shall provide an itemized receipt to the person
possessing the property or, in the absence of a person to whom
the receipt could be given, shall leave the receipt in the
place where the property was found, if possible.
(725 ILCS 150/3.3 new)
Sec. 3.3. Safekeeping of seized property pending
disposition.
(a) Property seized under this Act is deemed to be in the
custody of the Director of State Police subject only to the
order and judgments of the circuit court having jurisdiction
over the forfeiture proceedings and the decisions of the
State's Attorney under this Act.
(b) If property is seized under this Act, the seizing
agency shall promptly conduct an inventory of the seized
property and estimate the property's value, and shall forward a
copy of the inventory of seized property and the estimate of
the property's value to the Director of State Police. Upon
receiving notice of seizure, the Director of State Police may:
(1) place the property under seal;
(2) remove the property to a place designated by the
seizing agency;
(3) keep the property in the possession of the Director
of State Police;
(4) remove the property to a storage area for
safekeeping; or
(5) place the property under constructive seizure by
posting notice of pending forfeiture on it, by giving
notice of pending forfeiture to its owners and interest
holders, or by filing notice of pending forfeiture in any
appropriate public record relating to the property; or
(6) provide for another agency or custodian, including
an owner, secured party, or lienholder, to take custody of
the property upon the terms and conditions set by the
seizing agency.
(c) The seizing agency is required to exercise ordinary
care to protect the seized property from negligent loss,
damage, or destruction.
(725 ILCS 150/3.5)
Sec. 3.5. Preliminary Review.
(a) Within 14 days of the seizure, the 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 28 days after 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 and alleges facts
showing that the delay was not due to his or her culpable
negligence. 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 providing transportation for
employment, religious purposes, medical needs, child care, and
obtaining food, and restricting the conveyance's use to only
those individuals authorized to use the conveyance by the
registered owner. The use of the vehicle shall be further
restricted to exclude all recreational and entertainment
purposes. The court may order any additional restrictions it
deems reasonable and just on its own motion or on motion of the
People. 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 court may order
the registered owner or his or her authorized designee to shall
post a cash security with the Clerk of the Court as ordered by
the court. If cash security is ordered, the 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) the ability of the owner or designee to pay; and
such other conditions as the court deems necessary to
safeguard the conveyance.
(E) 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.)
(725 ILCS 150/4) (from Ch. 56 1/2, par. 1674)
Sec. 4. Notice to Owner or Interest Holder. The first
attempted service shall be commenced within 28 days of the
filing of the verified claim or the receipt of the notice from
seizing agency by the form 4-64, whichever occurs sooner. A
complaint for forfeiture or a notice of pending forfeiture
shall be served upon the property owner or interest holder in
the following manner:
(1) If the owner's or interest holder's name and
current address are known, then by either:
(A) personal service; or
(B) mailing a copy of the notice by certified mail,
return receipt requested and first class mail, to that
address.
(i) If notice is sent by certified mail and no
signed return receipt is received by the State's
Attorney within 28 days of mailing, and no
communication from the owner or interest holder is
received by the State's Attorney documenting
actual notice by said parties, then the State's
Attorney shall, within a reasonable period of
time, mail a second copy of the notice by certified
mail, return receipt requested and first class
mail, to that address.
(ii) If no signed return receipt is received by
the State's Attorney within 28 days of the second
attempt at service by certified mail, and no
communication from the owner or interest holder is
received by the State's Attorney documenting
actual notice by said parties, then the State's
Attorney shall have 60 days to attempt to serve the
notice by personal service, which also includes
substitute service by leaving a copy at the usual
place of abode, with some person of the family or a
person residing there, of the age of 13 years or
upwards. If after 3 attempts at service in this
manner, no service of the notice is accomplished,
then the notice shall be posted in a conspicuous
manner at this address and service shall be made by
posting.
The attempts at service and the posting if
required, shall be documented by the person
attempting service and said documentation shall be
made part of a return of service returned to the
State's Attorney.
The State's Attorney may utilize any Sheriff
or Deputy Sheriff any peace officer, a private
process server or investigator, or any employee,
agent, or investigator of the State's Attorney's
Office to attempt service without seeking leave of
court.
After the procedures set forth are followed,
service shall be effective on an owner or interest
holder on the date of receipt by the State's
Attorney of a returned return receipt requested,
or on the date of receipt of a communication from
an owner or interest holder documenting actual
notice, whichever is first in time, or on the date
of the last act performed by the State's Attorney
in attempting personal service under subparagraph
(ii) above. If notice is to be shown by actual
notice from communication with a claimant, then
the State's Attorney shall file an affidavit
providing details of the communication, which may
be accepted as sufficient proof of service by the
court.
After a claimant files a verified claim with
the State's Attorney and provide an address at
which they will accept service, the complaint
shall be served and notice shall be perfected upon
mailing of the complaint to the claimant at the
address the claimant provided via certified mail,
return receipt requested and first class mail. No
return receipt card need be received, or any other
attempts at service need be made to comply with
service and notice requirements under this Act.
This certified mailing, return receipt requested
shall be proof of service of the complaint on the
claimant.
For purposes of notice under this Section, if a
person has been arrested for the conduct giving
rise to the forfeiture, then the address provided
to the arresting agency at the time of arrest shall
be deemed to be that person's known address.
Provided, however, if an owner or interest
holder's address changes prior to the effective
date of the notice of pending forfeiture, the owner
or interest holder shall promptly notify the
seizing agency of the change in address or, if the
owner or interest holder's address changes
subsequent to the effective date of the notice of
pending forfeiture, the owner or interest holder
shall promptly notify the State's Attorney of the
change in address; or if the property seized is a
conveyance, to the address reflected in the office
of the agency or official in which title or
interest to the conveyance is required by law to be
recorded.
(2) If the owner's or interest holder's address is not
known, and is not on record, then notice shall be served by
publication for 3 successive weeks in a newspaper of
general circulation in the county in which the seizure
occurred.
(3) After a claimant files a verified claim with the
State's Attorney and provides an address at which they will
accept service, the complaint shall be served and notice
shall be perfected upon mailing of the complaint to the
claimant at the address the claimant provided via certified
mail, return receipt requested and first class mail. No
return receipt card need be received or any other attempts
at service need be made to comply with service and notice
requirements under this Act. This certified mailing,
return receipt requested shall be proof of service of the
complaint on the claimant.
(4) Notice to any business entity, corporation, LLC,
LLP, or partnership shall be complete by a single mailing
of a copy of the notice by certified mail, return receipt
requested and first class mail, to that address. This
notice is complete regardless of the return of a signed
"return receipt requested".
(5) Notice to a person whose address is not within the
State shall be complete by a single mailing of a copy of
the notice by certified mail, return receipt requested and
first class mail, to that address. This notice is complete
regardless of the return of a signed "return receipt
requested".
(6) Notice to a person whose address is not within the
United States shall be complete by a single mailing of a
copy of the notice by certified mail, return receipt
requested and first class mail, to that address. This
notice shall be complete regardless of the return of a
signed "return receipt requested". If certified mail is not
available in the foreign country where the person has an
address, then notice shall proceed by publication under
paragraph (2) of this Section.
(7) Notice to any person whom the State's Attorney
reasonably should know is incarcerated within the State
shall also include the mailing a copy of the notice by
certified mail, return receipt requested and first class
mail, to the address of the detention facility with the
inmate's name clearly marked on the envelope.
(A) (Blank). Whenever notice of pending forfeiture or
service of an in rem complaint is required under the provisions
of this Act, such notice or service shall be given as follows:
(1) If the owner's or interest holder's name and
current address are known, then by either personal service
or mailing a copy of the notice by certified mail, return
receipt requested, to that address. For purposes of notice
under this Section, if a person has been arrested for the
conduct giving rise to the forfeiture, then the address
provided to the arresting agency at the time of arrest
shall be deemed to be that person's known address.
Provided, however, if an owner or interest holder's address
changes prior to the effective date of the notice of
pending forfeiture, the owner or interest holder shall
promptly notify the seizing agency of the change in address
or, if the owner or interest holder's address changes
subsequent to the effective date of the notice of pending
forfeiture, the owner or interest holder shall promptly
notify the State's Attorney of the change in address; or
(2) If the property seized is a conveyance, to the
address reflected in the office of the agency or official
in which title or interest to the conveyance is required by
law to be recorded, then by mailing a copy of the notice by
certified mail, return receipt requested, to that address;
or
(3) If the owner's or interest holder's address is not
known, and is not on record as provided in paragraph (2),
then by publication for 3 successive weeks in a newspaper
of general circulation in the county in which the seizure
occurred.
(B) (Blank). Notice served under this Act is effective upon
personal service, the last date of publication, or the mailing
of written notice, whichever is earlier.
(Source: P.A. 86-1382; 87-614.)
(725 ILCS 150/5) (from Ch. 56 1/2, par. 1675)
Sec. 5. Notice to State's Attorney. The law enforcement
agency seizing property for forfeiture under the Illinois
Controlled Substances Act, the Cannabis Control Act, or the
Methamphetamine Control and Community Protection Act, or the
Illinois Food, Drug, and Cosmetic Act shall, as soon as
practicable but not later than 28 days after the shall, within
52 days of seizure, notify the State's Attorney for the county
in which an act or omission giving rise to the seizure
forfeiture occurred or in which the property was seized of the
seizure of the property and the facts and circumstances giving
rise to the seizure and shall provide the State's Attorney with
the inventory of the property and its estimated value. Said
notice shall be by the delivery of the form 4-64. When the
property seized for forfeiture is a vehicle, the law
enforcement agency seizing the property shall immediately
notify the Secretary of State that forfeiture proceedings are
pending regarding such vehicle.
(Source: P.A. 94-556, eff. 9-11-05.)
(725 ILCS 150/5.1 new)
Sec. 5.1. Replevin prohibited; return of personal property
inside seized conveyance.
(a) Property seized under this Act shall not be subject to
replevin, but is deemed to be in the custody of the Director of
State Police subject only to the order and judgments of the
circuit court having jurisdiction over the forfeiture
proceedings and the decisions of the State's Attorney.
