Bill Text: IL HB4053 | 2023-2024 | 103rd General Assembly | Introduced
Bill Title: Amends the Code of Criminal Procedure of 1963. In a provision which specifies that a person who is in police custody shall have the right, upon being taken into police custody, to communicate free of charge with an attorney of his or her choice and members of his or her family, deletes a provision that required that right to be provided as soon as possible upon being taken into custody. Provides that, if a person who is in police custody is transferred to a new place of detention, that person has a right to make one telephone call (rather than 3 telephone calls) within 3 hours of arrival. Specifies that this right is not renewable. Provides that the person in police custody is prohibited from contacting the alleged victim or victims of the offense for which the person is charged. Provides that statements that are made by a person who is detained in police custody in violation of the right to communicate provisions of the Code may be used to evaluate whether those statements were voluntarily given and are reliable, based on the totality of the circumstances. Authorizes a custodial arrest of a person accused of an offense that is not a felony or Class A misdemeanor if necessary to verify the accused's identity.
Spectrum: Partisan Bill (Republican 5-0)
Status: (Introduced) 2023-05-02 - Added Co-Sponsor Rep. Martin McLaughlin [HB4053 Detail]
Download: Illinois-2023-HB4053-Introduced.html
| ||||||||||||||||||||||
| ||||||||||||||||||||||
| ||||||||||||||||||||||
| ||||||||||||||||||||||
| ||||||||||||||||||||||
1 | AN ACT concerning criminal law.
| |||||||||||||||||||||
2 | Be it enacted by the People of the State of Illinois,
| |||||||||||||||||||||
3 | represented in the General Assembly:
| |||||||||||||||||||||
4 | Section 5. The Code of Criminal Procedure of 1963 is | |||||||||||||||||||||
5 | amended by changing Sections 103-3.5 and 109-1 as follows:
| |||||||||||||||||||||
6 | (725 ILCS 5/103-3.5) | |||||||||||||||||||||
7 | Sec. 103-3.5. Right to communicate with attorney and | |||||||||||||||||||||
8 | family; transfers; presumption of inadmissibility. | |||||||||||||||||||||
9 | (a) Persons who are in police custody shall have the right | |||||||||||||||||||||
10 | to communicate free of charge with an attorney of his or her | |||||||||||||||||||||
11 | choice and members of his or her family as soon as possible | |||||||||||||||||||||
12 | upon being taken into police custody, but no later than 3 hours | |||||||||||||||||||||
13 | of arrival at the first place of detention. Persons in police | |||||||||||||||||||||
14 | custody must be given access to use a telephone via a landline | |||||||||||||||||||||
15 | or cellular phone to make 3 telephone calls. | |||||||||||||||||||||
16 | (b) In accordance with Section 103-7, at every police | |||||||||||||||||||||
17 | facility where a person is in police custody, a sign | |||||||||||||||||||||
18 | containing at minimum, the following information in bold block | |||||||||||||||||||||
19 | type must be posted in a conspicuous place: | |||||||||||||||||||||
20 | (1) a short statement notifying persons who are in | |||||||||||||||||||||
21 | police custody of their right to have access to a phone | |||||||||||||||||||||
22 | within 3 hours of being taken into police custody; and | |||||||||||||||||||||
23 | (2) that persons who are in police custody have the |
| |||||||
| |||||||
1 | right to make 3 phone calls within 3 hours of being taken | ||||||
2 | into custody, at no charge. | ||||||
3 | (c) In addition to the information listed in subsection | ||||||
4 | (b), if the place of detention is located in a jurisdiction | ||||||
5 | where the court has appointed the public defender or other | ||||||
6 | attorney to represent persons who are in police custody, the | ||||||
7 | telephone number to the public defender or other attorney's | ||||||
8 | office must also be displayed. The telephone call to the | ||||||
9 | public defender or other attorney must not be monitored, | ||||||
10 | eavesdropped upon, or recorded. | ||||||
11 | (d) If a person who is in police custody is transferred to | ||||||
12 | a new place of detention, that person person's has a right to | ||||||
13 | make one 3 telephone call calls under this Section within 3 | ||||||
14 | hours of arrival , and that right is not renewable is renewed . | ||||||
15 | (d-5) The person in police custody is prohibited from | ||||||
16 | contacting the alleged victim or victims of the offense for | ||||||
17 | which the person is charged. | ||||||
18 | (e) Statements made by a person who is detained in police | ||||||
19 | custody in violation of this Section may be used to evaluate | ||||||
20 | whether section are presumed inadmissible in court as | ||||||
21 | evidence. The presumption of inadmissibility may be overcome | ||||||
22 | by a preponderance of the evidence that the statements were | ||||||
23 | statement was voluntarily given and are is reliable, based on | ||||||
24 | the totality of the circumstances. As used in this subsection, | ||||||
25 | "totality of the circumstances" includes, but is not limited | ||||||
26 | to, evidence that law enforcement knowingly prevented or |
| |||||||
| |||||||
1 | delayed a person's right to communicate or failed to comply | ||||||
2 | with the requirements of this Section. | ||||||
3 | (f) The 3-hour requirement under this Section shall not | ||||||
4 | apply while the person in police custody is asleep, | ||||||
5 | unconscious, or otherwise incapacitated or an exigent | ||||||
6 | circumstance prevents the officers from timely complying with | ||||||
7 | this Section. If this occurs, it must be documented within the | ||||||
8 | police report detailing the exigent circumstance. Once the | ||||||
9 | exigent circumstance ends, the right to make 3 phone calls | ||||||
10 | within 3 hours resumes. | ||||||
11 | (g) In accordance with this Section, the following records | ||||||
12 | shall be maintained: (i) the number of phone calls the person | ||||||
13 | made while in custody; (ii) the time or times the person made | ||||||
14 | phone calls; and (iii) if the person did not make any phone | ||||||
15 | calls, a statement of the reason or reasons why no calls were | ||||||
16 | made. | ||||||
17 | (h) For purposes of this Section, "place of detention" | ||||||
18 | means a building or a police station that is a place of | ||||||
19 | operation for a municipal police department or county sheriff | ||||||
20 | department or other law enforcement agency, other than a | ||||||
21 | courthouse, that is owned or operated by a law enforcement | ||||||
22 | agency, or other building, such as a school or hospital, where | ||||||
23 | persons are held in detention in connection with criminal | ||||||
24 | charges against those persons.
