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| Public Act 099-0686
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| SB0212 Enrolled | LRB099 03375 RLC 23383 b |
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois, |
represented in the General Assembly:
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Section 5. 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:
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(1) 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 |
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 property described |
in paragraph (1) or (2) 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 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 property described in paragraph (1) or |
(2) of this subsection (a) that constitutes a felony |
violation of 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 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.
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(c) In the event of seizure pursuant to subsection (b), |
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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.
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(c-1) 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) 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;
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(2) remove the property to a place designated by him;
|
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(3) keep the property in the possession of the seizing |
agency;
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(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) 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) 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) 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.
|
(Source: P.A. 97-253, eff. 1-1-12; 97-544, eff. 1-1-12; 97-813, |
eff. 7-13-12; 97-985, eff. 1-1-13.)
|
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Section 10. The Illinois Controlled Substances Act is |
amended by changing Section 505 as follows:
|
(720 ILCS 570/505) (from Ch. 56 1/2, par. 1505)
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Sec. 505. (a) The following are subject to forfeiture:
|
(1) all substances which have been manufactured, |
distributed,
dispensed, or possessed in violation of this |
Act;
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(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 property
described |
in paragraphs (1) and (2), 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 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) 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) 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.
|
(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 may be forfeited to the Illinois State Police.
|
(f) 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) 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) 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.
|
(Source: P.A. 97-253, eff. 1-1-12; 97-334, eff. 1-1-12; 97-544, |
eff. 1-1-12; 97-813, eff. 7-13-12; 97-985, eff. 1-1-13.)
|
Section 15. 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) 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 property described |
in paragraph (1) or (2) 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 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 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) 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) 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) 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) 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) 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.
|
(Source: P.A. 97-253, eff. 1-1-12; 97-544, eff. 1-1-12; 97-813, |
eff. 7-13-12; 97-985, eff. 1-1-13.)
|
Section 20. The Narcotics Profit Forfeiture Act is amended |
by changing Section 5 as follows:
|
(725 ILCS 175/5) (from Ch. 56 1/2, par. 1655)
|
Sec. 5.
(a) A person who commits the offense of narcotics |
racketeering
shall:
|
(1) be guilty of a Class 1 felony; and
|
(2) be subject to a fine of up to $250,000.
|
A person who commits the offense of narcotics racketeering |
or
who violates Section 3 of the Drug Paraphernalia Control Act |
shall forfeit
to the State of Illinois: (A) any profits or |
proceeds and any property or
property interest he has acquired |
or maintained in violation of this Act or
Section 3 of the Drug |
Paraphernalia Control Act or has used to facilitate a
violation |
of this Act that the court determines, after a forfeiture
|
hearing, under subsection (b) of this Section to have been |
acquired or
maintained as a result of narcotics racketeering or |
violating Section 3 of
the Drug Paraphernalia Control Act, or |
used to facilitate narcotics
racketeering; and (B) any interest |
in, security of, claim against, or
property or contractual |
right of any kind affording a source of influence
over, any |
|
enterprise which he has established, operated, controlled,
|
conducted, or participated in the conduct of, in violation of |
this Act or
Section 3 of the Drug Paraphernalia Control Act, |
that the court determines,
after a forfeiture hearing, under |
subsection (b) of this Section
to have been acquired or |
maintained as a result of narcotics racketeering
or violating |
Section 3 of the
Drug Paraphernalia Control Act or used to |
facilitate narcotics racketeering.
|
(b) The court shall, upon petition by the Attorney General |
or State's
Attorney, at any time subsequent to the filing of an |
information or return
of an indictment, conduct a hearing to |
determine whether any property or
property interest is subject |
to forfeiture under this Act. At the
forfeiture hearing the |
people shall have the burden of establishing, by a
|
preponderance of the evidence, that property or property |
interests are
subject to forfeiture under this Act. There is a |
rebuttable presumption at
such hearing that any property or |
property interest of a person charged by
information or |
indictment with narcotics racketeering or who is convicted
of a |
violation of Section 3 of the Drug Paraphernalia Control Act is
|
subject to forfeiture under this Section if the State |
establishes by a
preponderance of the evidence that:
|
(1) such property or property interest was acquired by |
such person
during the period of the violation of this Act |
or Section 3 of the Drug
Paraphernalia Control Act or |
within a reasonable time
after such period; and
|
|
(2) there was no likely source for such property or |
property interest
other than the violation of this Act or |
Section 3 of the Drug
Paraphernalia Control Act.