(b) A claimant or a party interested in personal property
contained within a seized conveyance may file a request with
the State's Attorney in an administrative forfeiture action, or
a motion with the court in a judicial forfeiture action, for
the return of any personal property contained within a
conveyance seized under this Act. The return of personal
property shall not be unreasonably withheld if the personal
property is not mechanically or electrically coupled to the
conveyance, needed for evidentiary purposes, or otherwise
contraband. A law enforcement agency that returns property
under a court order under this Section shall not be liable to
any person who claims ownership to the property if the property
is returned to an improper party.
(725 ILCS 150/6) (from Ch. 56 1/2, par. 1676)
Sec. 6. Non-Judicial Forfeiture. If non-real property that
exceeds $150,000 in value excluding the value of any
conveyance, or if real property is seized under the provisions
of the Illinois Controlled Substances Act, the Cannabis Control
Act, or the Methamphetamine Control and Community Protection
Act, the State's Attorney shall institute judicial in rem
forfeiture proceedings as described in Section 9 of this Act
within 45 days from receipt of notice of seizure from the
seizing agency under Section 5 of this Act. However, if
non-real property that does not exceed $150,000 in value
excluding the value of any conveyance is seized, the following
procedure shall be used:
(A) If, after review of the facts surrounding the seizure,
the State's Attorney is of the opinion that the seized property
is subject to forfeiture, then within 45 days of the receipt of
notice of seizure from the seizing agency, the State's Attorney
shall cause notice of pending forfeiture to be given to the
owner of the property and all known interest holders of the
property in accordance with Section 4 of this Act.
(B) The notice of pending forfeiture must include a
description of the property, the estimated value of the
property, the date and place of seizure, the conduct giving
rise to forfeiture or the violation of law alleged, and a
summary of procedures and procedural rights applicable to the
forfeiture action.
(C) (1) Any person claiming an interest in property which
is the subject of notice under subsection (A) of Section 6
of this Act, may, within 45 days after the effective date
of notice as described in Section 4 of this Act, file a
verified claim with the State's Attorney expressing his or
her interest in the property. The claim must set forth:
(i) the caption of the proceedings as set forth on
the notice of pending forfeiture and the name of the
claimant;
(ii) the address at which the claimant will accept
mail;
(iii) the nature and extent of the claimant's
interest in the property;
(iv) the date, identity of the transferor, and
circumstances of the claimant's acquisition of the
interest in the property;
(v) the name and address of all other persons known
to have an interest in the property;
(vi) the specific provision of law relied on in
asserting the property is not subject to forfeiture;
(vii) all essential facts supporting each
assertion; and
(viii) the relief sought.
(2) If a claimant files the claim and deposits with the
State's Attorney a cost bond, in the form of a cashier's
check payable to the clerk of the court, in the sum of 10
percent of the reasonable value of the property as alleged
by the State's Attorney or the sum of $100, whichever is
greater, upon condition that, in the case of forfeiture,
the claimant must pay all costs and expenses of forfeiture
proceedings, then the State's Attorney shall institute
judicial in rem forfeiture proceedings and deposit the cost
bond with the clerk of the court as described in Section 9
of this Act within 30 45 days after receipt of the claim
and cost bond. In lieu of a cost bond, a person claiming
interest in the seized property may file, under penalty of
perjury, an indigency affidavit.
(3) If none of the seized property is forfeited in the
judicial in rem proceeding, the clerk of the court shall
return to the claimant, unless the court orders otherwise,
90% of the sum which has been deposited and shall retain as
costs 10% of the money deposited. If any of the seized
property is forfeited under the judicial forfeiture
proceeding, the clerk of the court shall transfer 90% of
the sum which has been deposited to the State's Attorney
prosecuting the civil forfeiture to be applied to the costs
of prosecution and the clerk shall retain as costs 10% of
the sum deposited.
(D) If no claim is filed or bond given within the 45 day
period as described in subsection (C) of Section 6 of this Act,
the State's Attorney shall declare the property forfeited and
shall promptly notify the owner and all known interest holders
of the property and the Director of the Illinois Department of
State Police of the declaration of forfeiture and the Director
shall dispose of the property in accordance with law.
(Source: P.A. 97-544, eff. 1-1-12.)
(725 ILCS 150/7) (from Ch. 56 1/2, par. 1677)
Sec. 7. Presumptions and inferences.
(1) The following situation situations shall give rise to a
presumption that the property described therein was furnished
or intended to be furnished in exchange for a substance in
violation of the Illinois Controlled Substances Act, the
Cannabis Control Act, or the Methamphetamine Control and
Community Protection Act, or is the proceeds of such an
exchange, and therefore forfeitable under this Act, such
presumptions being rebuttable by a preponderance of the
evidence:
(1) All moneys, coin, or currency found in close proximity
to forfeitable substances, to forfeitable drug manufacturing
or distributing paraphernalia, or to forfeitable records of the
importation, manufacture or distribution of substances. ;
(2) In the following situation, the trier of fact may infer
that the property described therein was furnished or intended
to be furnished in exchange for a substance in violation of the
Illinois Controlled Substances Act, the Cannabis Control Act,
or the Methamphetamine Control and Community Protection Act, or
is the proceeds of such an exchange, and therefore forfeitable
under this Act:
(2) All property acquired or caused to be acquired by a
person either between the dates of occurrence of two or more
acts in felony violation of the Illinois Controlled Substances
Act, the Cannabis Control Act, or the Methamphetamine Control
and Community Protection Act, or an act committed in another
state, territory or country which would be punishable as a
felony under the Illinois Controlled Substances Act, the
Cannabis Control Act, or the Methamphetamine Control and
Community Protection Act, committed by that person within 5
years of each other, or all property acquired by such person
within a reasonable amount of time after the commission of such
acts if:
(a) At least one of the above acts was committed after
the effective date of this Act; and
(b) Both At least one of the acts are or were is or was
punishable as a Class X, Class 1, or Class 2 felony; and
(c) There was no likely source for such property other
than a violation of the above Acts.
(3) Presumptions and permissive inferences set forth in
this Section shall apply to all portions of all phases of the
judicial in rem forfeiture proceedings under this Act.
(Source: P.A. 94-556, eff. 9-11-05.)
(725 ILCS 150/8) (from Ch. 56 1/2, par. 1678)
Sec. 8. Exemptions from forfeiture.
(a) No vessel or watercraft, vehicle, or aircraft used by
any person as a common carrier in the transaction of business
as a common carrier may be forfeited under this Act unless the
State proves by a preponderance of the evidence that:
(1) in the case of a railway car or engine, the owner,
or
(2) in the case of any other such vessel or watercraft,
vehicle or aircraft, the owner or the master of such vessel
or watercraft or the owner or conductor, driver, pilot, or
other person in charge of that vehicle or aircraft was at
the time of the alleged illegal act a consenting party or
privy to that knowledge.
(b) No vessel or watercraft, vehicle, or aircraft shall be
forfeited under this Act by reason of any act or omission
committed or omitted by any person other than such owner while
a vessel or watercraft, vehicle, or aircraft was unlawfully in
the possession of a person who acquired possession in violation
of the criminal laws of the United States, or of any state. A
property interest is exempt from forfeiture under this Section
if its owner or interest holder establishes by a preponderance
of evidence that the owner or interest holder:
(A) (blank); and (i) in the case of personal property, is
not legally accountable for the conduct giving rise to the
forfeiture, did not acquiesce in it, and did not know and could
not reasonably have known of the conduct or that the conduct
was likely to occur, or
(ii) in the case of real property, is not legally
accountable for the conduct giving rise to the forfeiture, or
did not solicit, conspire, or attempt to commit the conduct
giving rise to the forfeiture; and
(B) (blank); and had not acquired and did not stand to
acquire substantial proceeds from the conduct giving rise to
its forfeiture other than as an interest holder in an arms
length commercial transaction; and
(C) (blank); and with respect to conveyances, did not hold
the property jointly or in common with a person whose conduct
gave rise to the forfeiture; and
(D) (blank); and does not hold the property for the benefit
of or as nominee for any person whose conduct gave rise to its
forfeiture, and, if the owner or interest holder acquired the
interest through any such person, the owner or interest holder
acquired it as a bona fide purchaser for value without
knowingly taking part in the conduct giving rise to the
forfeiture; and
(E) (blank); and that the owner or interest holder acquired
the interest:
(i) before the commencement of the conduct giving rise to
its forfeiture and the person whose conduct gave rise to its
forfeiture did not have the authority to convey the interest to
a bona fide purchaser for value at the time of the conduct; or
(ii) after the commencement of the conduct giving rise to
its forfeiture, and the owner or interest holder acquired the
interest as a mortgagee, secured creditor, lienholder, or bona
fide purchaser for value without knowledge of the conduct which
gave rise to the forfeiture; and
(a) in the case of personal property, without knowledge of
the seizure of the property for forfeiture; or
(b) in the case of real estate, before the filing in the
office of the Recorder of Deeds of the county in which the real
estate is located of a notice of seizure for forfeiture or a
lis pendens notice.
(Source: P.A. 86-1382.)
(725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)
Sec. 9. Judicial in rem procedures. If property seized
under the provisions of the Illinois Controlled Substances Act,
the Cannabis Control Act, or the Methamphetamine Control and
Community Protection Act is non-real property that exceeds
$150,000 $20,000 in value excluding the value of any
conveyance, or is real property, or a claimant has filed a
claim and a cost bond under subsection (C) of Section 6 of this
Act, the following judicial in rem procedures shall apply:
(A) If, after a review of the facts surrounding the
seizure, the State's Attorney is of the opinion that the seized
property is subject to forfeiture, then within 45 days of the
receipt of notice of seizure by the seizing agency or the
filing of the claim and cost bond, whichever is later, the
State's Attorney shall institute judicial forfeiture
proceedings by filing a verified complaint for forfeiture in
the circuit court within whose jurisdiction the seizure
occurred, or within whose jurisdiction an act or omission
giving rise to the seizure occurred, subject to Supreme Court
Rule 187 and, if the claimant has filed a claim and cost bond,
by depositing the cost bond with the clerk of the court. The
complaint of forfeiture shall be filed as soon as practicable,
but not later than 28 days after the filing of a verified claim
by a claimant if the property was acted upon under a
non-judicial forfeiture action, or 28 days after the State's
Attorney receives notice from the seizing agency as provided
under Section 5 of this Act, whichever occurs later. When
authorized by law, a forfeiture must be ordered by a court on
an action in rem brought by a State's Attorney under a verified
complaint for forfeiture.
