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CRIMINAL PROCEDURE
(725 ILCS 5/) Code of Criminal Procedure of 1963.
(725 ILCS 5/Tit. I heading)
TITLE I. GENERAL PROVISIONS
(725 ILCS 5/Art. 100 heading)
ARTICLE 100. TITLE AND SCOPE
(725 ILCS 5/100-1) (from Ch. 38, par. 100-1)
Sec. 100-1. Short title. This Act shall be known and may be
cited as the "Code of Criminal Procedure of 1963".
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/100-2) (from Ch. 38, par. 100-2)
Sec. 100-2. Scope.
These provisions shall govern the procedure in the courts of
Illinois in all criminal proceedings except where provision for
a different procedure is specifically provided by law.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/Art. 101 heading)
ARTICLE 101. GENERAL PURPOSES
(725 ILCS 5/101-1) (from Ch. 38, par. 101-1)
Sec. 101-1. General purposes.
The provisions of this Code shall be construed in accordance
with the general purposes hereof, to:
(a) Secure simplicity in procedure;
(b) Ensure fairness of administration including the
elimination of unjustifiable delay;
(c) Ensure the effective apprehension and trial of persons
accused of crime;
(d) Provide for the just determination of every criminal
proceeding by a fair and impartial trial and an adequate review;
and
(e) Preserve the public welfare and secure the fundamental
human rights of individuals.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/Art. 102 heading)
ARTICLE 102. GENERAL DEFINITIONS
(725 ILCS 5/102-1) (from Ch. 38, par. 102-1)
Sec. 102-1. Meanings of words and phrases.
For the purposes of this Code, the words and phrases
described in this Article have the meanings designated in this
Article, except when a particular context clearly requires a
different meaning.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/102-2) (from Ch. 38, par. 102-2)
Sec. 102-2. Reference to criminal code for words and phrases
not described. A word or phrase not described in this Code but
which is described in Article 2 of the Criminal Code of 2012
shall have the meaning therein described, except when a
particular context in this Code clearly requires a different
meaning.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/102-3) (from Ch. 38, par. 102-3)
Sec. 102-3. Singular term includes plural-Gender.
A singular term shall include the plural and the masculine
gender shall include the feminine except when a particular
context clearly requires a different meaning.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/102-3.5)
Sec. 102-3.5. "Aftercare release". "Aftercare release" means
the conditional and revocable release of a person committed to
the Department of Juvenile Justice under the Juvenile Court Act
of 1987, under the supervision of the Department of Juvenile
Justice.
(Source: P.A. 98-558, eff. 1-1-14.)
(725 ILCS 5/102-4) (from Ch. 38, par. 102-4)
Sec. 102-4. "Arraignment".
"Arraignment" means the formal act of calling the defendant
into open court, informing him of the offense with which he is
charged, and asking him whether he is guilty or not guilty.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/102-5) (from Ch. 38, par. 102-5)
Sec. 102-5. "Arrest".
"Arrest" means the taking of a person into custody.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/102-6) (from Ch. 38, par. 102-6)
Sec. 102-6. Pretrial release. "Pretrial release" has the
meaning ascribed to bail in Section 9 of Article I of the
Illinois
Constitution
where
the
sureties
provided
are
nonmonetary in nature.
(Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23.)
(725 ILCS 5/102-7) (from Ch. 38, par. 102-7)
Sec. 102-7. Conditions of pretrial release. "Conditions of
pretrial release" means the requirements imposed upon a criminal
defendant by the court under Section 110-5.
(Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23.)
(725 ILCS 5/102-7.1)
Sec. 102-7.1. "Category A offense". "Category A offense"
means a Class 1 felony, Class 2 felony, Class X felony, first
degree murder, a violation of Section 11-204 of the Illinois
Vehicle Code, a second or subsequent violation of Section 11-501
of the Illinois Vehicle Code, a violation of subsection (d) of
Section 11-501 of the Illinois Vehicle Code, a violation of
Section 11-401 of the Illinois Vehicle Code if the crash results
in injury and the person failed to report the crash within 30
minutes, a violation of Section 9-3, 9-3.4, 10-3, 10-3.1, 10-5,
11-6, 11-9.2, 11-20.1, 11-23.5, 11-25, 12-2, 12-3, 12-3.05, 123.2, 12-3.4, 12-4.4a, 12-5, 12-6, 12-7.1, 12-7.3, 12-7.4, 127.5, 12C-5, 24-1.1, 24-1.5, 24-3, 25-1, 26.5-2, or 48-1 of the
Criminal Code of 2012, a second or subsequent violation of 123.2 or 12-3.4 of the Criminal Code of 2012, a violation of
paragraph (5) or (6) of subsection (b) of Section 10-9 of the
Criminal Code of 2012, a violation of subsection (b) or (c) or
paragraph (1) or (2) of subsection (a) of Section 11-1.50 of the
Criminal Code of 2012, a violation of Section 12-7 of the
Criminal Code of 2012 if the defendant inflicts bodily harm on
the victim to obtain a confession, statement, or information, a
violation of Section 12-7.5 of the Criminal Code of 2012 if the
action results in bodily harm, a violation of paragraph (3) of
subsection (b) of Section 17-2 of the Criminal Code of 2012, a
violation of subdivision (a)(7)(ii) of Section 24-1 of the
Criminal Code of 2012, a violation of paragraph (6) of
subsection (a) of Section 24-1 of the Criminal Code of 2012, a
first violation of Section 24-1.6 of the Criminal Code of 2012
by a person 18 years of age or older where the factors listed in
both items (A) and (C) or both items (A-5) and (C) of paragraph
(3) of subsection (a) of Section 24-1.6 of the Criminal Code of
2012 are present, a Class 3 felony violation of paragraph (1) of
subsection (a) of Section 2 of the Firearm Owners Identification
Card Act, or a violation of Section 10 of the Sex Offender
Registration Act.
(Source: P.A. 102-982, eff. 7-1-23.)
(725 ILCS 5/102-7.2)
Sec. 102-7.2. "Category B offense". "Category B offense"
means a business offense, petty offense, Class C misdemeanor,
Class B misdemeanor, Class A misdemeanor, Class 3 felony, or
Class 4 felony, which is not specified in Category A.
(Source: P.A. 100-1, eff. 1-1-18.)
(725 ILCS 5/102-8) (from Ch. 38, par. 102-8)
Sec. 102-8. "Charge".
"Charge" means a written statement presented to a court
accusing a person of the commission of an offense and includes
complaint, information and indictment.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/102-9) (from Ch. 38, par. 102-9)
Sec. 102-9. "Complaint".
"Complaint" means a verified written statement other than an
information or an indictment, presented to a court, which
charges the commission of an offense.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/102-10) (from Ch. 38, par. 102-10)
Sec. 102-10. "Court".
"Court" means a place where justice is
administered and includes a judge thereof.
(Source: P.A. 77-1286.)
judicially
(725 ILCS 5/102-10.5)
Sec. 102-10.5. "Felony". "Felony" has the meaning provided
in Section 2-7 of the Criminal Code of 2012.
(Source: P.A. 102-1104, eff. 1-1-23.)
(725 ILCS 5/102-11) (from Ch. 38, par. 102-11)
Sec. 102-11. "Indictment".
"Indictment" means a written statement, presented by the
Grand Jury to a court, which charges the commission of an
offense.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/102-12) (from Ch. 38, par. 102-12)
Sec. 102-12. "Information".
"Information" means a verified written statement signed by a
State's Attorney, and presented to a court, which charges the
commission of an offense.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/102-13) (from Ch. 38, par. 102-13)
Sec. 102-13. "Judge".
"Judge" means a person who is invested by law with the power
to perform judicial functions and includes a court when a
particular context so requires.
(Source: P.A. 77-1286.)
(725 ILCS 5/102-14) (from Ch. 38, par. 102-14)
Sec. 102-14. "Judgment".
"Judgment" means an adjudication by the court that the
defendant is guilty or not guilty and if the adjudication is
that the defendant is guilty it includes the sentence pronounced
by the court.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/102-14.5)
Sec. 102-14.5. "Misdemeanor". "Misdemeanor" has the meaning
provided in Section 2-11 of the Criminal Code of 2012.
(Source: P.A. 102-1104, eff. 1-1-23.)
(725 ILCS 5/102-15) (from Ch. 38, par. 102-15)
Sec. 102-15. "Offense".
"Offense" means a violation of any penal statute of this
State.
(Source: P.A. 76-1796.)
(725 ILCS 5/102-16) (from Ch. 38, par. 102-16)
Sec. 102-16. "Parole". "Parole" means the conditional and
revocable release of a person committed to the Department of
Corrections under the supervision of a paroling authority.
(Source: P.A. 98-558, eff. 1-1-14.)
(725 ILCS 5/102-17) (from Ch. 38, par. 102-17)
Sec. 102-17. "Preliminary examination".
"Preliminary examination" means a hearing before a judge to
determine if there is probable cause to believe that the person
accused has committed an offense.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/102-18) (from Ch. 38, par. 102-18)
Sec. 102-18. "Probation".
"Probation" means a sentence or adjudication of conditional
and revocable release under the supervision of a probation
officer.
(Source: P.A. 77-2476.)
(725 ILCS 5/102-19) (from Ch. 38, par. 102-19)
Sec. 102-19. "Recognizance".
"Recognizance" means an undertaking without security entered
into by a person by which he binds himself to comply with such
conditions as are set forth therein and which may provide for
the forfeiture of a sum set by the court on failure to comply
with the conditions thereof.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/102-20) (from Ch. 38, par. 102-20)
Sec. 102-20. "Sentence".
"Sentence" is the disposition imposed on the defendant by
the court.
(Source: P.A. 77-2476.)
(725 ILCS 5/102-21) (from Ch. 38, par. 102-21)
Sec. 102-21. Clinical psychologist; court-appointed
examiner.
(a) "Clinical psychologist" means a psychologist licensed
under the Clinical Psychologist Licensing Act.
(b) "Court-appointed examiner" means a clinical social
worker as defined in Section 9 of the Clinical Social Work and
Social Work Practice Act.
(Source: P.A. 87-530.)
(725 ILCS 5/102-22)
Sec. 102-22. "Facility director", for the purposes of
Article 104, means the chief officer of a mental health or
developmental disabilities facility or his or her designee or
the supervisor of a program of treatment or habilitation or his
or her designee. "Designee" may include a physician, clinical
psychologist, social worker, or nurse.
(Source: P.A. 90-105, eff. 7-11-97.)
(725 ILCS 5/102-23)
Sec. 102-23. "Person with a moderate intellectual
disability" means a person whose intelligence quotient is
between 41 and 55 and who does not suffer from significant
mental illness to the extent that the person's ability to
exercise rational judgment is impaired.
(Source: P.A. 99-143, eff. 7-27-15.)
TUESDAY, FEBRUARY 18
(725 ILCS 5/Art. 103 heading)
ARTICLE 103. RIGHTS OF ACCUSED
(725 ILCS 5/103-1) (from Ch. 38, par. 103-1)
Sec. 103-1. Rights on arrest.
(a) After an arrest on a warrant the person making the
arrest shall inform the person arrested that a warrant has been
issued for his arrest and the nature of the offense specified in
the warrant.
(b) After an arrest without a warrant the person making the
arrest shall inform the person arrested of the nature of the
offense on which the arrest is based.
(b-5) This subsection is intended to implement and be
interpreted consistently with the Vienna Convention on Consular
Relations, to which the United States is a party. Article 36 of
that Convention guarantees that when foreign nationals are
arrested or detained, they must be advised of their right to
have their consular officials notified, and if an individual
chooses to exercise that right, a law enforcement official is
required to notify the consulate. It does not create any new
substantive State right or remedy.
(1) In accordance with federal law and the provisions
of this Section, the law enforcement official in charge of a
custodial facility shall ensure that any individual booked
and detained at the facility, within 48 hours of booking or
detention, shall be advised that if that individual is a
foreign national, he or she has a right to communicate with
an official from the consulate of his or her country. This
subsection (b-5) does not create any affirmative duty to
investigate whether an arrestee or detainee is a foreign
national.
(2) If the foreign national requests consular
notification or the notification is mandatory by law, the
law enforcement official in charge of the custodial facility
shall ensure the notice is given to the appropriate officer
at the consulate of the foreign national in accordance with
the U.S. Department of State Instructions for Consular
Notification and Access.
(3) The law enforcement official in charge of the
custodial facility where a foreign national is located shall
ensure that the foreign national is allowed to communicate
with, correspond with, and be visited by, a consular officer
of his or her country.
(c) No person arrested for a traffic, regulatory or
misdemeanor offense, except in cases involving weapons or a
controlled substance, shall be strip searched unless there is
reasonable belief that the individual is concealing a weapon or
controlled substance.
(d) "Strip search" means having an arrested person remove or
arrange some or all of his or her clothing so as to permit a
visual inspection of the genitals, buttocks, anus, female
breasts or undergarments of such person.
(e) All strip searches conducted under this Section shall be
performed by persons of the same sex as the arrested person and
on premises where the search cannot be observed by persons not
physically conducting the search.
(f) Every peace officer or employee of a police department
conducting a strip search shall:
(1) Obtain the written permission of the police
commander or an agent thereof designated for the purposes of
authorizing a strip search in accordance with this Section.
(2) Prepare a report of the strip search. The report
shall
include
the
written
authorization
required
by
paragraph (1) of this subsection (f), the name of the person
subjected to the search, the names of the persons conducting
the search, and the time, date and place of the search. A
copy of the report shall be provided to the person subject
to the search.
(g) No search of any body cavity other than the mouth shall
be conducted without a duly executed search warrant; any warrant
authorizing a body cavity search shall specify that the search
must be performed under sanitary conditions and conducted either
by or under the supervision of a physician licensed to practice
medicine in all of its branches in this State.
(h) Any peace officer or employee who knowingly or
intentionally fails to comply with any provision of this
Section, except subsection (b-5) of this Section, is guilty of
official misconduct as provided in Section 103-8; provided
however, that nothing contained in this Section shall preclude
prosecution of a peace officer or employee under another section
of this Code.
(i) Nothing in this Section shall be construed as limiting
any statutory or common law rights of any person for purposes of
any civil action or injunctive relief.
(j) The provisions of subsections (c) through (h) of this
Section shall not apply when the person is taken into custody by
or remanded to the sheriff or correctional institution pursuant
to a court order.
(Source: P.A. 99-190, eff. 1-1-16.)
(725 ILCS 5/103-2) (from Ch. 38, par. 103-2)
Sec. 103-2. Treatment while in custody.
(a) On being taken into custody every person shall have the
right to remain silent.
(b) No unlawful means of any kind shall be used to obtain a
statement, admission or confession from any person in custody.
(c) Persons in custody shall be treated humanely and
provided with proper food, shelter and, if required, medical
treatment without unreasonable delay if the need for the
treatment is apparent.
(Source: P.A. 101-652, eff. 7-1-21.)
(725 ILCS 5/103-2.1)
Sec. 103-2.1. When statements by accused may be used.
(a) In this Section, "custodial interrogation" means any
interrogation during which (i) a reasonable person in the
subject's position would consider himself or herself to be in
custody and (ii) during which a question is asked that is
reasonably likely to elicit an incriminating response.
In this Section, "place of detention" means a building or a
police station that is a place of operation for a municipal
police department or county sheriff department or other law
enforcement agency, not a courthouse, that is owned or operated
by a law enforcement agency at which persons are or may be held
in detention in connection with criminal charges against those
persons.
In this Section, "electronic recording" includes motion
picture, audiotape, or videotape, or digital recording.
(a-5) An oral, written, or sign language statement of a
minor, who at the time of the commission of the offense was
under 18 years of age, is presumed to be inadmissible when the
statement is obtained from the minor while the minor is subject
to custodial interrogation by a law enforcement officer, State's
Attorney, juvenile officer, or other public official or employee
prior to the officer, State's Attorney, public official, or
employee:
(1) continuously reads to the minor, in its entirety
and without stopping for purposes of a response from the
minor or verifying comprehension, the following statement:
"You have the right to remain silent. That means you do not
have to say anything. Anything you do say can be used
against you in court. You have the right to get help from a
lawyer. If you cannot pay for a lawyer, the court will get
you one for free. You can ask for a lawyer at any time. You
have the right to stop this interview at any time."; and
(2) after reading the statement required by paragraph
(1) of this subsection (a-5), the public official or
employee shall ask the minor the following questions and
wait for the minor's response to each question:
(A) "Do you want to have a lawyer?"
(B) "Do you want to talk to me?"
(a-10) An oral, written, or sign language statement of a
minor, who at the time of the commission of the offense was
under 18 years of age, made as a result of a custodial
interrogation conducted at a police station or other place of
detention on or after the effective date of this amendatory Act
of the 99th General Assembly shall be presumed to be
inadmissible as evidence in a criminal proceeding or a juvenile
court proceeding for an act that if committed by an adult would
be a misdemeanor offense under Article 11 of the Criminal Code
of 2012 or a felony offense under the Criminal Code of 2012
unless:
(1) an electronic recording is made of the custodial
interrogation; and
(2) the recording is substantially accurate and not
intentionally altered.
(b) An oral, written, or sign language statement of an
accused made as a result of a custodial interrogation conducted
at a police station or other place of detention shall be
presumed to be inadmissible as evidence against the accused in
any criminal proceeding brought under Section 9-1, 9-1.2, 9-2,
9-2.1, 9-3, 9-3.2, or 9-3.3 of the Criminal Code of 1961 or the
Criminal Code of 2012 or under clause (d)(1)(F) of Section 11501 of the Illinois Vehicle Code unless:
(1) an electronic recording is made of the custodial
interrogation; and
(2) the recording is substantially accurate and not
intentionally altered.
(b-5) Under the following circumstances, an oral, written,
or sign language statement of an accused made as a result of a
custodial interrogation conducted at a police station or other
place of detention shall be presumed to be inadmissible as
evidence against the accused, unless an electronic recording is
made of the custodial interrogation and the recording is
substantially accurate and not intentionally altered:
(1) in any criminal proceeding brought under Section
11-1.40 or 20-1.1 of the Criminal Code of 1961 or the
Criminal Code of 2012, if the custodial interrogation was
conducted on or after June 1, 2014;
(2) in any criminal proceeding brought under Section
10-2, 18-4, or 19-6 of the Criminal Code of 1961 or the
Criminal Code of 2012, if the custodial interrogation was
conducted on or after June 1, 2015; and
(3) in any criminal proceeding brought under Section
11-1.30 or 18-2 or subsection (e) of Section 12-3.05 of the
Criminal Code of 1961 or the Criminal Code of 2012, if the
custodial interrogation was conducted on or after June 1,
2016.
(b-10) If, during the course of an electronically recorded
custodial interrogation conducted under this Section, the
accused makes a statement that creates a reasonable suspicion to
believe the accused has committed an offense other than an
offense required to be recorded under subsection (b) or (b-5),
the interrogators may, without the accused's consent, continue
to record the interrogation as it relates to the other offense
notwithstanding any provision of law to the contrary. Any oral,
written, or sign language statement of an accused made as a
result of an interrogation under this subsection shall be
presumed to be inadmissible as evidence against the accused in
any criminal proceeding, unless the recording is substantially
accurate and not intentionally altered.
(c) Every electronic recording made under this Section must
be preserved until such time as the defendant's conviction for
any offense relating to the statement is final and all direct
and habeas corpus appeals are exhausted, or the prosecution of
such offenses is barred by law.
(d) If the court finds, by a preponderance of the evidence,
that the defendant was subjected to a custodial interrogation in
violation of this Section, then any statements made by the
defendant during or following that non-recorded custodial
interrogation, even if otherwise in compliance with this
Section, are presumed to be inadmissible in any criminal
proceeding against the defendant except for the purposes of
impeachment.
(e) Nothing in this Section precludes the admission (i) of a
statement made by the accused in open court at his or her trial,
before a grand jury, or at a preliminary hearing, (ii) of a
statement made during a custodial interrogation that was not
recorded as required by this Section, because electronic
recording was not feasible, (iii) of a voluntary statement,
whether or not the result of a custodial interrogation, that has
a bearing on the credibility of the accused as a witness, (iv)
of a spontaneous statement that is not made in response to a
question, (v) of a statement made after questioning that is
routinely asked during the processing of the arrest of the
suspect,
(vi)
of
a
statement
made
during
a
custodial
interrogation by a suspect who requests, prior to making the
statement, to respond to the interrogator's questions only if an
electronic recording is not made of the statement, provided that
an electronic recording is made of the statement of agreeing to
respond to the interrogator's question, only if a recording is
not made of the statement, (vii) of a statement made during a
custodial interrogation that is conducted out-of-state, (viii)
of a statement given in violation of subsection (b) at a time
when the interrogators are unaware that a death has in fact
occurred, (ix) of a statement given in violation of subsection
(b-5) at a time when the interrogators are unaware of facts and
circumstances that would create probable cause to believe that
the accused committed an offense required to be recorded under
subsection (b-5), or (x) of any other statement that may be
admissible under law. The State shall bear the burden of
proving, by a preponderance of the evidence, that one of the
exceptions described in this subsection (e) is applicable.
Nothing in this Section precludes the admission of a statement,
otherwise inadmissible under this Section, that is used only for
impeachment and not as substantive evidence.
(f) The presumption of inadmissibility of a statement made
by a suspect at a custodial interrogation at a police station or
other place of detention may be overcome by a preponderance of
the evidence that the statement was voluntarily given and is
reliable, based on the totality of the circumstances.
(g) Any electronic recording of any statement made by an
accused during a custodial interrogation that is compiled by any
law enforcement agency as required by this Section for the
purposes of fulfilling the requirements of this Section shall be
confidential and exempt from public inspection and copying, as
provided under Section 7 of the Freedom of Information Act, and
the information shall not be transmitted to anyone except as
needed to comply with this Section.
(Source: P.A. 98-547, eff. 1-1-14; 99-882, eff. 1-1-17.)
(725 ILCS 5/103-2.2)
Sec. 103-2.2. Prohibition of deceptive tactics.
(a) In this Section:
"Custodial interrogation" means any interrogation during
which (i) a reasonable person in the subject's position would
consider himself or herself to be in custody and (ii) during
which a question is asked that is reasonably likely to elicit an
incriminating response.
"Deception" means the knowing communication of false facts
about evidence or unauthorized statements regarding leniency by
a law enforcement officer or juvenile officer to a subject of
custodial interrogation.
"Place of detention" means a building or a police station
that is a place of operation for a municipal police department
or county sheriff department or other law enforcement agency,
not a courthouse, that is owned or operated by a law enforcement
agency at which persons are or may be held in detention in
connection with criminal charges against those persons.
"Protected person" means: a minor who, at the time of the
commission of the offense, was under 18 years of age; or a
person with a severe or profound intellectual disability.
(b) An oral, written, or sign language confession of a
protected person made as a result of a custodial interrogation
conducted at a police station or other place of detention on or
after the effective date of this amendatory Act of the 102nd
General Assembly shall be presumed to be inadmissible as
evidence against the protected person making the confession in a
criminal proceeding or a juvenile court proceeding for an act
that if committed by an adult would be a misdemeanor offense
under Article 11 of the Criminal Code of 2012 or a felony
offense under the Criminal Code of 2012 if, during the custodial
interrogation, a law enforcement officer or juvenile officer
knowingly engages in deception.
(c) The presumption of inadmissibility of a confession of a
protected person at a custodial interrogation at a police
station or other place of detention, when such confession is
procured through the knowing use of deception, may be overcome
by a preponderance of the evidence that the confession was
voluntarily given, based on the totality of the circumstances.
(d) The burden of going forward with the evidence and the
burden of proving that a confession was voluntary shall be on
the State. Objection to the failure of the State to call all
material witnesses on the issue of whether the confession was
voluntary must be made in the trial court.
(Source: P.A. 102-101, eff. 1-1-22; 103-341, eff. 1-1-24.)
(725 ILCS 5/103-3)
Sec. 103-3. (Repealed).
(Source: P.A. 102-28, eff. 6-25-21. Repealed by P.A. 102-694,
eff. 1-7-22.)
(725 ILCS 5/103-3.5)
Sec. 103-3.5. Right to communicate with attorney and family;
transfers; presumption of inadmissibility.
(a) Persons who are in police custody shall have the right
to communicate free of charge with an attorney of his or her
choice and members of his or her family as soon as possible upon
being taken into police custody, but no later than 3 hours of
arrival at the first place of detention. Persons in police
custody must be given access to use a telephone via a landline
or cellular phone to make 3 telephone calls.
(b) In accordance with Section 103-7, at every police
facility where a person is in police custody, a sign containing
at minimum, the following information in bold block type must be
posted in a conspicuous place:
(1) a short statement notifying persons who are in
police custody of their right to have access to a phone
within 3 hours of being taken into police custody; and
(2) that persons who are in police custody have the
right to make 3 phone calls within 3 hours of being taken
into custody, at no charge.
(c) In addition to the information listed in subsection (b),
if the place of detention is located in a jurisdiction where the
court has appointed the public defender or other attorney to
represent persons who are in police custody, the telephone
number to the public defender or other attorney's office must
also be displayed. The telephone call to the public defender or
other attorney must not be monitored, eavesdropped upon, or
recorded.
(d) If a person who is in police custody is transferred to a
new place of detention, that person's right to make 3 telephone
calls under this Section within 3 hours of arrival is renewed.
(e) Statements made by a person who is detained in police
custody in violation of this section are presumed inadmissible
in court as evidence. The presumption of inadmissibility may be
overcome by a preponderance of the evidence that the statement
was voluntarily given and is reliable, based on the totality of
the circumstances. As used in this subsection, "totality of the
circumstances" includes, but is not limited to, evidence that
law enforcement knowingly prevented or delayed a person's right
to communicate or failed to comply with the requirements of this
Section.
(f) The 3-hour requirement under this Section shall not
apply while the person in police custody is asleep, unconscious,
or otherwise incapacitated or an exigent circumstance prevents
the officers from timely complying with this Section. If this
occurs, it must be documented within the police report detailing
the exigent circumstance. Once the exigent circumstance ends,
the right to make 3 phone calls within 3 hours resumes.
(g) In accordance with this Section, the following records
shall be maintained: (i) the number of phone calls the person
made while in custody; (ii) the time or times the person made
phone calls; and (iii) if the person did not make any phone
calls, a statement of the reason or reasons why no calls were
made.