|
(c) In an action brought by the People of the State of |
Illinois under
this Act, wherein any restraining order, |
injunction or prohibition or
any other action in connection |
with any property or property interest
subject to forfeiture |
under this Act is sought, the circuit court which
shall preside |
over the trial of the person or persons charged with
narcotics |
racketeering as defined in Section 4 of this Act or violating
|
Section 3 of the Drug Paraphernalia Control Act shall first |
determine
whether there is probable cause to believe that the |
person or persons so
charged has committed the offense of |
narcotics racketeering as defined in
Section 4 of this Act or a |
violation of Section 3 of the Drug Paraphernalia
Control Act |
and whether the property or property interest is subject to
|
forfeiture pursuant to this Act.
|
In order to make such a determination,
prior to entering |
any such order, the court shall conduct a hearing without
a |
jury, wherein the People shall establish that there is: (i) |
probable
cause that the person or persons so charged have |
committed the offense of
narcotics racketeering or violating |
Section 3 of the Drug Paraphernalia
Control Act and (ii) |
probable cause that any
property or property interest may be |
subject to forfeiture
pursuant to this Act. Such hearing may be |
conducted simultaneously with a
preliminary hearing, if the |
|
prosecution is commenced by information or
complaint, or by |
motion of the People, at any stage in the proceedings.
The |
court may accept a finding of probable cause at a preliminary |
hearing
following the filing of an information charging the |
offense
of narcotics racketeering as defined in Section 4 of |
this Act or the return of
an indictment by a grand jury |
charging the offense of narcotics
racketeering as defined in |
Section 4 of this Act or after a charge is
filed for violating |
Section 3 of the Drug Paraphernalia Control Act as
sufficient |
evidence of probable cause as provided in item (i) above.
|
Upon such a finding, the circuit court shall enter such |
restraining
order, injunction or prohibition, or shall take |
such other action in connection
with any such property or |
property interest subject to forfeiture under this
Act, as is |
necessary to insure that such property is not removed from the
|
jurisdiction of the court, concealed, destroyed or otherwise |
disposed of by
the owner of that property or property interest |
prior to a forfeiture
hearing under subsection (b) of this |
Section. The Attorney General or
State's Attorney shall file a |
certified copy of
such restraining order, injunction or other |
prohibition with the recorder
of deeds or registrar of titles |
of each county where any such property of
the defendant may be |
located. No such injunction, restraining order or
other |
prohibition shall affect the rights of any bona fide purchaser,
|
mortgagee, judgment creditor or other lien holder arising prior |
to the date
of such filing.
|
|
The court may, at any
time, upon verified petition by the |
defendant, conduct a hearing to release
all or portions of any |
such property or interest which the court
previously determined |
to be subject to forfeiture or subject to any
restraining |
order, injunction, or prohibition or other action. The
court |
may release such property to the defendant for good cause shown |
and
within the sound discretion of the court.
|
(d) Prosecution under this Act may be commenced by the |
Attorney General
or a State's Attorney.
|
(e) Upon an order of forfeiture being entered pursuant to |
subsection
(b) of this Section, the
court shall authorize the |
Attorney General to seize any property or property
interest |
declared forfeited under this Act and under such terms and |
conditions
as the court shall deem proper.
Any property or |
property interest that has been the subject of an
entered |
restraining order, injunction or prohibition or any other |
action
filed under subsection (c) shall be forfeited unless the |
claimant can show
by a preponderance of the evidence that the |
property or property interest
has not been acquired or |
maintained as a result of narcotics racketeering
or has not |
been used to facilitate narcotics racketeering.
|
(f) The Attorney General or his designee is authorized to |
sell all property forfeited
and seized pursuant to this Act, |
unless such property is required by law
to be destroyed or is |
harmful to the public, and, after the deduction of
all |
requisite expenses of administration and sale, shall |
|
distribute the
proceeds of such sale, along with any moneys |
forfeited or seized, in accordance
with subsection (g) or (h), |
whichever is applicable.