(A-5) If the State's Attorney finds that the alleged
violation of law giving rise to the seizure was incurred
without willful negligence or without any intention on the part
of the owner of the property to violate the law or finds the
existence of those mitigating circumstances to justify
remission of the forfeiture, may cause the law enforcement
agency having custody of the property to return the property to
the owner within a reasonable time not to exceed 7 days. The
State's Attorney shall exercise his or her discretion prior to
or promptly after the preliminary review under Section 3.5 of
this Act. Judicial in rem forfeiture proceedings under this Act
shall be subject to the Code of Civil Procedure and the rules
of evidence relating to civil actions.
(A-10) A complaint of forfeiture shall include:
(1) a description of the property seized;
(2) the date and place of seizure of the property;
(3) the name and address of the law enforcement agency
making the seizure; and
(4) the specific statutory and factual grounds for the
seizure.
The complaint shall be served upon the person from whom the
property was seized and all persons known or reasonably
believed by the State to claim an interest in the property, as
provided in Section 4 of this Act. The complaint shall be
accompanied by the following written notice:
"This is a civil court proceeding subject to the Code of
Civil Procedure. You received this Complaint of Forfeiture
because the State's Attorney's office has brought a legal
action seeking forfeiture of your seized property. This
complaint starts the court process where the state seeks to
prove that your property should be forfeited and not
returned to you. This process is also your opportunity to
try to prove to a judge that you should get your property
back. The complaint lists the date, time, and location of
your first court date. You must appear in court on that
day, or you may lose the case automatically. You must also
file an appearance and answer. If you are unable to pay the
appearance fee, you may qualify to have the fee waived. If
there is a criminal case related to the seizure of your
property, your case may be set for trial after the criminal
case has been resolved. Before trial, the judge may allow
discovery, where the State can ask you to respond in
writing to questions and give them certain documents, and
you can make similar requests of the State. The trial is
your opportunity to explain what happened when your
property was seized and why you should get the property
back."
(B) During the probable cause portion of the judicial in
rem proceeding wherein the State presents its case-in-chief,
the court must receive and consider, among other things, all
relevant hearsay evidence and information. The laws of evidence
relating to civil actions shall apply to all other proceedings
under this Act except that the parties shall be allowed to use,
and the court must receive and consider, all relevant hearsay
evidence which relates to evidentiary foundation, chain of
custody, business records, recordings, laboratory analysis,
laboratory reports, and the use of technology in the
investigation that resulted in the seizure of the property
which is subject to this forfeiture action portions of the
judicial in rem proceeding.
(C) Only an owner of or interest holder in the property may
file an answer asserting a claim against the property in the
action in rem. For purposes of this Section, the owner or
interest holder shall be referred to as claimant. A person not
named in the forfeiture complaint who claims to have an
interest in the property may petition to intervene as a
claimant under Section 2-408 of the Code of Civil Procedure.
(D) The answer must be signed by the owner or interest
holder under penalty of perjury and must set forth:
(i) the caption of the proceedings as set forth on the
notice of pending forfeiture and the name of the claimant;
(ii) the address at which the claimant will accept
mail;
(iii) the nature and extent of the claimant's interest
in the property;
(iv) the date, identity of transferor, and
circumstances of the claimant's acquisition of the
interest in the property;
(v) the name and address of all other persons known to
have an interest in the property;
(vi) the specific provisions of Section 8 of this Act
relied on in asserting it is exempt from not subject to
forfeiture, if applicable;
(vii) all essential facts supporting each assertion;
and
(viii) the precise relief sought; and .
(ix) in a forfeiture action involving currency or its
equivalent, a claimant shall provide the State with notice
of their intent to allege that the currency or its
equivalent is not related to the alleged factual basis for
the forfeiture, and why.
(E) The answer must be filed with the court within 45 days
after service of the civil in rem complaint.
(F) The trial shall hearing must be held within 60 days
after filing of the answer unless continued for good cause.
(G) The State, in its case in chief shall show the
existence of probable cause for forfeiture of the property. If
the State shows probable cause, the claimant has the burden of
showing by a preponderance of the evidence the property is
subject to forfeiture; and at least one of the following: that
the claimant's interest in the property is not subject to
forfeiture.
(i) In the case of personal property, including
conveyances:
(a) that the claimant was legally accountable for
the conduct giving rise to the forfeiture;
(b) that the claimant knew or reasonably should
have known of the conduct giving rise to the
forfeiture;
(c) that the claimant knew or reasonably should
have known that the conduct giving rise to the
forfeiture was likely to occur;
(d) that the claimant held the property for the
benefit of, or as nominee for, any person whose conduct
gave rise to its forfeiture;
(e) that if the claimant acquired their interest
through any person engaging in any of the conduct
described above or conduct giving rise to the
forfeiture:
(1) the claimant did not acquire it as a bona
fide purchaser for value, or
(2) the claimant acquired the interest under
such circumstances that they reasonably should
have known the property was derived from, or used
in, the conduct giving rise to the forfeiture; or
(f) that the claimant is not the true owner of the
property;
(g) that the claimant acquired the interest:
(1) before the commencement of the conduct
giving rise to the forfeiture and the person whose
conduct gave rise to the forfeiture did not have
authority to convey the interest to a bona fide
purchaser for value at the time of the conduct; or
(2) after the commencement of the conduct
giving rise to the forfeiture and the owner or
interest holder acquired the interest as a
mortgagee, secured creditor, lienholder, or bona
fide purchaser for value without knowledge of the
conduct which gave rise to the forfeiture, and
without the knowledge of the seizure of the
property for forfeiture.
(ii) In the case of real property:
(a) that the claimant was legally accountable for
the conduct giving rise to the forfeiture;
(b) that the claimant solicited, conspired, or
attempted to commit the conduct giving rise to the
forfeiture; or
(c) that the claimant had acquired or stood to
acquire substantial proceeds from the conduct giving
rise to its forfeiture other than as an interest holder
in an arm's length transaction;
(d) that the claimant is not the true owner of the
property;
(e) that the claimant acquired the interest:
(1) before the commencement of the conduct
giving rise to the forfeiture and the person whose
conduct gave rise to the forfeiture did not have
authority to convey the interest to a bona fide
purchaser for value at the time of the conduct; or
(2) after the commencement of the conduct
giving rise to the forfeiture and the owner or
interest holder acquired the interest as a
mortgagee, secured creditor, lienholder, or bona
fide purchaser for value without knowledge of the
conduct which gave rise to the forfeiture, and
before the filing in the office of the recorder of
deeds of the county in which the real estate is
located a notice of seizure for forfeiture or a lis
pendens notice.
(G-5) If the property that is the subject of the forfeiture
proceeding is currency or its equivalent, the State, in its
case in chief, shall show by a preponderance of the evidence
that the property is subject to forfeiture. If the State makes
that showing, the claimant shall have the burden of production
to set forth evidence that the currency or its equivalent is
not related to the alleged factual basis of the forfeiture.
After the production of evidence, the State shall maintain the
burden of proof to overcome this assertion.
(G-10) Notwithstanding any other provision of this
Section, the State's burden of proof at the trial of the
forfeiture action shall be by clear and convincing evidence if:
(1) a finding of not guilty is entered as to all counts
and all defendants in a criminal proceeding relating to the
conduct giving rise to the forfeiture action; or
(2) the State receives an adverse finding at a
preliminary hearing and fails to secure an indictment in a
criminal proceeding related to the factual allegations of
the forfeiture action.
(H) If the State does not meet its burden of proof show
existence of probable cause or a claimant has established by a
preponderance of evidence that the claimant has an interest
that is exempt under Section 8 of this Act, the court shall
order the interest in the property returned or conveyed to the
claimant and shall order all other property as to which the
State does meet its burden of proof forfeited to the State. If
the State does meet its burden of proof show existence of
probable cause and the claimant does not establish by a
preponderance of evidence that the claimant has an interest
that is exempt under Section 8 of this Act, the court shall
order all property forfeited to the State.
(I) A defendant convicted in any criminal proceeding is
precluded from later denying the essential allegations of the
criminal offense of which the defendant was convicted in any
proceeding under this Act regardless of the pendency of an
appeal from that conviction. However, evidence of the pendency
of an appeal is admissible.
(J) An acquittal or dismissal in a criminal proceeding
shall not preclude civil proceedings under this Act; however,
for good cause shown, on a motion by the State's Attorney, the
court may stay civil forfeiture proceedings during the criminal
trial for a related criminal indictment or information alleging
a violation of the Illinois Controlled Substances Act, the
Cannabis Control Act, or the Methamphetamine Control and
Community Protection Act. Such a stay shall not be available
pending an appeal. Property subject to forfeiture under the
Illinois Controlled Substances Act, the Cannabis Control Act,
or the Methamphetamine Control and Community Protection Act
shall not be subject to return or release by a court exercising
jurisdiction over a criminal case involving the seizure of such
property unless such return or release is consented to by the
State's Attorney.
(K) Title to all All property declared forfeited under this
Act vests in this State on the commission of the conduct giving
rise to forfeiture together with the proceeds of the property
after that time. Except as otherwise provided in this Act, any
Any such property or proceeds subsequently transferred to any
person remain subject to forfeiture unless a person to whom the
property was transferred makes an appropriate claim under this
Act and has their claim adjudicated in the judicial in rem
proceeding and thereafter shall be ordered forfeited unless the
transferee claims and establishes in a hearing under the
provisions of this Act that the transferee's interest is exempt
under Section 8 of this Act.
(L) A civil action under this Act must be commenced within
5 years after the last conduct giving rise to forfeiture became
known or should have become known or 5 years after the
forfeitable property is discovered, whichever is later,
excluding any time during which either the property or claimant
is out of the State or in confinement or during which criminal
proceedings relating to the same conduct are in progress.
(M) No property shall be forfeited under this Act from a
person who, without actual or constructive notice that the
property was the subject of forfeiture proceedings, obtained
possession of the property as a bona fide purchaser for value.