(h) For purposes of this Section, "place of detention" means
a building or a police station that is a place of operation for
a municipal police department or county sheriff department or
other law enforcement agency, other than a courthouse, that is
owned or operated by a law enforcement agency, or other
building, such as a school or hospital, where persons are held
in detention in connection with criminal charges against those
persons.
(Source: P.A. 102-694, eff. 1-7-22.)
(725 ILCS 5/103-4) (from Ch. 38, par. 103-4)
Sec. 103-4. Right to consult with attorney.
Any person committed, imprisoned or restrained of his
liberty for any cause whatever and whether or not such person is
charged with an offense shall, except in cases of imminent
danger of escape, be allowed to consult with any licensed
attorney at law of this State whom such person may desire to see
or consult, alone and in private at the place of custody, as
many times and for such period each time as is reasonable. When
any such person is about to be moved beyond the limits of this
State under any pretense whatever the person to be moved shall
be entitled to a reasonable delay for the purpose of obtaining
counsel and of availing himself of the laws of this State for
the security of personal liberty.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/103-5) (from Ch. 38, par. 103-5)
Sec. 103-5. Speedy trial.)
(a) Every person in custody in this State for an alleged
offense shall be tried by the court having jurisdiction within
120 days from the date he or she was taken into custody unless
delay is occasioned by the defendant, by an examination for
fitness ordered pursuant to Section 104-13 of this Act, by a
fitness hearing, by an adjudication of unfitness to stand trial,
by a continuance allowed pursuant to Section 114-4 of this Act
after a court's determination of the defendant's physical
incapacity for trial, or by an interlocutory appeal. Delay shall
be considered to be agreed to by the defendant unless he or she
objects to the delay by making a written demand for trial or an
oral demand for trial on the record. The provisions of this
subsection (a) do not apply to a person on pretrial release or
recognizance for an offense but who is in custody for a
violation of his or her parole, aftercare release, or mandatory
supervised release for another offense.
The 120-day term must be one continuous period of
incarceration. In computing the 120-day term, separate periods
of incarceration may not be combined. If a defendant is taken
into custody a second (or subsequent) time for the same offense,
the term will begin again at day zero.
(b) Every person on pretrial release or recognizance shall
be tried by the court having jurisdiction within 160 days from
the date defendant demands trial unless delay is occasioned by
the defendant, by an examination for fitness ordered pursuant to
Section 104-13 of this Act, by a fitness hearing, by an
adjudication of unfitness to stand trial, by a continuance
allowed pursuant to Section 114-4 of this Act after a court's
determination of the defendant's physical incapacity for trial,
or by an interlocutory appeal. The defendant's failure to appear
for any court date set by the court operates to waive the
defendant's demand for trial made under this subsection.
For purposes of computing the 160 day period under this
subsection (b), every person who was in custody for an alleged
offense and demanded trial and is subsequently released on
pretrial release or recognizance and demands trial, shall be
given credit for time spent in custody following the making of
the demand while in custody. Any demand for trial made under
this subsection (b) shall be in writing; and in the case of a
defendant not in custody, the demand for trial shall include the
date of any prior demand made under this provision while the
defendant was in custody.
(c) If the court determines that the State has exercised
without success due diligence to obtain evidence material to the
case and that there are reasonable grounds to believe that such
evidence may be obtained at a later day the court may continue
the cause on application of the State for not more than an
additional 60 days. If the court determines that the State has
exercised without success due diligence to obtain results of DNA
testing that is material to the case and that there are
reasonable grounds to believe that such results may be obtained
at a later day, the court may continue the cause on application
of the State for not more than an additional 120 days.
(d) Every person not tried in accordance with subsections
(a), (b) and (c) of this Section shall be discharged from
custody or released from the obligations of his pretrial release
or recognizance.
(e) If a person is simultaneously in custody upon more than
one charge pending against him in the same county, or
simultaneously demands trial upon more than one charge pending
against him in the same county, he shall be tried, or adjudged
guilty after waiver of trial, upon at least one such charge
before expiration relative to any of such pending charges of the
period prescribed by subsections (a) and (b) of this Section.
Such person shall be tried upon all of the remaining charges
thus pending within 160 days from the date on which judgment
relative to the first charge thus prosecuted is rendered
pursuant to the Unified Code of Corrections or, if such trial
upon such first charge is terminated without judgment and there
is no subsequent trial of, or adjudication of guilt after waiver
of trial of, such first charge within a reasonable time, the
person shall be tried upon all of the remaining charges thus
pending within 160 days from the date on which such trial is
terminated; if either such period of 160 days expires without
the commencement of trial of, or adjudication of guilt after
waiver of trial of, any of such remaining charges thus pending,
such charge or charges shall be dismissed and barred for want of
prosecution unless delay is occasioned by the defendant, by an
examination for fitness ordered pursuant to Section 104-13 of
this Act, by a fitness hearing, by an adjudication of unfitness
for trial, by a continuance allowed pursuant to Section 114-4 of
this Act after a court's determination of the defendant's
physical incapacity for trial, or by an interlocutory appeal;
provided, however, that if the court determines that the State
has exercised without success due diligence to obtain evidence
material to the case and that there are reasonable grounds to
believe that such evidence may be obtained at a later day the
court may continue the cause on application of the State for not
more than an additional 60 days.
(f) Delay occasioned by the defendant shall temporarily
suspend for the time of the delay the period within which a
person shall be tried as prescribed by subsections (a), (b), or
(e) of this Section and on the day of expiration of the delay
the said period shall continue at the point at which it was
suspended. Where such delay occurs within 21 days of the end of
the period within which a person shall be tried as prescribed by
subsections (a), (b), or (e) of this Section, the court may
continue the cause on application of the State for not more than
an additional 21 days beyond the period prescribed by
subsections (a), (b), or (e). This subsection (f) shall become
effective on, and apply to persons charged with alleged offenses
committed on or after, March 1, 1977.
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/103-6) (from Ch. 38, par. 103-6)
Sec. 103-6. Waiver of jury trial. Every person accused of an
offense shall have the right to a trial by jury unless (i)
understandingly waived by defendant in open court or (ii) the
offense is an ordinance violation punishable by fine only and
the defendant either fails to file a demand for a trial by jury
at the time of entering his or her plea of not guilty or fails
to pay to the clerk of the circuit court at the time of entering
his or her plea of not guilty any jury fee required to be paid
to the clerk.
(Source: P.A. 86-1386.)
(725 ILCS 5/103-7) (from Ch. 38, par. 103-7)
Sec. 103-7. Posting notice of rights. Every sheriff, chief
of police or other person who is in charge of any jail, police
station or other building where persons under arrest are held in
custody pending investigation, pretrial release or other
criminal proceedings, shall post in every room, other than
cells, of such buildings where persons are held in custody, in
conspicuous places where it may be seen and read by persons in
custody and others, a poster, printed in large type, containing
a verbatim copy in the English language of the provisions of
Sections 103-2, 103-3, 103-4, 109-1, 110-2, 110-4, and 113-3 of
this Code. Each person who is in charge of any courthouse or
other building in which any trial of an offense is conducted
shall post in each room primarily used for such trials and in
each room in which defendants are confined or wait, pending
trial, in conspicuous places where it may be seen and read by
persons in custody and others, a poster, printed in large type,
containing a verbatim copy in the English language of the
provisions of Sections 103-6, 113-1, 113-4 and 115-1 and of
subparts (a) and (b) of Section 113-3 of this Code.
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/103-8) (from Ch. 38, par. 103-8)
Sec. 103-8. Mandatory duty of officers. Any peace officer
who intentionally prevents the exercise by an accused of any
right conferred by this Article or who intentionally fails to
perform any act required of him by this Article shall be guilty
of official misconduct and may be punished in accordance with
Section 33-3 of the Criminal Code of 2012.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/103-9) (from Ch. 38, par. 103-9)
Sec. 103-9. Bail bondsmen. No bail bondsman from any state
may seize or transport unwillingly any person found in this
State who is allegedly in violation of a bail bond posted in
some other state or conditions of pretrial release. The return
of any such person to another state may be accomplished only as
provided by the laws of this State. Any bail bondsman who
violates this Section is fully subject to the criminal and civil
penalties provided by the laws of this State for his actions.
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/Art. 104 heading)
ARTICLE 104. FITNESS FOR TRIAL, TO PLEAD OR TO BE SENTENCED
(725 ILCS 5/104-10) (from Ch. 38, par. 104-10)
Sec. 104-10. Presumption of Fitness; Fitness Standard.) A
defendant is presumed to be fit to stand trial or to plead, and
be sentenced. A defendant is unfit if, because of his mental or
physical condition, he is unable to understand the nature and
purpose of the proceedings against him or to assist in his
defense.
(Source: P.A. 81-1217.)
(725 ILCS 5/104-11) (from Ch. 38, par. 104-11)
Sec. 104-11. Raising Issue; Burden; Fitness Motions.) (a)
The issue of the defendant's fitness for trial, to plead, or to
be sentenced may be raised by the defense, the State or the
Court at any appropriate time before a plea is entered or
before, during, or after trial. When a bonafide doubt of the
defendant's fitness is raised, the court shall order a
determination of the issue before proceeding further.
(b) Upon request of the defendant that a qualified expert be
appointed to examine him or her to determine prior to trial if a
bonafide doubt as to his or her fitness to stand trial may be
raised, the court, in its discretion, may order an appropriate
examination. However, no order entered pursuant to this
subsection shall prevent further proceedings in the case. An
expert so appointed shall examine the defendant and make a
report as provided in Section 104-15. Upon the filing with the
court of a verified statement of services rendered, the court
shall enter an order on the county board to pay such expert a
reasonable fee stated in the order.
(c) When a bonafide doubt of the defendant's fitness has
been raised, the burden of proving that the defendant is fit by
a preponderance of the evidence and the burden of going forward
with the evidence are on the State. However, the court may call
its own witnesses and conduct its own inquiry.
(d) Following a finding of unfitness, the court may hear and
rule on any pretrial motion or motions if the defendant's
presence is not essential to a fair determination of the issues.
A motion may be reheard upon a showing that evidence is
available which was not available, due to the defendant's
unfitness, when the motion was first decided.
(Source: P.A. 81-1217.)
(725 ILCS 5/104-12) (from Ch. 38, par. 104-12)
Sec. 104-12. Right to Jury.) The issue of the defendant's
fitness may be determined in the first instance by the court or
by a jury. The defense or the State may demand a jury or the
court on its own motion may order a jury. However, when the
issue is raised after trial has begun or after conviction but
before sentencing, or when the issue is to be redetermined under
Section 104-20 or 104-27, the issue shall be determined by the
court.
(Source: P.A. 81-1217.)
(725 ILCS 5/104-13) (from Ch. 38, par. 104-13)
Sec. 104-13. Fitness examination.
(a) When the issue of fitness involves the defendant's
mental condition, the court shall order an examination of the
defendant by one or more licensed physicians, clinical
psychologists, or psychiatrists chosen by the court. No
physician, clinical psychologist or psychiatrist employed by the
Department of Human Services shall be ordered to perform, in his
official capacity, an examination under this Section.
(b) If the issue of fitness involves the defendant's
physical condition, the court shall appoint one or more
physicians and in addition, such other experts as it may deem
appropriate to examine the defendant and to report to the court
regarding the defendant's condition.
(c) An examination ordered under this Section shall be given
at the place designated by the person who will conduct the
examination, except that if the defendant is being held in
custody, the examination shall take place at such location as
the court directs. No examinations under this Section shall be
ordered to take place at mental health or developmental
disabilities facilities operated by the Department of Human
Services. If the defendant fails to keep appointments without
reasonable cause or if the person conducting the examination
reports to the court that diagnosis requires hospitalization or
extended observation, the court may order the defendant admitted
to an appropriate facility for an examination, other than a
screening examination, for not more than 7 days. The court may,
upon a showing of good cause, grant an additional 7 days to
complete the examination.
(d) Release on pretrial release or on recognizance shall not
be revoked and an application therefor shall not be denied on
the grounds that an examination has been ordered.
(e) Upon request by the defense and if the defendant is
indigent, the court may appoint, in addition to the expert or
experts chosen pursuant to subsection (a) of this Section, a
qualified expert selected by the defendant to examine him and to
make a report as provided in Section 104-15. Upon the filing
with the court of a verified statement of services rendered, the
court shall enter an order on the county board to pay such
expert a reasonable fee stated in the order.
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/104-14) (from Ch. 38, par. 104-14)
Sec. 104-14. Use of Statements Made During Examination or
Treatment.) (a) Statements made by the defendant and information
gathered in the course of any examination or treatment ordered
under Section 104-13, 104-17 or 104-20 shall not be admissible
against the defendant unless he raises the defense of insanity
or the defense of drugged or intoxicated condition, in which
case they shall be admissible only on the issue of whether he
was insane, drugged, or intoxicated. The refusal of the
defendant to cooperate in such examinations shall not preclude
the raising of the aforesaid defenses but shall preclude the
defendant from offering expert evidence or testimony tending to
support such defenses if the expert evidence or testimony is
based upon the expert's examination of the defendant.
(b) Except as provided in paragraph (a) of this Section, no
statement made by the defendant in the course of any examination
or treatment ordered under Section 104-13, 104-17 or 104-20
which relates to the crime charged or to other criminal acts
shall be disclosed by persons conducting the examination or the
treatment, except to members of the examining or treating team,
without the informed written consent of the defendant, who is
competent at the time of giving such consent.
(c) The court shall advise the defendant of the limitations
on the use of any statements made or information gathered in the
course of the fitness examination or subsequent treatment as
provided in this Section. It shall also advise him that he may
refuse to cooperate with the person conducting the examination,
but that his refusal may be admissible into evidence on the
issue of his mental or physical condition.
(Source: P.A. 81-1217.)
(725 ILCS 5/104-15) (from Ch. 38, par. 104-15)
Sec. 104-15. Report.
(a) The person or persons conducting an examination of the
defendant, pursuant to paragraph (a) or (b) of Section 104-13
shall submit a written report to the court, the State, and the
defense within 30 days of the date of the order. The report
shall include:
(1) A diagnosis and an explanation as to how it was
reached and the facts upon which it is based;
(2) A description of the defendant's mental or
physical disability, if any; its severity; and an opinion as
to whether and to what extent it impairs the defendant's
ability to understand the nature and purpose of the
proceedings against him or to assist in his defense, or
both.
(b) If the report indicates that the defendant is not fit to
stand trial or to plead because of a disability, the report
shall include an opinion as to the likelihood of the defendant
attaining fitness within a period of time from the date of the
finding of unfitness if provided with a course of treatment. For
a defendant charged with a felony, the period of time shall be
one year. For a defendant charged with a misdemeanor, the period
of time shall be no longer than the maximum term of imprisonment
for the most serious offense. If the person or persons preparing
the report are unable to form such an opinion, the report shall
state the reasons therefor. The report may include a general
description of the type of treatment needed and of the least
physically
restrictive
form
of
treatment
therapeutically
appropriate.
(c) The report shall indicate what information, if any,
contained therein may be harmful to the mental condition of the
defendant if made known to him.
(d) In addition to the report, a person retained or
appointed by the State or the defense to conduct an examination
shall, upon written request, make his or her notes, other
evaluations reviewed or relied upon by the testifying witness,
and any videotaped interviews available to another examiner of
the defendant. All forensic interviews conducted by a person
retained or appointed by the State or the defense shall be
videotaped unless doing so would be impractical. In the event
that the interview is not videotaped, the examiner may still
testify as to the person's fitness and the court may only
consider the lack of compliance in according the weight and not
the admissibility of the expert testimony. An examiner may use
these materials as part of his or her diagnosis and explanation
but shall not otherwise disclose the contents, including at a
hearing before the court, except as otherwise provided in
Section 104-14 of this Code.
(Source: P.A. 100-424, eff. 1-1-18.)
(725 ILCS 5/104-16) (from Ch. 38, par. 104-16)
Sec. 104-16. Fitness Hearing.) (a) The court shall conduct a
hearing to determine the issue of the defendant's fitness within
45 days of receipt of the final written report of the person or
persons conducting the examination or upon conclusion of the
matter then pending before it, subject to continuances allowed
pursuant to Section 114-4 of this Act.
(b) Subject to the rules of evidence, matters admissible on
the issue of the defendant's fitness include, but are not
limited to, the following:
(1) The defendant's knowledge and understanding of the
charge, the proceedings, the consequences of a plea, judgment or
sentence, and the functions of the participants in the trial
process;
(2) The defendant's ability to observe, recollect and relate
occurrences, especially those concerning the incidents alleged,
and to communicate with counsel;
(3) The defendant's social behavior and abilities;
orientation as to time and place; recognition of persons, places
and things; and performance of motor processes.
(c) The defendant has the right to be present at every
hearing on the issue of his fitness. The defendant's presence
may be waived only if there is filed with the court a
certificate stating that the defendant is physically unable to
be present and the reasons therefor. The certificate shall be
signed by a licensed physician who, within 7 days, has examined
the defendant.
(d) On the basis of the evidence before it, the court or
jury shall determine whether the defendant is fit to stand trial
or to plead. If it finds that the defendant is unfit, the court
or the jury shall determine whether there is substantial
probability that the defendant, if provided with a course of
treatment, will attain fitness within one year. If the court or
the jury finds that there is not a substantial probability, the
court shall proceed as provided in Section 104-23. If such
probability is found or if the court or the jury is unable to
determine whether a substantial probability exists, the court
shall order the defendant to undergo treatment for the purpose
of rendering him fit. In the event that a defendant is ordered
to undergo treatment when there has been no determination as to
the probability of his attaining fitness, the court shall
conduct a hearing as soon as possible following the receipt of
the report filed pursuant to paragraph (d) of Section 104-17,
unless the hearing is waived by the defense, and shall make a
determination as to whether a substantial probability exists.
(e) An order finding the defendant unfit is a final order
for purposes of appeal by the State or the defendant.
(Source: P.A. 81-1217.)
(725 ILCS 5/104-17) (from Ch. 38, par. 104-17)
Sec. 104-17. Commitment for treatment; treatment plan.
(a) If the defendant is eligible to be or has been released
on pretrial release or on his own recognizance, the court shall
select the least physically restrictive form of treatment
therapeutically appropriate and consistent with the treatment
plan. The placement may be ordered either on an inpatient or an
outpatient basis.
(b) If the defendant's disability is mental, the court may
order him placed for secure treatment in the custody of the
Department of Human Services, or the court may order him placed
in the custody of any other appropriate public or private mental
health facility or treatment program which has agreed to provide
treatment to the defendant. If the most serious charge faced by
the defendant is a misdemeanor, the court shall order outpatient
treatment, unless the court finds good cause on the record to
order inpatient treatment. If the court orders the defendant to
inpatient treatment in the custody of the Department of Human
Services, the Department shall evaluate the defendant to
determine the most appropriate secure facility to receive the
defendant and, within 20 days of the transmittal by the clerk of
the circuit court of the court's placement order, notify the
court of the designated facility to receive the defendant. The
Department shall admit the defendant to a secure facility within
60 days of the transmittal of the court's placement order,
unless the Department can demonstrate good faith efforts at
placement and a lack of bed and placement availability. If
placement cannot be made within 60 days of the transmittal of
the court's placement order and the Department has demonstrated
good faith efforts at placement and a lack of bed and placement
availability, the Department shall provide an update to the
ordering court every 30 days until the defendant is placed. Once
bed and placement availability is determined, the Department
shall notify the sheriff who shall promptly transport the
defendant to the designated facility. If the defendant is placed
in the custody of the Department of Human Services, the
defendant shall be placed in a secure setting. During the period
of time required to determine bed and placement availability at
the designated facility, the defendant shall remain in jail. If
during the course of evaluating the defendant for placement, the
Department of Human Services determines that the defendant is
currently fit to stand trial, it shall immediately notify the
court and shall submit a written report within 7 days. In that
circumstance the placement shall be held pending a court hearing
on the Department's report. Otherwise, upon completion of the
placement process, including identifying bed and placement
availability, the sheriff shall be notified and shall transport
the defendant to the designated facility. If, within 60 days of
the transmittal by the clerk of the circuit court of the court's
placement order, the Department fails to provide the sheriff
with notice of bed and placement availability at the designated
facility, the sheriff shall contact the Department to inquire
about when a placement will become available at the designated
facility as well as bed and placement availability at other
secure facilities. The Department shall respond to the sheriff
within 2 business days of the notice and inquiry by the sheriff
seeking the transfer and the Department shall provide the
sheriff with the status of the evaluation, information on bed
and placement availability, and an estimated date of admission
for the defendant and any changes to that estimated date of
admission. If the Department notifies the sheriff during the 2
business day period of a facility operated by the Department
with
placement
availability,
the
sheriff
shall
promptly
transport the defendant to that facility. The placement may be
ordered either on an inpatient or an outpatient basis.
(c) If the defendant's disability is physical, the court may
order him placed under the supervision of the Department of
Human Services which shall place and maintain the defendant in a
suitable treatment facility or program, or the court may order
him placed in an appropriate public or private facility or
treatment program which has agreed to provide treatment to the
defendant. The placement may be ordered either on an inpatient
or an outpatient basis.
(d) The clerk of the circuit court shall within 5 days of
the entry of the order transmit to the Department, agency or
institution, if any, to which the defendant is remanded for
treatment, the following:
(1) a certified copy of the order to undergo
treatment. Accompanying the certified copy of the order to
undergo treatment shall be the complete copy of any report
prepared under Section 104-15 of this Code or other report
prepared by a forensic examiner for the court;
(2) the county and municipality in which the offense
was committed;
(3) the county and municipality in which the arrest
took place;
(4) a copy of the arrest report, criminal charges,
arrest record; and
(5) all additional matters which the Court directs
the clerk to transmit.
(e) Within 30 days of admission to the designated facility,
the person supervising the defendant's treatment shall file with
the court, the State, and the defense a report assessing the
facility's
or
program's
capacity
to
provide
appropriate
treatment for the defendant and indicating his opinion as to the
probability of the defendant's attaining fitness within a period
of time from the date of the finding of unfitness. For a
defendant charged with a felony, the period of time shall be one
year. For a defendant charged with a misdemeanor, the period of
time shall be no longer than the sentence if convicted of the
most serious offense. If the report indicates that there is a
substantial probability that the defendant will attain fitness
within the time period, the treatment supervisor shall also file
a treatment plan which shall include:
(1) A diagnosis of the defendant's disability;
(2) A description of treatment goals with respect to
rendering the defendant fit, a specification of the proposed
treatment modalities, and an estimated timetable for
attainment of the goals;
(3) An identification of the person in charge of
supervising the defendant's treatment.
(Source: P.A. 101-652, eff. 1-1-23; 102-1118, eff. 1-18-23.)
(725 ILCS 5/104-18) (from Ch. 38, par. 104-18)
Sec. 104-18. Progress reports.
(a) The treatment supervisor shall submit a written progress
report to the court, the State, and the defense:
(1) At least 7 days prior to the date for any hearing
on the issue of the defendant's fitness;
(2) Whenever he believes that the defendant has
attained fitness;
(3) Whenever he believes that there is not a
substantial probability that the defendant will attain
fitness, with treatment, within the time period set in
subsection (e) of Section 104-17 of this Code from the date
of the original finding of unfitness.
(b) The progress report shall contain:
(1) The clinical findings of the treatment supervisor
and the facts upon which the findings are based;
(2) The opinion of the treatment supervisor as to
whether the defendant has attained fitness or as to whether
the defendant is making progress, under treatment, toward
attaining fitness within the time period set in subsection
(e) of Section 104-17 of this Code from the date of the
original finding of unfitness;
(3) If the defendant is receiving medication,
information from the prescribing physician indicating the
type, the dosage and the effect of the medication on the
defendant's appearance, actions and demeanor.
(c) Whenever the court is sent a report from the supervisor
of the defendant's treatment under paragraph (2) of subsection
(a) of this Section, the treatment provider shall arrange with
the county jail for the immediate return of the defendant to the
county jail under subsection (e) of Section 104-20 of this Code.
(Source: P.A. 99-78, eff. 7-20-15; 100-27, eff. 1-1-18.)
(725 ILCS 5/104-19) (from Ch. 38, par. 104-19)
Sec. 104-19. Records.) Any report filed of record with the
court concerning diagnosis, treatment or treatment plans made
pursuant to this Article shall not be placed in the defendant's
court record but shall be maintained separately by the clerk of
the court and shall be available only to the court or an
appellate court, the State and the defense, a facility or
program which is providing treatment to the defendant pursuant
to an order of the court or such other persons as the court may
direct.
(Source: P.A. 81-1217.)
(725 ILCS 5/104-20) (from Ch. 38, par. 104-20)
Sec. 104-20. Ninety-day hearings; continuing treatment.)
(a) Upon entry or continuation of any order to undergo
treatment, the court shall set a date for hearing to reexamine
the issue of the defendant's fitness not more than 90 days
thereafter. In addition, whenever the court receives a report
from the supervisor of the defendant's treatment pursuant to
subparagraph (3) of paragraph (a) of Section 104-18, the court
shall forthwith set the matter for a first hearing within 14
days unless good cause is demonstrated why the hearing cannot be
held. On the date set or upon conclusion of the matter then
pending before it, the court, sitting without a jury, shall
conduct a hearing, unless waived by the defense, and shall
determine:
(1) Whether the defendant is fit to stand trial or to
plead; and if not,
(2) Whether the defendant is making progress under
treatment toward attainment of fitness within the time
period set in subsection (e) of Section 104-17 of this Code
from the date of the original finding of unfitness.
(b) If the court finds the defendant to be fit pursuant to
this Section, the court shall set the matter for trial; provided
that if the defendant is in need of continued care or treatment
and the supervisor of the defendant's treatment agrees to
continue to provide it, the court may enter any order it deems
appropriate for the continued care or treatment of the defendant
by the facility or program pending the conclusion of the
criminal proceedings.
(c) If the court finds that the defendant is still unfit but
that he is making progress toward attaining fitness, the court
may continue or modify its original treatment order entered
pursuant to Section 104-17.
(d) If the court finds that the defendant is still unfit and
that he is not making progress toward attaining fitness such
that there is not a substantial probability that he will attain
fitness within the time period set in subsection (e) of Section
104-17 of this Code from the date of the original finding of
unfitness, the court shall proceed pursuant to Section 104-23.
However, if the defendant is in need of continued care and
treatment and the supervisor of the defendant's treatment agrees
to continue to provide it, the court may enter any order it
deems appropriate for the continued care or treatment by the
facility or program pending the conclusion of the criminal
proceedings.
