|
under subsection (a). |
(e) Upon making a finding of probable cause as required |
under this Section, the circuit court shall order the property |
subject to the provisions of the applicable forfeiture Act held |
until the conclusion of any forfeiture proceeding. |
For seizures of conveyances, within 7 days of a finding of |
probable cause under subsection (a), the registered owner or |
other claimant may file a motion in writing supported by sworn |
affidavits claiming that denial of the use of the conveyance |
during the pendency of the forfeiture proceedings creates a |
substantial hardship. The court shall consider the following |
factors in determining whether a substantial hardship has been |
proven: |
(1) the nature of the claimed hardship; |
(2) the availability of public transportation or other |
available means of transportation; and |
(3) any available alternatives to alleviate the |
hardship other than the return of the seized conveyance. |
If the court determines that a substantial hardship has |
been proven, the court shall then balance the nature of the |
hardship against the State's interest in safeguarding the |
conveyance. If the court determines that the hardship outweighs |
the State's interest in safeguarding the conveyance, the court |
may temporarily release the conveyance to the registered owner |
or the registered owner's authorized designee, or both, until |
the conclusion of the forfeiture proceedings or for such |
|
shorter period as ordered by the court provided that the person |
to whom the conveyance is released provides proof of insurance |
and a valid driver's license and all State and local |
registrations for operation of the conveyance are current. The |
court shall place conditions on the conveyance limiting its use |
to the stated hardship and restricting the conveyance's use to |
only those individuals authorized to use the conveyance by the |
registered owner. The court shall revoke the order releasing |
the conveyance and order that the conveyance be reseized by law |
enforcement if the conditions of release are violated or if the |
conveyance is used in the commission of any offense identified |
in subsection (a) of Section 6-205 of the Illinois Vehicle |
Code. |
If the court orders the release of the conveyance during |
the pendency of the forfeiture proceedings, the registered |
owner or his or her authorized designee shall post a cash |
security with the Clerk of the Court as ordered by the court. |
The court shall consider the following factors in determining |
the amount of the cash security: |
(A) the full market value of the conveyance; |
(B) the nature of the hardship; |
(C) the extent and length of the usage of the |
conveyance; and |
(D) such other conditions as the court deems necessary |
to safeguard the conveyance. |
If the conveyance is released, the court shall order that |
|
the registered owner or his or her designee safeguard the |
conveyance, not remove the conveyance from the jurisdiction, |
not conceal, destroy, or otherwise dispose of the conveyance, |
not encumber the conveyance, and not diminish the value of the |
conveyance in any way. The court shall also make a |
determination of the full market value of the conveyance prior |
to it being released based on a source or sources defined in 50 |
Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). |
If the conveyance subject to forfeiture is released under |
this Section and is subsequently forfeited, the person to whom |
the conveyance was released shall return the conveyance to the |
law enforcement agency that seized the conveyance within 7 days |
from the date of the declaration of forfeiture or order of |
forfeiture. If the conveyance is not returned within 7 days, |
the cash security shall be forfeited in the same manner as the |
conveyance subject to forfeiture. If the cash security was less |
than the full market value, a judgment shall be entered against |
the parties to whom the conveyance was released and the |
registered owner, jointly and severally, for the difference |
between the full market value and the amount of the cash |
security. If the conveyance is returned in a condition other |
than the condition in which it was released, the cash security |
shall be returned to the surety who posted the security minus |
the amount of the diminished value, and that amount shall be |
forfeited in the same manner as the conveyance subject to |
forfeiture. Additionally, the court may enter an order allowing |
|
any law enforcement agency in the State of Illinois to seize |
the conveyance wherever it may be found in the State to satisfy |
the judgment if the cash security was less than the full market |
value of the conveyance. Upon making a finding of probable |
cause as required under this Section, and after taking into |
account the respective interests of all known claimants to the |
property including the State, the circuit court shall enter a |
restraining order or injunction, or take other appropriate |
action, as necessary to ensure that the property is not removed |
from the court's jurisdiction and is not concealed, destroyed, |
or otherwise disposed of by the property owner or interest |
holder before a forfeiture hearing is conducted.
|
(Source: P.A. 97-544, eff. 1-1-12.)