A person who purports to transfer property after receiving
actual or constructive notice that the property is subject to
seizure or forfeiture is guilty of contempt of court and shall
be liable to the State for a penalty in the amount of the fair
market value of the property.
(N) If property is ordered forfeited under this Act from a
claimant who held title to the property in joint tenancy or
tenancy in common with another claimant, the court shall
determine the amount of each owner's interest in the property
according to principles of property law.
(Source: P.A. 94-556, eff. 9-11-05.)
(725 ILCS 150/9.1 new)
Sec. 9.1. Innocent owner hearing.
(a) After a complaint for forfeiture is filed and all
claimants have appeared and answered, a claimant may file a
motion with the court for an innocent owner hearing prior to
trial. This motion shall be made and supported by sworn
affidavit and shall assert the following along with specific
facts which support each assertion:
(1) that the claimant filing the motion is the true
owner of the conveyance as interpreted by case law;
(2) that the claimant was not legally accountable for
the conduct giving rise to the forfeiture or acquiesced in
the conduct;
(3) that the claimant did not solicit, conspire, or
attempt to commit the conduct giving rise to the
forfeiture;
(4) that the claimant did not know or did they have
reason to know that the conduct giving rise to the
forfeiture was likely to occur; and
(5) that the claimant did not hold the property for the
benefit of, or as nominee for any person whose conduct gave
rise to its forfeiture, or if the owner or interest holder
acquired the interest through any such person, the owner or
interest holder did not acquire it as a bona fide purchaser
for value, or acquired the interest without knowledge of
the seizure of the property for forfeiture.
(b) The claimant's motion shall include specific facts
supporting these assertions.
(c) Upon this filing, a hearing may only be held after the
parties have been given the opportunity to conduct limited
discovery as to the ownership and control of the property, the
claimant's knowledge, or any matter relevant to the issues
raised or facts alleged in the claimant's motion. Discovery
shall be limited to the People's requests in these areas but
may proceed by any means allowed in the Code of Civil
Procedure.
(d) After discovery is complete and the court has allowed
for sufficient time to review and investigate the discovery
responses, the court shall conduct a hearing. At the hearing,
the fact that the property is subject to forfeiture shall not
be at issue. The court shall only hear evidence relating to the
issue of innocent ownership.
(e) At the hearing on the motion, the claimant shall bear
the burden of proving by a preponderance of the evidence each
of the assertions set forth in subsection (a) of this Section.
(f) If a claimant meets their burden of proof, the court
shall grant the motion and order the property returned to the
claimant. If the claimant fails to meet their burden of proof,
then the court shall deny the motion and the forfeiture case
shall proceed according to the Rules of Civil Procedure.
(725 ILCS 150/9.5 new)
Sec. 9.5. Proportionality. Property forfeited under this
Act shall be subject to an 8th Amendment to the United States
Constitution disproportionate penalties analysis and the
property forfeiture may be denied in whole or in part if the
court finds that the forfeiture would constitute an excessive
fine in violation of the 8th Amendment to the United States
Constitution, as interpreted by case law.
(725 ILCS 150/11) (from Ch. 56 1/2, par. 1681)
Sec. 11. Settlement of Claims. Notwithstanding other
provisions of this Act, the State's Attorney and a claimant of
seized property may enter into an agreed-upon settlement
concerning the seized property in such an amount and upon such
terms as are set out in writing in a settlement agreement. All
proceeds from a settlement agreement shall be tendered to the
Department of State Police and distributed in accordance with
the provisions of Section 17 of this Act.
(Source: P.A. 86-1382.)
(725 ILCS 150/14) (from Ch. 56 1/2, par. 1684)
Sec. 14. Judicial Review. If property has been declared
forfeited under Section 6 of this Act, any person who has an
interest in the property declared forfeited may, within 30 days
of the effective date of the notice of the declaration of
forfeiture, file a claim and cost bond as described in
subsection (C) of Section 6 of this Act. If a claim and cost
bond is filed under this Section, then the procedures described
in Section 9 of this Act shall apply.
(Source: P.A. 87-614.)
(725 ILCS 150/15 new)
Sec. 15. Return of property, damages, and costs.
(a) The law enforcement agency that holds custody of
property seized for forfeiture shall deliver property ordered
by the court to be returned or conveyed to the claimant within
a reasonable time not to exceed 7 days, unless the order is
stayed by the trial court or a reviewing court pending an
appeal, motion to reconsider, or other reason.
(b) The law enforcement agency that holds custody of
property described in subsection (a) of this Section is
responsible for any damages, storage fees, and related costs
applicable to property returned. The claimant shall not be
subject to any charges by the State for storage of the property
or expenses incurred in the preservation of the property.
Charges for the towing of a conveyance shall be borne by the
claimant unless the conveyance was towed for the sole reason of
seizure for forfeiture. This Section does not prohibit the
imposition of any fees or costs by a home rule unit of local
government related to the impoundment of a conveyance pursuant
to an ordinance enacted by the unit of government.
(c) A law enforcement agency shall not retain forfeited
property for its own use or transfer the property to any person
or entity, except as provided under this Section. A law
enforcement agency may apply in writing to the Director of
State Police to request that a forfeited property be awarded to
the agency for a specifically articulated official law
enforcement use in an investigation. The Director of State
Police shall provide a written justification in each instance
detailing the reasons why the forfeited property was placed
into official use and the justification shall be retained for a
period of not less than 3 years.
(725 ILCS 150/17 new)
Sec. 17. Distribution of proceeds; selling or retaining
seized property prohibited.
(a) Except as otherwise provided in this Section, the court
shall order that property forfeited under this Act be delivered
to the Department of State Police within 60 days.
(b) All monies and the sale proceeds of all other property
forfeited and seized under this Act shall be distributed as
follows:
(1)(i) 65% shall be distributed to the metropolitan
enforcement group, local, municipal, county, or state law
enforcement agency or agencies which conducted or participated
in the investigation resulting in the forfeiture. The
distribution shall bear a reasonable relationship to the degree
of direct participation of the law enforcement agency in the
effort resulting in the forfeiture, taking into account the
total value of the property forfeited and the total law
enforcement effort with respect to the violation of the law
upon which the forfeiture is based. Amounts distributed to the
agency or agencies shall be used for the enforcement of laws
governing cannabis and controlled substances; for public
education in the community or schools in the prevention or
detection of the abuse of drugs or alcohol; or for security
cameras used for the prevention or detection of violence,
except that amounts distributed to the Secretary of State shall
be deposited into the Secretary of State Evidence Fund to be
used as provided in Section 2-115 of the Illinois Vehicle Code.
(ii) Any local, municipal, or county law enforcement agency
entitled to receive a monetary distribution of forfeiture
proceeds may share those forfeiture proceeds pursuant to the
terms of an intergovernmental agreement with a municipality
that has a population in excess of 20,000 if:
(A) the receiving agency has entered into an
intergovernmental agreement with the municipality to
provide police services;
(B) the intergovernmental agreement for police
services provides for consideration in an amount of not
less than $1,000,000 per year;
(C) the seizure took place within the geographical
limits of the municipality; and
(D) the funds are used only for the enforcement of laws
governing cannabis and controlled substances; for public
education in the community or schools in the prevention or
detection of the abuse of drugs or alcohol; or for security
cameras used for the prevention or detection of violence or
the establishment of a municipal police force, including
the training of officers, construction of a police station,
or the purchase of law enforcement equipment or vehicles.
(2)(i) 12.5% shall be distributed to the Office of the
State's Attorney of the county in which the prosecution
resulting in the forfeiture was instituted, deposited in a
special fund in the county treasury and appropriated to the
State's Attorney for use in the enforcement of laws governing
cannabis and controlled substances; for public education in the
community or schools in the prevention or detection of the
abuse of drugs or alcohol; or at the discretion of the State's
Attorney, in addition to other authorized purposes, to make
grants to local substance abuse treatment facilities and
half-way houses. In counties over 3,000,000 population, 25%
shall be distributed to the Office of the State's Attorney for
use in the enforcement of laws governing cannabis and
controlled substances; for public education in the community or
schools in the prevention or detection of the abuse of drugs or
alcohol; or at the discretion of the State's Attorney, in
addition to other authorized purposes, to make grants to local
substance abuse treatment facilities and half-way houses. If
the prosecution is undertaken solely by the Attorney General,
the portion provided shall be distributed to the Attorney
General for use in the enforcement of laws governing cannabis
and controlled substances or for public education in the
community or schools in the prevention or detection of the
abuse of drugs or alcohol.
(ii) 12.5% shall be distributed to the Office of the
State's Attorneys Appellate Prosecutor and deposited in the
Narcotics Profit Forfeiture Fund of that office to be used for
additional expenses incurred in the investigation, prosecution
and appeal of cases arising under laws governing cannabis and
controlled substances or for public education in the community
or schools in the prevention or detection of the abuse of drugs
or alcohol. The Office of the State's Attorneys Appellate
Prosecutor shall not receive distribution from cases brought in
counties with over 3,000,000 population.
(3) 10% shall be retained by the Department of State Police
for expenses related to the administration and sale of seized
and forfeited property.
(725 ILCS 150/20 new)
Sec. 20. Reporting. Property seized or forfeited under this
Act is subject to reporting under the Seizure and Forfeiture
Reporting Act.
Section 175. The Narcotics Profit Forfeiture Act is amended
by adding Section 6.5 as follows:
(725 ILCS 175/6.5 new)
Sec. 6.5. Reporting. Property seized or forfeited under
this Act is subject to reporting under the Seizure and
Forfeiture Reporting Act.
Section 180. The Illinois Streetgang Terrorism Omnibus
Prevention Act is amended by changing Section 40 as follows:
(740 ILCS 147/40)
Sec. 40. Forfeiture Contraband.
(a) The following are subject to seizure and forfeiture
declared to be contraband and no person shall have a property
interest in them:
(1) any property that is directly or indirectly used or
intended for use in any manner to facilitate streetgang
related activity; and
(2) any property constituting or derived from gross
profits or other proceeds obtained from streetgang related
activity.