(e) Whenever the court receives a report from the supervisor
of the defendant's treatment under paragraph (2) of subsection
(a) of Section 104-18 of this Code, the court shall immediately
enter an order directing the sheriff to return the defendant to
the county jail and set the matter for trial. At any time the
issue of the defendant's fitness can be raised again under
Section 104-11 of this Code. If the court finds that the
defendant is still unfit after being recommended as fit by the
supervisor of the defendant's treatment, the court shall attach
a copy of any written report that identifies the factors in the
finding that the defendant continues to be unfit, prepared by a
licensed physician, clinical psychologist, or psychiatrist, to
the court order remanding the person for further treatment.
(Source: P.A. 99-140, eff. 1-1-16; 100-27, eff. 1-1-18.)
(725 ILCS 5/104-21) (from Ch. 38, par. 104-21)
Sec. 104-21. Medication.
(a) A defendant who is receiving psychotropic drugs shall
not be presumed to be unfit to stand trial solely by virtue of
the receipt of those drugs or medications.
(b) Whenever a defendant who is receiving medication under
medical direction is transferred between a place of custody and
a treatment facility or program, a written report from the
prescribing physician shall accompany the defendant. The report
shall state the type and dosage of the defendant's medication
and the duration of the prescription. The chief officer of the
place of custody or the treatment supervisor at the facility or
program shall insure that such medication is provided according
to the directions of the prescribing physician or until
superseded by order of a physician who has examined the
defendant.
(c) If a defendant refuses psychotropic medication, it may
be administered over the defendant's objections in accord with
the Mental Health and Developmental Disabilities Code. If court
authorized medications are sought, the petition, prepared in
accord
with
Section
2-107.1
of
the
Mental
Health
and
Developmental Disabilities Code may be filed in the county where
the defendant is located or with the court having jurisdiction
over the defendant.
(Source: P.A. 98-1025, eff. 8-22-14.)
(725 ILCS 5/104-22) (from Ch. 38, par. 104-22)
Sec. 104-22. Trial with special provisions and assistance.)
(a) On motion of the defendant, the State or on the court's own
motion, the court shall determine whether special provisions or
assistance will render the defendant fit to stand trial as
defined in Section 104-10.
(b) Such special provisions or assistance may include but
are not limited to:
(1) Appointment of qualified translators who shall
simultaneously translate all testimony at trial into language
understood by the defendant.
(2) Appointment of experts qualified to assist a defendant
who because of a disability is unable to understand the
proceedings or communicate with his or her attorney.
(c) The case may proceed to trial only if the court
determines that such provisions or assistance compensate for a
defendant's disabilities so as to render the defendant fit as
defined in Section 104-10. In such cases the court shall state
for the record the following:
(1) The qualifications and experience of the experts or
other persons appointed to provide special assistance to the
defendant;
(2) The court's reasons for selecting or appointing the
particular experts or other persons to provide the special
assistance to the defendant;
(3) How the appointment of the particular expert or other
persons will serve the goal of rendering the defendant fit in
view of the appointee's qualifications and experience, taken in
conjunction with the particular disabilities of the defendant;
and
(4) Any other factors considered by the court in appointing
that individual.
(Source: P.A. 81-1217.)
(725 ILCS 5/104-23) (from Ch. 38, par. 104-23)
Sec. 104-23. Unfit defendants. Cases involving an unfit
defendant who demands a discharge hearing or a defendant who
cannot become fit to stand trial and for whom no special
provisions or assistance can compensate for his disability and
render him fit shall proceed in the following manner:
(a) Upon a determination that there is not a substantial
probability that the defendant will attain fitness within the
time period set in subsection (e) of Section 104-17 of this Code
from the original finding of unfitness, the court shall hold a
discharge hearing within 60 days, unless good cause is shown for
the delay.
(b) If at any time the court determines that there is not a
substantial probability that the defendant will become fit to
stand trial or to plead within the time period set in subsection
(e) of Section 104-17 of this Code from the date of the original
finding of unfitness, or if at the end of the time period set in
subsection (e) of Section 104-17 of this Code from that date the
court finds the defendant still unfit and for whom no special
provisions or assistance can compensate for his disabilities and
render him fit, the State shall request the court:
(1) To set the matter for hearing pursuant to Section
104-25 unless a hearing has already been held pursuant to
paragraph (a) of this Section; or
(2) To release the defendant from custody and to
dismiss with prejudice the charges against him; or
(3) To remand the defendant to the custody of the
Department of Human Services and order a hearing to be
conducted pursuant to the provisions of the Mental Health
and Developmental Disabilities Code, as now or hereafter
amended. The Department of Human Services shall have 7 days
from the date it receives the defendant to prepare and file
the necessary petition and certificates that are required
for commitment under the Mental Health and Developmental
Disabilities Code. If the defendant is committed to the
Department of Human Services pursuant to such hearing, the
court having jurisdiction over the criminal matter shall
dismiss the charges against the defendant, with the leave to
reinstate. In such cases the Department of Human Services
shall notify the court, the State's attorney and the defense
attorney upon the discharge of the defendant. A former
defendant so committed shall be treated in the same manner
as any other civilly committed patient for all purposes
including admission, selection of the place of treatment and
the
treatment
modalities,
entitlement
to
rights
and
privileges, transfer, and discharge. A defendant who is not
committed shall be remanded to the court having jurisdiction
of the criminal matter for disposition pursuant to
subparagraph (1) or (2) of paragraph (b) of this Section.
(c) If the defendant is restored to fitness and the original
charges against him are reinstated, the speedy trial provisions
of Section 103-5 shall commence to run.
(Source: P.A. 102-1118, eff. 1-18-23.)
(725 ILCS 5/104-24) (from Ch. 38, par. 104-24)
Sec. 104-24. Time Credit. Time spent in custody pursuant to
orders issued under Section 104-17 or 104-20 or pursuant to a
commitment to the Department of Human Services following a
finding of unfitness or incompetency under prior law, shall be
credited against any sentence imposed on the defendant in the
pending criminal case or in any other case arising out of the
same conduct.
(Source: P.A. 89-507, eff. 7-1-97.)
(725 ILCS 5/104-25) (from Ch. 38, par. 104-25)
Sec. 104-25. Discharge hearing.
(a) As provided for in paragraph (a) of Section 104-23 and
subparagraph (1) of paragraph (b) of Section 104-23 a hearing to
determine the sufficiency of the evidence shall be held. Such
hearing shall be conducted by the court without a jury. The
State and the defendant may introduce evidence relevant to the
question of defendant's guilt of the crime charged.
The court may admit hearsay or affidavit evidence on
secondary matters such as testimony to establish the chain of
possession
of
physical
evidence,
laboratory
reports,
authentication of transcripts taken by official reporters, court
and business records, and public documents.
(b) If the evidence does not prove the defendant guilty
beyond a reasonable doubt, the court shall enter a judgment of
acquittal; however nothing herein shall prevent the State from
requesting the court to commit the defendant to the Department
of Human Services under the provisions of the Mental Health and
Developmental Disabilities Code.
(c) If the defendant is found not guilty by reason of
insanity, the court shall enter a judgment of acquittal and the
proceedings after acquittal by reason of insanity under Section
5-2-4 of the Unified Code of Corrections shall apply.
(d) If the discharge hearing does not result in an acquittal
of the charge the defendant may be remanded for further
treatment and the one year time limit set forth in Section 10423 shall be extended as follows:
(1) If the most serious charge upon which the State
sustained its burden of proof was a Class 1 or Class X
felony, the treatment period may be extended up to a maximum
treatment period of 2 years; if a Class 2, 3, or 4 felony,
the treatment period may be extended up to a maximum of 15
months;
(2) If the State sustained its burden of proof on a
charge of first degree murder, the treatment period may be
extended up to a maximum treatment period of 5 years.
(e) Transcripts of testimony taken at a discharge hearing
may be admitted in evidence at a subsequent trial of the case,
subject to the rules of evidence, if the witness who gave such
testimony is legally unavailable at the time of the subsequent
trial.
(f) If the court fails to enter an order of acquittal the
defendant may appeal from such judgment in the same manner
provided for an appeal from a conviction in a criminal case.
(g) At the expiration of an extended period of treatment
ordered pursuant to this Section:
(1) Upon a finding that the defendant is fit or can
be rendered fit consistent with Section 104-22, the court
may proceed with trial.
(2) If the defendant continues to be unfit to stand
trial, the court shall determine whether he or she is
subject to involuntary admission under the Mental Health and
Developmental Disabilities Code or constitutes a serious
threat to the public safety. If so found, the defendant
shall be remanded to the Department of Human Services for
further treatment and shall be treated in the same manner as
a civilly committed patient for all purposes, except that
the original court having jurisdiction over the defendant
shall be required to approve any conditional release or
discharge of the defendant, for the period of commitment
equal to the maximum sentence to which the defendant would
have been subject had he or she been convicted in a criminal
proceeding. During this period of commitment, the original
court having jurisdiction over the defendant shall hold
hearings under clause (i) of this paragraph (2). However, if
the defendant is remanded to the Department of Human
Services, the defendant shall be placed in a secure setting
unless the court determines that there are compelling
reasons why such placement is not necessary.
If the defendant does not have a current treatment
plan, then within 3 days of admission under this subdivision
(g)(2), a treatment plan shall be prepared for each
defendant and entered into his or her record. The plan shall
include (i) an assessment of the defendant's treatment
needs, (ii) a description of the services recommended for
treatment, (iii) the goals of each type of element of
service,
(iv)
an
anticipated
timetable
for
the
accomplishment of the goals, and (v) a designation of the
qualified professional responsible for the implementation of
the plan. The plan shall be reviewed and updated as the
clinical condition warrants, but not less than every 30
days.
Every 90 days after the initial admission under this
subdivision (g)(2), the facility director shall file a typed
treatment plan report with the original court having
jurisdiction over the defendant. The report shall include an
opinion as to whether the defendant is fit to stand trial
and
whether
the
defendant
is
currently
subject
to
involuntary admission, in need of mental health services on
an inpatient basis, or in need of mental health services on
an outpatient basis. The report shall also summarize the
basis for those findings and provide a current summary of
the 5 items required in a treatment plan. A copy of the
report shall be forwarded to the clerk of the court, the
State's Attorney, and the defendant's attorney if the
defendant is represented by counsel.
The court on its own motion may order a hearing to
review the treatment plan. The defendant or the State's
Attorney may request a treatment plan review every 90 days
and the court shall review the current treatment plan to
determine whether the plan complies with the requirements of
this Section. The court may order an independent examination
on its own initiative and shall order such an evaluation if
either the recipient or the State's Attorney so requests and
has demonstrated to the court that the plan cannot be
effectively
reviewed
by
the
court
without
such
an
examination. Under no circumstances shall the court be
required to order an independent examination pursuant to
this Section more than once each year. The examination shall
be conducted by a psychiatrist or clinical psychologist as
defined in Section 1-103 of the Mental Health and
Developmental Disabilities Code who is not in the employ of
the Department of Human Services.
If, during the period within which the defendant is
confined in a secure setting, the court enters an order that
requires the defendant to appear, the court shall timely
transmit a copy of the order or writ to the director of the
particular Department of Human Services facility where the
defendant resides authorizing the transportation of the
defendant to the court for the purpose of the hearing.
(i) 180 days after a defendant is remanded to the
Department of Human Services, under paragraph (2), and
every 180 days thereafter for so long as the defendant
is confined under the order entered thereunder, the
court shall set a hearing and shall direct that notice
of the time and place of the hearing be served upon the
defendant, the facility director, the State's Attorney,
and the defendant's attorney. If requested by either the
State or the defense or if the court determines that it
is
appropriate,
an
impartial
examination
of
the
defendant by a psychiatrist or clinical psychologist as
defined in Section 1-103 of the Mental Health and
Developmental Disabilities Code who is not in the employ
of the Department of Human Services shall be ordered,
and the report considered at the time of the hearing. If
the defendant is not currently represented by counsel
the court shall appoint the public defender to represent
the defendant at the hearing. The court shall make a
finding as to whether the defendant is:
(A) subject to involuntary admission; or
(B) in need of mental health services in the
form of inpatient care; or
(C) in need of mental health services but not
subject to involuntary admission nor inpatient care.
The findings of the court shall be established by
clear and convincing evidence and the burden of proof
and the burden of going forward with the evidence shall
rest with the State's Attorney. Upon finding by the
court, the court shall enter its findings and an
appropriate order.
(ii) The terms "subject to involuntary
admission", "in need of mental health services in the
form of inpatient care" and "in need of mental health
services but not subject to involuntary admission nor
inpatient care" shall have the meanings ascribed to them
in clause (d)(3) of Section 5-2-4 of the Unified Code of
Corrections.
(3) If the defendant is not committed pursuant to
this Section, he or she shall be released.
(4) In no event may the treatment period be extended
to exceed the maximum sentence to which a defendant would
have been subject had he or she been convicted in a criminal
proceeding. For purposes of this Section, the maximum
sentence shall be determined by Section 5-8-1 (730 ILCS 5/58-1) or Article 4.5 of Chapter V of the "Unified Code of
Corrections", excluding any sentence of natural life.
(Source: P.A. 95-1052, eff. 7-1-09.)
(725 ILCS 5/104-26) (from Ch. 38, par. 104-26)
Sec. 104-26. Disposition of Defendants suffering
disabilities.
(a) A defendant convicted following a trial conducted under
the provisions of Section 104-22 shall not be sentenced before a
written presentence report of investigation is presented to and
considered by the court. The presentence report shall be
prepared pursuant to Sections 5-3-2, 5-3-3 and 5-3-4 of the
Unified Code of Corrections, as now or hereafter amended, and
shall include a physical and mental examination unless the court
finds that the reports of prior physical and mental examinations
conducted pursuant to this Article are adequate and recent
enough so that additional examinations would be unnecessary.
(b) (Blank).
(c) A defendant convicted following a trial under Section
104-22 shall be sentenced according to the procedures and
dispositions authorized under the Unified Code of Corrections,
as now or hereafter amended, subject to the following
provisions:
(1) The court shall not impose a sentence of
imprisonment upon the offender if the court believes that
because of his disability a sentence of imprisonment would
not serve the ends of justice and the interests of society
and the offender or that because of his disability a
sentence of imprisonment would subject the offender to
excessive hardship. In addition to any other conditions of a
sentence of conditional discharge or probation the court may
require that the offender undergo treatment appropriate to
his mental or physical condition.
(2) After imposing a sentence of imprisonment upon an
offender who has a mental disability, the court may remand
him to the custody of the Department of Human Services and
order a hearing to be conducted pursuant to the provisions
of the Mental Health and Developmental Disabilities Code, as
now or hereafter amended. If the offender is committed
following such hearing, he shall be treated in the same
manner as any other civilly committed patient for all
purposes except as provided in this Section. If the
defendant is not committed pursuant to such hearing, he
shall be remanded to the sentencing court for disposition
according to the sentence imposed.
(3) If the court imposes a sentence of imprisonment
upon an offender who has a mental disability but does not
proceed under subparagraph (2) of paragraph (c) of this
Section, it shall order the Department of Corrections to
proceed pursuant to Section 3-8-5 of the Unified Code of
Corrections, as now or hereafter amended.
(3.5) If the court imposes a sentence of
imprisonment upon an offender who has a mental disability,
the court shall direct the circuit court clerk to
immediately notify the Illinois State Police, Firearm
Owner's Identification (FOID) Office, in a form and manner
prescribed by the Illinois State Police and shall forward a
copy of the court order to the Department.
(4) If the court imposes a sentence of imprisonment
upon an offender who has a physical disability, it may
authorize the Department of Corrections to place the
offender in a public or private facility which is able to
provide care or treatment for the offender's disability and
which agrees to do so.
(5) When an offender is placed with the Department of
Human Services or another facility pursuant to subparagraph
(2) or (4) of this paragraph (c), the Department or private
facility shall not discharge or allow the offender to be at
large in the community without prior approval of the court.
If the defendant is placed in the custody of the Department
of Human Services, the defendant shall be placed in a secure
setting unless the court determines that there are
compelling reasons why such placement is not necessary. The
offender shall accrue good time and shall be eligible for
parole in the same manner as if he were serving his sentence
within the Department of Corrections. When the offender no
longer requires hospitalization, care, or treatment, the
Department of Human Services or the facility shall transfer
him, if his sentence has not expired, to the Department of
Corrections. If an offender is transferred to the Department
of Corrections, the Department of Human Services shall
transfer to the Department of Corrections all related
records pertaining to length of custody and treatment
services provided during the time the offender was held.
(6) The Department of Corrections shall notify the
Department of Human Services or a facility in which an
offender has been placed pursuant to subparagraph (2) or (4)
of paragraph (c) of this Section of the expiration of his
sentence. Thereafter, an offender in the Department of Human
Services shall continue to be treated pursuant to his
commitment order and shall be considered a civilly committed
patient for all purposes including discharge. An offender
who is in a facility pursuant to subparagraph (4) of
paragraph (c) of this Section shall be informed by the
facility of the expiration of his sentence, and shall either
consent to the continuation of his care or treatment by the
facility or shall be discharged.
(Source: P.A. 102-538, eff. 8-20-21; 103-51, eff. 1-1-24.)
(725 ILCS 5/104-27) (from Ch. 38, par. 104-27)
Sec. 104-27. Defendants Found Unfit Prior to this Article;
Reports; Appointment of Counsel.
(a) Within 180 days after the effective date of this
Article, the Department of Mental Health and Developmental
Disabilities (predecessor of the Department of Human Services)
shall compile a report on each defendant under its custody who
was found unfit or incompetent to stand trial or to be sentenced
prior to the effective date of this Article. Each report shall
include the defendant's name, indictment and warrant numbers,
the county of his commitment, the length of time he has been
hospitalized, the date of his last fitness hearing, and a report
on his present status as provided in Section 104-18.
(b) The reports shall be forwarded to the Supreme Court
which shall distribute copies thereof to the chief judge of the
court in which the criminal charges were originally filed, to
the state's attorney and the public defender of the same county,
and to the defendant's attorney of record, if any. Notice that
the report has been delivered shall be given to the defendant.
(c) Upon receipt of the report, the chief judge shall
appoint the public defender or other counsel for each defendant
who is not represented by counsel and who is indigent pursuant
to Section 113-3 of this Act, as now or hereafter amended. The
court shall provide the defendant's counsel with a copy of the
report.
(Source: P.A. 89-507, eff. 7-1-97.)
(725 ILCS 5/104-28) (from Ch. 38, par. 104-28)
Sec. 104-28. Disposition of Defendants Found Unfit Prior to
this Article.
(a) Upon reviewing the report, the court shall determine
whether the defendant has been in the custody of the Department
of Mental Health and Developmental Disabilities (now the
Department of Human Services) for a period of time equal to the
length of time that the defendant would have been required to
serve, less good time, before becoming eligible for parole or
mandatory supervised release had he been convicted of the most
serious offense charged and had he received the maximum sentence
therefor. If the court so finds, it shall dismiss the charges
against the defendant, with leave to reinstate. If the defendant
has not been committed pursuant to the Mental Health and
Developmental Disabilities Code, the court shall order him
discharged or shall order a hearing to be conducted forthwith
pursuant to the provisions of the Code. If the defendant was
committed pursuant to the Code, he shall continue to be treated
pursuant to his commitment order and shall be considered a
civilly committed patient for all purposes including discharge.
(b) If the court finds that a defendant has been in the
custody of the Department of Mental Health and Developmental
Disabilities (now the Department of Human Services) for a period
less than that specified in paragraph (a) of this Section, the
court shall conduct a hearing pursuant to Section 104-20
forthwith to redetermine the issue of the defendant's fitness to
stand trial or to plead. If the defendant is fit, the matter
shall be set for trial. If the court finds that the defendant is
unfit, it shall proceed pursuant to Section 104-20 or 104-23,
provided that a defendant who is still unfit and who has been in
the custody of the Department of Mental Health and Developmental
Disabilities (now the Department of Human Services) for a period
of more than one year from the date of the finding of unfitness
shall be immediately subject to the provisions of Section 10423.
(Source: P.A. 89-507, eff. 7-1-97.)
(725 ILCS 5/104-29) (from Ch. 38, par. 104-29)
Sec. 104-29. In the event of any conflict between this
Article and the "Mental Health and Developmental Disabilities
Code", the provisions of this Article shall govern.
(Source: P.A. 81-1217.)
(725 ILCS 5/104-30) (from Ch. 38, par. 104-30)
Sec. 104-30. Notice to Law Enforcement Agencies Regarding
Release of Defendants.
(a) Prior to the release by the Department of Human Services
of any person admitted pursuant to any provision of this
Article, the Department of Human Services shall give written
notice to the Sheriff of the county from which the defendant was
admitted. In cases where the arrest of the defendant or the
commission of the offense took place in any municipality with a
population of more than 25,000 persons, the Department of Human
Services shall also give written notice to the proper law
enforcement
agency
for
said
municipality,
provided
the
municipality has requested such notice in writing.
(b) Where a defendant in the custody of the Department of
Human Services under any provision of this Article is released
pursuant to an order of court, the clerk of the circuit court
shall, after the entry of the order, transmit a certified copy
of the order of release to the Department of Human Services and
the Sheriff of the county from which the defendant was admitted.
In cases where the arrest of the defendant or the commission of
the offense took place in any municipality with a population of
more than 25,000 persons, the Clerk of the circuit court shall
also send a certified copy of the order of release to the proper
law enforcement agency for said municipality provided the
municipality has requested such notice in writing.
(Source: P.A. 89-507, eff. 7-1-97.)
(725 ILCS 5/104-31) (from Ch. 38, par. 104-31)
Sec. 104-31. No defendant placed in a setting of the
Department of Human Services pursuant to the provisions of
Sections 104-17, 104-25, or 104-26 shall be permitted outside
the facility's housing unit unless escorted or accompanied by
personnel of the Department of Human Services or authorized by
court order. Any defendant, transported to court hearings or
other necessary appointments off facility grounds by personnel
of the Department of Human Services, may be placed in security
devices or otherwise secured during the period of transportation
to assure secure transport of the defendant and the safety of
Department of Human Services personnel and others. These
security measures shall not constitute restraint as defined in
the Mental Health and Developmental Disabilities Code. Nor shall
any defendant be permitted any off-grounds privileges, either
with or without escort by personnel of the Department of Human
Services or any unsupervised on-ground privileges, unless such
off-grounds or unsupervised on-grounds privileges have been
approved by specific court order, which order may include such
conditions on the defendant as the court may deem appropriate
and necessary to reasonably assure the defendant's satisfactory
progress in treatment and the safety of the defendant or others.
Whenever the court receives a report from the supervisor of the
defendant's treatment recommending the defendant for any offgrounds or unsupervised on-grounds privileges, the court shall
set the matter for a first hearing within 21 days unless good
cause is demonstrated why the hearing cannot be held. The
changes made to this Section by this amendatory Act of the 96th
General Assembly are declarative of existing law and shall not
be construed as a new enactment.
(Source: P.A. 98-1025, eff. 8-22-14.)
(725 ILCS 5/Art. 106 heading)
ARTICLE 106. WITNESS
IMMUNITY
(725 ILCS 5/106-1) (from Ch. 38, par. 106-1)
Sec. 106-1. Granting of immunity.) In any investigation
before a Grand Jury, or trial in any court, the court on motion
of the State may order that any material witness be released
from all liability to be prosecuted or punished on account of
any testimony or other evidence he may be required to produce.
(Source: P.A. 79-1360.)
(725 ILCS 5/106-2) (from Ch. 38, par. 106-2)
Sec. 106-2. Effect of immunity.
Such order of immunity shall forever be a bar to prosecution
against the witness for any offense shown in whole or in part by
such testimony or other evidence except for perjury committed in
the giving of such testimony.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/106-2.5) (from Ch. 38, par. 106-2.5)
Sec. 106-2.5. Use immunity.
(a) In lieu of the immunity provided in Section 106-2 of
this Code, the State's Attorney may make application to the
court that a street gang member, who testifies on behalf of a
public authority in a civil proceeding brought against a
streetgang under the Illinois Streetgang Terrorism Omnibus
Prevention Act, be granted immunity from prosecution in a
criminal case as to any information directly or indirectly
derived from the production of evidence by the streetgang
member. The court shall grant the order of immunity if:
(1) the production of the evidence is necessary to a
fair determination of a cause of action under the Illinois
Streetgang Terrorism Omnibus Prevention Act; and
(2) the streetgang member has refused or is likely to
refuse to produce the evidence on the basis of his or her
privilege against self-incrimination.
(b) In lieu of the immunity provided in Section 106-2 of
this Code, in any investigation before a Grand Jury, or trial in
any court, the court on motion of the State shall order that a
witness be granted immunity from prosecution in a criminal case
as to any information directly or indirectly derived from the
production of evidence from the witness if the witness has
refused or is likely to refuse to produce the evidence on the
basis of his or her privilege against self-incrimination.
(c) The production of evidence so compelled under the order,
and any information directly or indirectly derived from it, may
not be used against the witness in a criminal case, except in a
prosecution for perjury, false swearing, or an offense otherwise
involving a failure to comply with the order. An order of
immunity granted under this Section does not bar prosecution of
the witness, except as specifically provided in this Section.
(d) Upon request of the witness so compelled, a copy of the
evidence produced under the order shall be furnished to him or
her.
(Source: P.A. 87-932; 88-241; 88-677, eff. 12-15-94.)
(725 ILCS 5/106-3) (from Ch. 38, par. 106-3)
Sec. 106-3. Refusal to testify.
Any witness who having been granted immunity refuses to
testify or produce other evidence shall be in contempt of court
subject to proceedings in accordance to law.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/Art. 106B heading)
ARTICLE 106B. VICTIMS OF SEXUAL ABUSE: CHILDREN AND PERSONS WITH
DEVELOPMENTAL DISABILITIES
(Source: P.A. 99-143, eff. 7-27-15.)
(725 ILCS 5/106B-1) (from Ch. 38, par. 106B-1)
Sec. 106B-1. (Repealed).
(Source: Repealed by P.A. 88-674, eff. 12-14-94.)
(725 ILCS 5/106B-5)
Sec. 106B-5. Testimony by a victim who is a child or a
person with a moderate, severe, or profound intellectual
disability or a person affected by a developmental disability.