|
(g) All monies and the sale proceeds of all other property |
forfeited and
seized pursuant to this Act shall be distributed |
as follows:
|
(1) An amount equal to 50% shall be distributed to the |
unit of
local government whose
officers or employees |
conducted the investigation into narcotics
racketeering |
and caused the arrest or arrests and prosecution leading to
|
the forfeiture. Amounts distributed to units of local |
government shall be
used for enforcement of laws governing |
narcotics activity or for public education in the community |
or schools in the
prevention or detection of the abuse of |
drugs or
alcohol. In the event,
however, that the |
investigation, arrest or arrests and prosecution leading
|
to the forfeiture
were undertaken solely by a State agency, |
the portion provided hereunder
shall be paid into the Drug |
Traffic Prevention Fund in the State treasury
to be used |
for enforcement of laws governing narcotics activity.
|
(2) An amount equal to 12.5% shall be distributed to |
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 |
narcotics
activity or for public education in the community |
|
or schools in the
prevention or detection of the abuse of |
drugs or
alcohol.
|
An amount equal to 12.5% shall be distributed to the |
Office
of the State's Attorneys Appellate Prosecutor and |
deposited in the
Narcotics Profit Forfeiture Fund, which is |
hereby created in the State
treasury, to be used by the |
Office of the State's Attorneys Appellate
Prosecutor for |
additional expenses incurred in prosecuting appeals |
arising
under this Act. Any amounts remaining in the Fund |
after all additional
expenses have been paid shall be used |
by the Office to reduce the
participating county |
contributions to the Office on a pro-rated basis as
|
determined by the
board of governors of the Office of the |
State's Attorneys Appellate
Prosecutor based on the |
populations of the participating counties.
|
(3) An amount equal to 25% shall be paid into the Drug |
Traffic
Prevention Fund in the State
treasury to be used by |
the Department of State Police for funding Metropolitan
|
Enforcement Groups created pursuant to the |
Intergovernmental Drug Laws Enforcement
Act. Any amounts |
remaining in the Fund after full funding of Metropolitan
|
Enforcement Groups shall be used for enforcement, by the |
State or any unit
of local government, of laws governing |
narcotics activity or for public education in the community |
or schools in the
prevention or detection of the abuse of |
drugs or
alcohol.
|
|
(h) Where the investigation or indictment for the offense |
of narcotics
racketeering or a violation of Section 3 of the |
Drug Paraphernalia Control
Act has occurred under the |
provisions of the Statewide Grand Jury Act, all
monies and the |
sale proceeds of all other property shall be distributed as |
follows:
|
(1) 60% 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 on 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 or for public |
education in the community or schools in the
prevention or |
detection of the abuse of drugs or
alcohol.
|
(2) 25% shall be distributed by the Attorney General as |
grants to
drug education, treatment and prevention |
programs licensed or approved by the Department of Human |
Services. In making these grants, the Attorney General |
shall take
into account the plans and service priorities |
|
of, and the needs identified
by, the Department of Human |
Services.
|
(3) 15% shall be distributed to the Attorney General |
and the State's
Attorney, if any, participating in the |
prosecution resulting in the
forfeiture. The distribution |
shall bear a reasonable relationship to the
degree of |
direct participation in the prosecution of the offense, |
taking
into account the total value of the property |
forfeited and the total amount
of time spent in preparing |
and presenting the case, the complexity of the
case and |
other similar factors. Amounts distributed to the Attorney
|
General under this paragraph shall be retained in a fund |
held by the State
Treasurer as ex-officio custodian to be |
designated as the Statewide Grand
Jury Prosecution Fund and |
paid out upon the direction of the Attorney
General for |
expenses incurred in criminal prosecutions arising under |
the
Statewide Grand Jury Act. Amounts distributed to a |
State's Attorney shall
be deposited in a special fund in |
the county treasury and appropriated to
the State's |
Attorney for use in the enforcement of laws governing |
narcotics activity or for public education in the community |
or schools in the
prevention or detection of the abuse of |
drugs or
alcohol.
|
(i) All monies deposited pursuant to this Act in the Drug |
Traffic Prevention
Fund established under Section 5-9-1.2 of |
the Unified Code of Corrections
are appropriated, on a |
