Effective January 1, 2012, Public Act 97-544 amended the Drug Asset Forfeiture Procedure Act (“DAFPA”), and related Illinois statutes, by requiring a preliminary review to determine if there is probable cause to seize property for forfeiture within 14 days of the seizure. Additionally, House Bill 1927 will afford DAFPA claimants the opportunity to move for a hardship hearing that may result in the limited release of a seized vehicle pending a judicial forfeiture hearing. House Bill 1927 passed both houses on February 21, 2012, and is expected to be signed into law by the Governor in the near future.
 
DAFPA Procedures
 
DAFPA provides specific administrative procedures with respect to property that is forfeitable under the Illinois Controlled Substances Act, the Cannabis Control Act, the
Illinois Food, Drug and Cosmetic Act, and the Methamphetamine Control and Community Protection Act. Vehicles are forfeitable if they are used to facilitate the sale, purchase or possession of a controlled substance, unless the vehicle was used without the knowledge or consent of the owner. Money or anything else of value that is used in connection with the sale, purchase or possession of a controlled substance, as well as any traceable proceeds from that property, is likewise subject to forfeiture.
 
The Illinois Legislature enacted DAFPA upon finding that the civil forfeiture of property used in or attributable to the proliferation, possession or use of controlled substances would have a “significant beneficial effect in deterring the rising incidence of the abuse and trafficking of such substances within this State.” DAFPA was largely modeled after, and is to be construed with, the federal forfeiture provisions found in 21 U.S.C. 881.
 
Pursuant to DAFPA, within 52 days of a seizure the State’s Attorney of the county where the underlying offense is committed must be notified of the circumstances giving rise to the seizure and an inventory of the property seized and its estimated value. Upon receipt of notice, the State’s Attorney has 45 days to determine whether the seized property is subject to forfeiture, and cause notice of the pending forfeiture to the owner or interest holder of the property (“claimant”). Before the amendments to DAFPA, the claimant may not have been notified of the seizure until up to 97 days after it occurred. This delay in notice and opportunity to be heard was the subject of a federal class action lawsuit that challenged DAFPA on due process concerns and prompted the instant amendments.

Seized property is subject to either non-judicial forfeiture or a judicial forfeiture proceeding. A claimant has 45 days after receiving notice to file a verified claim with the State’s Attorney expressing their interest in the seized property. In addition to the verified claim, the claimant must post a cost bond with the clerk of the court in the amount of 10 percent of the value of the property, as alleged by the State’s Attorney, or $100, whichever is greater. If a claim is filed and a bond posted, the property will be subject to judicial forfeiture proceedings. If no claim is filed, the seized property is subject to non-judicial, or administrative, forfeiture and is deemed forfeited. Non-real property valued at over $150,000 is subject to a judicial forfeiture proceeding even absent the filing of a verified claim.

At the judicial forfeiture proceeding, the State’s Attorney has the burden to show probable cause for forfeiture of the property, and may present all relevant hearsay and other evidence in support of the forfeiture of the property. Once the State has met this burden, the claimant must show by a preponderance of the evidence, and under the rules of evidence, that the claimant’s interest is not subject to forfeiture because it is exempt under Section 8 of DAFPA. Exemptions to forfeiture are, for example, that the claimant is not legally accountable for the conduct giving rise to the forfeiture, did not agree to it and did not know and reasonably could not know that the conduct was likely to occur. Additionally, property is exempt if the claimant did not stand the benefit financially from the conduct giving rise to the forfeiture, or if the claimant was a bona fide purchaser for value without knowledge of the conduct giving rise to the forfeiture. If the seized property is a vehicle, the property may be exempt if the claimant can show that they did not hold the property jointly or in common with the person whose conduct gave rise to the forfeiture.

Forfeitures under DAFPA are civil proceedings and a criminal conviction is not required to sustain the forfeiture; however, a claimant is precluded from denying the essential allegations of the conduct that gave rise to the forfeiture if the conduct also resulted in a criminal conviction.