(a) In a proceeding in the prosecution of an offense of
criminal sexual assault, predatory criminal sexual assault of a
child, aggravated criminal sexual assault, criminal sexual
abuse, aggravated criminal sexual abuse, aggravated battery, or
aggravated domestic battery, a court may order that the
testimony of a victim who is a child under the age of 18 years
or a person with a moderate, severe, or profound intellectual
disability or a person affected by a developmental disability be
taken outside the courtroom and shown in the courtroom by means
of a closed circuit television if:
(1) the testimony is taken during the proceeding; and
(2) the judge determines that testimony by the child
victim or victim with a moderate, severe, or profound
intellectual
disability
or
victim
affected
by
a
developmental disability in the courtroom will result in the
child or person with a moderate, severe, or profound
intellectual
disability
or
person
affected
by
a
developmental
disability
suffering
serious
emotional
distress such that the child or person with a moderate,
severe, or profound intellectual disability or person
affected by a developmental disability cannot reasonably
communicate or that the child or person with a moderate,
severe, or profound intellectual disability or person
affected by a developmental disability will suffer severe
emotional distress that is likely to cause the child or
person with a moderate, severe, or profound intellectual
disability or person affected by a developmental disability
to suffer severe adverse effects.
(b) Only the prosecuting attorney, the attorney for the
defendant, and the judge may question the child or person with a
moderate, severe, or profound intellectual disability or person
affected by a developmental disability.
(c) The operators of the closed circuit television shall
make every effort to be unobtrusive.
(d) Only the following persons may be in the room with the
child
or
person
with
a
moderate,
severe,
or
profound
intellectual disability or person affected by a developmental
disability when the child or person with a moderate, severe, or
profound intellectual disability or person affected by a
developmental disability testifies by closed circuit television:
(1) the prosecuting attorney;
(2) the attorney for the defendant;
(3) the judge;
(4) the operators of the closed circuit television
equipment; and
(5) any person or persons whose presence, in the
opinion of the court, contributes to the well-being of the
child or person with a moderate, severe, or profound
intellectual
disability
or
person
affected
by
a
developmental disability, including a person who has dealt
with the child in a therapeutic setting concerning the
abuse, a parent or guardian of the child or person with a
moderate, severe, or profound intellectual disability or
person affected by a developmental disability, and court
security personnel.
(e) During the child's or person with a moderate, severe, or
profound intellectual disability or person affected by a
developmental
disability's
testimony
by
closed
circuit
television, the defendant shall be in the courtroom and shall
not communicate with the jury if the cause is being heard before
a jury.
(f) The defendant shall be allowed to communicate with the
persons in the room where the child or person with a moderate,
severe, or profound intellectual disability or person affected
by a developmental disability is testifying by any appropriate
electronic method.
(f-5) There is a rebuttable presumption that the testimony
of a victim who is a child under 13 years of age shall testify
outside the courtroom and the child's testimony shall be shown
in the courtroom by means of a closed circuit television. This
presumption may be overcome if the defendant can prove by clear
and convincing evidence that the child victim will not suffer
severe emotional distress.
(f-6) Before the court permits the testimony of a victim
outside the courtroom that is to be shown in the courtroom by
means of a closed circuit television, the court must make a
finding that the testimony by means of closed circuit television
does not prejudice the defendant.
(g) The provisions of this Section do not apply if the
defendant represents himself pro se.
(h) This Section may not be interpreted to preclude, for
purposes of identification of a defendant, the presence of both
the victim and the defendant in the courtroom at the same time.
(i) This Section applies to prosecutions pending on or
commenced on or after the effective date of this amendatory Act
of 1994.
(j) For the purposes of this Section, "developmental
disability" includes, but is not limited to, cerebral palsy,
epilepsy, and autism.
(Source: P.A. 103-164, eff. 1-1-24.)
(725 ILCS 5/106B-10)
Sec. 106B-10. Conditions for testimony by a victim who is a
child or a moderately, severely, or profoundly intellectually
disabled person or a person affected by a developmental
disability. In a prosecution of criminal sexual assault,
predatory criminal sexual assault of a child, aggravated
criminal sexual assault, criminal sexual abuse, aggravated
criminal sexual abuse, or any violent crime as defined in
subsection (c) of Section 3 of the Rights of Crime Victims and
Witnesses Act, the court may set any conditions it finds just
and appropriate on the taking of testimony of a victim who is a
child under the age of 18 years or a moderately, severely, or
profoundly intellectually disabled person or a person affected
by a developmental disability, involving the use of a facility
dog in any proceeding involving that offense. When deciding
whether to permit the child or person to testify with the
assistance of a facility dog, the court shall take into
consideration the age of the child or person, the rights of the
parties to the litigation, and any other relevant factor that
would facilitate the testimony by the child or the person. As
used in this Section, "facility dog" means a dog that is a
graduate of an assistance dog organization that is a member of
Assistance Dogs International.
(Source: P.A. 102-22, eff. 6-25-21.)
(725 ILCS 5/Art. 106C heading)
ARTICLE 106C. (Repealed)
(725 ILCS 5/106C-1) (from Ch. 38, par. 106C-1)
Sec. 106C-1. (Repealed).
(Source: Repealed by P.A. 88-241.)
(725 ILCS 5/106C-2) (from Ch. 38, par. 106C-2)
Sec. 106C-2. (Repealed).
(Source: Repealed by P.A. 88-241.)
(725 ILCS 5/Art. 106D heading)
ARTICLE 106D. CLOSED CIRCUIT
TELEVISION TESTIMONY
(725 ILCS 5/106D-1)
Sec. 106D-1. Defendant's appearance by two-way audio-visual
communication system.
(a) Whenever the appearance in person in court, in either a
civil or criminal proceeding, is required of anyone held in a
place of custody or confinement operated by the State or any of
its
political
subdivisions,
including
counties
and
municipalities, the chief judge of the circuit by rule may
permit the personal appearance to be made by means of a two-way
audio-visual communication system, including closed circuit
television and computerized video conference, in the following
proceedings:
(1) the initial appearance before a judge on a
criminal complaint as provided in subsection (f) of Section
109-1;
(2) the waiver of a preliminary hearing;
(3) the arraignment on an information or indictment
at which a plea of not guilty will be entered;
(4) the presentation of a jury waiver;
(5) any status hearing;
(6) any hearing conducted under the Sexually Violent
Persons Commitment Act at which no witness testimony will be
taken; and
(7) at any hearing at which no witness testimony will
be taken conducted under the following:
(A) Section 104-20 of this Code (90-day hearings);
(B) Section 104-22 of this Code (trial with
special provisions and assistance);
(C) Section 104-25 of this Code (discharge
hearing); or
(D) Section 5-2-4 of the Unified Code of
Corrections (proceedings after acquittal by reason of
insanity).
(b) The two-way audio-visual communication facilities must
provide two-way audio-visual communication between the court and
the place of custody or confinement, and must include a secure
line over which the person in custody and his or her counsel, if
any, may communicate.
(c) Nothing in this Section shall be construed to prohibit
other court appearances through the use of a two-way audiovisual communication system if the person in custody or
confinement waives the right to be present physically in court,
the court determines that the physical health and safety of any
person necessary to the proceedings would be endangered by
appearing in court, or the chief judge of the circuit orders use
of that system due to operational challenges in conducting the
hearing in person. Such operational challenges must be
documented and approved by the chief judge of the circuit, and a
plan to address the challenges through reasonable efforts must
be presented and approved by the Administrative Office of the
Illinois Courts every 6 months.
(d) Nothing in this Section shall be construed to establish
a right of any person held in custody or confinement to appear
in court through a two-way audio-visual communication system or
to require that any governmental entity, or place of custody or
confinement, provide a two-way audio-visual communication
system.
(Source: P.A. 101-652, eff. 1-1-23; 102-486, eff. 8-20-21; 102813, eff. 5-13-22; 102-1104, eff. 1-1-23.)
(725 ILCS 5/106D-5)
Sec. 106D-5. Pilot project; reporting.
(a) Subject to appropriation, the Department of Human
Services and the Administrative Office of the Illinois Courts
shall implement a pilot project between the circuit courts in 2
counties and Department of Human Services facilities treating
persons unfit to stand trial or not guilty by reason of
insanity.
(b) The purpose of the pilot project is to determine the
feasibility
and
desirability
of
using
video
conference
technology for hearings involving persons who are unfit to stand
trial and persons who have been determined not guilty by reason
of insanity. The Department of Human Services and the
Administrative Office of the Illinois Courts shall review the
video conference technology and develop guidelines for the
specific technology, means of private conferencing between the
defendant and his or her attorney during the hearings, and any
specific determinations that are not suitable for video
conference hearings. The Department of Human Services and the
Administrative Office of the Illinois Courts shall submit a
joint report to the General Assembly 6 months after the pilot
project between the 2 counties and Department facilities has
been operational for at least 2 years. Individual defendants,
State's Attorneys, defense attorneys, and other personnel may
submit comments to be considered in preparing the joint report.
Presiding judges may submit comments to either the Department of
Human Services or to the Administrative Office of the Illinois
Courts. All comments submitted only to the Administrative Office
of the Illinois Courts shall be confidential and also may
contain the reporting judge's observations, comments, or
recommendations. The reports shall:
(1) evaluate the effectiveness of the video
conference hearing process; and
(2) make recommendations concerning the
implementation of video conference hearings in all counties.
(c) The Department of Human Services shall provide all
necessary administrative support for the pilot project.
(Source: P.A. 102-486, eff. 8-20-21.)
(725 ILCS 5/Art. 106E heading)
ARTICLE 106E. TASK FORCE ON PROFESSIONAL
PRACTICE IN THE ILLINOIS JUSTICE SYSTEMS
(Repealed internally, eff. 12-31-00.)
(725 ILCS 5/106E-5)
Sec. 106E-5. (Repealed).
(Source: P.A. 91-577, eff. 8-14-99. Repealed by Section 106E-15,
eff. 12-31-00.)
(725 ILCS 5/106E-10)
Sec. 106E-10. (Repealed).
(Source: P.A. 91-577, eff. 8-14-99. Repealed by Section 106E-15,
eff. 12-31-00.)
(725 ILCS 5/106E-15)
Sec. 106E-15. (Repealed).
(Source: P.A. 91-577, eff. 8-14-99. Repealed internally, eff.
12-31-00.)
(725 ILCS 5/Art. 106F heading)
ARTICLE 106F. CHILDREN OF INCARCERATED PARENTS TASK FORCE
(Source: P.A. 101-480, eff. 8-23-19.)
(725 ILCS 5/Art. 106G heading)
ARTICLE 106G. COMMISSION ON CHILDREN OF INCARCERATED PARENTS
(Source: P.A. 102-814, eff. 1-1-23.)
(725 ILCS 5/106G-5)
Sec. 106G-5. Commission on Children of Incarcerated Parents
created.
(a) The Commission on Children of Incarcerated Parents,
hereinafter referred to as the Commission, is created within the
Department of Human Services and shall reflect the diversity of
the State of Illinois, including geographic, racial and ethnic
diversity and diversity of life experience. The Commission shall
be
responsible
for
implementing
and
coordinating
the
recommendations of the Task Force on Children of Incarcerated
Parents.
(b) No later than 90 days after the effective date of this
amendatory Act of the 102nd General Assembly, the following
representatives from relevant stakeholder groups shall be
appointed to the Commission by the Lieutenant Governor unless
otherwise stated:
(1) one female who has previously been incarcerated
and has been directly impacted by policies relating to
children of incarcerated parents;
(2) two individuals who have been directly impacted
by policies relating to children of incarcerated parents,
one of whom is between the ages of 17 and 24 at the time of
appointment;
(3) three representatives from community-based
providers or community organizations that provide services
to address the trauma of incarceration through social
services, advocacy, or the provision of legal services;
(4) one individual who has been directly impacted by
the Department of Juvenile Justice policies relating to
children of incarcerated parents and is between the ages of
17 and 24 at the time of appointment;
(5) the Lieutenant Governor, or his or her designee;
(6) the Secretary of Human Services, or his or her
designee;
(7) the Director of Children and Family Services, or
his or her designee;
(8) the Cook County Public Guardian, or his or her
designee;
(9) the Director of Juvenile Justice, or his or her
designee;
(10) the Director of Corrections, or his or her
designee;
(11) the President of the Illinois Sheriffs'
Association, or his or her designee;
(12) the Cook County Sheriff, or his or her designee;
(13) the Director of the Illinois State Police, or
his or her designee;
(14) the Chief of the Chicago Police Department, or
his or her designee;
(15) the Executive Director of the Illinois Law
Enforcement Training Standards Board, or his or her
designee;
(16) the Attorney General, or his or her designee;
(17) one member who represents the court system;
(18) one member from an organization that facilitates
visitation between incarcerated parents and children;
(19) one member who is a researcher or member of an
academic profession and has studied issues related to the
impact of incarceration on youth;
(20) one member who represents an organization with
expertise in gender-responsive practices and assessing the
impact of incarceration on women; and
(21) one male who has previously been incarcerated
and has been directly impacted by policies relating to
children of incarcerated parents.
(c) In this Section, "an individual who has been directly
impacted by policies relating to children of incarcerated
parents" means a person who has been convicted of, adjudicated,
or pled guilty to, one or more felonies, who was sentenced to a
term of imprisonment, and who has been separated from his or her
children as a result of imprisonment.
(d) Commission members shall serve without compensation. The
term of a member of the Commission, other than a member listed
under paragraphs (5) through (16) of subsection (b), shall
expire 4 years after the date of the member's appointment.
(e) Once all its members have been appointed as provided in
this Section, the Commission may exercise any power, perform any
function, or take any action in furtherance of its purposes and
goals. The Commission shall:
(1) meet at least 4 times per year beginning within
30 days after the appointment of a quorum of its members;
(2) identify resources, strategies, and legislative
proposals
to
support
the
full
administration
and
implementation of the Task Force on Children of Incarcerated
Parents recommendations;
(3) develop a strategic plan that outlines specific
goals, information-gathering activities, benchmarks, and
timelines toward achieving the purpose of the Commission to
fully implement the recommendations of the Task Force on
Children of Incarcerated Parents; and
(4) deliver an annual report to the General Assembly
and to the Governor to be posted on the websites of the
Governor and General Assembly and provide to the public an
annual report on its progress. A draft of the report shall
be released for public comment, and feedback and shall be
solicited from relevant stakeholders, including individuals
impacted by parental incarceration, law enforcement, and
advocates from local governmental family services agencies
and nonprofit service providers.
(f) The General Assembly may appropriate funds to the
Department of Human Services for the purpose of funding the work
of the Commission or services provided under this Section.
(Source: P.A. 102-814, eff. 1-1-23.)
(725 ILCS 5/Tit. II heading)
TITLE II. APPREHENSION AND INVESTIGATION
(725 ILCS 5/Art. 107 heading)
ARTICLE 107. ARREST
(725 ILCS 5/107-1) (from Ch. 38, par. 107-1)
Sec. 107-1. Definitions.
(a) A "warrant of arrest" is a written order from a court
directed to a peace officer, or to some other person
specifically named, commanding him to arrest a person.
(b) A "summons" is a written order issued by a court which
commands a person to appear before a court at a stated time and
place.
(c) A "notice to appear" is a written request issued by a
peace officer that a person appear before a court at a stated
time and place.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/107-2) (from Ch. 38, par. 107-2)
Sec. 107-2. Arrest by peace officer.
(1) A peace officer may arrest a person when:
(a) He has a warrant commanding that such person be
arrested; or
(b) He has reasonable grounds to believe that a
warrant for the person's arrest has been issued in this
State or in another jurisdiction; or
(c) He has reasonable grounds to believe that the
person is committing or has committed an offense.
(2) Whenever a peace officer arrests a person, the officer
shall question the arrestee as to whether he or she has any
children under the age of 18 living with him or her who may be
neglected as a result of the arrest or otherwise. The peace
officer shall assist the arrestee in the placement of the
children with a relative or other responsible person designated
by the arrestee. If the peace officer has reasonable cause to
believe that a child may be a neglected child as defined in the
Abused and Neglected Child Reporting Act, he shall report it
immediately to the Department of Children and Family Services as
provided in that Act.
(3) A peace officer who executes a warrant of arrest in good
faith beyond the geographical limitation of the warrant shall
not be liable for false arrest.
(4) Whenever a peace officer is aware of a warrant of arrest
issued by a circuit court of this State for a person and the
peace officer has contact with the person because the person is
requesting or receiving emergency medical assistance or medical
forensic services for sexual assault at a medical facility, if
the warrant of arrest is not for a forcible felony as defined in
Section 2-8 of the Criminal Code of 2012, a violent crime as
defined in subsection (c) of Section 3 of the Rights of Crime
Victims and Witnesses Act, or an alleged violation of parole or
mandatory supervised release, the peace officer shall contact
the prosecuting authority of the jurisdiction issuing the
warrant, or if that prosecutor is not available, the prosecuting
authority for the jurisdiction that covers the medical facility
to request waiver of the prompt execution of the warrant. The
prosecuting authority may secure a court order waiving the
immediate execution of the warrant and provide a copy to the
peace officer. As used in this subsection (4), "sexual assault"
means an act of sexual conduct or sexual penetration defined in
Section 11-0.1 of the Criminal Code of 2012, including without
limitation, acts prohibited under Sections 11-1.20 through 111.60 of the Criminal Code of 2012.
(4.5) Whenever a peace officer has a warrant of arrest for a
person, subject to the same limitations described in subsection
(4), and the peace officer has contact with the person because
the person reported that he or she was sexually assaulted within
the past 7 days, in addition to informing the person of his or
her right to seek free medical attention and evidence collection
and providing the written notice required by Section 25 of the
Sexual Assault Incident Procedure Act, the officer shall also
notify the person that if he or she chooses to go to a medical
facility to seek any of those services, then the officer shall
inform the prosecuting authority to request waiver of the prompt
execution of the warrant.
(Source: P.A. 101-39, eff. 6-1-20.)
(725 ILCS 5/107-3) (from Ch. 38, par. 107-3)
Sec. 107-3. Arrest by private person.
Any person may arrest another when he has reasonable grounds
to believe that an offense other than an ordinance violation is
being committed.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/107-4) (from Ch. 38, par. 107-4)
Sec. 107-4. Arrest by peace officer from other jurisdiction.
(a) As used in this Section:
(1) "State" means any State of the United States and
the District of Columbia.
(2) "Peace Officer" means any peace officer or member
of any duly organized State, County, or Municipal peace
unit, any police force of another State, the United States
Department of Defense, or any police force whose members, by
statute, are granted and authorized to exercise powers
similar to those conferred upon any peace officer employed
by a law enforcement agency of this State.
(3) "Fresh pursuit" means the immediate pursuit of a
person who is endeavoring to avoid arrest.
(4) "Law enforcement agency" means a municipal police
department or county sheriff's office of this State.
(a-3) Any peace officer employed by a law enforcement agency
of this State may conduct temporary questioning pursuant to
Section 107-14 of this Code and may make arrests in any
jurisdiction within this State: (1) if the officer is engaged in
the investigation of criminal activity that occurred in the
officer's primary jurisdiction and the temporary questioning or
arrest relates to, arises from, or is conducted pursuant to that
investigation; or (2) if the officer, while on duty as a peace
officer, becomes personally aware of the immediate commission of
a felony or misdemeanor violation of the laws of this State; or
(3) if the officer, while on duty as a peace officer, is
requested by an appropriate State or local law enforcement
official to render aid or assistance to the requesting law
enforcement agency that is outside the officer's primary
jurisdiction; or (4) in accordance with Section 2605-580 of the
Illinois State Police Law of the Civil Administrative Code of
Illinois. While acting pursuant to this subsection, an officer
has the same authority as within his or her own jurisdiction.
(a-7) The law enforcement agency of the county or
municipality in which any arrest is made under this Section
shall be immediately notified of the arrest.
(b) Any peace officer of another State who enters this State
in fresh pursuit and continues within this State in fresh
pursuit of a person in order to arrest him on the ground that he
has committed an offense in the other State has the same
authority to arrest and hold the person in custody as peace
officers of this State have to arrest and hold a person in
custody on the ground that he has committed an offense in this
State.
(c) If an arrest is made in this State by a peace officer of
another State in accordance with the provisions of this Section
he shall without unnecessary delay take the person arrested
before the circuit court of the county in which the arrest was
made. Such court shall conduct a hearing for the purpose of
determining the lawfulness of the arrest. If the court
determines that the arrest was lawful it shall commit the person
arrested, to await for a reasonable time the issuance of an
extradition warrant by the Governor of this State, or admit him
to pretrial release for such purpose. If the court determines
that the arrest was unlawful it shall discharge the person
arrested.
(Source: P.A. 101-652, eff. 1-1-23; 102-538, eff. 8-20-21; 102813, eff. 5-13-22.)
(725 ILCS 5/107-5) (from Ch. 38, par. 107-5)
Sec. 107-5. Method of arrest.
(a) An arrest is made by an actual restraint of the person
or by his submission to custody.
(b) An arrest may be made on any day and at any time of the
day or night.
(c) An arrest may be made anywhere within the jurisdiction
of this State.
(d) All necessary and reasonable force may be used to effect
an entry into any building or property or part thereof to make
an authorized arrest.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/107-6) (from Ch. 38, par. 107-6)
Sec. 107-6. Release by officer of person arrested.
A peace officer who arrests a person without a warrant is
authorized to release the person without requiring him to appear
before a court when the officer is satisfied that there are no
grounds for criminal complaint against the person arrested.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/107-7) (from Ch. 38, par. 107-7)
Sec. 107-7. Persons exempt from arrest.
(a) Electors shall, in all cases except treason, felony or
breach of the peace, be privileged from arrest during their
attendance at election, and in going to and returning from the
same.
(b) Senators and representatives shall, in all cases, except
treason, felony or breach of the peace, be privileged from
arrest during the session of the General Assembly, and in going
to and returning from the same.
(c) The militia shall in all cases, except treason, felony,
or breach of the peace, be privileged from arrest during their
attendance at musters and elections, and in going to and
returning from the same.
(d) Judges, attorneys, clerks, sheriffs, and other court
officers shall be privileged from arrest while attending court
and while going to and returning from court.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/107-8) (from Ch. 38, par. 107-8)
Sec. 107-8. Assisting peace officer). (a) A peace officer
making a lawful arrest may command the aid of persons over the
age of 18.
(b) A person commanded to aid a peace officer shall have the
same authority to arrest as that peace officer.
(c) A person commanded to aid a peace officer shall not be
civilly liable for any reasonable conduct in aid of the officer.
(Source: P.A. 80-360.)
(725 ILCS 5/107-9) (from Ch. 38, par. 107-9)
Sec. 107-9. Issuance of arrest warrant upon complaint.
(a) When a complaint is presented to a court charging that
an offense has been committed, it shall examine upon oath or
affirmation the complainant or any witnesses.
(b) The complaint shall be in writing and shall:
(1) State the name of the accused if known, and if
not known the accused may be designated by any name or
description by which he can be identified with reasonable
certainty;
(2) State the offense with which the accused is
charged;
(3) State the time and place of the offense as
definitely as can be done by the complainant; and
(4) Be subscribed and sworn to by the complainant.
(b-5) If an arrest warrant or summons is sought and the
request is made by electronic means that has a simultaneous
video and audio transmission between the requester and a judge,
the judge may issue an arrest warrant or summons based upon a
sworn complaint or sworn testimony communicated in the
transmission.
(c) A warrant or summons may be issued by the court for the
arrest or appearance of the person complained against if it
appears from the contents of the complaint and the examination
of the complainant or other witnesses, if any, that the person
against whom the complaint was made has committed an offense.
(d) The warrant of arrest or summons shall:
(1) Be in writing;
(2) Specify the name, sex and birth date of the
person to be arrested or summoned or, if his name, sex or
birth date is unknown, shall designate such person by any
name or description by which the person can be identified
with reasonable certainty;
(3) Set forth the nature of the offense;
(4) State the date when issued and the municipality
or county where issued;
(5) Be signed by the judge of the court with the
title of the judge's office; and
(6) Command that the person against whom the
complaint was made to be arrested and brought before the
court issuing the warrant or the nearest or most accessible
court in the same county, or appear before the court at a
certain time and place;
(7) Specify the conditions of pretrial release, if
any; and
(8) Specify any geographical limitation placed on the
execution of the warrant, if any, but such limitation shall
not be expressed in mileage.
(e) The summons may be served in the same manner as the
summons in a civil action, except that a police officer may
serve a summons for a violation of an ordinance occurring within
the municipality of the police officer.
(f) If the person summoned fails to appear by the date
required or cannot be located to serve the summons, a warrant
may be issued by the court for the arrest of the person
complained against.
(g) A warrant of arrest issued under this Section shall
incorporate the information included in the summons, and shall
comply with the following:
(1) The arrest warrant shall specify any geographic
limitation placed on the execution of the warrant, but such
limitation shall not be expressed in mileage.
(2) The arrest warrant shall be directed to all peace
officers in the State. It shall be executed by the peace
officer, or by a private person specially named therein, at
any location within the geographic limitation for execution
placed on the warrant. If no geographic limitation is placed
on the warrant, then it may be executed anywhere in the
State.
(h) The arrest warrant or summons may be issued
electronically or electromagnetically by use of electronic mail
or a facsimile transmission machine and any such arrest warrant
or summons shall have the same validity as a written arrest
warrant or summons.
(Source: P.A. 101-239, eff. 1-1-20; 101-652, eff. 1-1-23; 1021104, eff. 1-1-23.)
(725 ILCS 5/107-10) (from Ch. 38, par. 107-10)
Sec. 107-10. Defective warrant.
A warrant of arrest shall not be quashed or abated nor shall
any person in custody for an offense be discharged from such
custody because of technical irregularities not affecting the
substantial rights of the accused.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/107-11) (from Ch. 38, par. 107-11)
Sec. 107-11. When summons may be issued.
(a) When authorized to issue a warrant of arrest, a court
may instead issue a summons.
(b) The summons shall:
(1) Be in writing;
(2) State the name of the person summoned and his or
her address, if known;
(3) Set forth the nature of the offense;
(4) State the date when issued and the municipality
or county where issued;
(5) Be signed by the judge of the court with the
title of his or her office; and
(6) Command the person to appear before a court at a
certain time and place.
(c) The summons may be served in the same manner as the
summons in a civil action or by certified or regular mail,
except that police officers may serve summons for violations of
ordinances occurring within their municipalities.