| ||||||
25 | (Source: P.A. 102-694, eff. 1-7-22.)
|
| |||||||
| |||||||
1 | (725 ILCS 5/109-1) (from Ch. 38, par. 109-1)
| ||||||
2 | Sec. 109-1. Person arrested; release from law enforcement | ||||||
3 | custody and court appearance; geographic constraints prevent | ||||||
4 | in-person appearances.
| ||||||
5 | (a) A person arrested with or without a warrant for an | ||||||
6 | offense for which pretrial release may be denied under | ||||||
7 | paragraphs (1) through (6) of Section 110-6.1 shall be taken | ||||||
8 | without
unnecessary delay before the nearest and most | ||||||
9 | accessible judge
in that county, except when such county is a | ||||||
10 | participant in a
regional jail authority, in which event such | ||||||
11 | person may be taken to the
nearest and most accessible judge, | ||||||
12 | irrespective of the county where such
judge presides,
within | ||||||
13 | 48 hours, and a charge shall be filed.
Whenever a person | ||||||
14 | arrested either with or without a warrant is required
to be | ||||||
15 | taken
before a judge, a charge
may be filed against such person | ||||||
16 | by way of a two-way audio-visual communication system, except | ||||||
17 | that a hearing to deny pretrial release to the defendant may
| ||||||
18 | not be conducted by two-way audio-visual communication system | ||||||
19 | unless the accused waives the right to be present physically | ||||||
20 | in court, the court determines that the physical health and | ||||||
21 | safety of any person necessary to the proceedings would be | ||||||
22 | endangered by appearing in court, or the chief judge of the | ||||||
23 | circuit orders use of that system due to operational | ||||||
24 | challenges in conducting the hearing in person. Such | ||||||
25 | operational challenges must be documented and approved by the | ||||||
26 | chief judge of the circuit, and a plan to address the |
| |||||||
| |||||||
1 | challenges through reasonable efforts must be presented and | ||||||
2 | approved by the Administrative Office of the Illinois Courts | ||||||
3 | every 6 months.
| ||||||
4 | (a-1) Law enforcement shall issue a citation in lieu of | ||||||
5 | custodial arrest, upon proper identification, for those | ||||||
6 | accused of any offense that is not a felony or Class A | ||||||
7 | misdemeanor unless (i) a law enforcement officer reasonably | ||||||
8 | believes the accused poses a threat to the community or any | ||||||
9 | person, (ii) a custodial arrest is necessary because the | ||||||
10 | criminal activity persists after the issuance of a citation, | ||||||
11 | or (iii) the accused has an obvious medical or mental health | ||||||
12 | issue that poses a risk to the accused's own safety , or (iv) a | ||||||
13 | custodial arrest is necessary to verify the accused's | ||||||
14 | identity . Nothing in this Section requires arrest in the case | ||||||
15 | of Class A misdemeanor and felony offenses, or otherwise | ||||||
16 | limits existing law enforcement discretion to decline to | ||||||
17 | effect a custodial arrest. | ||||||
18 | (a-3) A person arrested with or without a warrant for an | ||||||
19 | offense for which pretrial release may not be denied may, | ||||||
20 | except as otherwise provided in this Code, be released by a law | ||||||
21 | enforcement officer without appearing before a judge. A | ||||||
22 | presumption in favor of pretrial release shall be applied by | ||||||
23 | an arresting officer in the exercise of his or her discretion | ||||||
24 | under this Section. | ||||||
25 | (a-5) A person charged with an offense shall be allowed | ||||||
26 | counsel at the hearing at which pretrial release is determined |
| |||||||
| |||||||
1 | under Article 110 of this Code. If the defendant desires | ||||||
2 | counsel for his or her initial appearance but is unable to | ||||||
3 | obtain counsel, the court shall appoint a public defender or | ||||||
4 | licensed attorney at law of this State to represent him or her. | ||||||
5 | (b) Upon initial appearance of a person before the court, | ||||||
6 | the judge shall:
| ||||||
7 | (1) inform the defendant of the charge against him and | ||||||
8 | shall provide him
with a copy of the charge;
| ||||||
9 | (2) advise the defendant of his right to counsel and | ||||||
10 | if indigent shall
appoint a public defender or licensed | ||||||
11 | attorney at law of this State to
represent him in | ||||||
12 | accordance with the provisions of Section 113-3 of this
| ||||||
13 | Code;
| ||||||