(b) Property subject to forfeiture under this Section may
be seized under the procedures set forth under Section 36-2.1
of the Criminal Code of 2012, except that actual physical
seizure of real property subject to forfeiture under this Act
requires the issuance of a seizure warrant. Nothing in this
Section prohibits the constructive seizure of real property
through the filing of a complaint for forfeiture in circuit
court and the recording of a lis pendens against the real
property without a hearing, warrant application, or judicial
approval.
(c) The State's Attorney may initiate forfeiture
proceedings under the procedures in Article 36 of the Criminal
Code of 2012. The State shall bear the burden of proving by a
preponderance of the evidence that the property was acquired
through a pattern of streetgang related activity.
(d) Property forfeited under this Section shall be disposed
of in accordance with Section 36-7 of Article 36 of the
Criminal Code of 2012 for the forfeiture of vehicles, vessels,
and aircraft.
(e) Within 60 days of the date of the seizure of contraband
under this Section, the State's Attorney shall initiate
forfeiture proceedings as provided in Article 36 of the
Criminal Code of 2012. An owner or person who has a lien on the
property may establish as a defense to the forfeiture of
property that is subject to forfeiture under this Section that
the owner or lienholder had no knowledge that the property was
acquired through a pattern of streetgang related activity.
Property that is forfeited under this Section shall be disposed
of as provided in Article 36 of the Criminal Code of 2012 for
the forfeiture of vehicles, vessels, and aircraft. The proceeds
of the disposition shall be paid to the Gang Violence Victims
and Witnesses Fund to be used to assist in the prosecution of
gang crimes.
(f) Property seized or forfeited under this Section is
subject to reporting under the Seizure and Forfeiture Reporting
Act.
(Source: P.A. 97-1150, eff. 1-25-13.)
Section 185. The Illinois Securities Law of 1953 is amended
by changing Section 11 as follows:
(815 ILCS 5/11) (from Ch. 121 1/2, par. 137.11)
Sec. 11. Duties and powers of the Secretary of State.
A. (1) The administration of this Act is vested in the
Secretary of State, who may from time to time make, amend and
rescind such rules and regulations as may be necessary to carry
out this Act, including rules and regulations governing
procedures of registration, statements, applications and
reports for various classes of securities, persons and matters
within his or her jurisdiction and defining any terms, whether
or not used in this Act, insofar as the definitions are not
inconsistent with this Act. The rules and regulations adopted
by the Secretary of State under this Act shall be effective in
the manner provided for in the Illinois Administrative
Procedure Act.
(2) Among other things, the Secretary of State shall have
authority, for the purposes of this Act, to prescribe the form
or forms in which required information shall be set forth,
accounting practices, the items or details to be shown in
balance sheets and earning statements, and the methods to be
followed in the preparation of accounts, in the appraisal or
valuation of assets and liabilities, in the determination of
depreciation and depletion, in the differentiation of
recurring and non-recurring income, in the differentiation of
investment and operating income, and in the preparation of
consolidated balance sheets or income accounts of any person,
directly or indirectly, controlling or controlled by the
issuer, or any person under direct or indirect common control
with the issuer.
(3) No provision of this Act imposing any liability shall
apply to any act done or omitted in good faith in conformity
with any rule or regulation of the Secretary of State under
this Act, notwithstanding that the rule or regulation may,
after the act or omission, be amended or rescinded or be
determined by judicial or other authority to be invalid for any
reason.
(4) The Securities Department of the Office of the
Secretary of State shall be deemed a criminal justice agency
for purposes of all federal and state laws and regulations and,
in that capacity, shall be entitled to access to any
information available to criminal justice agencies and has the
power to appoint special agents to conduct all investigations,
searches, seizures, arrests, and other duties imposed under the
provisions of any law administered by the Department. The
special agents have and may exercise all the powers of peace
officers solely for the purpose of enforcing provisions of this
Act.
The Director must authorize to each special agent employed
under this Section a distinct badge that, on its face, (i)
clearly states that the badge is authorized by the Department
and (ii) contains a unique and identifying number.
Special agents shall comply with all training requirements
established for law enforcement officers by provisions of the
Illinois Police Training Act.
(5) The Secretary of State, by rule, may conditionally or
unconditionally exempt any person, security, or transaction,
or any class or classes of persons, securities, or transactions
from any provision of Section 5, 6, 7, 8, 8a, or 9 of this Act
or of any rule promulgated under these Sections, to the extent
that such exemption is necessary or appropriate in the public
interest, and is consistent with the protection of investors.
B. The Secretary of State may, anything in this Act to the
contrary notwithstanding, require financial statements and
reports of the issuer, dealer, Internet portal, salesperson,
investment adviser, or investment adviser representative as
often as circumstances may warrant. In addition, the Secretary
of State may secure information or books and records from or
through others and may make or cause to be made investigations
respecting the business, affairs, and property of the issuer of
securities, any person involved in the sale or offer for sale,
purchase or offer to purchase of any mineral investment
contract, mineral deferred delivery contract, or security and
of dealers, Internet portals, salespersons, investment
advisers, and investment adviser representatives that are
registered or are the subject of an application for
registration under this Act. The costs of an investigation
shall be borne by the registrant or the applicant, provided
that the registrant or applicant shall not be obligated to pay
the costs without his, her or its consent in advance.
C. Whenever it shall appear to the Secretary of State,
either upon complaint or otherwise, that this Act, or any rule
or regulation prescribed under authority thereof, has been or
is about to be violated, he or she may, in his or her
discretion, do one or more of the following:
(1) require or permit the person to file with the
Secretary of State a statement in writing under oath, or
otherwise, as to all the facts and circumstances concerning
the subject matter which the Secretary of State believes to
be in the public interest to investigate, audit, examine,
or inspect;
(2) conduct an investigation, audit, examination, or
inspection as necessary or advisable for the protection of
the interests of the public; and
(3) appoint investigators to conduct all
investigations, searches, seizures, arrests, and other
duties imposed under the provisions of any law administered
by the Department. The Director must authorize to each
investigator employed under this Section a distinct badge
that, on its face, (i) clearly states that the badge is
authorized by the Department and (ii) contains a unique and
identifying number.
D. (1) For the purpose of all investigations, audits,
examinations, or inspections which in the opinion of the
Secretary of State are necessary and proper for the enforcement
of this Act, the Secretary of State or a person designated by
him or her is empowered to administer oaths and affirmations,
subpoena witnesses, take evidence, and require, by subpoena or
other lawful means provided by this Act or the rules adopted by
the Secretary of State, the production of any books and
records, papers, or other documents which the Secretary of
State or a person designated by him or her deems relevant or
material to the inquiry.
(2) The Secretary of State or a person designated by him or
her is further empowered to administer oaths and affirmations,
subpoena witnesses, take evidence, and require the production
of any books and records, papers, or other documents in this
State at the request of a securities agency of another state,
if the activities constituting the alleged violation for which
the information is sought would be in violation of Section 12
of this Act if the activities had occurred in this State.
(3) The Circuit Court of any County of this State, upon
application of the Secretary of State or a person designated by
him or her may order the attendance of witnesses, the
production of books and records, papers, accounts and documents
and the giving of testimony before the Secretary of State or a
person designated by him or her; and any failure to obey the
order may be punished by the Circuit Court as a contempt
thereof.
(4) The fees of subpoenaed witnesses under this Act for
attendance and travel shall be the same as fees of witnesses
before the Circuit Courts of this State, to be paid when the
witness is excused from further attendance, provided, the
witness is subpoenaed at the instance of the Secretary of
State; and payment of the fees shall be made and audited in the
same manner as other expenses of the Secretary of State.
(5) Whenever a subpoena is issued at the request of a
complainant or respondent as the case may be, the Secretary of
State may require that the cost of service and the fee of the
witness shall be borne by the party at whose instance the
witness is summoned.
(6) The Secretary of State shall have power at his or her
discretion, to require a deposit to cover the cost of the
service and witness fees and the payment of the legal witness
fee and mileage to the witness served with subpoena.
(7) A subpoena issued under this Act shall be served in the
same manner as a subpoena issued out of a circuit court.
(8) The Secretary of State may in any investigation,
audits, examinations, or inspections cause the taking of
depositions of persons residing within or without this State in
the manner provided in civil actions under the laws of this
State.
E. Anything in this Act to the contrary notwithstanding:
(1) If the Secretary of State shall find that the offer
or sale or proposed offer or sale or method of offer or
sale of any securities by any person, whether exempt or
not, in this State, is fraudulent, or would work or tend to
work a fraud or deceit, or is being offered or sold in
violation of Section 12, or there has been a failure or
refusal to submit any notification filing or fee required
under this Act, the Secretary of State may by written order
prohibit or suspend the offer or sale of securities by that
person or deny or revoke the registration of the securities
or the exemption from registration for the securities.
(2) If the Secretary of State shall find that any
person has violated subsection C, D, E, F, G, H, I, J, or K
of Section 12 of this Act, the Secretary of State may by
written order temporarily or permanently prohibit or
suspend the person from offering or selling any securities,
any mineral investment contract, or any mineral deferred
delivery contract in this State, provided that any person
who is the subject of an order of permanent prohibition may
petition the Secretary of State for a hearing to present
evidence of rehabilitation or change in circumstances
justifying the amendment or termination of the order of
permanent prohibition.
(3) If the Secretary of State shall find that any
person is engaging or has engaged in the business of
selling or offering for sale securities as a dealer,
Internet portal, or salesperson or is acting or has acted
as an investment adviser, investment adviser
representative, or federal covered investment adviser,
without prior thereto and at the time thereof having
complied with the registration or notice filing
requirements of this Act, the Secretary of State may by
written order prohibit or suspend the person from engaging
in the business of selling or offering for sale securities,
or acting as an investment adviser, investment adviser
representative, or federal covered investment adviser, in
this State.
(4) In addition to any other sanction or remedy
contained in this subsection E, the Secretary of State,
after finding that any provision of this Act has been
violated, may impose a fine as provided by rule, regulation
or order not to exceed $10,000 for each violation of this
Act, may issue an order of public censure against the
violator, and may charge as costs of investigation all
reasonable expenses, including attorney's fees and witness
fees.