(Source: P.A. 102-1104, eff. 12-6-22.)
(725 ILCS 5/107-12) (from Ch. 38, par. 107-12)
Sec. 107-12. Notice to appear.
(a) Whenever a peace officer is authorized to arrest a
person without a warrant he may instead issue to such person a
notice to appear.
(b) The notice shall:
(1) Be in writing;
(2) State the name of the person and his address, if known;
(3) Set forth the nature of the offense;
(4) Be signed by the officer issuing the notice; and
(5) Request the person to appear before a court at a certain
time and place.
(c) Upon failure of the person to appear a summons or
warrant of arrest may issue.
(d) In any case in which a person is arrested for a Class C
misdemeanor or a petty offense and remanded to the sheriff other
than pursuant to a court order, the sheriff may issue such
person a notice to appear.
(Source: P.A. 83-693.)
(725 ILCS 5/107-13) (from Ch. 38, par. 107-13)
Sec. 107-13. Offenses committed by corporations.
(a) When a corporation is charged with the commission of an
offense the court shall issue a summons setting forth the nature
of the offense and commanding the corporation to appear before a
court at a certain time and place.
(b) The summons for the appearance of a corporation may be
served in the manner provided for service of summons upon a
corporation in a civil action.
(c) If, after being summoned, the corporation does not
appear, a plea of not guilty shall be entered by the court
having jurisdiction to try the offense for which the summons was
issued, and such court shall proceed to trial and judgment
without further process.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/107-14) (from Ch. 38, par. 107-14)
Sec. 107-14. Temporary questioning without arrest.
(a) A peace officer, after having identified himself as a
peace officer, may stop any person in a public place for a
reasonable period of time when the officer reasonably infers
from the circumstances that the person is committing, is about
to commit or has committed an offense as defined in Section 10215 of this Code, and may demand the name and address of the
person and an explanation of his actions. Such detention and
temporary questioning will be conducted in the vicinity of where
the person was stopped.
(b) Upon completion of any stop under subsection (a)
involving a frisk or search, and unless impractical, impossible,
or under exigent circumstances, the officer shall provide the
person with a stop receipt which provides the reason for the
stop and contains the officer's name and badge number. This
subsection (b) does not apply to searches or inspections for
compliance with the Fish and Aquatic Life Code, the Wildlife
Code, the Herptiles-Herps Act, or searches or inspections for
routine security screenings at facilities or events. For the
purposes of this subsection (b), "badge" means an officer's
department issued identification number associated with his or
her position as a police officer with that department.
(Source: P.A. 99-352, eff. 1-1-16.)
(725 ILCS 5/107-15)
Sec. 107-15. Fresh pursuit. When the fact that a felony has
been committed comes to the knowledge of a sheriff or coroner,
fresh pursuit shall be forthwith made after every person guilty
of the felony, by the sheriff, coroner, and all other persons
who is by any one of them commanded or summoned for that
purpose; every such officer who does not do his or her duty in
the premises is guilty of a Class B misdemeanor.
(Source: P.A. 89-234, eff. 1-1-96.)
(725 ILCS 5/107-16)
Sec. 107-16. Apprehension of offender. It is the duty of
every sheriff, coroner, and every marshal, policeman, or other
officer of an incorporated city, town, or village, having the
power of a sheriff, when a criminal offense or breach of the
peace is committed or attempted in his or her presence,
forthwith to apprehend the offender and bring him or her before
a judge, to be dealt with according to law; to suppress all
riots and unlawful assemblies, and to keep the peace, and
without delay to serve and execute all warrants and other
process to him or her lawfully directed.
(Source: P.A. 89-234, eff. 1-1-96.)
(725 ILCS 5/Art. 107A heading)
ARTICLE 107A. LINEUP AND PHOTO SPREAD PROCEDURE
(Source: P.A. 93-605, eff. 11-19-03.)
(725 ILCS 5/107A-0.1)
Sec. 107A-0.1. Definitions. For the purposes of this
Article:
"Eyewitness" means a person viewing the lineup whose
identification by sight of another person may be relevant in
a criminal proceeding.
"Filler" means a person or a photograph of a person
who is not suspected of an offense and is included in a
lineup.
"Independent administrator" means a lineup
administrator who is not participating in the investigation
of the criminal offense and is unaware of which person in
the lineup is the suspected perpetrator.
"Lineup" includes a photo lineup or live lineup.
"Lineup administrator" means the person who conducts
a lineup.
"Live lineup" means a procedure in which a group of
persons is displayed to an eyewitness for the purpose of
determining if the eyewitness is able to identify the
perpetrator of a crime, but does not include a showup.
"Photo lineup" means a procedure in which photographs
are displayed to an eyewitness for the purpose of
determining if the eyewitness is able to identify the
perpetrator of a crime.
"Sequential lineup" means a live or photo lineup in
which each person or photograph is presented to an
eyewitness separately, in a previously determined order, and
removed from the eyewitness's view before the next person or
photograph is presented, in order to determine if the
eyewitness is able to identify the perpetrator of a crime.
"Showup" means a procedure in which a suspected
perpetrator is presented to the eyewitness at, or near, a
crime scene for the purpose of obtaining an immediate
identification.
"Simultaneous lineup" means a live or photo lineup in
which a group of persons or array of photographs is
presented simultaneously to an eyewitness for the purpose of
determining if the eyewitness is able to identify the
perpetrator of a crime.
(Source: P.A. 98-1014, eff. 1-1-15.)
(725 ILCS 5/107A-2)
Sec. 107A-2. Lineup procedure.
(a) All lineups shall be conducted using one of the
following methods:
(1) An independent administrator, unless it is not
practical.
(2) An automated computer program or other device
that can automatically display a photo lineup to an
eyewitness
in
a
manner
that
prevents
the
lineup
administrator from seeing which photograph or photographs
the eyewitness is viewing until after the lineup is
completed. The automated computer program may present the
photographs
to
the
eyewitness
simultaneously
or
sequentially, consistent with the law enforcement agency
guidelines required under subsection (b) of this Section.
(3) A procedure in which photographs are placed in
folders, randomly numbered, and shuffled and then presented
to an eyewitness such that the lineup administrator cannot
see or know which photograph or photographs are being
presented to the eyewitness until after the procedure is
completed. The photographs may be presented to the
eyewitness simultaneously or sequentially, consistent with
the law enforcement agency guidelines required under
subsection (b) of this Section.
(4) Any other procedure that prevents the lineup
administrator from knowing the identity of the suspected
perpetrator or seeing or knowing the persons or photographs
being presented to the eyewitness until after the procedure
is completed.
(b) Each law enforcement agency shall adopt written
guidelines setting forth when, if at all, simultaneous lineups
shall be conducted and when, if at all, sequential lineups shall
be conducted. This subsection does not establish a preference
for whether a law enforcement agency should conduct simultaneous
lineups or sequential lineups. Whether and when to conduct
simultaneous lineups or sequential lineups is at the discretion
of each law enforcement agency. If, after the effective date of
this amendatory Act of the 98th General Assembly, a method of
conducting a lineup different from a simultaneous or sequential
lineup is determined by the Illinois Supreme Court to be
sufficiently established to have gained general acceptance as a
reliable method for eyewitness identifications and provides more
accurate results than simultaneous or sequential lineups, a law
enforcement agency may adopt written guidelines setting forth
when, if at all, this different method of conducting lineups
shall be used and, when feasible, the provisions of subsection
(d) of this Section shall apply to the use of these methods.
(c) On and after the effective date of this amendatory Act
of the 98th General Assembly, there is no preference as to
whether a law enforcement agency conducts a live lineup or a
photo lineup and to the extent that the common law directs
otherwise, this direction is abrogated.
(d) If a lineup administrator conducts a sequential lineup,
the following shall apply:
(1) Solely at the eyewitness's request, the lineup
administrator may present a person or photograph to the
eyewitness an additional time but only after the eyewitness
has first viewed each person or photograph one time.
(2) If the eyewitness identifies a person as a
perpetrator, the lineup administrator shall continue to
sequentially present the remaining persons or photographs to
the eyewitness until the eyewitness has viewed each person
or photograph.
(e) Before a lineup is conducted:
(1) The eyewitness shall be instructed that:
(A) if recording the lineup is practical, an
audio and video recording of the lineup will be made for
the purpose of accurately documenting all statements
made by the eyewitness, unless the eyewitness refuses to
the recording of the lineup, and that if a recording is
made it will be of the persons in the lineup and the
eyewitness;
(B) the perpetrator may or may not be presented
in the lineup;
(C) if an independent administrator is
conducting the lineup, the independent administrator
does not know the suspected perpetrator's identity or if
the administrator conducting the lineup is not an
independent administrator, the eyewitness should not
assume that the lineup administrator knows which person
in the lineup is the suspect;
(D) the eyewitness should not feel compelled to
make an identification;
(E) it is as important to exclude innocent
persons as it is to identify a perpetrator; and
(F) the investigation will continue whether or
not an identification is made.
(2) The eyewitness shall acknowledge in writing the
receipt of the instructions required under this subsection
and, if applicable, the refusal to be recorded. If the
eyewitness refuses to sign the acknowledgement, the lineup
administrator shall note the refusal of the eyewitness to
sign
the
acknowledgement
and
shall
also
sign
the
acknowledgement.
(f) In conducting a lineup:
(1) When practicable, the lineup administrator shall
separate
all
eyewitnesses
in
order
to
prevent
the
eyewitnesses from conferring with one another before and
during the lineup procedure. If separating the eyewitnesses
is not practicable, the lineup administrator shall ensure
that all eyewitnesses are monitored and that they do not
confer with one another while waiting to view the lineup and
during the lineup.
(2) Each eyewitness shall perform the identification
procedures without any other eyewitness present. Each
eyewitness shall be given instructions regarding the
identification
procedures
without
other
eyewitnesses
present.
(3) The lineup shall be composed to ensure that the
suspected perpetrator does not unduly stand out from the
fillers. In addition:
(A) Only one suspected perpetrator shall be
included in a lineup.
(B) The suspected perpetrator shall not be
substantially different in appearance from the fillers
based on the eyewitness's previous description of the
perpetrator or based on other factors that would draw
attention to the suspected perpetrator.
(C) At least 5 fillers shall be included in a
photo lineup, in addition to the suspected perpetrator.
(D) When practicable, at least 5 fillers shall be
included in a live lineup, in addition to the suspected
perpetrator, but in no event shall there be less than 3
fillers in addition to the suspected perpetrator.
(E) If the eyewitness has previously viewed a
photo lineup or live lineup in connection with the
identification
of
another
person
suspected
of
involvement in the offense, the fillers in the lineup in
which the current suspected perpetrator participates
shall be different from the fillers used in the prior
lineups.
(4) If there are multiple eyewitnesses, subject to
the requirements in subsection (a) of this Section and to
the extent possible, the suspected perpetrator shall be
placed in a different position in the lineup or photo array
for each eyewitness.
(5) Nothing shall be communicated to the eyewitness
regarding the suspected perpetrator's position in the lineup
or regarding anything that may influence the eyewitness's
identification.
(6) No writings or information concerning any
previous arrest, indictment, or conviction of the suspected
perpetrator shall be visible or made known to the
eyewitness.
(7) If a photo lineup, the photograph of the
suspected perpetrator shall be contemporary in relation to
the photographs of the fillers and, to the extent
practicable, shall resemble the suspected perpetrator's
appearance at the time of the offense.
(8) If a live lineup, any identifying actions, such
as speech, gestures, or other movements, shall be performed
by all lineup participants.
(9) If a live lineup, all lineup participants must be
out of view of the eyewitness prior to the lineup.
(10) The lineup administrator shall obtain and
document any and all statements made by the eyewitness
during the lineup as to the perpetrator's identity. When
practicable, an audio or video recording of the statements
shall be made.
(11) If the eyewitness identifies a person as the
perpetrator, the eyewitness shall not be provided any
information concerning the person until after the lineup is
completed.
(12) Unless otherwise allowed under subsection (a) of
this Section, there shall not be anyone present during a
lineup who knows the suspected perpetrator's identity,
except the eyewitness and suspected perpetrator's counsel if
required by law.
(g) The lineup administrator shall make an official report
of all lineups, which shall include all of the following
information:
(1) All identification and non-identification results
obtained during the lineup, signed by the eyewitness,
including any and all statements made by the eyewitness
during the lineup as to the perpetrator's identity as
required under paragraph (10) of subsection (f) of this
Section. If the eyewitness refuses to sign, the lineup
administrator shall note the refusal of the eyewitness to
sign the results and shall also sign the notation.
(2) The names of all persons who viewed the lineup.
(3) The names of all law enforcement officers and
counsel present during the lineup.
(4) The date, time, and location of the lineup.
(5) Whether it was a photo lineup or live lineup and
how many persons or photographs were presented in the
lineup.
(6) The sources of all persons or photographs used as
fillers in the lineup.
(7) In a photo lineup, the actual photographs shown
to the eyewitness.
(8) In a live lineup, a photograph or other visual
recording of the lineup that includes all persons who
participated in the lineup.
(9) If applicable, the eyewitness's refusal to be
recorded.
(10) If applicable, the reason for any
impracticability in strict compliance with this Section.
(h) Unless it is not practical or the eyewitness refuses, a
video record of all lineup procedures shall be made.
(1) If a video record is not practical or the
eyewitness refuses to allow a video record to be made:
(A) the reasons or the refusal shall be
documented in the official report required under
subsection (g) of this Section;
(B) an audio record shall be made, if practical;
and
(C) if a live lineup, the lineup shall be
photographed.
(2) If an audio record is not practical, the reasons
shall be documented in the official report required under
subsection (g) of this Section.
(i) The photographs, recordings, and the official report of
the lineup required by this Section shall be disclosed to
counsel for the accused as provided by the Illinois Supreme
Court Rules regarding discovery. All photographs of suspected
perpetrators shown to an eyewitness during a lineup shall be
disclosed to counsel for the accused as provided by the Illinois
Supreme Court Rules regarding discovery. To protect the identity
of the eyewitness and the identities of law enforcement officers
used as fillers in the lineup from being disclosed to third
parties, the State's Attorney shall petition the court for a
protective order under Supreme Court Rule 415 upon disclosure of
the photographs or recordings to the counsel of the accused.
(j) All of the following shall be available as consequences
of compliance or noncompliance with the requirements of this
Section:
(1) Failure to comply with any of the requirements of
this Section shall be a factor to be considered by the court
in adjudicating a motion to suppress an eyewitness
identification or any other motion to bar an eyewitness
identification. These motions shall be in writing and state
facts showing how the identification procedure was improper.
This paragraph (1) makes no change to existing applicable
common law or statutory standards or burdens of proof.
(2) When warranted by the evidence presented at
trial, the jury shall be instructed that it may consider all
the
facts
and
circumstances
including
compliance
or
noncompliance with this Section to assist in its weighing of
the identification testimony of an eyewitness.
(k) Any electronic recording made during a lineup that is
compiled by any law enforcement agency as required by this
Section for the purposes of fulfilling the requirements of this
Section shall be confidential and exempt from public inspection
and copying, as provided under Section 7 of the Freedom of
Information Act, and the recording shall not be transmitted to
any person except as necessary to comply with this Section.
(Source: P.A. 98-1014, eff. 1-1-15.)
(725 ILCS 5/107A-5)
Sec. 107A-5. (Repealed).
(Source: P.A. 93-605, eff. 11-19-03. Repealed by P.A. 98-1014,
eff. 1-1-15.)
(725 ILCS 5/107A-10)
Sec. 107A-10. (Repealed).
(Source: P.A. 93-655, eff. 1-20-04. Repealed by P.A. 98-1014,
eff. 1-1-15.)
(725 ILCS 5/Art. 108 heading)
ARTICLE 108. SEARCH AND SEIZURE
(725 ILCS 5/108-1) (from Ch. 38, par. 108-1)
Sec. 108-1. Search without warrant.
(1) When a lawful arrest is effected a peace officer may
reasonably search the person arrested and the area within such
person's immediate presence for the purpose of:
(a) protecting the officer from attack; or
(b) preventing the person from escaping; or
(c) discovering the fruits of the crime; or
(d) discovering any instruments, articles, or things
which may have been used in the commission of, or which may
constitute evidence of, an offense.
(2) (Blank).
(3) A law enforcement officer may not search or inspect a
motor vehicle, its contents, the driver, or a passenger solely
because of a violation of Section 12-603.1 of the Illinois
Vehicle Code.
(Source: P.A. 93-99, eff. 7-3-03.)
(725 ILCS 5/108-1.01) (from Ch. 38, par. 108-1.01)
Sec. 108-1.01. Search during temporary questioning.
When a peace officer has stopped a person for temporary
questioning pursuant to Section 107-14 of this Code and
reasonably suspects that he or another is in danger of attack,
he may search the person for weapons. If the officer discovers a
weapon, he may take it until the completion of the questioning,
at which time he shall either return the weapon, if lawfully
possessed, or arrest the person so questioned.
(Source: Laws 1968, p. 218.)
(725 ILCS 5/108-2) (from Ch. 38, par. 108-2)
Sec. 108-2. Custody and disposition of things seized. An
inventory of all instruments, articles or things seized on a
search without warrant shall be given to the person arrested and
a copy thereof delivered to the judge before whom the person
arrested is taken, and thereafter, such instruments, articles or
things shall be handled and disposed of in accordance with
Sections 108-11 and 108-12 of this Code. If the person arrested
is released without a charge being preferred against him all
instruments, articles or things seized, other than contraband,
shall be returned to him upon release.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/108-3) (from Ch. 38, par. 108-3)
Sec. 108-3. Grounds for search warrant.
(a) Except as provided in subsection (b), upon the written
complaint of any person under oath or affirmation which states
facts sufficient to show probable cause and which particularly
describes the place or person, or both, to be searched and the
things to be seized, any judge may issue a search warrant for
the seizure of the following:
(1) Any instruments, articles or things designed or
intended for use or which are or have been used in the
commission of, or which may constitute evidence of, the
offense in connection with which the warrant is issued; or
contraband, the fruits of crime, or things otherwise
criminally possessed.
(2) Any person who has been kidnaped in violation of
the laws of this State, or who has been kidnaped in another
jurisdiction and is now concealed within this State, or any
human fetus or human corpse.
(b) When the things to be seized are the work product of, or
used in the ordinary course of business, and in the possession,
custody, or control of any person known to be engaged in the
gathering or dissemination of news for the print or broadcast
media, no judge may issue a search warrant unless the
requirements set forth in subsection (a) are satisfied and there
is probable cause to believe that:
(1) such person has committed or is committing a
criminal offense; or
(2) the things to be seized will be destroyed or
removed from the State if the search warrant is not issued.
(Source: P.A. 89-377, eff. 8-18-95.)
(725 ILCS 5/108-4) (from Ch. 38, par. 108-4)
Sec. 108-4. Issuance of search warrant.
(a) All warrants upon written complaint shall state the time
and date of issuance and be the warrants of the judge issuing
the same and not the warrants of the court in which he or she is
then sitting and these warrants need not bear the seal of the
court or clerk thereof. The complaint on which the warrant is
issued need not be filed with the clerk of the court nor with
the court if there is no clerk until the warrant has been
executed or has been returned "not executed".
The search warrant upon written complaint may be issued
electronically or electromagnetically by use of electronic mail
or a facsimile transmission machine and this warrant shall have
the same validity as a written search warrant.
(b) Warrant upon oral testimony.
(1) General rule. When the offense in connection with
which a search warrant is sought constitutes terrorism or
any related offense as defined in Article 29D of the
Criminal Code of 2012, and if the circumstances make it
reasonable to dispense, in whole or in part, with a written
affidavit, a judge may issue a warrant based upon sworn
testimony communicated by telephone or other appropriate
means, including facsimile transmission.
(2) Application. The person who is requesting the
warrant shall prepare a document to be known as a duplicate
original warrant and shall read such duplicate original
warrant, verbatim, to the judge. The judge shall enter,
verbatim, what is so read to the judge on a document to be
known as the original warrant. The judge may direct that the
warrant be modified.
(3) Issuance. If the judge is satisfied that the
offense in connection with which the search warrant is
sought constitutes terrorism or any related offense as
defined in Article 29D of the Criminal Code of 2012, that
the circumstances are such as to make it reasonable to
dispense with a written affidavit, and that grounds for the
application exist or that there is probable cause to believe
that they exist, the judge shall order the issuance of a
warrant by directing the person requesting the warrant to
sign the judge's name on the duplicate original warrant. The
judge shall immediately sign the original warrant and enter
on the face of the original warrant the exact time when the
warrant was ordered to be issued. The finding of probable
cause for a warrant upon oral testimony may be based on the
same kind of evidence as is sufficient for a warrant upon
affidavit.
(4) Recording and certification of testimony. When a
caller informs the judge that the purpose of the call is to
request a warrant, the judge shall immediately place under
oath each person whose testimony forms a basis of the
application and each person applying for that warrant. If a
voice recording device is available, the judge shall record
by means of the device all of the call after the caller
informs the judge that the purpose of the call is to request
a warrant, otherwise a stenographic or longhand verbatim
record shall be made. If a voice recording device is used or
a stenographic record made, the judge shall have the record
transcribed,
shall
certify
the
accuracy
of
the
transcription, and shall file a copy of the original record
and the transcription with the court. If a longhand verbatim
record is made, the judge shall file a signed copy with the
court.
(5) Contents. The contents of a warrant upon oral
testimony shall be the same as the contents of a warrant
upon affidavit.
(6) Additional rule for execution. The person who
executes the warrant shall enter the exact time of execution
on the face of the duplicate original warrant.
(7) Motion to suppress based on failure to obtain a
written affidavit. Evidence obtained pursuant to a warrant
issued under this subsection (b) is not subject to a motion
to suppress on the ground that the circumstances were not
such as to make it reasonable to dispense with a written
affidavit, absent a finding of bad faith. All other grounds
to move to suppress are preserved.
(8) This subsection (b) is inoperative on and after
January 1, 2005.
(9) No evidence obtained pursuant to this subsection
(b) shall be inadmissible in a court of law by virtue of
subdivision (8).
(c) Warrant upon testimony by simultaneous video and audio
transmission.
(1) General rule. When a search warrant is sought and
the request is made by electronic means that has a
simultaneous video and audio transmission between the
requestor and a judge, the judge may issue a search warrant
based upon sworn testimony communicated in the transmission.
(2) Application. The requestor shall prepare a
document to be known as a duplicate original warrant, and
(A) if circumstances allow, the requestor shall
transmit a copy of the warrant together with a complaint
for search warrant to the judge by facsimile, email, or
other reliable electronic means; or
(B) if circumstances make transmission under
subparagraph (A) of this paragraph (2) impracticable,
the requestor shall read the duplicate original warrant,
verbatim, to the judge after being placed under oath as
provided in paragraph (4) of this subsection (c). The
judge shall enter, verbatim, what is so read to the
judge on a document in the judge's possession.
Under both subparagraphs (A) and (B), the document in
possession of the judge shall be known as the original
warrant. The judge may direct that the warrant be modified.
(3) Issuance. If the judge is satisfied that grounds
for the application exist or that there is probable cause to
believe that grounds exist, the judge shall order the
issuance of a warrant by directing the requestor to sign the
judge's name on the duplicate original warrant, place the
requestor's initials below the judge's name, and enter on
the face of the duplicate original warrant the exact date
and time when the warrant was ordered to be issued. The
judge shall immediately sign the original warrant and enter
on the face of the original warrant the exact date and time
when the warrant was ordered to be issued. The finding of
probable cause for a warrant under this subsection (c) may
be based on the same kind of evidence as is sufficient for a
warrant under subsection (a).
(4) Recording and certification of testimony. When a
requestor initiates a request for search warrant under this
subsection (c), and after the requestor informs the judge
that the purpose of the communication is to request a
warrant, the judge shall place under oath each person whose
testimony forms a basis of the application and each person
applying for that warrant. A record of the facts upon which
the judge based his or her decision to issue a warrant must
be made and filed with the court, together with the original
warrant.
(A) When the requestor has provided the judge
with a written complaint for search warrant under
subparagraph (A) of paragraph (2) of this subsection (c)
and the judge has sworn the complainant to the facts
contained in the complaint for search warrant but has
taken no other oral testimony from any person that is
essential to establishing probable cause, the judge must
acknowledge the attestation in writing on the complaint
and file this acknowledged complaint with the court.
(B) When the requestor has not provided the judge
with a written complaint for search warrant, or when the
judge has taken oral testimony essential to establishing
probable cause not contained in the written complaint
for search warrant, the essential facts in the oral
testimony that form the basis of the judge's decision to
issue the warrant shall be included in the record
together with the written complaint, if any. If a
recording device is used or a stenographic record is
made, the judge shall have the record transcribed, shall
certify the accuracy of the transcription, and shall
file a copy of the original record and the transcription
with the court. If a longhand record is made, the judge
shall file a signed copy with the court.
The material to be filed need not be filed until the
warrant has been executed or has been returned "not
executed".
(5) Contents. The contents of a warrant under this
subsection (c) shall be the same as the contents of a
warrant upon affidavit. A warrant under this subsection is a
warrant of the judge issuing the same and not the warrant of
the court in which he or she is then sitting and these
warrants need not bear the seal of the court or the clerk of
the court.
(6) Additional rule for execution. The person who
executes the warrant shall enter the exact time of execution
on the face of the duplicate original warrant.
(7) Motion to suppress based on failure to obtain a
written affidavit. Evidence obtained under a warrant issued
under this subsection (c) is not subject to a motion to
suppress on the ground that the circumstances were not such
as to make it reasonable to dispense with a written
affidavit, absent a finding of bad faith. All other grounds
to move to suppress are preserved.
(d) The Chief Judge of the circuit court or presiding judge
in the issuing jurisdiction shall, by local rule, create a
standard practice for the filing or other retention of documents
or recordings produced under this Section.
(Source: P.A. 98-829, eff. 8-1-14; 98-905, eff. 1-1-15; 99-78,
eff. 7-20-15.)
(725 ILCS 5/108-5) (from Ch. 38, par. 108-5)
Sec. 108-5. Persons authorized to execute search warrants.
The warrant shall be issued in duplicate and shall be
directed for execution to all peace officers of the State.
However, the judge may direct the warrant to be executed by any
person named specially therein.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/108-6) (from Ch. 38, par. 108-6)
Sec. 108-6. Execution of search warrants.
