Bill Text: IL HB0908 | 2011-2012 | 97th General Assembly | Amended

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Bill Title: Amends the Criminal Code of 1961. Makes a technical change in a Section concerning the short title.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2013-01-08 - Session Sine Die [HB0908 Detail]

Download: Illinois-2011-HB0908-Amended.html

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Rep. Constance A. Howard

Filed: 4/1/2011

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AMENDMENT TO HOUSE BILL 908
AMENDMENT NO. ______. Amend House Bill 908 by replacing
everything after the enacting clause with the following:
"Section 5. The Drug Asset Forfeiture Procedure Act is
amended by changing Sections 4 and 9 and by adding Sections 5.1
and 5.2 as follows:
(725 ILCS 150/4) (from Ch. 56 1/2, par. 1674)
Sec. 4. Notice to Owner or Interest Holder.
(A) 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

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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. A
good faith effort shall be made to provide notice at their
institutional location to any owners or interest holders
who are known to be incarcerated at the time when notice is
required to be given under this Section; 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.

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(B) 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 150/5.1 new)
Sec. 5.1. Notice; Right to a Preliminary Hearing. Within
72 hours of a seizure of personal property under the Illinois
Controlled Substances Act, the Cannabis Control Act, or the
Methamphetamine Control and Community Protection Act, the
seizing agency shall provide the owner or interest holder of
the property notice in accordance with this Section and in the
manner provided by Section 4 of this Act. For purposes of this
Section and Section 5.2, the owner or interest holder of the
personal property shall be referred to as claimant. Such notice
shall state that the seized property is subject to forfeiture.
The notice shall give 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. Such notice shall state
that the claimant has a right to a preliminary adversarial
hearing to determine whether there is probable cause that such
property is subject to forfeiture. The claimant shall be given
15 business days from the receipt of the notice to request a
preliminary adversarial hearing by checking a box that is to be

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provided upon the face of the notice and returning the notice
to the State's Attorney for the county in which the seizure has
occurred. Upon the timely receipt of notice, the State's
Attorney shall provide for an adversarial preliminary hearing
in accordance with Section 5.2. If the seizing agency does not
provide notice as required under this Section, the property
shall be released pending the commencement of the forfeiture
hearing under this Act.
(725 ILCS 150/5.2 new)
Sec. 5.2. Preliminary Forfeiture Review; Remedies.
(a) Where a claimant has requested a hearing in accordance
with Section 5.1, within 10 business days of the receipt of
such request, the State's Attorney shall commence an
adversarial hearing in the circuit court of the county in which
such personal property has been seized.
(b) The court shall review all supporting documentation and
take any testimony in order to make a preliminary determination
whether there is probable cause to believe that the property at
issue is subject to forfeiture. In such hearing, it shall be
the burden of the State to show probable cause that the
property is subject to forfeiture.
(c) A claimant shall have the right and opportunity to
cross-examine the State's witnesses and to present evidence in
response to the evidence offered by the State in support of
probable cause. The claimant shall also have the opportunity to

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present evidence that he or she is not legally accountable for
the conduct giving rise to the forfeiture, did not acquiesce in
it, or did not know and could not reasonably have known of the
conduct or that the conduct was likely to occur.
(d) If the court finds that the State has not met its
burden under subsection (b) of this Section, the property shall
be released and all fees and costs associated with the storage
and seizure of the property shall be vacated.
(e) If the court finds that the State has met its burden
under subsection (b), the State must show by a preponderance of
evidence that its need for the retention of the property
outweighs the hardship to the claimant that would result from
denying him or her access to or use of the property pending the
forfeiture hearing.
(f) A claimant shall have the right and opportunity to
cross-examine the State's witnesses and to present evidence
concerning whether the burden of State's retaining the property
pending a forfeiture hearing outweighs the claimant's interest
in retaining the property pending the forfeiture hearing.
(g) If the court finds the State did not show under
subsection (e) that its need to retain the property is greater
than the claimant's need to keep the property, the court shall
grant the claimant reasonable access to and use of the property
pending the commencement of a forfeiture hearing. In such case,
the court shall order the property to be restrained by the
least restrictive means to protect against disposal, waste, or

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continued illegal use of such property pending disposition of
the forfeiture proceeding. The court may order the owner or
interest holder to post a bond or other adequate security.
(h) The rules of evidence shall not apply to hearings
conducted under this Section.
(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
$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 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

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for forfeiture.
(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 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.
(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 not subject to forfeiture;

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(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 civil in rem complaint.
(F) The hearing must be held within 60 days after filing of
the answer unless continued for good cause.
(G) The State shall show the property is subject to
forfeiture by a preponderance of the evidence existence of
probable cause for forfeiture of the property. If the State
shows the property is subject to forfeiture by a preponderance
of the evidence 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.
(H) If the State does not show the property is subject to
forfeiture by a preponderance of the evidence 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 forfeited to the State. If the State
does show the property is subject to forfeiture by a
preponderance of the evidence 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

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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) 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. Any such property or proceeds subsequently

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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 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.
(Source: P.A. 94-556, eff. 9-11-05.)".