|
Section 10. The Drug Asset Forfeiture Procedure Act is |
amended by changing Section 3.5 as follows:
|
(725 ILCS 150/3.5) |
Sec. 3.5. Preliminary Review. |
(a) Within 14 days of the seizure, the State shall seek a |
preliminary determination from the circuit court as to whether |
there is probable cause that the property may be subject to |
forfeiture. |
(b) The rules of evidence shall not apply to any proceeding |
conducted under this Section. |
(c) The court may conduct the review under subsection (a) |
|
simultaneously with a proceeding pursuant to Section 109-1 of |
the Code of Criminal Procedure of 1963 for a related criminal |
offense if a prosecution is commenced by information or |
complaint. |
(d) The court may accept a finding of probable cause at a |
preliminary hearing following the filing of an information or |
complaint charging a related criminal offense or following the |
return of indictment by a grand jury charging the related |
offense as sufficient evidence of probable cause as required |
under subsection (a). |
(e) Upon making a finding of probable cause as required |
under this Section, the circuit court shall order the property |
subject to the provisions of the applicable forfeiture Act held |
until the conclusion of any forfeiture proceeding. |
For seizures of conveyances, within 7 days of a finding of |
probable cause under subsection (a), the registered owner or |
other claimant may file a motion in writing supported by sworn |
affidavits claiming that denial of the use of the conveyance |
during the pendency of the forfeiture proceedings creates a |
substantial hardship. The court shall consider the following |
factors in determining whether a substantial hardship has been |
proven: |
(1) the nature of the claimed hardship; |
(2) the availability of public transportation or other |
available means of transportation; and |
(3) any available alternatives to alleviate the |
|
hardship other than the return of the seized conveyance. |
If the court determines that a substantial hardship has |
been proven, the court shall then balance the nature of the |
hardship against the State's interest in safeguarding the |
conveyance. If the court determines that the hardship outweighs |
the State's interest in safeguarding the conveyance, the court |
may temporarily release the conveyance to the registered owner |
or the registered owner's authorized designee, or both, until |
the conclusion of the forfeiture proceedings or for such |
shorter period as ordered by the court provided that the person |
to whom the conveyance is released provides proof of insurance |
and a valid driver's license and all State and local |
registrations for operation of the conveyance are current. The |
court shall place conditions on the conveyance limiting its use |
to the stated hardship and restricting the conveyance's use to |
only those individuals authorized to use the conveyance by the |
registered owner. The court shall revoke the order releasing |
the conveyance and order that the conveyance be reseized by law |
enforcement if the conditions of release are violated or if the |
conveyance is used in the commission of any offense identified |
in subsection (a) of Section 6-205 of the Illinois Vehicle |
Code. |
If the court orders the release of the conveyance during |
the pendency of the forfeiture proceedings, the registered |
owner or his or her authorized designee shall post a cash |
security with the Clerk of the Court as ordered by the court. |
|
The court shall consider the following factors in determining |
the amount of the cash security: |
(A) the full market value of the conveyance; |
(B) the nature of the hardship; |
(C) the extent and length of the usage of the |
conveyance; and |
(D) such other conditions as the court deems necessary |
to safeguard the conveyance. |
If the conveyance is released, the court shall order that |
the registered owner or his or her designee safeguard the |
conveyance, not remove the conveyance from the jurisdiction, |
not conceal, destroy, or otherwise dispose of the conveyance, |
not encumber the conveyance, and not diminish the value of the |
conveyance in any way. The court shall also make a |
determination of the full market value of the conveyance prior |
to it being released based on a source or sources defined in 50 |
Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). |
If the conveyance subject to forfeiture is released under |
this Section and is subsequently forfeited, the person to whom |
the conveyance was released shall return the conveyance to the |
law enforcement agency that seized the conveyance within 7 days |
from the date of the declaration of forfeiture or order of |
forfeiture. If the conveyance is not returned within 7 days, |
the cash security shall be forfeited in the same manner as the |
conveyance subject to forfeiture. If the cash security was less |
than the full market value, a judgment shall be entered against |
|
the parties to whom the conveyance was released and the |
registered owner, jointly and severally, for the difference |
between the full market value and the amount of the cash |
security. If the conveyance is returned in a condition other |
than the condition in which it was released, the cash security |
shall be returned to the surety who posted the security minus |
the amount of the diminished value, and that amount shall be |
forfeited in the same manner as the conveyance subject to |
forfeiture. Additionally, the court may enter an order allowing |
any law enforcement agency in the State of Illinois to seize |
the conveyance wherever it may be found in the State to satisfy |
the judgment if the cash security was less than the full market |
value of the conveyance. Upon making a finding of probable |
cause as required under this Section, and after taking into |
account the respective interests of all known claimants to the |
property including the State, the circuit court shall enter a |
restraining order or injunction, or take other appropriate |
action, as necessary to ensure that the property is not removed |
from the court's jurisdiction and is not concealed, destroyed, |
or otherwise disposed of by the property owner or interest |
holder before a forfeiture hearing is conducted.
|
(Source: P.A. 97-544, eff. 1-1-12.)
|
Section 99. Effective date. This Act takes effect January |
1, 2012.
|