The warrant shall be executed within 96 hours from the time
of issuance. If the warrant is executed the duplicate copy shall
be left with any person from whom any instruments, articles or
things are seized or if no person is available the copy shall be
left at the place from which the instruments, articles or things
were seized. Any warrant not executed within such time shall be
void and shall be returned to the court of the judge issuing the
same as "not executed".
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/108-7) (from Ch. 38, par. 108-7)
Sec. 108-7. Command of search warrant.
The warrant shall command the person directed to execute the
same to search the place or person particularly described in the
warrant and to seize the instruments, articles or things
particularly described in the warrant.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/108-8) (from Ch. 38, par. 108-8)
Sec. 108-8. Use of force in execution of search warrant.
(a) All necessary and reasonable force may be used to effect
an entry into any building or property or part thereof to
execute a search warrant.
(b) The court issuing a warrant may authorize the officer
executing the warrant to make entry without first knocking and
announcing his or her office if it finds, based upon a showing
of specific facts, the existence of the following exigent
circumstances:
(1) That the officer reasonably believes that if
notice were given a weapon would be used:
(i) against the officer executing the search
warrant; or
(ii) against another person.
(2) That if notice were given there is an imminent
"danger" that evidence will be destroyed.
(c) Prior to the issuing of a warrant under subsection (b),
the officer must attest that:
(1) prior to entering the location described in the
search warrant, a supervising officer will ensure that each
participating member is assigned a body worn camera and is
following policies and procedures in accordance with Section
10-20 of the Law Enforcement Officer-Worn Body Camera Act;
provided that the law enforcement agency has implemented
body worn camera in accordance with Section 10-15 of the Law
Enforcement Officer-Worn Body Camera Act. If a law
enforcement agency or each participating member of a multijurisdictional team has not implemented a body camera in
accordance with Section 10-15 of the Law Enforcement
Officer-Worn Body Camera Act, the officer must attest that
the interaction authorized by the warrant is otherwise
recorded;
(2) The supervising officer verified the subject
address listed on the warrant for accuracy and planned for
children or other vulnerable people on-site; and
(3) if an officer becomes aware the search warrant
was executed at an address, unit, or apartment different
from the location listed on the search warrant, that member
will immediately notify a supervisor who will ensure an
internal investigation or formal inquiry ensues.
(Source: P.A. 101-652, eff. 7-1-21; 102-28, eff. 6-25-21.)
(725 ILCS 5/108-9) (from Ch. 38, par. 108-9)
Sec. 108-9. Detention and search of persons on premises.
In the execution of the warrant the person executing the
same may reasonably detain to search any person in the place at
the time:
(a) To protect himself from attack, or
(b) To prevent the disposal or concealment of any
instruments, articles or things particularly described in the
warrant.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/108-10) (from Ch. 38, par. 108-10)
Sec. 108-10. Return to court of things seized.
A return of all instruments, articles or things seized shall
be made without unnecessary delay before the judge issuing the
warrant or before any judge named in the warrant or before any
court
of
competent
jurisdiction.
An
inventory
of
any
instruments, articles or things seized shall be filed with the
return and signed under oath by the officer or person executing
the warrant. The judge shall upon request deliver a copy of the
inventory to the person from whom or from whose premises the
instruments, articles or things were taken and to the applicant
for the warrant.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/108-11) (from Ch. 38, par. 108-11)
Sec. 108-11. Disposition of things seized. The court before
which the instruments, articles or things are returned shall
enter an order providing for their custody pending further
proceedings.
(Source: P.A. 83-334.)
(725 ILCS 5/108-12) (from Ch. 38, par. 108-12)
Sec. 108-12. Disposition of obscene material. In the case of
any material seized which is alleged to have been possessed or
used or intended to be used contrary to, or is evidence of a
violation of, Section 11-20 of the Criminal Code of 1961 or the
Criminal Code of 2012, the court before which the material is
returned shall, upon written request of any person from whom the
material was seized or any person claiming ownership or other
right to possession of such material, enter an order providing
for a hearing to determine the obscene nature thereof not more
than 10 days after such return. If the material is determined to
be obscene it shall be held pending further proceedings as
provided by Section 108-11 of this Code. If the material is
determined not to be obscene it shall be returned to the person
from whom or place from which it was seized, or to the person
claiming ownership or other right to possession of such
material; provided that enough of the record material may be
retained by the State for purposes of appellate proceedings. The
decision of the court upon this hearing shall not be admissible
as evidence in any other proceeding nor shall it be res judicata
of any question in any other proceeding.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/108-13) (from Ch. 38, par. 108-13)
Sec. 108-13. When warrant may be executed.
The warrant may be executed at any time of any day or night.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/108-14) (from Ch. 38, par. 108-14)
Sec. 108-14. No warrant quashed for technicality. No warrant
shall be quashed nor evidence suppressed because of technical
irregularities not affecting the substantial rights of the
accused.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/Art. 108A heading)
ARTICLE 108A. JUDICIAL SUPERVISION OF
THE USE OF EAVESDROPPING DEVICES
(725 ILCS 5/108A-1) (from Ch. 38, par. 108A-1)
Sec. 108A-1. Authorization for use of eavesdropping device.
The State's Attorney or an Assistant State's Attorney authorized
by the State's Attorney may authorize an application to a
circuit judge or an associate judge assigned by the Chief Judge
of the circuit for, and such judge may grant in conformity with
this Article, an order authorizing or approving the use of an
eavesdropping device by a law enforcement officer or agency
having the responsibility for the investigation of any felony
under Illinois law where any one party to a conversation to be
monitored, or previously monitored in the case of an emergency
situation as defined in this Article, has consented to such
monitoring.
The Chief Judge of the circuit may assign to associate
judges the power to issue orders authorizing or approving the
use of eavesdropping devices by law enforcement officers or
agencies in accordance with this Article. After assignment by
the Chief Judge, an associate judge shall have plenary authority
to issue such orders without additional authorization for each
specific application made to him by the State's Attorney until
such time as the associate judge's power is rescinded by the
Chief Judge.
(Source: P.A. 92-413, eff. 8-17-01.)
(725 ILCS 5/108A-2) (from Ch. 38, par. 108A-2)
Sec. 108A-2. Authorized Disclosure or Use of Information.
(a) Any law enforcement officer who, by any means authorized in
this Article, has obtained knowledge of the contents of any
conversation overheard or recorded by use of an eavesdropping
device or evidence derived therefrom, may disclose such contents
to another law enforcement officer or prosecuting attorney to
the extent that such disclosure is appropriate to the proper
performance of the official duties of the person making or
receiving the disclosure.
(b) Any investigative or law enforcement officer who, by any
means authorized in this Article, has obtained knowledge of the
contents of any conversation overheard or recorded use of an
eavesdropping device or evidence derived therefrom, may use the
contents to the extent such use is appropriate to the proper
performance of his official duties.
(c) Admissibility into evidence in any judicial,
administrative, or legislative proceeding shall be as elsewhere
described in this Article.
(Source: P.A. 79-1159.)
(725 ILCS 5/108A-3) (from Ch. 38, par. 108A-3)
Sec. 108A-3. Procedure for Obtaining Judicial Approval of
Use of Eavesdropping Device. (a) Where any one party to a
conversation to occur in the future has consented to the use of
an eavesdropping device to overhear or record the conversation,
a judge may grant approval to an application to use an
eavesdropping device pursuant to the provisions of this section.
Each application for an order authorizing or subsequently
approving the use of an eavesdropping device shall be made in
writing upon oath or affirmation to a circuit judge, or an
associate judge assigned for such purpose pursuant to Section
108A-1 of this Code, and shall state the applicant's authority
to make such application. Each application shall include the
following:
(1) the identity of the investigative or law enforcement
officer making the application and the State's Attorney
authorizing the application;
(2) a statement of the facts and circumstances relied upon
by the applicant to justify his belief that an order should be
issued including: (a) details as to the felony that has been, is
being, or is about to be committed; (b) a description of the
type of communication sought to be monitored; (c) the identity
of the party to the expected conversation consenting to the use
of an eavesdropping device; (d) the identity of the person, if
known, whose conversations are to be overheard by the
eavesdropping device;
(3) a statement of the period of time for which the use of
the device is to be maintained or, if the nature of the
investigation is such that the authorization for use of the
device should not terminate automatically when the described
type of communication is overheard or recorded, a description of
facts establishing reasonable cause to believe that additional
conversations of the same type will occur thereafter;
(4) a statement of the existence of all previous
applications known to the individual making the application
which have been made to any judge requesting permission to use
an eavesdropping device involving the same persons in the
present application, and the action taken by the judge on the
previous applications;
(5) when the application is for an extension of an order, a
statement setting forth the results so far obtained from the use
of the eavesdropping device or an explanation of the failure to
obtain such results.
(b) The judge may request the applicant to furnish
additional testimony, witnesses, or evidence in support of the
application.
(Source: P.A. 86-391.)
(725 ILCS 5/108A-4) (from Ch. 38, par. 108A-4)
Sec. 108A-4. Grounds for Approval or Authorization. The
judge may authorize or approve the use of the eavesdropping
device where it is found that:
(a) one party to the conversation has or will have consented
to the use of the device;
(b) there is reasonable cause for believing that an
individual is committing, has committed, or is about to commit a
felony under Illinois law;
(c) there is reasonable cause for believing that particular
conversations concerning that felony offense will be obtained
through such use; and
(d) for any extension authorized, that further use of a
device is warranted on similar grounds.
(Source: P.A. 79-1159.)
(725 ILCS 5/108A-5) (from Ch. 38, par. 108A-5)
Sec. 108A-5. Orders Authorizing Use of an Eavesdropping
Device.
(a) Each order authorizing or approving the use of an
eavesdropping device shall specify:
(1) the identity of the person who has consented to
the use of the device to monitor any of his conversations
and a requirement that any conversation overheard or
received must include this person;
(2) the identity of the other person or persons, if
known, who will participate in the conversation;
(3) the period of time in which the use of the device
is authorized, including a statement as to whether or not
the use shall automatically terminate when the described
conversations have been first obtained.
(b) No order entered under this section may authorize or
approve the use of any eavesdropping device for any period
longer than 30 days. An initial or a subsequent extension, in no
case for more than 30 days each, of an order may be granted but
only upon application made in accordance with Section 108A-3 and
where the court makes the findings required in Section 108A-4.
(Source: P.A. 92-413, eff. 8-17-01.)
(725 ILCS 5/108A-6) (from Ch. 38, par. 108A-6)
Sec. 108A-6. Emergency Exception to Procedures. (a)
Notwithstanding any other provisions of this Article, any
investigative or law enforcement officer, upon approval of a
State's Attorney, or without it if a reasonable effort has been
made to contact the appropriate State's Attorney, may use an
eavesdropping device in an emergency situation as defined in
this Section. Such use must be in accordance with the provisions
of this Section and may be allowed only where the officer
reasonably believes that an order permitting the use of the
device would issue were there a prior hearing.
An emergency situation exists when, without previous notice
to the law enforcement officer sufficient to obtain prior
judicial approval, the conversation to be overheard or recorded
will occur within a short period of time, the use of the device
is necessary for the protection of the law enforcement officer
or it will occur in a situation involving a clear and present
danger of imminent death or great bodily harm to persons
resulting from: (1) a kidnapping or the holding of a hostage by
force or the threat of the imminent use of force; or (2) the
occupation by force or the threat of the imminent use of force
of any premises, place, vehicle, vessel or aircraft; or (3) any
violation of Article 29D.
(b) In all such cases, an application for an order approving
the previous or continuing use of an eavesdropping device must
be made within 48 hours of the commencement of such use. In the
absence of such an order, or upon its denial, any continuing use
shall immediately terminate.
In order to approve such emergency use, the judge must make
a determination (1) that he would have granted an order had the
information been before the court prior to the use of the device
and (2) that there was an emergency situation as defined in this
Section.
(c) In the event that an application for approval under this
Section is denied the contents of the conversations overheard or
recorded shall be treated as having been obtained in violation
of this Article.
(Source: P.A. 92-854, eff. 12-5-02.)
(725 ILCS 5/108A-7) (from Ch. 38, par. 108A-7)
Sec. 108A-7. Retention and review of recordings.
(a) The contents of any conversation overheard by any
eavesdropping device shall, if possible, be recorded on tape or
a comparable device. The recording of the contents of a
conversation under this Article shall be done in such a way as
will protect the recording from editing or other alterations.
(b) Immediately after the expiration of the period of the
order or extension or, where the recording was made in an
emergency situation as defined in Section 108A-6, at the time of
the request for approval subsequent to the emergency, all such
recordings shall be made available to the judge issuing the
order or hearing the application for approval of an emergency
application.
The judge shall listen to the tapes, determine if the
conversations thereon are within his order or were appropriately
made in emergency situations, and make a record of such
determination to be retained with the tapes.
The recordings shall be sealed under the instructions of the
judge and custody shall be where he orders. Such recordings
shall not be destroyed except upon order of the judge hearing
the application and in any event shall be kept for 10 years if
not destroyed upon his order.
Duplicate recordings may be made for any use or disclosure
authorized by this Article. The presence of the seal provided
for in this Section or a satisfactory explanation for the
absence thereof shall be a pre-requisite for the use or
disclosure of the contents of the recordings or any evidence
derived therefrom.
(c) Applications made and orders granted under this Article
shall be sealed by the judge. Custody of the applications and
orders shall be wherever the judge requests. Such applications
and orders shall be disclosed only upon a showing of good cause
before a judge. Such documents shall not be destroyed except on
the order of the issuing or denying judge or after the
expiration of 10 years time if not destroyed upon his order.
As used in this subsection, "sealed" has the same meaning as
in paragraph (4) of subsection (b) of Section 5 of the Court
Record and Document Accessibility Act.
(Source: P.A. 103-166, eff. 1-1-24.)
(725 ILCS 5/108A-8) (from Ch. 38, par. 108A-8)
Sec. 108A-8. Notice to Parties Overheard.
(a) Within a reasonable time, but not later than 90 days
after either the filing of an application for an order of
authorization or approval which is denied or not later than 90
days after the termination of the period of an order or
extension thereof, the issuing or denying judge shall cause to
be served on the persons named in the order or application and
such other persons in the recorded conversation as the judge may
determine that justice requires be notified, a notice of the
transaction involving any requested or completed use of an
eavesdropping device which shall include:
(1) notice of the entry of an order, of subsequent approval
in an emergency situation, or the denial of an application;
(2) the date of the entry, approval, or denial;
(3) the period of the authorized use of any eavesdropping
device; and
(4) notice of whether during the period of eavesdropping
devices were or were not used to overhear and record various
conversations and whether or not such conversations are
recorded.
On an ex parte showing of good cause, the notice required by
this subsection may be postponed.
(b) Upon the filing of a motion, the judge may in his
discretion make available to such person or his attorney for
inspection such portions of the recorded conversations or the
applications and orders as the judge determines it would be in
the interest of justice to make available.
(c) The contents of any recorded conversation or evidence
derived therefrom shall not be received in evidence or otherwise
disclosed in any trial, hearing, or other judicial or
administrative proceeding unless each party not less than 10
days before such a proceeding has been furnished with a copy of
the court order and accompanying application under which the
recording was authorized or approved and has had an opportunity
to examine the portion of the tapes to be introduced or relied
upon. Such 10 day period may be waived by the judge if he finds
that it was not possible to furnish the party with such
information within the stated period and that the party will not
be materially prejudiced by the delay in receiving such
information.
(Source: P.A. 79-1159.)
(725 ILCS 5/108A-9) (from Ch. 38, par. 108A-9)
Sec. 108A-9. Motion to Suppress Contents of Recording, etc.
(a) Any aggrieved person in any judicial or administrative
proceeding may move to suppress the contents of any recorded
conversation or evidence derived therefrom on the grounds that:
(1) the conversation was unlawfully overheard and recorded;
(2) the order of authorization or approval under which the
device was used or a recording made was improperly granted; or
(3) the recording or interception was not made in conformity
with the order of authorization.
(b) Such a motion shall be made before the proceeding unless
there was no previous opportunity for such motion. If the motion
is granted, the contents shall be treated as having been
obtained in violation of this Article. Upon the filing of such a
motion, the judge may in his discretion make available to the
moving party or his attorney such portions of the recorded
conversation or evidence derived therefrom as the judge
determines to be in the interests of justice.
(Source: P.A. 79-1159.)
(725 ILCS 5/108A-10) (from Ch. 38, par. 108A-10)
Sec. 108A-10. Appeal by State. In addition to any other
right to appeal, the State shall have the right to appeal from a
denial of an application for an order of authorization or
approval and the right to appeal the granting of a motion to
suppress.
Where the State appeals, such appeal shall be taken within
30 days after the date the order was denied or motion granted
and shall be diligently prosecuted.
(Source: P.A. 79-1159.)
(725 ILCS 5/108A-11) (from Ch. 38, par. 108A-11)
Sec. 108A-11. Reports concerning use of eavesdropping
devices.
(a) In January of each year the State's Attorney of each
county in which eavesdropping devices were used pursuant to the
provisions of this Article shall report to the Illinois State
Police the following with respect to each application for an
order authorizing the use of an eavesdropping device, or an
extension thereof, made during the preceding calendar year:
(1) the fact that such an order, extension, or
subsequent approval of an emergency was applied for;
(2) the kind of order or extension applied for;
(3) a statement as to whether the order or extension
was granted as applied for was modified, or was denied;
(4) the period authorized by the order or extensions
in which an eavesdropping device could be used;
(5) the felony specified in the order extension or
denied application;
(6) the identity of the applying investigative or law
enforcement officer and agency making the application and
the State's Attorney authorizing the application; and
(7) the nature of the facilities from which or the
place where the eavesdropping device was to be used.
(b) Such report shall also include the following:
(1) a general description of the uses of
eavesdropping devices actually made under such order to
overheard or record conversations, including: (a) the
approximate
nature
and
frequency
of
incriminating
conversations overheard, (b) the approximate nature and
frequency
of
other
conversations
overheard,
(c)
the
approximate number of persons whose conversations were
overheard, and (d) the approximate nature, amount, and cost
of the manpower and other resources used pursuant to the
authorization to use an eavesdropping device;
(2) the number of arrests resulting from authorized
uses of eavesdropping devices and the offenses for which
arrests were made;
(3) the number of trials resulting from such uses of
eavesdropping devices;
(4) the number of motions to suppress made with
respect to such uses, and the number granted or denied; and
(5) the number of convictions resulting from such
uses and the offenses for which the convictions were
obtained and a general assessment of the importance of the
convictions.
(c) In April of each year, the Illinois State Police shall
transmit to the General Assembly a report including information
on the number of applications for orders authorizing the use of
eavesdropping devices, the number of orders and extensions
granted or denied during the preceding calendar year, and the
convictions arising out of such uses.
The requirement for reporting to the General Assembly shall
be satisfied by filing copies of the report as required by
Section 3.1 of the General Assembly Organization Act, and filing
such additional copies with the State Government Report
Distribution Center for the General Assembly as is required
under paragraph (t) of Section 7 of the State Library Act.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/Art. 108B heading)
ARTICLE 108B. ELECTRONIC CRIMINAL SURVEILLANCE
(725 ILCS 5/108B-1) (from Ch. 38, par. 108B-1)
Sec. 108B-1. Definitions. For the purpose of this Article:
(a) "Aggrieved person" means a person who was a party to any
intercepted private communication or any person against whom the
intercept was directed.
(b) "Chief Judge" means, when referring to a judge
authorized to receive application for, and to enter orders
authorizing, interceptions of private communications, the Chief
Judge of the Circuit Court wherein the application for order of
interception is filed, or a Circuit Judge designated by the
Chief Judge to enter these orders. In circuits other than the
Cook County Circuit, "Chief Judge" also means, when referring to
a judge authorized to receive application for, and to enter
orders authorizing, interceptions of private communications, an
Associate Judge authorized by Supreme Court Rule to try felony
cases who is assigned by the Chief Judge to enter these orders.
After assignment by the Chief Judge, an Associate Judge shall
have plenary authority to issue orders without additional
authorization for each specific application made to him by the
State's Attorney until the time the Associate Judge's power is
rescinded by the Chief Judge.
(c) "Communications common carrier" means any person engaged
as a common carrier in the transmission of communications by
wire or radio, not including radio broadcasting.
(d) "Contents" includes information obtained from a private
communication concerning the existence, substance, purport or
meaning of the communication, or the identity of a party of the
communication.
(e) "Court of competent jurisdiction" means any circuit
court.
(f) (Blank).
(g) "Director" means Director of the Illinois State Police.
(g-1) "Electronic communication" means any transfer of
signs, signals, writing, images, sounds, data, or intelligence
of any nature transmitted in whole or part by a wire, radio,
pager, computer, or electromagnetic, photo electronic, or photo
optical system where the sending and receiving parties intend
the electronic communication to be private and the interception,
recording, or transcription of the electronic communication is
accomplished by a device in a surreptitious manner contrary to
the provisions of this Article. "Electronic communication" does
not include:
(1) any wire or oral communication; or
(2) any communication from a tracking device.
(h) "Electronic criminal surveillance device" or
"eavesdropping device" means any device or apparatus, or
computer program including an induction coil, that can be used
to intercept private communication other than:
(1) Any telephone, telegraph or telecommunication
instrument, equipment or facility, or any component of it,
furnished to the subscriber or user by a communication
common carrier in the ordinary course of its business, or
purchased by any person and being used by the subscriber,
user or person in the ordinary course of his business, or
being used by a communications common carrier in the
ordinary course of its business, or by an investigative or
law enforcement officer in the ordinary course of his
duties; or
(2) A hearing aid or similar device being used to
correct subnormal hearing to not better than normal.
(i) "Electronic criminal surveillance officer" means any law
enforcement officer or retired law enforcement officer of the
United States or of the State or political subdivision of it, or
of another State, or of a political subdivision of it, who is
2
certified by the Illinois State Police to intercept private
communications. A retired law enforcement officer may be
certified by the Illinois State Police only to (i) prepare
petitions for the authority to intercept private communications
in accordance with the provisions of this Act; (ii) intercept
and supervise the interception of private communications; (iii)
handle, safeguard, and use evidence derived from such private
communications; and (iv) operate and maintain equipment used to
intercept private communications.
(j) "In-progress trace" means to determine the origin of a
wire communication to a telephone or telegraph instrument,
equipment or facility during the course of the communication.
(k) "Intercept" means the aural or other acquisition of the
contents of any private communication through the use of any
electronic criminal surveillance device.
(l) "Journalist" means a person engaged in, connected with,
or employed by news media, including newspapers, magazines,
press associations, news agencies, wire services, radio,
television or other similar media, for the purpose of gathering,
processing, transmitting, compiling, editing or disseminating
news for the general public.
(m) "Law enforcement agency" means any law enforcement
agency of the United States, or the State or a political
subdivision of it.
(n) "Oral communication" means human speech used to
communicate by one party to another, in person, by wire
communication or by any other means.
(o) "Private communication" means a wire, oral, or
electronic communication uttered or transmitted by a person
exhibiting an expectation that the communication is not subject
to interception, under circumstances reasonably justifying the
expectation.
Circumstances
that
reasonably
justify
the
expectation that a communication is not subject to interception
include
the
use
of
a
cordless
telephone
or
cellular
communication device.
(p) "Wire communication" means any human speech used to
communicate by one party to another in whole or in part through
the use of facilities for the transmission of communications by
wire, cable or other like connection between the point of origin
and the point of reception furnished or operated by a
communications common carrier.
(q) "Privileged communications" means a private
communication between:
(1) a licensed and practicing physician and a patient
within the scope of the profession of the physician;
(2) a licensed and practicing psychologist to a
patient within the scope of the profession of the
psychologist;
(3) a licensed and practicing attorney-at-law and a
client within the scope of the profession of the lawyer;
(4) a practicing clergyman and a confidant within the
scope of the profession of the clergyman;
(5) a practicing journalist within the scope of his
profession;
(6) spouses within the scope of their marital
relationship; or
(7) a licensed and practicing social worker to a
client within the scope of the profession of the social
worker.
(r) "Retired law enforcement officer" means a person: (1)
who is a graduate of a police training institute or academy, who
after graduating served for at least 15 consecutive years as a
sworn, full-time peace officer qualified to carry firearms for
any federal or State department or agency or for any unit of
local government of Illinois; (2) who has retired as a local,
State, or federal peace officer in a publicly created peace
officer retirement system; and (3) whose service in law
enforcement was honorably terminated through retirement or
disability and not as a result of discipline, suspension, or
discharge.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/108B-1.5)
Sec. 108B-1.5. Retired law enforcement officer. Nothing in
this Article authorizes a retired law enforcement officer to
display or use a firearm at any time.
(Source: P.A. 92-863, eff. 1-3-03.)
(725 ILCS 5/108B-2) (from Ch. 38, par. 108B-2)
Sec. 108B-2. Request for application for interception.
(a) A State's Attorney may apply for an order authorizing
interception of private communications in accordance with the
provisions of this Article.
(b) The head of a law enforcement agency, including, for
purposes of this subsection, the acting head of such law
enforcement agency if the head of such agency is absent or
unable to serve, may request that a State's Attorney apply for
an order authorizing interception of private communications in
accordance with the provisions of this Article.
Upon request of a law enforcement agency, the Illinois State
Police may provide technical assistance to such an agency which
is authorized to conduct an interception.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/108B-2a) (from Ch. 38, par. 108B-2a)
Sec. 108B-2a. Authorized disclosure or use of information.
(a) Any law enforcement officer who, by any means authorized in
this Article, has obtained knowledge of the contents of any
conversation overheard or recorded by use of an eavesdropping
device or evidence derived therefrom, may disclose such contents
to another law enforcement officer or prosecuting attorney to
the extent that such disclosure is appropriate to the proper
performance of the official duties of the person making or
receiving the disclosure.
(b) Any investigative officer, including any attorney
authorized by law to prosecute or participate in the prosecution
of offenses enumerated in Section 108B-3 of this Act or law
enforcement officer who, by any means authorized in this
Article, has obtained knowledge of the contents of any
conversation overheard or recorded by use of an eavesdropping
device or evidence derived therefrom, may use the contents to
the extent such use is appropriate to the proper performance of
his official duties.
(c) Admissibility into evidence in any judicial,
administrative, or legislative proceeding shall be as elsewhere
described in this Article.
(Source: P.A. 85-1203.)
(725 ILCS 5/108B-3) (from Ch. 38, par. 108B-3)
Sec. 108B-3. Authorization for the interception of private
communication.
