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| Public Act 095-0041 |
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Criminal Code of 1961 is amended by changing | ||||
Section 17-1b as follows:
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(720 ILCS 5/17-1b)
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Sec. 17-lb. State's Attorney's bad check diversion | ||||
program.
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(a) In this Section:
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"Offender" means a person charged with, or for whom | ||||
probable cause
exists to charge the person with, deceptive | ||||
practices.
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"Pretrial diversion" means the decision of a prosecutor to | ||||
refer an
offender to a diversion program on condition that the | ||||
criminal charges against
the offender will be dismissed after a | ||||
specified period of time, or the case
will not be charged, if | ||||
the offender successfully completes the program.
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"Restitution" means all amounts payable to a victim of | ||||
deceptive practices
under the bad check diversion program | ||||
created under this Section, including
the amount of the check | ||||
and any transaction fees payable to a victim as set
forth in | ||||
subsection (g)
but does not include amounts
recoverable under | ||||
Section 3-806 of the Uniform Commercial Code and Section
17-1a | ||||
of this Code.
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(b) A State's Attorney may create within his or her office | ||
a bad check
diversion program for offenders who agree to | ||
voluntarily participate in the
program instead of undergoing | ||
prosecution. The program may be conducted by the
State's | ||
Attorney or by a private entity under contract with the State's
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Attorney. If the State's Attorney contracts with a private | ||
entity to perform
any services in operating the program, the | ||
entity shall operate under the
supervision, direction, and | ||
control of the State's Attorney. Any private entity
providing | ||
services under this Section is not a "collection agency" as | ||
that
term is defined under the Collection Agency Act.
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(c) If an offender is referred to the State's Attorney, the | ||
State's
Attorney may determine whether the offender is | ||
appropriate for acceptance in
the
program. The State's Attorney | ||
may consider, but shall not be limited to
consideration of, the
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following factors:
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(1) the amount of the check that was drawn or passed;
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(2) prior referrals of the offender to the program;
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(3) whether other charges of deceptive practices are | ||
pending
against the offender;
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(4) the evidence presented to the State's Attorney | ||
regarding the
facts and circumstances of the incident;
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(5) the offender's criminal history; and
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(6) the reason the check was dishonored by the | ||
financial
institution.
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(d) The bad check diversion program may require an offender | ||
to do one or
more of the following:
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(i) pay for, at his or her own expense, and | ||
successfully
complete an educational class held by the | ||
State's Attorney or a private
entity under contract with | ||
the State's Attorney;
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(ii) make full restitution for the offense;
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(iii) pay a per-check administrative fee as set forth | ||
in this
Section.
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(e) If an offender is diverted to the program, the State's | ||
Attorney shall
agree in writing not to prosecute the offender | ||
upon the offender's successful
completion of the program | ||
conditions. The State's Attorney's agreement to
divert the | ||
offender shall specify the
offenses that will not be prosecuted | ||
by identifying the checks involved in the
transactions.
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(f) The State's Attorney, or private entity under contract | ||
with the
State's Attorney, may collect a fee from an offender | ||
diverted to the State's
Attorney's bad check diversion program. | ||
This fee may be deposited in a
bank account maintained by the | ||
State's Attorney for the purpose of
depositing fees and paying | ||
the expenses of the program or for use in the enforcement and | ||
prosecution of criminal laws. The State's
Attorney may require | ||
that the fee be paid directly to a private entity that
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administers the program under a contract with the State's | ||
Attorney.
The amount of the administrative fees collected by | ||
the State's Attorney
under the program may not exceed $35 per | ||
check. The county board may,
however, by ordinance, increase | ||
the fees allowed by this Section if the
increase is justified | ||
by an acceptable cost study showing that the fees
allowed by | ||
this Section are not sufficient to cover the cost of providing | ||
the
service.
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(g) (1) The private entity shall be required to maintain | ||
adequate
general
liability insurance of $1,000,000 per | ||
occurrence as well as adequate
coverage for potential loss | ||
resulting from employee dishonesty. The State's
Attorney | ||
may require a surety bond payable to the State's Attorney | ||
if in the
State's Attorney's opinion it is determined that | ||
the private entity is not
adequately insured or funded.