F. (1) The Secretary of State shall not deny, suspend or
revoke the registration of securities, suspend or revoke the
registration of a dealer, Internet portal, salesperson,
investment adviser, or investment adviser representative,
prohibit or suspend the offer or sale of any securities,
prohibit or suspend any person from offering or selling any
securities in this State, prohibit or suspend a dealer or
salesperson from engaging in the business of selling or
offering for sale securities, prohibit or suspend a person from
acting as an investment adviser or federal covered investment
adviser, or investment adviser representative, impose any fine
for violation of this Act, issue an order of public censure, or
enter into an agreed settlement except after an opportunity for
hearing upon not less than 10 days notice given by personal
service or registered mail or certified mail, return receipt
requested, to the person or persons concerned. Such notice
shall state the date and time and place of the hearing and
shall contain a brief statement of the proposed action of the
Secretary of State and the grounds for the proposed action. A
failure to appear at the hearing or otherwise respond to the
allegations set forth in the notice of hearing shall constitute
an admission of any facts alleged therein and shall constitute
sufficient basis to enter an order.
(2) Anything herein contained to the contrary
notwithstanding, the Secretary of State may temporarily
prohibit or suspend, for a maximum period of 90 days, by an
order effective immediately, the offer or sale or registration
of securities, the registration of a dealer, Internet portal,
salesperson, investment adviser, or investment adviser
representative, or the offer or sale of securities by any
person, or the business of rendering investment advice, without
the notice and prior hearing in this subsection prescribed, if
the Secretary of State shall in his or her opinion, based on
credible evidence, deem it necessary to prevent an imminent
violation of this Act or to prevent losses to investors which
the Secretary of State reasonably believes will occur as a
result of a prior violation of this Act. Immediately after
taking action without such notice and hearing, the Secretary of
State shall deliver a copy of the temporary order to the
respondent named therein by personal service or registered mail
or certified mail, return receipt requested. The temporary
order shall set forth the grounds for the action and shall
advise that the respondent may request a hearing, that the
request for a hearing will not stop the effectiveness of the
temporary order and that respondent's failure to request a
hearing within 30 days after the date of the entry of the
temporary order shall constitute an admission of any facts
alleged therein and shall constitute sufficient basis to make
the temporary order final. Any provision of this paragraph (2)
to the contrary notwithstanding, the Secretary of State may not
pursuant to the provisions of this paragraph (2) suspend the
registration of a dealer, limited Canadian dealer,
salesperson, investment adviser, or investment adviser
representative based upon sub-paragraph (n) of paragraph (l) of
subsection E of Section 8 of this Act or revoke the
registration of securities or revoke the registration of any
dealer, salesperson, investment adviser representative, or
investment adviser.
(3) The Secretary of State may issue a temporary order
suspending or delaying the effectiveness of any registration of
securities under subsection A or B of Section 5, 6 or 7 of this
Act subsequent to and upon the basis of the issuance of any
stop, suspension or similar order by the Securities and
Exchange Commission with respect to the securities which are
the subject of the registration under subsection A or B of
Section 5, 6 or 7 of this Act, and the order shall become
effective as of the date and time of effectiveness of the
Securities and Exchange Commission order and shall be vacated
automatically at such time as the order of the Securities and
Exchange Commission is no longer in effect.
(4) When the Secretary of State finds that an application
for registration as a dealer, Internet portal, salesperson,
investment adviser, or investment adviser representative
should be denied, the Secretary of State may enter an order
denying the registration. Immediately after taking such
action, the Secretary of State shall deliver a copy of the
order to the respondent named therein by personal service or
registered mail or certified mail, return receipt requested.
The order shall state the grounds for the action and that the
matter will be set for hearing upon written request filed with
the Secretary of State within 30 days after the receipt of the
request by the respondent. The respondent's failure to request
a hearing within 30 days after receipt of the order shall
constitute an admission of any facts alleged therein and shall
make the order final. If a hearing is held, the Secretary of
State shall affirm, vacate, or modify the order.
(5) The findings and decision of the Secretary of State
upon the conclusion of each final hearing held pursuant to this
subsection shall be set forth in a written order signed on
behalf of the Secretary of State by his or her designee and
shall be filed as a public record. All hearings shall be held
before a person designated by the Secretary of State, and
appropriate records thereof shall be kept.
(6) Notwithstanding the foregoing, the Secretary of State,
after notice and opportunity for hearing, may at his or her
discretion enter into an agreed settlement, stipulation or
consent order with a respondent in accordance with the
provisions of the Illinois Administrative Procedure Act. The
provisions of the agreed settlement, stipulation or consent
order shall have the full force and effect of an order issued
by the Secretary of State.
(7) Anything in this Act to the contrary notwithstanding,
whenever the Secretary of State finds that a person is
currently expelled from, refused membership in or association
with, or limited in any material capacity by a self-regulatory
organization registered under the Federal 1934 Act or the
Federal 1974 Act because of a fraudulent or deceptive act or a
practice in violation of a rule, regulation, or standard duly
promulgated by the self-regulatory organization, the Secretary
of State may, at his or her discretion, enter a Summary Order
of Prohibition, which shall prohibit the offer or sale of any
securities, mineral investment contract, or mineral deferred
delivery contract by the person in this State. The order shall
take effect immediately upon its entry. Immediately after
taking the action the Secretary of State shall deliver a copy
of the order to the named Respondent by personal service or
registered mail or certified mail, return receipt requested. A
person who is the subject of an Order of Prohibition may
petition the Secretary of State for a hearing to present
evidence of rehabilitation or change in circumstances
justifying the amendment or termination of the Order of
Prohibition.
G. No administrative action shall be brought by the
Secretary of State for relief under this Act or upon or because
of any of the matters for which relief is granted by this Act
after the earlier to occur of (i) 3 years from the date upon
which the Secretary of State had notice of facts which in the
exercise of reasonable diligence would lead to actual knowledge
of the alleged violation of the Act, or (ii) 5 years from the
date on which the alleged violation occurred.
H. The action of the Secretary of State in denying,
suspending, or revoking the registration of a dealer, Internet
portal, limited Canadian dealer, salesperson, investment
adviser, or investment adviser representative, in prohibiting
any person from engaging in the business of offering or selling
securities as a dealer, limited Canadian dealer, or
salesperson, in prohibiting or suspending the offer or sale of
securities by any person, in prohibiting a person from acting
as an investment adviser, federal covered investment adviser,
or investment adviser representative, in denying, suspending,
or revoking the registration of securities, in prohibiting or
suspending the offer or sale or proposed offer or sale of
securities, in imposing any fine for violation of this Act, or
in issuing any order shall be subject to judicial review in the
Circuit Courts of Cook or Sangamon Counties in this State. The
Administrative Review Law shall apply to and govern every
action for the judicial review of final actions or decisions of
the Secretary of State under this Act.
I. Notwithstanding any other provisions of this Act to the
contrary, whenever it shall appear to the Secretary of State
that any person is engaged or about to engage in any acts or
practices which constitute or will constitute a violation of
this Act or of any rule or regulation prescribed under
authority of this Act, the Secretary of State may at his or her
discretion, through the Attorney General take any of the
following actions:
(1) File a complaint and apply for a temporary
restraining order without notice, and upon a proper showing
the court may enter a temporary restraining order without
bond, to enforce this Act.
(2) File a complaint and apply for a preliminary or
permanent injunction, and, after notice and a hearing and
upon a proper showing, the court may grant a preliminary or
permanent injunction and may order the defendant to make an
offer of rescission with respect to any sales or purchases
of securities, mineral investment contracts, or mineral
deferred delivery contracts determined by the court to be
unlawful under this Act.
(3) Seek the seizure of assets when probable cause
exists that the assets were obtained by a defendant through
conduct in violation of Section 12, paragraph F, G, I, J,
K, or L of this Act, and thereby subject to a judicial
forfeiture hearing as required under this Act.
(a) In the event that such probable cause exists
that the subject of an investigation who is alleged to
have committed one of the relevant violations of this
Act has in his possession assets obtained as a result
of the conduct giving rise to the violation, the
Secretary of State may seek a seizure warrant in any
circuit court in Illinois.
(b) In seeking a seizure warrant, the Secretary of
State, or his or her designee, shall submit to the
court a sworn affidavit detailing the probable cause
evidence for the seizure, the location of the assets to
be seized, the relevant violation under Section 12 of
this Act, and a statement detailing any known owners or
interest holders in the assets.
(c) Seizure of the assets shall be made by any
peace officer upon process of the seizure warrant
issued by the court. Following the seizure of assets
under this Act and pursuant to a seizure warrant,
notice of seizure, including a description of the
seized assets, shall immediately be returned to the
issuing court. Seized assets shall be maintained
pending a judicial forfeiture hearing in accordance
with the instructions of the court.
(d) In the event that management of seized assets
becomes necessary to prevent the devaluation,
dissipation, or otherwise to preserve the property,
the court shall have jurisdiction to appoint a
receiver, conservator, ancillary receiver, or
ancillary conservator for that purpose, as provided in
item (2) of this subsection.
(4) Seek the forfeiture of assets obtained through
conduct in violation of Section 12, paragraph F, G, H, I,
J, K, or L when authorized by law. A forfeiture must be
ordered by a circuit court or an action brought by the
Secretary of State as provided for in this Act, under a
verified complaint for forfeiture.
(a) In the event assets have been seized pursuant
to this Act, forfeiture proceedings shall be
instituted by the Attorney General within 45 days of
seizure.
(b) Service of the complaint filed under the
provisions of this Act shall be made in the manner as
provided in civil actions in this State.
(c) Only an owner of or interest holder in the
property may file an answer asserting a claim against
the property. For purposes of this Section, the owner
or interest holder shall be referred to as claimant.
(d) The answer must be signed by the owner or
interest holder under penalty of perjury and must set
forth:
(i) the caption of the proceedings as set forth
on the notice of pending forfeiture and the name of
the claimant;
(ii) the address at which the claimant will
accept mail;
(iii) the nature and extent of the claimant's
interest in the property;
(iv) the date, identity of the transferor, and
circumstances of the claimant's acquisition of the
interest in the property;
(v) the name and address of all other persons
known to have an interest in the property;
(vi) the specific provisions of this Act
relied on in asserting that the property is not
subject to forfeiture;
(vii) all essential facts supporting each
assertion; and
(viii) the precise relief sought.
(e) The answer must be filed with the court within
45 days after service of the complaint.