(a) The State's Attorney, or a person designated in writing
or by law to act for him and to perform his duties during his
absence or disability, may authorize, in writing, an ex parte
application to the chief judge of a court of competent
jurisdiction for an order authorizing the interception of a
private communication when no party has consented to the
interception and (i) the interception may provide evidence of,
or may assist in the apprehension of a person who has committed,
is committing or is about to commit, a violation of Section 81(b) (solicitation of murder), 8-1.2 (solicitation of murder for
hire), 9-1 (first degree murder), 10-9 (involuntary servitude,
involuntary sexual servitude of a minor, or trafficking in
persons), paragraph (1), (2), or (3) of subsection (a) of
Section 11-14.4 (promoting juvenile prostitution), subdivision
(a)(2)(A)
or
(a)(2)(B)
of
Section
11-14.3
(promoting
prostitution), 11-15.1 (soliciting for a minor engaged in
prostitution), 11-16 (pandering), 11-17.1 (keeping a place of
juvenile prostitution), 11-18.1 (patronizing a minor engaged in
prostitution), 11-19.1 (juvenile pimping and aggravated juvenile
pimping), or 29B-1 (money laundering) of the Criminal Code of
1961 or the Criminal Code of 2012, Section 401, 401.1
(controlled substance trafficking), 405, 405.1 (criminal drug
conspiracy) or 407 of the Illinois Controlled Substances Act or
any Section of the Methamphetamine Control and Community
Protection Act, a violation of Section 24-2.1, 24-2.2, 24-3, 243.1, 24-3.3, 24-3.4, 24-4, or 24-5 or subsection 24-1(a)(4), 241(a)(6), 24-1(a)(7), 24-1(a)(9), 24-1(a)(10), or 24-1(c) of the
Criminal Code of 1961 or the Criminal Code of 2012 or conspiracy
to commit money laundering or conspiracy to commit first degree
murder; (ii) in response to a clear and present danger of
imminent death or great bodily harm to persons resulting from:
(1) a kidnapping or the holding of a hostage by force or the
threat of the imminent use of force; or (2) the occupation by
force or the threat of the imminent use of force of any
premises, place, vehicle, vessel or aircraft; (iii) to aid an
investigation or prosecution of a civil action brought under the
Illinois Streetgang Terrorism Omnibus Prevention Act when there
is probable cause to believe the interception of the private
communication will provide evidence that a streetgang is
committing, has committed, or will commit a second or subsequent
gang-related offense or that the interception of the private
communication will aid in the collection of a judgment entered
under that Act; or (iv) upon information and belief that a
streetgang has committed, is committing, or is about to commit a
felony.
(b) The State's Attorney or a person designated in writing
or by law to act for the State's Attorney and to perform his or
her duties during his or her absence or disability, may
authorize, in writing, an ex parte application to the chief
judge of a circuit court for an order authorizing the
interception of a private communication when no party has
consented to the interception and the interception may provide
evidence of, or may assist in the apprehension of a person who
has committed, is committing or is about to commit, a violation
of an offense under Article 29D of the Criminal Code of 1961 or
the Criminal Code of 2012.
(b-1) Subsection (b) is inoperative on and after January 1,
2005.
(b-2) No conversations recorded or monitored pursuant to
subsection (b) shall be made inadmissible in a court of law by
virtue of subsection (b-1).
(c) As used in this Section, "streetgang" and "gang-related"
have the meanings ascribed to them in Section 10 of the Illinois
Streetgang Terrorism Omnibus Prevention Act.
(Source: P.A. 96-710, eff. 1-1-10; 96-1464, eff. 8-20-10; 97897, eff. 1-1-13; 97-1150, eff. 1-25-13.)
(725 ILCS 5/108B-4) (from Ch. 38, par. 108B-4)
Sec. 108B-4. Application for order of interception.
(a) Each application for an order of authorization to
intercept a private communication shall be made in writing upon
oath or affirmation and shall include:
(1) the authority of the applicant to make the
application;
(2) the identity of the electronic criminal
surveillance officer for whom the authority to intercept a
private communication is sought;
(3) the facts relied upon by the applicant including:
(i) the identity of the particular person, if
known, who is committing, is about to commit, or has
committed the offense and whose private communication is
to be intercepted;
(ii) the details as to the particular offense
that has been, is being, or is about to be committed;
(iii) the particular type of private
communication to be intercepted;
(iv) except as provided in Section 108B-7.5, a
showing that there is probable cause to believe that the
private communication will be communicated on the
particular wire or electronic communication facility
involved or at the particular place where the oral
communication is to be intercepted;
(v) except as provided in Section 108B-7.5, the
character and location of the particular wire or
electronic communication facilities involved or the
particular place where the oral communication is to be
intercepted;
(vi) the objective of the investigation;
(vii) a statement of the period of time for which
the interception is required to be maintained, and, if
the objective of the investigation is such that the
authorization for interception should not automatically
terminate when the described type of communication has
been first obtained, a particular statement of facts
establishing probable cause to believe that additional
communications of the same type will continue to occur;
(viii) a particular statement of facts showing
that other normal investigative procedures with respect
to the offense have been tried and have failed, or
reasonably appear to be unlikely to succeed if tried, or
are too dangerous to employ;
(4) where the application is for the extension of an
order, a statement of facts showing the results obtained
from the interception, or a reasonable explanation of the
failure to obtain results;
(5) a statement of the facts concerning all previous
applications known to the applicant made to any court for
authorization to intercept a private communication involving
any of the same facilities or places specified in the
application or involving any person whose communication is
to be intercepted, and the action taken by the court on each
application;
(6) a proposed order of authorization for
consideration by the judge; and
(7) such additional statements of facts in support of
the application on which the applicant may rely or as the
chief judge may require.
(b) As part of the consideration of that part of an
application for which there is no corroborative evidence
offered, the chief judge may inquire in camera as to the
identity of any informant or request any other additional
information concerning the basis upon which the State's
Attorney, or the head of the law enforcement agency has relied
in making an application or a request for application for the
order of authorization which the chief judge finds relevant to
the determination of probable cause under this Article.
(Source: P.A. 92-854, eff. 12-5-02.)
(725 ILCS 5/108B-5) (from Ch. 38, par. 108B-5)
Sec. 108B-5. Requirements for order of interception.
(a) Upon consideration of an application, the chief judge
may enter an ex parte order, as requested or as modified,
authorizing the interception of a private communication, if the
chief judge determines on the basis of the application submitted
by the applicant, that:
(1) There is probable cause for belief that (A) the
person whose private communication is to be intercepted is
committing, has committed, or is about to commit an offense
enumerated in Section 108B-3, or (B) the facilities from
which, or the place where, the private communication is to
be intercepted, is, has been, or is about to be used in
connection with the commission of the offense, or is leased
to, listed in the name of, or commonly used by, the person;
and
(2) There is probable cause for belief that a
particular private communication concerning such offense may
be obtained through the interception; and
(3) Normal investigative procedures with respect to
the offense have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or too dangerous
to employ; and
(4) The electronic criminal surveillance officers to
be authorized to supervise the interception of the private
communication have been certified by the Illinois State
Police.
(b) In the case of an application, other than for an
extension, for an order to intercept a communication of a person
or on a wire communication facility that was the subject of a
previous order authorizing interception, the application shall
be based upon new evidence or information different from and in
addition to the evidence or information offered to support the
prior order, regardless of whether the evidence was derived from
prior interceptions or from other sources.
(c) The chief judge may authorize interception of a private
communication anywhere in the judicial circuit. If the court
authorizes the use of an eavesdropping device with respect to a
vehicle, watercraft, or aircraft that is within the judicial
circuit at the time the order is issued, the order may provide
that the interception may continue anywhere within the State if
the vehicle, watercraft, or aircraft leaves the judicial
circuit.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/108B-6) (from Ch. 38, par. 108B-6)
Sec. 108B-6. Privileged communications. Nothing in this
Article shall be construed to authorize the interception,
disclosure or use of information obtained from privileged
communications.
(Source: P.A. 85-1203.)
(725 ILCS 5/108B-7) (from Ch. 38, par. 108B-7)
Sec. 108B-7. Contents of order for use of eavesdropping
device.
(a) Each order authorizing the interception of a private
communication shall state:
(1) the chief judge is authorized to issue the order;
(2) the identity of, or a particular description of,
the person, if known, whose private communications are to be
intercepted;
(3) the character and location of the particular wire
communication facilities as to which, or the particular
place of the communications as to which, authority to
intercept is granted;
(4) a particular description of the type of private
communication to be intercepted and a statement of the
particular offense to which it relates;
(5) the identity and certification of the electronic
criminal surveillance officers to whom the authority to
intercept a private communication is given and the identity
of the person who authorized the application; and
(6) the period of time during which the interception
is authorized, including a statement as to whether or not
the interception shall automatically terminate when the
described communication has been first obtained.
(b) No order entered under this Section shall authorize the
interception of private communications for a period of time in
excess of that necessary to achieve the objective of the
authorization. Every order entered under this Section shall
require that the interception begin and terminate as soon as
practicable and be conducted in such a manner as to minimize the
interception
of
communications
not
otherwise
subject
to
interception. No order, other than for an extension, entered
under this Section may authorize the interception of private
communications for any period exceeding 30 days. Extensions of
an order may be granted for periods of not more than 30 days. No
extension shall be granted unless an application for it is made
in accordance with Section 108B-4 and the judge makes the
findings required by Section 108B-5 and, where necessary,
Section 108B-6.
(c) Whenever an order authorizing an interception is
entered, the order shall require reports to be made to the chief
judge who issued the order showing what progress has been made
toward achievement of the authorized objective and the need for
continued interception. The reports shall be made at such
intervals as the judge may require.
(d) An order authorizing the interception of a private
communication shall, upon request of the applicant, direct that
a communications common carrier, landlord, owner, building
operator, custodian, or other person furnish the applicant
forthwith all information, facilities and technical assistance
necessary to accomplish the interception unobtrusively and with
a minimum of interference with the services that the carrier,
owner, building operator, landlord, custodian, or person is
affording the person whose communication is to be intercepted.
The obligation of a communications common carrier under the
order may include conducting an in-progress trace during an
interception. Any communications common carrier, landlord,
owner, building operator, custodian, or person furnishing the
facilities or technical assistance shall be compensated by the
applicant at the prevailing rates.
(e) A communications common carrier, landlord, owner,
building operator, custodian, or other person who has been
provided with an order issued under this Article shall not
disclose the existence of the order of interception, or of a
device used to accomplish the interception unless:
(1) he is required to do so by legal process; and
(2) he has given prior notification to the State's
Attorney, who has authorized the application for the order.
(f) An order authorizing the interception of a private
communication shall, upon the request of the applicant,
authorize the entry into the place or facilities by electronic
criminal surveillance officers as often as necessary for the
purpose of installing, maintaining or removing an intercepting
device where the entry is necessary to conduct or complete the
interception. The chief judge who issues the order shall be
notified of the fact of each entry prior to entry, if
practicable, and, in any case, within 48 hours of entry.
(g) (1) Notwithstanding any provision of this Article, any
chief judge of a court of competent jurisdiction to which any
application is made under this Article may take any evidence,
make any finding, or issue any order to conform the proceedings
or the issuance of any order to the Constitution of the United
States, or of any law of the United States or to the
Constitution of the State of Illinois or to the laws of
Illinois.
(2) When the language of this Article is the same or similar
to the language of Title III of P.L. 90-351 (82 Stat. 211 et
seq., codified at, 18 U.S.C. 2510 et seq.), the courts of this
State in construing this Article shall follow the construction
given to Federal law by the United States Supreme Court or
United States Court of Appeals for the Seventh Circuit.
(Source: P.A. 92-854, eff. 12-5-02.)
(725 ILCS 5/108B-7.5)
Sec. 108B-7.5. Applicability.
(a) The requirements of subdivisions (a)(3)(iv) and (a)(3)
(v) of Section 108B-4, subdivision (1)(b) of Section 108B-5, and
subdivision (a)(3) of Section 108B-7 of this Article relating to
the specification of the facilities from which, or the place
where, the communication is to be intercepted do not apply if:
(1) in the case of an application with respect to the
interception of an oral communication:
(A) the application is by the State's Attorney,
or a person designated in writing or by law to act for
the State's Attorney and to perform his or her duties
during his or her absence or disability;
(B) the application contains a full and complete
statement as to why such specification is not practical
and identifies the person committing the offense and
whose communications are to be intercepted;
(C) the judge finds that such specification is
not practical; and
(D) the order sought is in connection with an
investigation of a violation of Article 29D of the
Criminal Code of 1961 or the Criminal Code of 2012.
(2) in the case of an application with respect to a
wire or electronic communication:
(A) the application is by the State's Attorney,
or a person designated in writing or by law to act for
the State's Attorney and to perform his or her duties
during his or her absence or disability;
(B) the application identifies the person
believed to be committing the offense and whose
communications are to be intercepted and the applicant
makes a showing that there is probable cause to believe
that the person's actions could have the effect of
thwarting interception from a specified facility;
(C) the judge finds that such showing has been
adequately made;
(D) the order authorizing or approving the
interception is limited to interception only for such
time as it is reasonable to presume that the person
identified in the application is or was reasonably
proximate
to
the
instrument
through
which
such
communication will be or was transmitted; and
(E) the order sought is in connection with an
investigation of a violation of Article 29D of the
Criminal Code of 1961 or the Criminal Code of 2012.
(b) An interception of a communication under an order with
respect to which the requirements of subdivisions (a)(3)(iv) and
(a)(3)(v) of Section 108B-4, subdivision (1)(b) of Section 108B5, and subdivision (a)(3) of Section 108B-7 of this Article do
not apply by reason of this Section shall not begin until the
place where the communication is to be intercepted is
ascertained by the person implementing the interception order. A
provider of wire or electronic communications service that has
received an order as provided for in subdivision (a)(2) may upon
notice to the People move the court to modify or quash the order
on the ground that its assistance with respect to the
interception cannot be performed in a timely or reasonable
fashion. The court shall decide such a motion expeditiously.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/108B-8) (from Ch. 38, par. 108B-8)
Sec. 108B-8. Emergency use of eavesdropping device.
(a) Whenever, upon informal application by the State's
Attorney, a chief judge of competent jurisdiction determines
that:
(1) there may be grounds upon which an order could be
issued under this Article;
(2) there is probable cause to believe that an
emergency situation exists with respect to the investigation
of an offense enumerated in Section 108B-3; and
(3) there is probable cause to believe that a
substantial danger to life or limb exists justifying the
authorization for immediate interception of a private
communication before formal application for an order could
with due diligence be submitted to him and acted upon; the
chief judge may grant oral approval for an interception,
without an order, conditioned upon the filing with him,
within 48 hours, of an application for an order under
Section 108B-4 which shall also recite the oral approval
under this Section and be retroactive to the time of the
oral approval.
(b) Interception under oral approval under this Section
shall immediately terminate when the communication sought is
obtained or when the application for an order is denied,
whichever is earlier.
(c) In the event no formal application for an order is
subsequently made under this Section, the content of any private
communication intercepted under oral approval under this Section
shall be treated as having been obtained in violation of this
Article.
(d) In the event no application for an order is made under
this Section or an application made under this Section is
subsequently denied, the judge shall cause an inventory to be
served under Section 108B-11 of this Article and shall require
the tape or other recording of the intercepted communication to
be delivered to, and sealed by, the judge. The evidence shall be
retained by the court, and it shall not be used or disclosed in
any legal proceeding, except a civil action brought by an
aggrieved person under Section 14-6 of the Criminal Code of 1961
or the Criminal Code of 2012, or as otherwise authorized by the
order of a court of competent jurisdiction. In addition to other
remedies or penalties provided by law, failure to deliver any
tape or other recording to the chief judge shall be punishable
as contempt by the judge directing the delivery.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/108B-9) (from Ch. 38, par. 108B-9)
Sec. 108B-9. Recordings, records and custody.
(a) Any private communication intercepted in accordance with
this Article shall, if practicable, be recorded by tape or other
comparable method. The recording shall, if practicable, be done
in such a way as will protect it from editing or other
alteration. During an interception, the interception shall be
carried out by an electronic criminal surveillance officer, and,
if practicable, such officer shall keep a signed, written
record, including:
(1) the date and hours of surveillance;
(2) the time and duration of each intercepted
communication;
(3) the parties, if known, to each intercepted
conversation; and
(4) a summary of the contents of each intercepted
communication.
(b) Immediately upon the expiration of the order or its
extensions, the tapes and other recordings shall be transferred
to the chief judge issuing the order and sealed under his
direction. Custody of the tapes, or other recordings, shall be
maintained wherever the chief judge directs. They shall not be
destroyed except upon an order of a court of competent
jurisdiction and in any event shall be kept for 10 years.
Duplicate tapes or other recordings may be made for disclosure
or use under paragraph (a) of Section 108B-2a of this Article.
The presence of the seal provided by this Section, or a
satisfactory
explanation
for
its
absence,
shall
be
a
prerequisite for the disclosure of the contents of any private
communication, or evidence derived from it, under paragraph (b)
of Section 108B-2a of this Article.
(Source: P.A. 92-854, eff. 12-5-02.)
(725 ILCS 5/108B-10) (from Ch. 38, par. 108B-10)
Sec. 108B-10. Applications, orders, and custody.
(a) Applications made and orders granted under this Article
for the interception of private communications shall be sealed
by the chief judge issuing or denying them and held in custody
as the judge shall direct. The applications and orders shall be
kept for a period of 10 years. Destruction of the applications
and orders prior to the expiration of that period of time may be
made only upon the order of a court of competent jurisdiction.
Disclosure of the applications and orders may be ordered by a
court of competent jurisdiction on a showing of good cause.
(b) The electronic criminal surveillance officer shall
retain a copy of applications and orders for the interception of
private communications. The applications and orders shall be
kept for a period of 10 years. Destruction of the applications
and orders prior to the expiration of that period of time may be
made only upon an order of a court of competent jurisdiction.
Disclosure and use of the applications and orders may be made by
an electronic criminal surveillance officer only in the proper
performance of his official duties.
(c) In addition to any other remedies or penalties provided
by law, any violation of this Section shall be punishable as
contempt of court.
(Source: P.A. 92-854, eff. 12-5-02.)
(725 ILCS 5/108B-11) (from Ch. 38, par. 108B-11)
Sec. 108B-11. Inventory.
(a) Within a reasonable period of time but not later than 90
days after the termination of the period of the order, or its
extensions, or the date of the denial of an application made
under Section 108B-8, the chief judge issuing or denying the
order or extension shall cause an inventory to be served on any
person:
(1) named in the order;
(2) arrested as a result of the interception of his
private communication;
(3) indicted or otherwise charged as a result of the
interception of his private communication;
(4) whose private communication was intercepted and
who the judge issuing or denying the order or application
may in his discretion determine should be informed in the
interest of justice.
(b) The inventory under this Section shall include:
(1) notice of the entry of the order or the
application for an order denied under Section 108B-8;
(2) the date of the entry of the order or the denial
of an order applied for under Section 108B-8;
(3) the period of authorized or disapproved
interception; and
(4) the fact that during the period a private
communication was or was not intercepted.
(c) A court of competent jurisdiction, upon filing of a
motion, may in its discretion make available to those persons or
their attorneys for inspection those portions of the intercepted
communications, applications and orders as the court determines
to be in the interest of justice.
(d) On an ex parte showing of good cause to a court of
competent jurisdiction, the serving of the inventories required
by this Section may be postponed for a period not to exceed 12
months.
(Source: P.A. 95-331, eff. 8-21-07.)
(725 ILCS 5/108B-12) (from Ch. 38, par. 108B-12)
Sec. 108B-12. Approval, notice, suppression.
(a) If an electronic criminal surveillance officer, while
intercepting a private communication in accordance with the
provision of this Article, intercepts a private communication
that relates to an offense other than an offense enumerated in
Section 108B-3 of the Act, or relates to an offense enumerated
in Section 108B-3 but not specified in the order of
authorization, the State's Attorney, or a person designated in
writing or by law to act for him, may, in order to permit the
disclosure or use of the information under Section 108B-2a of
this Act, make a motion for an order approving the interception.
The chief judge of a court of competent jurisdiction shall enter
an order approving the interception if he finds that at the time
of the application, there existed probable cause to believe that
a person whose private communication was intercepted was
committing or had committed an offense and the content of the
communication
relates
to
that
offense,
and
that
the
communication was otherwise intercepted in accordance with the
provisions of this Article.
(b) An intercepted private communication, or evidence
derived from it, may not be received in evidence or otherwise
disclosed in an official proceeding unless each aggrieved person
who is a party in the official proceeding, including any
proceeding before a legislative, judicial, administrative or
other governmental agency or official authorized to hear
evidence under oath or other person taking testimony or
depositions in any such proceeding, other than a grand jury,
has, not less than 10 days before the official proceeding, been
furnished with a copy of the court order, and the accompanying
application, under which the interception was authorized or
approved. The 10 day period may be waived by the presiding
official if he finds that it was not practicable to furnish the
person with the information 10 days before the proceeding, and
that the person will not be or has not been prejudiced by delay
in receiving the information.
(c) An aggrieved person in an official proceeding may make a
motion under this Section to suppress the contents of an
intercepted private communication, or evidence derived from it,
on the grounds that:
(1) the communication was unlawfully intercepted;
(2) the order of authorization or approval under
which it was intercepted is insufficient on its face; or
(3) the interception was not made in conformity with
the order of authorization or approval or at the time of the
application there was not probable cause to believe that the
aggrieved person was committing or had committed the offense
to which the content of the private communication relates.
(d) If a motion under this Section duly alleges that the
evidence sought to be suppressed in an official proceeding,
including a grand jury, has been derived from an unlawfully
intercepted private communication, and if the aggrieved person
who is a party has not been served with notice of the
interception under this Section, the opponent of the allegation
shall, after conducting a thorough search of its files, affirm
or deny the occurrence of the alleged unlawful interception, but
no motion shall be considered if the alleged unlawful
interception took place more than 5 years before the event to
which the evidence relates.
(e) Where a motion is duly made under this Section prior to
the appearance of a witness before a grand jury, the opponent of
the motion may make such applications and orders as it has
available to the chief judge of a court of competent
jurisdiction in camera, and if the judge determines that there
is no defect in them sufficient on its face to render them
invalid, the judge shall inform the witness that he has not been
the subject of an unlawful interception. If the judge determines
that there is a defect in them sufficient on its face to render
them invalid, he shall enter an order prohibiting any question
being put to the witness based on the unlawful interception.
(f) Motions under this Section shall be made prior to the
official proceeding unless there was no opportunity to make the
motion or unless the aggrieved person who is a party was not
aware of the grounds for the motion. Motions by co-indictees
shall, on motion of the People, be heard in a single
consolidated hearing.
(g) A chief judge of a court of competent jurisdiction, upon
the filing of a motion by an aggrieved person who is a party
under this Section, except before a grand jury, may make
available for inspection by the aggrieved person or his attorney
such portions of the intercepted private communications,
applications and orders or the evidence derived from them as the
judge determines to be in the interest of justice.
(h) If a motion under this Section is granted, the
intercepted private communication, and evidence derived from it,
may not be received in evidence in an official proceeding,
including a grand jury.
(i) In addition to any other right of appeal, the People
shall have the right to appeal from an order granting a motion
to suppress if the official to whom the order authorizing the
interception was granted certifies to the court that the appeal
is not taken for purposes of delay. The appeal shall otherwise
be taken in accordance with the law.
(Source: P.A. 92-854, eff. 12-5-02.)
(725 ILCS 5/108B-13) (from Ch. 38, par. 108B-13)
Sec. 108B-13. Reports concerning use of eavesdropping
devices.
(a) Within 30 days after the expiration of an order and each
extension thereof authorizing an interception, or within 30 days
after the denial of an application or disapproval of an
application subsequent to any alleged emergency situation, the
State's Attorney shall report to the Illinois State Police the
following:
(1) the fact that such an order, extension, or
subsequent approval of an emergency was applied for;
(2) the kind of order or extension applied for;
(3) a statement as to whether the order or extension
was granted as applied for was modified, or was denied;
(4) the period authorized by the order or extensions
in which an eavesdropping device could be used;
(5) the offense enumerated in Section 108B-3 which is
specified in the order or extension or in the denied
application;
(6) the identity of the applying electronic criminal
surveillance officer and agency making the application and
the State's Attorney authorizing the application; and
(7) the nature of the facilities from which or the
place where the eavesdropping device was to be used.
(b) In January of each year the State's Attorney of each
county in which an interception occurred pursuant to the
provisions of this Article shall report to the Illinois State
Police the following:
(1) a general description of the uses of
eavesdropping devices actually made under such order to
overhear or record conversations, including: (a) the
approximate
nature
and
frequency
of
incriminating
conversations overheard, (b) the approximate nature and
frequency
of
other
conversations
overheard,
(c)
the
approximate number of persons whose conversations were
overheard, and (d) the approximate nature, amount, and cost
of the manpower and other resources used pursuant to the
authorization to use an eavesdropping device;
(2) the number of arrests resulting from authorized
uses of eavesdropping devices and the offenses for which
arrests were made;
(3) the number of trials resulting from such uses of
eavesdropping devices;
(4) the number of motions to suppress made with
respect to such uses, and the number granted or denied; and
(5) the number of convictions resulting from such
uses and the offenses for which the convictions were
obtained and a general assessment of the importance of the
convictions.
On or before March 1 of each year, the Director of the
Illinois State Police shall submit to the Governor a report of
all intercepts as defined herein conducted pursuant to this
Article and terminated during the preceding calendar year. Such
report shall include:
(1) the reports of State's Attorneys forwarded to the
Director as required in this Section;
(2) the number of Illinois State Police personnel
authorized to possess, install, or operate electronic,
mechanical, or other devices;
(3) the number of Illinois State Police and other law
enforcement personnel who participated or engaged in the
seizure of intercepts pursuant to this Article during the
preceding calendar year;
(4) the number of electronic criminal surveillance
officers trained by the Illinois State Police;
(5) the total cost to the Illinois State Police of
all activities and procedures relating to the seizure of
intercepts during the preceding calendar year, including
costs of equipment, manpower, and expenses incurred as
compensation for use of facilities or technical assistance
provided to or by the Illinois State Police; and
(6) a summary of the use of eavesdropping devices
pursuant to orders of interception including (a) the
frequency of use in each county, (b) the frequency of use
for each crime enumerated in Section 108B-3 of the Code of
Criminal Procedure of 1963, as amended, (c) the type and
frequency of eavesdropping device use, and (d) the frequency
of use by each police department or law enforcement agency
of this State.