14 | (3) schedule a preliminary hearing in appropriate | ||||||
15 | cases;
| ||||||
16 | (4) admit the defendant to pretrial release in | ||||||
17 | accordance with the provisions of
Article 110 of this | ||||||
18 | Code, or upon verified petition of the State, proceed with | ||||||
19 | the setting of a detention hearing as provided in Section | ||||||
20 | 110-6.1; and
| ||||||
21 | (5) order the confiscation of the person's passport or | ||||||
22 | impose travel restrictions on a defendant arrested for | ||||||
23 | first degree murder or other violent crime as defined in | ||||||
24 | Section 3 of the Rights of Crime Victims and Witnesses | ||||||
25 | Act, if the judge determines, based on the factors in | ||||||
26 | Section 110-5 of this Code, that this will reasonably |
| |||||||
| |||||||
1 | ensure the appearance of the defendant and compliance by | ||||||
2 | the defendant with all conditions of release. | ||||||
3 | (c) The court may issue an order of protection in | ||||||
4 | accordance with
the provisions of Article 112A of this Code. | ||||||
5 | Crime victims shall be given notice by the State's Attorney's | ||||||
6 | office of this hearing as required in paragraph (2) of | ||||||
7 | subsection (b) of Section 4.5 of the Rights of Crime Victims | ||||||
8 | and Witnesses Act and shall be informed of their opportunity | ||||||
9 | at this hearing to obtain an order of protection under Article | ||||||
10 | 112A of this Code.
| ||||||
11 | (d) At the initial appearance of a defendant in any | ||||||
12 | criminal proceeding, the court must advise the defendant in | ||||||
13 | open court that any foreign national who is arrested or | ||||||
14 | detained has the right to have notice of the arrest or | ||||||
15 | detention given to his or her country's consular | ||||||
16 | representatives and the right to communicate with those | ||||||
17 | consular representatives if the notice has not already been | ||||||
18 | provided. The court must make a written record of so advising | ||||||
19 | the defendant. | ||||||
20 | (e) If consular notification is not provided to a | ||||||
21 | defendant before his or her first appearance in court, the | ||||||
22 | court shall grant any reasonable request for a continuance of | ||||||
23 | the proceedings to allow contact with the defendant's | ||||||
24 | consulate. Any delay caused by the granting of the request by a | ||||||
25 | defendant shall temporarily suspend for the time of the delay | ||||||
26 | the period within which a person shall be tried as prescribed |
| |||||||
| |||||||
1 | by subsection (a), (b), or (e) of Section 103-5 of this Code | ||||||
2 | and on the day of the expiration of delay the period shall | ||||||
3 | continue at the point at which it was suspended. | ||||||
4 | (f) At the hearing at which conditions of pretrial release | ||||||
5 | are determined, the person charged shall be present in person | ||||||
6 | rather than by two-way audio-video communication system unless | ||||||
7 | the accused waives the right to be present physically in | ||||||
8 | court, the court determines that the physical health and | ||||||
9 | safety of any person necessary to the proceedings would be | ||||||
10 | endangered by appearing in court, or the chief judge of the | ||||||
11 | circuit orders use of that system due to operational | ||||||
12 | challenges in conducting the hearing in person. Such | ||||||
13 | operational challenges must be documented and approved by the | ||||||
14 | chief judge of the circuit, and a plan to address the | ||||||
15 | challenges through reasonable efforts must be presented and | ||||||
16 | approved by the Administrative Office of the Illinois Courts | ||||||
17 | every 6 months. | ||||||
18 | (g) Defense counsel shall be given adequate opportunity to | ||||||
19 | confer with the defendant prior to any hearing in which | ||||||
20 | conditions of release or the detention of the defendant is to | ||||||
21 | be considered, with a physical accommodation made to | ||||||
22 | facilitate attorney/client consultation. If defense counsel | ||||||
23 | needs to confer or consult with the defendant during any | ||||||
24 | hearing conducted via a two-way audio-visual communication | ||||||
25 | system, such consultation shall not be recorded and shall be | ||||||
26 | undertaken consistent with constitutional protections. |
| |||||||
| |||||||
1 | (Source: P.A. 101-652, eff. 1-1-23; 102-813, eff. 5-13-22; | ||||||
2 | 102-1104, eff. 1-1-23.)
|