Bill Text: IL SB3778 | 2011-2012 | 97th General Assembly | Engrossed
Bill Title: Amends the Code of Criminal Procedure of 1963. Adds the State's Attorney's Investigative Subpoenas Article to the Code. Provides that at any time prior to the commencement of a prosecution and upon written application by the State's Attorney, the circuit court shall cause the clerk of the court to issue subpoenas ad testificandum or duces tecum directed to the sheriff or coroner of any county in the State for the purpose of obtaining the testimony of any person or any document or material relevant to a criminal matter being investigated by the State's Attorney. Establishes procedures under which the State's Attorney may apply for the issuance of such subpoenas. Provides that the State's Attorney shall promptly provide a complete transcript or electronic recording of all testimony taken pursuant to a subpoena issued under this Article to the court that issued the subpoena. Provides for disclosure of the existence of the subpoena issued or materials obtained pursuant to the Article to an attorney representing a person or other entity subpoenaed. Provides that the Attorney General, in cooperation with the Illinois State's Attorney Association, shall annually provide a course of training to the State's Attorneys, in the legal, ethical, and practical aspects of the provisions of the Article relating to investigation and prosecutorial functions. Effective immediately.
Spectrum: Bipartisan Bill
Status: (Failed) 2013-01-08 - Session Sine Die [SB3778 Detail]
Download: Illinois-2011-SB3778-Engrossed.html
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1 | AN ACT concerning criminal law.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 2. The Criminal Code of 1961 is amended by changing | ||||||
5 | Section 36-1.5 as follows:
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6 | (720 ILCS 5/36-1.5) | ||||||
7 | Sec. 36-1.5. Preliminary Review. | ||||||
8 | (a) Within 21 14 days of the seizure, the State shall seek | ||||||
9 | a preliminary determination from the circuit court as to | ||||||
10 | whether there is probable cause that the property may be | ||||||
11 | subject to forfeiture. | ||||||
12 | (b) The rules of evidence shall not apply to any proceeding | ||||||
13 | conducted under this Section. | ||||||
14 | (c) The court may conduct the review under subsection (a) | ||||||
15 | simultaneously with a proceeding pursuant to Section 109-1 of | ||||||
16 | the Code of Criminal Procedure of 1963 for a related criminal | ||||||
17 | offense if a prosecution is commenced by information or | ||||||
18 | complaint , however if the review is not conducted | ||||||
19 | simultaneously, the court's findings shall not constitute a | ||||||
20 | collateral estoppel to the filing of criminal charges . | ||||||
21 | (d) The court may accept a finding of probable cause at a | ||||||
22 | preliminary hearing following the filing of an information or | ||||||
23 | complaint charging a related criminal offense or following the |
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1 | return of indictment by a grand jury charging the related | ||||||
2 | offense as sufficient evidence of probable cause as required | ||||||
3 | under subsection (a). | ||||||
4 | (e) (Blank). Upon making a finding of probable cause as | ||||||
5 | required under this Section, and after taking into account the | ||||||
6 | respective interests of all known claimants to the property | ||||||
7 | including the State, the circuit court shall enter a | ||||||
8 | restraining order or injunction, or take other appropriate | ||||||
9 | action, as necessary to ensure that the property is not removed | ||||||
10 | from the court's jurisdiction and is not concealed, destroyed, | ||||||
11 | or otherwise disposed of by the property owner or interest | ||||||
12 | holder before a forfeiture hearing is conducted.
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13 | (Source: P.A. 97-544, eff. 1-1-12.)
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14 | Section 5. The Drug Asset Forfeiture Procedure Act is | ||||||
15 | amended by changing Sections 3.5, 5, and 9 as follows:
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16 | (725 ILCS 150/3.5) | ||||||
17 | Sec. 3.5. Preliminary Review. | ||||||
18 | (a) Within 21 14 days of the seizure, the State shall seek | ||||||
19 | a preliminary determination from the circuit court as to | ||||||
20 | whether there is probable cause that the property may be | ||||||
21 | subject to forfeiture. | ||||||
22 | (b) The rules of evidence shall not apply to any proceeding | ||||||
23 | conducted under this Section. | ||||||
24 | (c) The court may conduct the review under subsection (a) |
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1 | simultaneously with a proceeding pursuant to Section 109-1 of | ||||||
2 | the Code of Criminal Procedure of 1963 for a related criminal | ||||||
3 | offense if a prosecution is commenced by information or | ||||||
4 | complaint , however if the review is not conducted | ||||||
5 | simultaneously, the court's findings shall not constitute a | ||||||
6 | collateral estoppel to the filing of criminal charges . | ||||||
7 | (d) The court may accept a finding of probable cause at a | ||||||
8 | preliminary hearing following the filing of an information or | ||||||
9 | complaint charging a related criminal offense or following the | ||||||
10 | return of indictment by a grand jury charging the related | ||||||
11 | offense as sufficient evidence of probable cause as required | ||||||
12 | under subsection (a). | ||||||
13 | (e) (Blank) Upon making a finding of probable cause as | ||||||
14 | required under this Section, and after taking into account the | ||||||
15 | respective interests of all known claimants to the property | ||||||
16 | including the State, the circuit court shall enter a | ||||||
17 | restraining order or injunction, or take other appropriate | ||||||
18 | action, as necessary to ensure that the property is not removed | ||||||
19 | from the court's jurisdiction and is not concealed, destroyed, | ||||||
20 | or otherwise disposed of by the property owner or interest | ||||||
21 | holder before a forfeiture hearing is conducted .
