Bill Text: IL HB3157 | 2011-2012 | 97th General Assembly | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Amends the Criminal Code of 1963 and the Drug Asset Forfeiture Procedure Act. Provides that within 14 days of 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. Provides that, upon making a finding of probable cause, the circuit court shall enter a restraining order or injunction or take other appropriate action to ensure that the property is not removed from the court's jurisdiction and is not concealed, destroyed, or otherwise disposed of by the property owner or interest holder before a forfeiture hearing is conducted. Provides that judicial in rem forfeiture proceedings may be instituted if the value of the non-real property exceeds $150,000 (rather than $20,000), excluding the value of any conveyance.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Failed) 2013-01-08 - Session Sine Die [HB3157 Detail]

Download: Illinois-2011-HB3157-Engrossed.html

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AN ACT concerning criminal law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Criminal Code of 1961 is amended by adding
Section 36-1.5 as follows:
(720 ILCS 5/36-1.5 new)
Sec. 36-1.5. 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 of a prosecution 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).

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(e) Upon making a finding of probable cause as required
under this Section, the circuit court shall enter a restraining
order or injunction, or take other appropriate action, as
necessary to ensure that the property is not removed from the
court's jurisdiction and is not concealed, destroyed, or
otherwise disposed of by the property owner or interest holder
before a forfeiture hearing is conducted.
Section 10. The Drug Asset Forfeiture Procedure Act is
amended by changing Section 6 and by adding Section 3.5 as
follows:
(725 ILCS 150/3.5 new)
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 of a prosecution 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

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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 enter a restraining
order or injunction, or take other appropriate action, as
necessary to ensure that the property is not removed from the
court's jurisdiction and is not concealed, destroyed, or
otherwise disposed of by the property owner or interest holder
before a forfeiture hearing is conducted.
(725 ILCS 150/6) (from Ch. 56 1/2, par. 1676)
Sec. 6. Non-Judicial Forfeiture. If non-real property that
exceeds $150,000 $20,000 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 $20,000 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,

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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

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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 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,

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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. 94-556, eff. 9-11-05.)