(f) A property interest is exempt from forfeiture
under this Act if its owner or interest holder
establishes by a preponderance of evidence that the
owner or interest holder:
(i) is not legally accountable for the conduct
giving rise to the forfeiture, did not acquiesce in
it, and did not know and could not reasonably have
known of the conduct or that the conduct was likely
to occur;
(ii) with respect to conveyances, did not hold
the property jointly or in common with a person
whose conduct gave rise to the forfeiture;
(iii) does not hold the property for the
benefit of or as a nominee for any person whose
conduct gave rise to its forfeiture and the owner
or interest holder acquires it as a bona fide
purchaser for value without knowingly taking part
in the conduct giving rise to the forfeiture; or
(iv) acquired the interest after the
commencement of the conduct giving rise to its
forfeiture and the owner or interest holder
acquired the interest as a mortgagee, secured
creditor, lienholder, or bona fide purchaser for
value without knowledge of the conduct that gave
rise to the forfeiture.
(g) The hearing must be held within 60 days after
the answer is filed unless continued for good cause.
(h) During the probable cause portion of the
judicial in rem proceeding wherein the Secretary of
State presents its case-in-chief, the court must
receive and consider, among other things, any relevant
hearsay evidence and information. The laws of evidence
relating to civil actions shall apply to all other
portions of the judicial in rem proceeding.
(i) The Secretary of State shall show the existence
of probable cause for forfeiture of the property. If
the Secretary of State shows probable cause, the
claimant has the burden of showing by a preponderance
of the evidence that the claimant's interest in the
property is not subject to forfeiture.
(j) If the Secretary of State does not show the
existence of probable cause or a claimant has an
interest that is exempt under subdivision I (4)(d) of
this Section, the court shall order the interest in the
property returned or conveyed to the claimant and shall
order all other property forfeited to the Secretary of
State pursuant to all provisions of this Act. If the
Secretary of State does show the existence of probable
cause and the claimant does not establish by a
preponderance of the evidence that the claimant has an
interest that is exempt under subsection D herein, the
court shall order all the property forfeited to the
Secretary of State pursuant to the provisions of the
Section.
(k) A defendant convicted in any criminal
proceeding is precluded from later denying the
essential allegations of the criminal offense of which
the defendant was convicted in any proceeding for
violations of the Act giving rise to forfeiture of
property herein regardless of the pendency of an appeal
from that conviction. However, evidence of the
pendency of an appeal is admissible.
(l) An acquittal or dismissal in a criminal
proceeding for violations of the Act giving rise to the
forfeiture of property herein shall not preclude civil
proceedings under this provision; however, for good
cause shown, on a motion by the Secretary of State, the
court may stay civil forfeiture proceedings during the
criminal trial for a related criminal indictment or
information alleging violation of the provisions of
Section 12 of the Illinois Securities Law of 1953.
Property subject to forfeiture under this Section
shall not be subject to return or release by a court
exercising jurisdiction over a criminal case involving
the seizure of the property unless the return or
release is consented to by the Secretary of State.
(m) All property declared forfeited under this Act
vests in the State on the commission of the conduct
giving rise to forfeiture together with the proceeds of
the property after that time. Any such property or
proceeds subsequently transferred to any person remain
subject to forfeiture and thereafter shall be ordered
forfeited unless the transferee claims and establishes
in a hearing under the provisions of this Act that the
transferee's interest is exempt under the Act. Any
assets forfeited to the State shall be disposed of in
following manner:
(i) all forfeited property and assets shall be
liquidated by the Secretary of State in accordance
with all laws and rules governing the disposition
of such property;
(ii) the Secretary of State shall provide the
court at the time the property and assets are
declared forfeited a verified statement of
investors subject to the conduct giving rise to the
forfeiture;
(iii) after payment of any costs of sale,
receivership, storage, or expenses for
preservation of the property seized, other costs
to the State, and payment to claimants for any
amount deemed exempt from forfeiture, the proceeds
from liquidation shall be distributed pro rata to
investors subject to the conduct giving rise to the
forfeiture; and
(iv) any proceeds remaining after all verified
investors have been made whole shall be
distributed 25% to the Securities Investors
Education Fund, 25% to the Securities Audit and
Enforcement Fund, 25% to the Attorney General or
any State's Attorney bringing criminal charges for
the conduct giving rise to the forfeiture, and 25%
to other law enforcement agencies participating in
the investigation of the criminal charges for the
conduct giving rise to the forfeiture. In the event
that no other law enforcement agencies are
involved in the investigation of the conduct
giving rise to the forfeiture, then the portion to
other law enforcement agencies shall be
distributed to the Securities Investors Education
Fund.
(n) The Secretary of State shall notify by
certified mail, return receipt requested, all known
investors in the matter giving rise to the forfeiture
of the forfeiture proceeding and sale of assets
forfeited arising from the violations of this Act, and
shall further publish notice in a paper of general
circulation in the district in which the violations
were prosecuted. The notice to investors shall
identify the name, address, and other identifying
information about any defendant prosecuted for
violations of this Act that resulted in forfeiture and
sale of property, the offense for which the defendant
was convicted, and that the court has ordered
forfeiture and sale of property for claims of investors
who incurred losses or damages as a result of the
violations. Investors may then file a claim in a form
prescribed by the Secretary of State in order to share
in disbursement of the proceeds from sale of the
forfeited property. Investor claims must be filed with
the Secretary of State within 30 days after receipt of
the certified mail return receipt, or within 30 days
after the last date of publication of the general
notice in a paper of general circulation in the
district in which the violations were prosecuted,
whichever occurs last.
(o) A civil action under this subsection must be
commenced within 5 years after the last conduct giving
rise to the forfeiture became known or should have
become known or 5 years after the forfeitable property
is discovered, whichever is later, excluding time
during which either the property or claimant is out of
this State or in confinement or during which criminal
proceedings relating to the same conduct are in
progress.
(p) If property is seized for evidence and for
forfeiture, the time periods for instituting judicial
forfeiture proceedings shall not begin until the
property is no longer necessary for evidence.
(q) Notwithstanding other provisions of this Act,
the Secretary of State and a claimant of forfeitable
property may enter into an agreed-upon settlement
concerning the forfeitable property in such an amount
and upon such terms as are set out in writing in a
settlement agreement.
(r) Nothing in this Act shall apply to property
that constitutes reasonable bona fide attorney's fees
paid to an attorney for services rendered or to be
rendered in the forfeiture proceeding or criminal
proceeding relating directly thereto when the property
was paid before its seizure and before the issuance of
any seizure warrant or court order prohibiting
transfer of the property and when the attorney, at the
time he or she received the property, did not know that
it was property subject to forfeiture under this Act.
The court shall further have jurisdiction and authority, in
addition to the penalties and other remedies in this Act
provided, to enter an order for the appointment of the court or
a person as a receiver, conservator, ancillary receiver or
ancillary conservator for the defendant or the defendant's
assets located in this State, or to require restitution,
damages or disgorgement of profits on behalf of the person or
persons injured by the act or practice constituting the subject
matter of the action, and may assess costs against the
defendant for the use of the State; provided, however, that the
civil remedies of rescission and appointment of a receiver,
conservator, ancillary receiver or ancillary conservator shall
not be available against any person by reason of the failure to
file with the Secretary of State, or on account of the contents
of, any report of sale provided for in subsection G or P of
Section 4, paragraph (2) of subsection D of Sections 5 and 6,
or paragraph (2) of subsection F of Section 7 of this Act.
Appeals may be taken as in other civil cases.
I-5. Property forfeited under this Section is subject to
reporting under the Seizure and Forfeiture Reporting Act.
J. In no case shall the Secretary of State, or any of his
or her employees or agents, in the administration of this Act,
incur any official or personal liability by instituting an
injunction or other proceeding or by denying, suspending or
revoking the registration of a dealer or salesperson, or by
denying, suspending or revoking the registration of securities
or prohibiting the offer or sale of securities, or by
suspending or prohibiting any person from acting as a dealer,
limited Canadian dealer, salesperson, investment adviser, or
investment adviser representative or from offering or selling
securities.
K. No provision of this Act shall be construed to require
or to authorize the Secretary of State to require any
investment adviser or federal covered investment adviser
engaged in rendering investment supervisory services to
disclose the identity, investments, or affairs of any client of
the investment adviser or federal covered investment adviser,
except insofar as the disclosure may be necessary or
appropriate in a particular proceeding or investigation having
as its object the enforcement of this Act.
L. Whenever, after an examination, investigation or
hearing, the Secretary of State deems it of public interest or
advantage, he or she may certify a record to the State's
Attorney of the county in which the act complained of, examined
or investigated occurred. The State's Attorney of that county
within 90 days after receipt of the record shall file a written
statement at the Office of the Secretary of State, which
statement shall set forth the action taken upon the record, or
if no action has been taken upon the record that fact, together
with the reasons therefor, shall be stated.
M. The Secretary of State may initiate, take, pursue, or
prosecute any action authorized or permitted under Section 6d
of the Federal 1974 Act.
N. (1) Notwithstanding any provision of this Act to the
contrary, to encourage uniform interpretation, administration,
and enforcement of the provisions of this Act, the Secretary of
State may cooperate with the securities agencies or
administrators of one or more states, Canadian provinces or
territories, or another country, the Securities and Exchange
Commission, the Commodity Futures Trading Commission, the
Securities Investor Protection Corporation, any
self-regulatory organization, and any governmental law
enforcement or regulatory agency.
(2) The cooperation authorized by paragraph (1) of this
subsection includes, but is not limited to, the following:
(a) establishing or participating in a central
depository or depositories for registration under this Act
and for documents or records required under this Act;
(b) making a joint audit, inspection, examination, or
investigation;
(c) holding a joint administrative hearing;
(d) filing and prosecuting a joint civil or criminal
proceeding;
(e) sharing and exchanging personnel;
(f) sharing and exchanging information and documents;
or
(g) issuing any joint statement or policy.
(Source: P.A. 99-182, eff. 1-1-16.)