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22 | (Source: P.A. 97-544, eff. 1-1-12.)
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23 | (725 ILCS 150/5) (from Ch. 56 1/2, par. 1675)
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24 | Sec. 5. Notice to State's Attorney. The law enforcement | ||||||
25 | agency
seizing property for forfeiture under the Illinois |
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1 | Controlled
Substances Act, the Cannabis Control Act, or the | ||||||
2 | Methamphetamine Control and Community Protection Act shall,
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3 | within 52 days of seizure, notify the State's Attorney for the | ||||||
4 | county in
which an act or omission giving rise to the | ||||||
5 | forfeiture occurred or in which
the property was seized of the | ||||||
6 | seizure of the property and the facts and
circumstances giving | ||||||
7 | rise to the seizure and shall provide the State's
Attorney with | ||||||
8 | the inventory of the property and its estimated value. For | ||||||
9 | purposes of forfeiture proceedings pursuant to Sections 6 and 9 | ||||||
10 | of this Act, the notification to the State's Attorney shall | ||||||
11 | only be perfected by the delivery of the Illinois State Police | ||||||
12 | approved form 4-64. When
the property seized for forfeiture is | ||||||
13 | a vehicle, the law enforcement agency
seizing the property | ||||||
14 | shall immediately notify the Secretary of State that
forfeiture | ||||||
15 | proceedings are pending regarding such vehicle.
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16 | (Source: P.A. 94-556, eff. 9-11-05.)
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17 | (725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)
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18 | Sec. 9. Judicial in rem procedures. If property seized | ||||||
19 | under the
provisions of the Illinois Controlled Substances Act, | ||||||
20 | the Cannabis Control
Act, or the Methamphetamine Control and | ||||||
21 | Community Protection Act is non-real property that exceeds | ||||||
22 | $150,000 $20,000 in value excluding the value
of any | ||||||
23 | conveyance, or is real property, or a claimant has filed a | ||||||
24 | claim and
a cost bond under subsection (C) of Section 6 of this | ||||||
25 | Act, the following
judicial in rem procedures shall apply:
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1 | (A) If, after a review of the facts surrounding the | ||||||
2 | seizure, the State's
Attorney is of the opinion that the seized | ||||||
3 | property is subject to
forfeiture, then within 45 days of the | ||||||
4 | receipt of notice of seizure by the
seizing agency or the | ||||||
5 | filing of the claim and cost bond, whichever is
later, the | ||||||
6 | State's Attorney shall institute judicial forfeiture | ||||||
7 | proceedings
by filing a verified complaint for forfeiture and, | ||||||
8 | if the claimant has
filed a claim and cost bond, by depositing | ||||||
9 | the cost bond with the clerk of
the court. When authorized by | ||||||
10 | law, a forfeiture must be ordered by a court
on an action in | ||||||
11 | rem brought by a State's Attorney under a verified
complaint | ||||||
12 | for forfeiture.
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13 | (B) During the probable cause portion of the judicial in | ||||||
14 | rem
proceeding wherein the State presents its case-in-chief, | ||||||
15 | the court must
receive and consider, among other things, all | ||||||
16 | relevant hearsay evidence and
information. The laws of evidence | ||||||
17 | relating to civil actions shall apply to
all other portions of | ||||||
18 | the judicial in rem proceeding.
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19 | (C) Only an owner of or interest holder in the property may | ||||||
20 | file an
answer asserting a claim against the property in the | ||||||
21 | action in rem. For
purposes of this Section, the owner or | ||||||
22 | interest holder shall be referred
to as claimant.