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(2) (A) Each private entity that has a contract with | ||
the State's
Attorney to conduct a bad check diversion | ||
program shall at all times
maintain a separate bank | ||
account in which all moneys received from the
offenders | ||
participating in the program shall be deposited, | ||
referred to as a
"Trust Account", except that | ||
negotiable instruments received may be
forwarded | ||
directly to a victim of the deceptive practice | ||
committed by the
offender if that procedure is provided | ||
for by a writing executed by the
victim. Moneys | ||
received shall be so deposited within 5 business days
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after posting to the private entity's books of account.
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There shall be sufficient funds in the trust account at | ||
all times to
pay the victims the amount due them.
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(B) The trust account shall be established in a | ||
bank, savings and
loan association, or other | ||
recognized depository which is federally or
State | ||
insured or otherwise secured as defined by rule. If the | ||
account is
interest bearing, the private entity shall | ||
pay to the victim interest
earned on funds on deposit | ||
after the 60th day.
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(C) Each private entity shall keep on file the name | ||
of the bank,
savings and loan association, or other | ||
recognized depository in which
each trust account is | ||
maintained, the name of each trust account, and
the | ||
names of the persons authorized to withdraw funds from | ||
each account.
The private entity, within 30 days of the | ||
time of a change of
depository or person authorized to | ||
make withdrawal, shall update its
files to reflect that | ||
change.
An examination and audit of a private entity's | ||
trust accounts may be
made by the State's Attorney as | ||
the State's Attorney deems appropriate.
A trust | ||
account financial report shall be submitted annually | ||
on
forms acceptable to the State's Attorney.
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(3) The State's Attorney may cancel a contract entered | ||
into
with a
private entity under this Section for any one | ||
or any
combination of the following causes:
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(A) Conviction of the private entity or the | ||
principals of
the private entity of any crime under the | ||
laws of any U.S. jurisdiction
which is a felony, a | ||
misdemeanor an essential element of which is
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dishonesty, or of any crime which directly relates to | ||
the practice
of the profession.
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(B) A determination that the private entity has | ||
engaged in conduct
prohibited in item (4).
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(4) The State's Attorney may determine whether the | ||
private entity has
engaged in the following prohibited | ||
conduct:
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(A) Using or threatening to use force or violence | ||
to cause
physical harm to an offender, his or her | ||
family, or his or her property.
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(B) Threatening the seizure, attachment, or sale | ||
of an offender's
property where such action can only be | ||
taken pursuant to court order
without disclosing that | ||
prior court proceedings are required.
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(C) Disclosing or threatening to disclose | ||
information
adversely affecting an offender's | ||
reputation for creditworthiness with
knowledge the | ||
information is false.
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(D) Initiating or threatening to initiate | ||
communication with
an offender's employer unless there | ||
has been a default of the payment
of the obligation for | ||
at least 30 days and at least 5 days prior
written | ||
notice, to the last known address of the offender, of | ||
the
intention to communicate with the employer has been | ||
given to the
employee, except as expressly permitted by | ||
law or court order.
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(E) Communicating with the offender or any member | ||
of the
offender's family at such a time of day or night | ||
and with such
frequency as to constitute harassment of | ||
the offender or any member of
the offender's family. | ||
For purposes of this clause (E) the following
conduct | ||
shall constitute harassment:
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(i) Communicating with the offender or any | ||
member of his or
her family at any unusual time or | ||
place or a time
or place known or which should be | ||
known to be inconvenient to
the offender. In the | ||
absence of knowledge of circumstances to
the | ||
contrary, a private entity shall assume that the | ||
convenient
time for communicating with a consumer | ||
is after 8 o'clock a.m.
and before 9 o'clock p.m. | ||
local time at the offender's residence.
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(ii) The threat of publication or publication | ||
of a list of
offenders who allegedly refuse to pay | ||
restitution, except by the State's
Attorney.
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(iii) The threat of advertisement or | ||
advertisement for sale
of any restitution to | ||
coerce payment of the restitution.
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(iv) Causing a telephone to ring or engaging | ||
any person in
telephone conversation repeatedly or | ||
continuously with intent
to annoy, abuse, or | ||
harass any person at the called number.
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(v) Using profane, obscene or abusive language | ||
in
communicating with an offender, his or her | ||
family, or others.
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(vi) Disclosing or threatening to disclose | ||
information
relating to a offender's case to any | ||
other person except
the victim and appropriate law | ||
enforcement personnel.