Amendments to DAFPA

Public Act 97-544 and House Bill 1927 create two additional opportunities for a claimant to be heard prior to a judicial forfeiture proceeding. Public Act 97-544 requires the State’s Attorney to seek a preliminary determination from the circuit court as to whether there is probable cause that the property is subject to forfeiture. If it is signed into law, House Bill 1927 would establish a hardship hearing that may result in the limited release of the seized vehicle pending a judicial forfeiture hearing.

Preliminary Review – all forfeitable property

Public Act 97-544, previously Senate Bill 2268, amended Section 36 of the Criminal Code of 1961, the Cannabis Control Act, the Illinois Controlled Substances Act, and the Methamphetamine Control and Community Protect Act to require that claimants are immediately notified that forfeiture proceedings, including a preliminary review, will be instituted according to DAFPA. This notice of preliminary review and other proceedings may be postponed for good cause. There may be good cause to delay notice where there is an ongoing narcotics investigation and immediate notice could jeopardize police safety or the confidentiality of an investigation.

Within 14 days of seizure, the State’s Attorney must seek a preliminary determination from the circuit court as to whether there is probable cause that the property is subject to forfeiture. At a preliminary review hearing, the State’s Attorney will summarize for the judge the facts and circumstances underlying the forfeiture, which typically includes facts such as why a vehicle was pulled over, how much narcotics were found in the vehicle, and the location of the narcotics in the vehicle. The State’s Attorney will read such facts into the record and does not proffer any police reports or other documents to the judge.

Hardship Hearing – vehicles only

House Bill 1927 is awaiting the Governor’s signature, having been approved by both houses on February 21, 2012. Once effective, House Bill 1927 would amend DAFPA Section 3.5 by adding a hearing that, after a preliminary review hearing but before a forfeiture hearing, may allow for the limited release of a seized vehicle upon a finding of substantial hardship. House Bill 1927 applies only to seized vehicles, and not money or other valuable property, due to the unique hardship that may be created when an individual is without transportation. Within seven days of a preliminary review hearing in which probable cause for the seizure is established, the owner or other claimant may file a written motion supported by sworn affidavits claiming that denial of use of the seized vehicle during the pendency of the forfeiture proceeding creates a “substantial hardship.”

To determine whether there is a substantial hardship, the court will consider: (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 vehicle. If a substantial hardship is proven, the court will balance the hardship to the claimant against the State’s interest in safeguarding the seized vehicle. Upon a determination that the claimant’s hardship outweighs the State’s interest, the court may temporarily release the seized vehicle to the registered owner or their designee (“owner”) until the forfeiture proceeding or for a shorter time, if the owner presents proof of insurance, a valid driver’s license and current registration.

Before releasing the vehicle, the court must make a determination as to the full market value of the vehicle. The owner must post a cash bond with the court to be held as security for the vehicle. In setting the amount of cash security, the court considers: (1) the full market value of the vehicle; (2) the nature of the hardship; (3) the extent and length of the usage of the vehicle; and (4) such other conditions as the court deems necessary to safeguard the vehicle. The owner is prohibited from diminishing the value of the vehicle or otherwise encumbering, disposing of, concealing, destroying or removing the vehicle from the jurisdiction. Use of the released vehicle is limited to the conditions stated in the hardship hearing and only authorized individuals may use the released vehicle. Law enforcement is empowered to reseize the released vehicle if the conditions of release are violated.

After expiration of the release period and upon a determination that the vehicle is subject to forfeiture, the registered owner must return the released vehicle within seven days, or the cash bond will be forfeited in place of and in the same manner as the released vehicle. Additionally, the court may authorize law enforcement to seize the released vehicle if not returned with seven days and if the cash security does not cover the entire value of the released vehicle. If the value of the released vehicle has diminished, the diminished value is taken out of the cash security.