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23 | (D) The answer must be signed by the owner or interest | ||||||
24 | holder under
penalty of perjury and must set forth:
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25 | (i) the caption of the proceedings as set forth on the | ||||||
26 | notice of pending
forfeiture and the name of the claimant;
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1 | (ii) the address at which the claimant will accept | ||||||
2 | mail;
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3 | (iii) the nature and extent of the claimant's interest | ||||||
4 | in the property;
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5 | (iv) the date, identity of transferor, and | ||||||
6 | circumstances of the
claimant's acquisition of the | ||||||
7 | interest in the property;
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8 | (v) the name and address of all other persons known to | ||||||
9 | have an interest
in the property;
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10 | (vi) the specific provisions of Section 8 of this Act
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11 | relied on in asserting it
is not subject to forfeiture;
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12 | (vii) all essential facts supporting each assertion; | ||||||
13 | and
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14 | (viii) the precise relief sought.
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15 | (E) The answer must be filed with the court within 45 days | ||||||
16 | after service
of the civil in rem complaint.
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17 | (F) The hearing must be held within 60 days after filing of | ||||||
18 | the answer
unless continued for good cause.
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19 | (G) The State shall show the existence of probable cause | ||||||
20 | for forfeiture
of the property. If the State shows probable | ||||||
21 | cause, the claimant has the
burden of showing by a | ||||||
22 | preponderance of the evidence that the claimant's
interest in | ||||||
23 | the property is not subject to forfeiture.
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24 | (H) If the State does not show existence of probable cause | ||||||
25 | or a claimant
has established by a preponderance of evidence | ||||||
26 | that the claimant has an
interest that is exempt under Section |
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1 | 8 of this Act, the court shall order
the interest in the | ||||||
2 | property returned or conveyed to the claimant and shall
order | ||||||
3 | all other property forfeited to the State. If the State does | ||||||
4 | show
existence of probable cause and the claimant does not | ||||||
5 | establish by a
preponderance of evidence that the claimant has | ||||||
6 | an interest that is exempt
under Section 8 of this Act, the | ||||||
7 | court shall order all property forfeited
to the State.
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8 | (I) A defendant convicted in any criminal proceeding is | ||||||
9 | precluded from
later denying the essential allegations of the | ||||||
10 | criminal offense of which
the defendant was convicted in any | ||||||
11 | proceeding under this Act
regardless of the pendency of an | ||||||
12 | appeal from that conviction. However,
evidence of the pendency | ||||||
13 | of an appeal is admissible.
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14 | (J) An acquittal or dismissal in a criminal proceeding | ||||||
15 | shall not
preclude civil proceedings under this Act; however, | ||||||
16 | for good cause shown,
on a motion by the State's Attorney, the | ||||||
17 | court may stay civil forfeiture
proceedings during the criminal | ||||||
18 | trial for a related criminal indictment or
information alleging | ||||||
19 | a violation of the Illinois Controlled Substances Act,
the | ||||||
20 | Cannabis Control Act, or the Methamphetamine Control and | ||||||
21 | Community Protection Act. Such a stay shall not be available | ||||||
22 | pending an
appeal. Property subject to forfeiture under the | ||||||
23 | Illinois Controlled
Substances Act, the Cannabis Control Act, | ||||||
24 | or the Methamphetamine Control and Community Protection Act | ||||||
25 | shall not be subject to return
or release by a court exercising | ||||||
26 | jurisdiction over a criminal case
involving the seizure of such |
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1 | property unless such return or release is
consented to by the | ||||||
2 | State's Attorney.
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3 | (K) All property declared forfeited under this Act vests in | ||||||
4 | this State
on the commission of the conduct giving rise to | ||||||
5 | forfeiture together with
the proceeds of the property after | ||||||
6 | that time. Any such property or
proceeds subsequently | ||||||
7 | transferred to any person remain subject to
forfeiture and | ||||||
8 | thereafter shall be ordered forfeited unless the transferee
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9 | claims and establishes in a hearing under the provisions of | ||||||
10 | this Act that
the transferee's interest is exempt under Section | ||||||
11 | 8 of this Act.
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12 | (L) A civil action under this Act must be commenced within | ||||||
13 | 5 years
after the last conduct giving rise to forfeiture became | ||||||
14 | known or should
have become known or 5 years after the | ||||||
15 | forfeitable property is
discovered, whichever is later, | ||||||
16 | excluding any time during which either the
property or claimant | ||||||
17 | is out of the State or in confinement or during which
criminal | ||||||
18 | proceedings relating to the same conduct are in progress.
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19 | (Source: P.A. 94-556, eff. 9-11-05.)
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