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(vii) Disclosing or threatening to disclose | ||
information
concerning the alleged criminal act | ||
which the private entity knows to
be reasonably | ||
disputed by the offender without disclosing the | ||
fact
that the offender disputes the accusation.
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(viii) Engaging in any conduct which the | ||
State's Attorney finds was
intended to cause and | ||
did cause mental or physical illness to the
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offender or his or her family.
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(ix) Attempting or threatening to enforce a | ||
right or remedy
with knowledge or reason to know | ||
that the right or remedy does not
exist.
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(x) Except as authorized by the State's | ||
Attorney, using any form of
communication which | ||
simulates legal or
judicial process or which gives | ||
the appearance of being authorized,
issued or | ||
approved by a governmental agency or official or by | ||
an
attorney at law when it is not.
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(xi) Using any badge,
uniform, or other | ||
indicia of any
governmental agency or official, | ||
except as authorized by law or by the State's
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Attorney.
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(xii) Except as authorized by the State's | ||
Attorney, conducting
business
under any name or in | ||
any manner which
suggests or implies that the | ||
private entity is bonded if such
private entity is | ||
or is a branch of or is affiliated with any
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governmental agency or court if such private | ||
entity is not.
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(xiii) Misrepresenting the amount of the | ||
restitution alleged
to be owed.
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(xiv) Except as authorized by the State's | ||
Attorney, representing that
an
existing | ||
restitution amount may be increased
by
the | ||
addition of attorney's fees, investigation fees, | ||
or any other
fees or charges when those fees or | ||
charges may not legally be added
to the existing | ||
restitution.
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(xv) Except as authorized by the State's | ||
Attorney, representing that
the
private entity is | ||
an attorney at
law or an agent for an attorney if | ||
the entity is not.
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(xvi) Collecting or attempting to collect any | ||
interest or other
charge or fee in excess of the | ||
actual restitution or claim unless the
interest or | ||
other charge or fee is expressly authorized by the
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State's Attorney, who shall
determine what | ||
constitutes a reasonable collection fee.
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(xvii) Communicating or threatening to | ||
communicate with an offender
when the private | ||
entity is informed in writing by an attorney that
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the attorney represents the offender concerning | ||
the claim, unless
authorized by the attorney. If | ||
the attorney fails to respond within
a reasonable | ||
period of time, the private entity may communicate | ||
with the
offender. The private entity may | ||
communicate with the offender when the
attorney | ||
gives his consent.
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(xviii) Engaging in dishonorable, unethical, | ||
or unprofessional
conduct of a character likely to | ||
deceive, defraud, or harm the
public.
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(5) The State's Attorney shall audit the accounts of | ||
the bad check
diversion
program after notice in writing to | ||
the private entity.
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(6) Any information obtained by a private entity that | ||
has a contract with
the State's Attorney to conduct a bad | ||
check diversion program is confidential
information | ||
between the State's Attorney and the private entity and may | ||
not
be sold or used for any other purpose but may be shared | ||
with other authorized
law enforcement agencies as | ||
determined by the State's Attorney.
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(h) The State's Attorney, or private entity under contract | ||
with the
State's Attorney, shall recover, in addition to the | ||
face amount of the
dishonored check or draft, a transaction fee | ||
to defray the costs and expenses
incurred by a victim who | ||
received a dishonored check that was made or
delivered by the | ||
offender. The face amount of the dishonored check or draft and
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the transaction fee shall be paid by the State's Attorney or | ||
private entity
under contract with the State's Attorney to the | ||
victim as
restitution for the offense. The amount of the | ||
transaction fee must not
exceed: $25 if the face amount of the | ||
check or draft does not exceed $100;
$30 if the face amount of | ||
the check or draft is greater than $100 but does not
exceed | ||
$250; $35 if the face amount of the check or draft is greater | ||
than
$250 but does not exceed $500; $40 if the face amount of | ||
the
check or draft is greater than $500 but does not exceed | ||
$1,000; and $50 if the
face amount of the check or draft is | ||
greater than $1,000.
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(i) The offender, if aggrieved by an action of the private
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entity contracted to operate a bad check diversion program, may | ||
submit a
grievance to
the State's Attorney who may then resolve | ||
the grievance. The private entity
must give notice to the | ||
offender that the grievance procedure is available. The
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grievance procedure shall be established by the State's | ||
Attorney.
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(Source: P.A. 93-394, eff. 7-29-03.)
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