Section 190. The Consumer Fraud and Deceptive Business
Practices Act is amended by changing Section 2L as follows:
(815 ILCS 505/2L) (from Ch. 121 1/2, par. 262L)
(Text of Section before amendment by P.A. 99-768)
Sec. 2L. Any retail sale of a motor vehicle made after
January 1, 1968 to a consumer by a new motor vehicle dealer or
used motor vehicle dealer within the meaning of Chapter 5 of
the Illinois Vehicle Code is made subject to this Section.
(a) The dealer is liable to the purchasing consumer for the
following share of the cost of the repair of Power Train
components for a period of 30 days from date of delivery,
unless the repairs have become necessary by abuse, negligence,
or collision. The burden of establishing that a claim for
repairs is not within this Section shall be on the selling
dealer. The dealer's share of such repair costs is:
(1) in the case of a motor vehicle which is not more than 2
years old, 50%;
(2) in the case of a motor vehicle which is 2 or more, but
less than 3 years old, 25%;
(3) in the case of a motor vehicle which is 3 or more, but
less than 4 years old, 10%; and
(4) in the case of a motor vehicle which is 4 or more years
old, none.
(b) Notwithstanding the foregoing, such a dealer and a
purchasing consumer may negotiate a sale and purchase that is
not subject to this Section if there is stamped on any purchase
order, contract, agreement, or other instrument to be signed by
the consumer as a part of that transaction, in at least
10-point bold type immediately above the signature line, the
following:
"THIS VEHICLE IS SOLD AS IS WITH NO WARRANTY
AS TO MECHANICAL CONDITION"
(c) As used in this Section, "Power Train components" means
the engine block, head, all internal engine parts, oil pan and
gaskets, water pump, intake manifold, transmission, and all
internal transmission parts, torque converter, drive shaft,
universal joints, rear axle and all rear axle internal parts,
and rear wheel bearings.
(d) The repair liability means that the dealer will make
necessary Power Train component repairs in his shop, or in the
shop of his service affiliate, on the basis of his regular list
price charge for parts and labor, where the flat rate list
price does not exceed 50% of the selling price of the vehicle
at the time repairs are requested.
(e) The age of the vehicle shall be measured according to
the manufacturer's model year designation as shown on the
Certificate of Title or Registration Certificate. Vehicles
shall be designated as current year models, one year old, 2
year old, and so forth according to the time that has elapsed
since January 1 of the appropriate model year so designated.
(f) This Section does not preclude the issuance of a
warranty or guarantee by a motor vehicle dealer or motor car
manufacturer that meets or exceeds the basic provisions of
paragraph (a).
(g) After the effective date of this amendatory Act of
1989, executives' and officials' cars when so advertised shall
have been used exclusively by executives of the parent motor
car manufacturer's personnel or by an executive of an
authorized dealer in the same make of car. These cars, so
advertised, shall not have been sold to a member of the public
prior to the appearance of the advertisement.
Any person who violates this Section commits an unlawful
practice within the meaning of this Act.
(Source: P.A. 86-351; 87-1140.)
(Text of Section after amendment by P.A. 99-768)
Sec. 2L. Used motor vehicles; modification or disclaimer of
implied warranty of merchantability limited.
(a) Any retail sale of a used motor vehicle made after the
effective date of this amendatory Act of the 99th General
Assembly to a consumer by a licensed vehicle dealer within the
meaning of Chapter 5 of the Illinois Vehicle Code or by an
auction company at an auction that is open to the general
public is made subject to this Section.
(b) This Section does not apply to vehicles with more than
150,000 miles at the time of sale. In addition, this Section
does not apply to vehicles with titles that have been branded
"rebuilt" or "flood".
(b-5) This Section does not apply to forfeited vehicles
sold at auction by or on behalf of the Department of State
Police.
(c) Any sale of a used motor vehicle as described in
subsection (a) may not exclude, modify, or disclaim the implied
warranty of merchantability prescribed in Section 2-314 of the
Uniform Commercial Code or limit the remedies for a breach of
the warranty before midnight of the 15th calendar day after
delivery of a used motor vehicle or until a used motor vehicle
is driven 500 miles after delivery, whichever is earlier. In
calculating time under this Section, a day on which the
warranty is breached and all subsequent days in which the used
motor vehicle fails to conform with the implied warranty of
merchantability are excluded. In calculating distance under
this Section, the miles driven to obtain or in connection with
the repair, servicing, or testing of a used motor vehicle that
fails to conform with the implied warranty of merchantability
are excluded. An attempt to exclude, modify, or disclaim the
implied warranty of merchantability or to limit the remedies
for a breach of the warranty in violation of this Section
renders a purchase agreement voidable at the option of the
purchaser.
(d) An implied warranty of merchantability is met if a used
motor vehicle functions free of a defect in a power train
component. As used in this Section, "power train component"
means the engine block, head, all internal engine parts, oil
pan and gaskets, water pump, intake manifold, transmission, and
all internal transmission parts, torque converter, drive
shaft, universal joints, rear axle and all rear axle internal
parts, and rear wheel bearings.
(e) The implied warranty of merchantability expires at
midnight of the 15th calendar day after delivery of a used
motor vehicle or when a used motor vehicle is driven 500 miles
after delivery, whichever is earlier. In calculating time, a
day on which the implied warranty of merchantability is
breached is excluded and all subsequent days in which the used
motor vehicle fails to conform with the warranty are also
excluded. In calculating distance, the miles driven to or by
the seller to obtain or in connection with the repair,
servicing, or testing of a used motor vehicle that fails to
conform with the implied warranty of merchantability are
excluded. An implied warranty of merchantability does not
extend to damage that occurs after the sale of the used motor
vehicle that results from:
(1) off-road use;
(2) racing;
(3) towing;
(4) abuse;
(5) misuse;
(6) neglect;
(7) failure to perform regular maintenance; and
(8) failure to maintain adequate oil, coolant, and
other required fluids or lubricants.
(f) If the implied warranty of merchantability described in
this Section is breached, the consumer shall give reasonable
notice to the seller no later than 2 business days after the
end of the statutory warranty period. Before the consumer
exercises another remedy pursuant to Article 2 of the Uniform
Commercial Code, the seller shall have a reasonable opportunity
to repair the used motor vehicle. The consumer shall pay
one-half of the cost of the first 2 repairs necessary to bring
the used motor vehicle into compliance with the warranty. The
payments by the consumer are limited to a maximum payment of
$100 for each repair; however, the consumer shall only be
responsible for a maximum payment of $100 if the consumer
brings in the vehicle for a second repair for the same defect.
Reasonable notice as defined in this Section shall include, but
not be limited to:
(1) text, provided the seller has provided the consumer
with a cell phone number;
(2) phone call or message to the seller's business
phone number provided on the seller's bill of sale for the
purchase of the motor vehicle;
(3) in writing to the seller's address provided on the
seller's bill of sale for the purchase of the motor
vehicle;
(4) in person at the seller's address provided on the
seller's bill of sale for the purchase of the motor
vehicle.
(g) The maximum liability of a seller for repairs pursuant
to this Section is limited to the purchase price paid for the
used motor vehicle, to be refunded to the consumer or lender,
as applicable, in exchange for return of the vehicle.
(h) An agreement for the sale of a used motor vehicle
subject to this Section is voidable at the option of the
consumer, unless it contains on its face the following
conspicuous statement printed in boldface 10-point or larger
type set off from the body of the agreement:
"Illinois law requires that this vehicle will be free of a
defect in a power train component for 15 days or 500 miles
after delivery, whichever is earlier, except with regard to
particular defects disclosed on the first page of this
agreement. "Power train component" means the engine block,
head, all internal engine parts, oil pan and gaskets, water
pump, intake manifold, transmission, and all internal
transmission parts, torque converter, drive shaft, universal
joints, rear axle and all rear axle internal parts, and rear
wheel bearings. You (the consumer) will have to pay up to $100
for each of the first 2 repairs if the warranty is violated.".
(i) The inclusion in the agreement of the statement
prescribed in subsection (h) of this Section does not create an
express warranty.
(j) A consumer of a used motor vehicle may waive the
implied warranty of merchantability only for a particular
defect in the vehicle including, but not limited to, a rebuilt
or flood-branded title and only if all of the following
conditions are satisfied:
(1) the seller subject to this Section fully and
accurately discloses to the consumer that because of
circumstances unusual to the business, the used motor
vehicle has a particular defect;
(2) the consumer agrees to buy the used motor vehicle
after disclosure of the defect; and
(3) before the sale, the consumer indicates agreement
to the waiver by signing and dating the following
conspicuous statement that is printed on the first page of
the sales agreement or on a separate document in boldface
10-point or larger type and that is written in the language
in which the presentation was made:
"Attention consumer: sign here only if the seller has
told you that this vehicle has the following problem or
problems and you agree to buy the vehicle on those terms:
1. ......................................................
2. ..................................................
3. ...................................................".
(k) It shall be an affirmative defense to any claim under
this Section that:
(1) an alleged nonconformity does not substantially
impair the use and market value of the motor vehicle;
(2) a nonconformity is the result of abuse, neglect, or
unauthorized modifications or alterations of the motor
vehicle;
(3) a claim by a consumer was not filed in good faith;
or
(4) any other affirmative defense allowed by law.
(l) Other than the 15-day, 500-mile implied warranty of
merchantability identified herein, a seller subject to this
Section is not required to provide any further express or
implied warranties to a purchasing consumer unless:
(1) the seller is required by federal or State law to
provide a further express or implied warranty; or
(2) the seller fails to fully inform and disclose to
the consumer that the vehicle is being sold without any
further express or implied warranties, other than the 15
day, 500 mile implied warranty of merchantability
identified in this Section.
(m) This Section does not apply to the sale of antique
vehicles, as defined in the Illinois Vehicle Code, or to
collector motor vehicles.
Any person who violates this Section commits an unlawful
practice within the meaning of this Act.
(Source: P.A. 99-768, eff. 7-1-17.)
Section 995. No acceleration or delay. Where this Act makes
changes in a statute that is represented in this Act by text
that is not yet or no longer in effect (for example, a Section
represented by multiple versions), the use of that text does
not accelerate or delay the taking effect of (i) the changes
made by this Act or (ii) provisions derived from any other
Public Act.
Section 996. No revival or extension. This Act does not
revive or extend any Section or Act otherwise repealed.
Section 999. Effective date. This Act takes effect July 1,
2018.
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