(d) In April of each year, the Director of the Illinois
State Police and the Governor shall each transmit to the General
Assembly reports including information on the number of
applications for orders authorizing the use of eavesdropping
devices, the number of orders and extensions granted or denied
during the preceding calendar year, the convictions arising out
of such uses, and a summary of the information required by
subsections (a) and (b) of this Section.
The requirement for reporting to the General Assembly shall
be satisfied by filing copies of the report as required by
Section 3.1 of the General Assembly Organization Act, and filing
such additional copies with the State Government Report
Distribution Center for the General Assembly as is required
under paragraph (t) of Section 7 of the State Library Act.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/108B-14) (from Ch. 38, par. 108B-14)
Sec. 108B-14. Training.
(a) The Director of the Illinois State Police shall:
(1) Establish a course of training in the legal,
practical, and technical aspects of the interception of
private
communications
and
related
investigation
and
prosecution techniques;
(2) Issue regulations as he finds necessary for the
training program;
(3) In cooperation with the Illinois Law Enforcement
Training
Standards
Board,
set
minimum
standards
for
certification and periodic recertification of electronic
criminal surveillance officers as eligible to apply for
orders
authorizing
the
interception
of
private
communications, to conduct the interceptions, and to use the
private communications or evidence derived from them in
official proceedings; and
(4) In cooperation with the Illinois Law Enforcement
Training
Standards
Board,
revoke
or
suspend
the
certification of any electronic criminal surveillance
officer who has violated any law relating to electronic
criminal surveillance, or any of the guidelines established
by the Illinois State Police for conducting electronic
criminal surveillance.
(b) The Executive Director of the Illinois Law Enforcement
Training Standards Board shall:
(1) Pursuant to the Illinois Police Training Act,
review the course of training prescribed by the Illinois
State Police for the purpose of certification relating to
reimbursement of expenses incurred by local law enforcement
agencies
participating
in
the
electronic
criminal
surveillance officer training process, and
(2) Assist the Illinois State Police in establishing
minimum
standards
for
certification
and
periodic
recertification of electronic criminal surveillance officers
as being eligible to apply for orders authorizing the
interception of private communications, to conduct the
interpretations, and to use the communications or evidence
derived from them in official proceedings.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/Tit. III heading)
TITLE III. PROCEEDINGS AFTER ARREST
(725 ILCS 5/Art. 109 heading)
ARTICLE 109. PRELIMINARY EXAMINATION
(725 ILCS 5/109-1) (from Ch. 38, par. 109-1)
Sec. 109-1. Person arrested; release from law enforcement
custody and court appearance; geographic constraints prevent inperson appearances.
(a) A person arrested with or without a warrant for an
offense for which pretrial release may be denied under
paragraphs (1) through (6) of Section 110-6.1 shall be taken
without unnecessary delay before the nearest and most accessible
judge in that county, except when such county is a participant
in a regional jail authority, in which event such person may be
taken to the nearest and most accessible judge, irrespective of
the county where such judge presides, within 48 hours, and a
charge shall be filed. Whenever a person arrested either with or
without a warrant is required to be taken before a judge, a
charge may be filed against such person by way of a two-way
audio-visual communication system, except that a hearing to deny
pretrial release to the defendant may not be conducted by twoway audio-visual communication system unless the accused waives
the right to be present physically in court, the court
determines that the physical health and safety of any person
necessary to the proceedings would be endangered by appearing in
court, or the chief judge of the circuit orders use of that
system due to operational challenges in conducting the hearing
in person. Such operational challenges must be documented and
approved by the chief judge of the circuit, and a plan to
address the challenges through reasonable efforts must be
presented and approved by the Administrative Office of the
Illinois Courts every 6 months.
(a-1) Law enforcement shall issue a citation in lieu of
custodial arrest, upon proper identification, for those accused
of any offense that is not a felony or Class A misdemeanor
unless (i) a law enforcement officer reasonably believes the
accused poses a threat to the community or any person, (ii) a
custodial arrest is necessary because the criminal activity
persists after the issuance of a citation, or (iii) the accused
has an obvious medical or mental health issue that poses a risk
to the accused's own safety. Nothing in this Section requires
arrest in the case of Class A misdemeanor and felony offenses,
or otherwise limits existing law enforcement discretion to
decline to effect a custodial arrest.
(a-3) A person arrested with or without a warrant for an
offense for which pretrial release may not be denied may, except
as otherwise provided in this Code, be released by a law
enforcement officer without appearing before a judge. A
presumption in favor of pretrial release shall be applied by an
arresting officer in the exercise of his or her discretion under
this Section.
(a-5) A person charged with an offense shall be allowed
counsel at the hearing at which pretrial release is determined
under Article 110 of this Code. If the defendant desires counsel
for his or her initial appearance but is unable to obtain
counsel, the court shall appoint a public defender or licensed
attorney at law of this State to represent him or her.
(b) Upon initial appearance of a person before the court,
the judge shall:
(1) inform the defendant of the charge against him
and shall provide him with a copy of the charge;
(2) advise the defendant of his right to counsel and
if indigent shall appoint a public defender or licensed
attorney at law of this State to represent him in accordance
with the provisions of Section 113-3 of this Code;
(3) schedule a preliminary hearing in appropriate
cases;
(4) admit the defendant to pretrial release in
accordance with the provisions of Article 110 of this Code,
or upon verified petition of the State, proceed with the
setting of a detention hearing as provided in Section 1106.1; and
(5) order the confiscation of the person's passport
or impose travel restrictions on a defendant arrested for
first degree murder or other violent crime as defined in
Section 3 of the Rights of Crime Victims and Witnesses Act,
if the judge determines, based on the factors in Section
110-5 of this Code, that this will reasonably ensure the
appearance of the defendant and compliance by the defendant
with all conditions of release.
(c) The court may issue an order of protection in accordance
with the provisions of Article 112A of this Code. Crime victims
shall be given notice by the State's Attorney's office of this
hearing as required in paragraph (2) of subsection (b) of
Section 4.5 of the Rights of Crime Victims and Witnesses Act and
shall be informed of their opportunity at this hearing to obtain
an order of protection under Article 112A of this Code.
(d) At the initial appearance of a defendant in any criminal
proceeding, the court must advise the defendant in open court
that any foreign national who is arrested or detained has the
right to have notice of the arrest or detention given to his or
her country's consular representatives and the right to
communicate with those consular representatives if the notice
has not already been provided. The court must make a written
record of so advising the defendant.
(e) If consular notification is not provided to a defendant
before his or her first appearance in court, the court shall
grant any reasonable request for a continuance of the
proceedings to allow contact with the defendant's consulate. Any
delay caused by the granting of the request by a defendant shall
temporarily suspend for the time of the delay the period within
which a person shall be tried as prescribed by subsection (a),
(b), or (e) of Section 103-5 of this Code and on the day of the
expiration of delay the period shall continue at the point at
which it was suspended.
(f) At the hearing at which conditions of pretrial release
are determined, the person charged shall be present in person
rather than by two-way audio-video communication system unless
the accused waives the right to be present physically in court,
the court determines that the physical health and safety of any
person necessary to the proceedings would be endangered by
appearing in court, or the chief judge of the circuit orders use
of that system due to operational challenges in conducting the
hearing in person. Such operational challenges must be
documented and approved by the chief judge of the circuit, and a
plan to address the challenges through reasonable efforts must
be presented and approved by the Administrative Office of the
Illinois Courts every 6 months.
(g) Defense counsel shall be given adequate opportunity to
confer with the defendant prior to any hearing in which
conditions of release or the detention of the defendant is to be
considered, with a physical accommodation made to facilitate
attorney/client consultation. If defense counsel needs to confer
or consult with the defendant during any hearing conducted via a
two-way audio-visual communication system, such consultation
shall not be recorded and shall be undertaken consistent with
constitutional protections.
(Source: P.A. 101-652, eff. 1-1-23; 102-813, eff. 5-13-22; 1021104, eff. 1-1-23.)
(725 ILCS 5/109-1.1) (from Ch. 38, par. 109-1.1)
Sec. 109-1.1. Whenever a person arrested either with or
without a warrant is taken before a judge as provided for in
Sections 107-9(d)(6) and 109-1(a), the judge shall ask the
arrestee whether he or she has any children under 18 years old
living with him or her who may be neglected as a result of the
arrest, incarceration or otherwise. If the judge has reasonable
cause to believe that a child may be a neglected child as
defined in the Abused and Neglected Child Reporting Act, he
shall instruct a probation officer to report it immediately to
the Department of Children and Family Services as provided in
that Act.
(Source: P.A. 99-78, eff. 7-20-15.)
(725 ILCS 5/109-2) (from Ch. 38, par. 109-2)
Sec. 109-2. Person arrested in another county.
(a) Any person arrested in a county other than the one in
which a warrant for his arrest was issued shall be taken without
unnecessary delay before the nearest and most accessible judge
in the county where the arrest was made or, if no additional
delay is created, before the nearest and most accessible judge
in the county from which the warrant was issued. The judge may
hold a hearing to determine if the defendant is the same person
as named in the warrant.
(b) Notwithstanding the provisions of subsection (a), any
person arrested in a county other than the one in which a
warrant for his arrest was issued, may waive the right to be
taken before a judge in the county where the arrest was made. If
a person so arrested waives such right, the arresting agency
shall surrender such person to a law enforcement agency of the
county that issued the warrant without unnecessary delay. The
provisions of Section 109-1 shall then apply to the person so
arrested.
(c) If a person is taken before a judge in any county and a
warrant for arrest issued by another Illinois county exists for
that person, the court in the arresting county shall hold for
that person a detention hearing under Section 110-6.1, or other
hearing under Section 110-5 or Section 110-6.
(d) After the court in the arresting county has determined
whether the person shall be released or detained on the
arresting offense, the court shall then order the sheriff to
immediately contact the sheriff in any county where any warrant
is outstanding and notify them of the arrest of the individual.
(e) If a person has a warrant in another county for an
offense, then, no later than 5 calendar days after the end of
any detention issued on the charge in the arresting county, the
county where the warrant is outstanding shall do one of the
following:
(1) transport the person to the county where the
warrant was issued for a hearing under Section 110-6 or 1106.1 in the matter for which the warrant was issued; or
(2) quash the warrant and order the person released
on the case for which the warrant was issued only when the
county that issued the warrant fails to transport the
defendant in the timeline as proscribed.
(f) If the issuing county fails to take any action under
subsection (e) within 5 calendar days, the defendant shall be
released from custody on the warrant, and the circuit judge or
associate circuit judge in the county of arrest shall set
conditions of release under Section 110-5 and shall admit the
defendant to pretrial release for his or her appearance before
the court named in the warrant. Upon releasing the defendant,
the circuit judge or associate circuit judge shall certify such
a fact on the warrant and deliver the warrant and the
acknowledgment by the defendant of his or her receiving the
conditions of pretrial release to the officer having charge of
the defendant from arrest and without delay deliver such warrant
and such acknowledgment by the defendant of his or her receiving
the conditions to the court before which the defendant is
required to appear.
(g) If a person has a warrant in another county, in lieu of
transporting the person to the issuing county as outlined in
subsection (e), the issuing county may hold the hearing by way
of a two-way audio-visual communication system if the accused
waives the right to be physically present in court, the court
determines that the physical health and safety of any person
necessary to the proceedings would be endangered by appearing in
court, or the chief judge of the circuit orders use of that
system due to operational challenges in conducting the hearing
in person. Such operational challenges must be documented and
approved by the chief judge of the circuit, and a plan to
address the challenges through reasonable efforts must be
presented and approved by the Administrative Office of the
Illinois Courts every 6 months.
(h) If more than 2 Illinois county warrants exist, the judge
in the county of arrest shall order that the process described
in subsections (d) through (f) occur in each county in whatever
order the judge finds most appropriate. Each judge in each
subsequent county shall then follow the rules in this Section.
(i) This Section applies only to warrants issued by Illinois
state, county, or municipal courts.
(j) When an issuing agency is contacted by an out-of-state
agency of a person arrested for any offense, or when an
arresting agency is contacted by or contacts an out-of-state
issuing agency, the Uniform Criminal Extradition Act shall
govern.
(Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23.)
(725 ILCS 5/109-3) (from Ch. 38, par. 109-3)
Sec. 109-3. Preliminary examination.
(a) The judge shall hold the defendant to answer to the
court having jurisdiction of the offense if from the evidence it
appears there is probable cause to believe an offense has been
committed by the defendant, as provided in Section 109-3.1 of
this Code, if the offense is a felony.
(b) If the defendant waives preliminary examination the
judge shall hold him to answer and may, or on the demand of the
prosecuting attorney shall, cause the witnesses for the State to
be examined. After hearing the testimony if it appears that
there is not probable cause to believe the defendant guilty of
any offense the judge shall discharge him.
(c) During the examination of any witness or when the
defendant is making a statement or testifying the judge may and
on the request of the defendant or State shall exclude all other
witnesses. He may also cause the witnesses to be kept separate
and to be prevented from communicating with each other until all
are examined.
(d) If the defendant is held to answer the judge may require
any material witness for the State or defendant to enter into a
written undertaking to appear at the trial. Any witness who
refuses to execute a recognizance may be committed by the judge
to the custody of the sheriff until trial or further order of
the court having jurisdiction of the cause. Any witness who
executes a recognizance and fails to comply with its terms
commits a Class C misdemeanor.
(e) During preliminary hearing or examination the defendant
may move for an order of suppression of evidence pursuant to
Section 114-11 or 114-12 of this Act or for other reasons, and
may move for dismissal of the charge pursuant to Section 114-1
of this Act or for other reasons.
(Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23.)
(725 ILCS 5/109-3.1) (from Ch. 38, par. 109-3.1)
Sec. 109-3.1. Persons charged with felonies.
(a) In any case involving a person charged with a felony in
this State, alleged to have been committed on or after January
1, 1984, the provisions of this Section shall apply.
(b) Every person in custody in this State for the alleged
commission of a felony shall receive either a preliminary
examination as provided in Section 109-3 or an indictment by
Grand Jury as provided in Section 111-2, within 30 days from the
date he or she was taken into custody. Every person released
pretrial for the alleged commission of a felony shall receive
either a preliminary examination as provided in Section 109-3 or
an indictment by Grand Jury as provided in Section 111-2, within
60 days from the date he or she was arrested.
The provisions of this paragraph shall not apply in the
following situations:
(1) when delay is occasioned by the defendant; or
(2) when the defendant has been indicted by the Grand
Jury on the felony offense for which he or she was initially
taken into custody or on an offense arising from the same
transaction or conduct of the defendant that was the basis
for the felony offense or offenses initially charged; or
(3) when a competency examination is ordered by the
court; or
(4) when a competency hearing is held; or
(5) when an adjudication of incompetency for trial
has been made; or
(6) when the case has been continued by the court
under Section 114-4 of this Code after a determination that
the defendant is physically incompetent to stand trial.
(c) Delay occasioned by the defendant shall temporarily
suspend, for the time of the delay, the period within which the
preliminary examination must be held. On the day of expiration
of the delay the period in question shall continue at the point
at which it was suspended.
(Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23.)
(725 ILCS 5/Art. 110 heading)
ARTICLE 110. PRETRIAL RELEASE
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/110-1) (from Ch. 38, par. 110-1)
Sec. 110-1. Definitions. As used in this Article:
(a) (Blank).
(b) "Sureties" encompasses the nonmonetary requirements set
by the court as conditions for release either before or after
conviction.
(c) The phrase "for which a sentence of imprisonment,
without conditional and revocable release, shall be imposed by
law as a consequence of conviction" means an offense for which a
sentence of imprisonment in the Department of Corrections,
without
probation,
periodic
imprisonment
or
conditional
discharge, is required by law upon conviction.
(d)(Blank).
(e) "Protective order" means any order of protection issued
under Section 112A-14 of this Code or the Illinois Domestic
Violence Act of 1986, a stalking no contact order issued under
Section 80 of the Stalking No Contact Order Act, or a civil no
contact order issued under Section 213 of the Civil No Contact
Order Act.
(f) "Willful flight" means intentional conduct with a
purpose to thwart the judicial process to avoid prosecution.
Isolated instances of nonappearance in court alone are not
evidence of the risk of willful flight. Reoccurrence and
patterns of intentional conduct to evade prosecution, along with
any affirmative steps to communicate or remedy any such missed
court date, may be considered as factors in assessing future
intent to evade prosecution.
(Source: P.A. 102-813, eff. 5-13-22; 102-1104, eff. 1-1-23; 103154, eff. 6-30-23.)
(725 ILCS 5/110-1.5)
Sec. 110-1.5. Abolition of monetary bail. On and after
January 1, 2023, the requirement of posting monetary bail is
abolished,
except
as
provided
in
the
Uniform
Criminal
Extradition Act, the Driver License Compact, or the Nonresident
Violator Compact which are compacts that have been entered into
between this State and its sister states.
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/110-2) (from Ch. 38, par. 110-2)
Sec. 110-2. Pretrial release.
(a) All persons charged with an offense shall be eligible
for pretrial release before conviction. It is presumed that a
defendant is entitled to release on personal recognizance on the
condition that the defendant attend all required court
proceedings and the defendant does not commit any criminal
offense, and complies with all terms of pretrial release,
including, but not limited to, orders of protection under both
Section 112A-4 of this Code and Section 214 of the Illinois
Domestic Violence Act of 1986, all civil no contact orders, and
all stalking no contact orders. Pretrial release may be denied
only if a person is charged with an offense listed in Section
110-6.1 and after the court has held a hearing under Section
110-6.1, and in a manner consistent with subsections (b), (c),
and (d) of this Section.
(b) At all pretrial hearings, the prosecution shall have the
burden to prove by clear and convincing evidence that any
condition of release is necessary.
(c) When it is alleged that pretrial release should be
denied to a person upon the grounds that the person presents a
real and present threat to the safety of any person or persons
or the community, based on the specific articulable facts of the
case, the burden of proof of such allegations shall be upon the
State.
(d) When it is alleged that pretrial release should be
denied to a person charged with stalking or aggravated stalking
upon the grounds set forth in Section 110-6.3, the burden of
proof of those allegations shall be upon the State.
(e) This Section shall be liberally construed to effectuate
the purpose of relying on pretrial release by nonmonetary means
to reasonably ensure an eligible person's appearance in court,
the protection of the safety of any other person or the
community, that the person will not attempt or obstruct the
criminal justice process, and the person's compliance with all
conditions of release, while authorizing the court, upon motion
of a prosecutor, to order pretrial detention of the person under
Section 110-6.1 when it finds clear and convincing evidence that
no condition or combination of conditions can reasonably ensure
the effectuation of these goals.
(Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23.)
(725 ILCS 5/110-3) (from Ch. 38, par. 110-3)
Sec. 110-3. Options for warrant alternatives.
(a) Upon failure to comply with any condition of pretrial
release, the court having jurisdiction at the time of such
failure may, on its own motion or upon motion from the State,
issue a summons or a warrant for the arrest of the person at
liberty on pretrial release. This Section shall be construed to
effectuate the goal of relying upon summonses rather than
warrants to ensure the appearance of the defendant in court
whenever possible. The contents of such a summons or warrant
shall be the same as required for those issued upon complaint
under Section 107-9.
(b) A defendant who appears in court on the date assigned or
within 48 hours of service, whichever is later, in response to a
summons issued for failure to appear in court, shall not be
recorded in the official docket as having failed to appear on
the initial missed court date. If a person fails to appear in
court on the date listed on the summons, the court may issue a
warrant for the person's arrest.
(c) For the purpose of any risk assessment or future
evaluation of risk of willful flight or risk of failure to
appear, a nonappearance in court cured by an appearance in
response to a summons shall not be considered as evidence of
future likelihood of appearance in court.
(Source: P.A. 101-652, eff. 1-1-23; 102-813, eff. 5-13-22; 1021104, eff. 1-1-23.)
(725 ILCS 5/110-4)
Sec. 110-4. (Repealed).
(Source: P.A. 101-652, eff. 1-1-23. Repealed by P.A. 102-1104,
eff. 1-1-23.)
(725 ILCS 5/110-5) (from Ch. 38, par. 110-5)
Sec. 110-5. Determining the amount of bail and conditions of
release.
(a) In determining which conditions of pretrial release, if
any, will reasonably ensure the appearance of a defendant as
required or the safety of any other person or the community and
the likelihood of compliance by the defendant with all the
conditions of pretrial release, the court shall, on the basis of
available information, take into account such matters as:
(1) the nature and circumstances of the offense
charged;
(2) the weight of the evidence against the defendant,
except that the court may consider the admissibility of any
evidence sought to be excluded;
(3) the history and characteristics of the defendant,
including:
(A) the defendant's character, physical and
mental condition, family ties, employment, financial
resources, length of residence in the community,
community ties, past relating to drug or alcohol abuse,
conduct, history criminal history, and record concerning
appearance at court proceedings; and
(B) whether, at the time of the current offense
or arrest, the defendant was on probation, parole, or on
other release pending trial, sentencing, appeal, or
completion of sentence for an offense under federal law,
or the law of this or any other state;
(4) the nature and seriousness of the real and
present threat to the safety of any person or persons or the
community, based on the specific articulable facts of the
case, that would be posed by the defendant's release, if
applicable, as required under paragraph (7.5) of Section 4
of the Rights of Crime Victims and Witnesses Act;
(5) the nature and seriousness of the risk of
obstructing or attempting to obstruct the criminal justice
process that would be posed by the defendant's release, if
applicable;
(6) when a person is charged with a violation of
a protective order, domestic battery, aggravated domestic
battery,
kidnapping,
aggravated
kidnaping,
unlawful
restraint, aggravated unlawful restraint, cyberstalking,
harassment by telephone, harassment through electronic
communications, or an attempt to commit first degree murder
committed against a spouse or a current or former partner in
a cohabitation or dating relationship, regardless of whether
an order of protection has been issued against the person,
the court may consider the following additional factors:
(A) whether the alleged incident involved
harassment or abuse, as defined in the Illinois Domestic
Violence Act of 1986;
(B) whether the person has a history of
domestic violence, as defined in the Illinois Domestic
Violence Act of 1986, or a history of other criminal
acts;
(C) the mental health of the person;
(D) whether the person has a history of
violating the orders of any court or governmental
entity;
(E) whether the person has been, or is,
potentially a threat to any other person;
(F) whether the person has access to deadly
weapons or a history of using deadly weapons;
(G) whether the person has a history of
abusing alcohol or any controlled substance;
(H) the severity of the alleged incident that
is the basis of the alleged offense, including, but not
limited to, the duration of the current incident, and
whether the alleged incident involved the use of a
weapon, physical injury, sexual assault, strangulation,
abuse during the alleged victim's pregnancy, abuse of
pets, or forcible entry to gain access to the alleged
victim;
(I) whether a separation of the person from
the victim of abuse or a termination of the relationship
between the person and the victim of abuse has recently
occurred or is pending;
(J) whether the person has exhibited
obsessive or controlling behaviors toward the victim of
abuse,
including,
but
not
limited
to,
stalking,
surveillance, or isolation of the victim of abuse or the
victim's family member or members;
(K) whether the person has expressed suicidal
or homicidal ideations; and
(L) any other factors deemed by the court to
have
a
reasonable
bearing
upon
the
defendant's
propensity or reputation for violent, abusive, or
assaultive behavior, or lack of that behavior.
(7) in cases of stalking or aggravated stalking
under Section 12-7.3 or 12-7.4 of the Criminal Code of 2012,
the court may consider the factors listed in paragraph (6)
and the following additional factors:
(A) any evidence of the defendant's prior
criminal history indicative of violent, abusive or
assaultive behavior, or lack of that behavior; the
evidence may include testimony or documents received in
juvenile proceedings, criminal, quasi-criminal, civil
commitment, domestic relations, or other proceedings;
(B) any evidence of the defendant's
psychological, psychiatric, or other similar social
history that tends to indicate a violent, abusive, or
assaultive nature, or lack of any such history;
(C) the nature of the threat that is the
basis of the charge against the defendant;
(D) any statements made by, or attributed to,
the
defendant,
together
with
the
circumstances
surrounding them;
(E) the age and physical condition of any
person allegedly assaulted by the defendant;
(F) whether the defendant is known to possess
or have access to any weapon or weapons; and
(G) any other factors deemed by the court to have
a reasonable bearing upon the defendant's propensity or
reputation for violent, abusive, or assaultive behavior,
or lack of that behavior.
(b) The court may use a regularly validated risk assessment
tool to aid its determination of appropriate conditions of
release as provided under Section 110-6.4. If a risk assessment
tool is used, the defendant's counsel shall be provided with the
information and scoring system of the risk assessment tool used
to arrive at the determination. The defendant retains the right
to challenge the validity of a risk assessment tool used by the
court and to present evidence relevant to the defendant's
challenge.
(c) The court shall impose any conditions that are mandatory
under subsection (a) of Section 110-10. The court may impose any
conditions that are permissible under subsection (b) of Section
110-10. The conditions of release imposed shall be the least
restrictive conditions or combination of conditions necessary to
reasonably ensure the appearance of the defendant as required or
the safety of any other person or persons or the community.
(d) When a person is charged with a violation of a
protective order, the court may order the defendant placed under
electronic surveillance as a condition of pretrial release, as
provided in Section 5-8A-7 of the Unified Code of Corrections,
based on the information collected under paragraph (6) of
subsection (a) of this Section, the results of any assessment
conducted, or other circumstances of the violation.
(e) If a person remains in pretrial detention 48 hours after
having been ordered released with pretrial conditions, the court
shall hold a hearing to determine the reason for continued
detention. If the reason for continued detention is due to the
unavailability or the defendant's ineligibility for one or more
pretrial conditions previously ordered by the court or directed
by a pretrial services agency, the court shall reopen the
conditions of release hearing to determine what available
pretrial conditions exist that will reasonably ensure the
appearance of a defendant as required, the safety of any other
person, and the likelihood of compliance by the defendant with
all the conditions of pretrial release. The inability of the
defendant to pay for a condition of release or any other
ineligibility for a condition of pretrial release shall not be
used as a justification for the pretrial detention of that
defendant.
(f) Prior to the defendant's first appearance, and with
sufficient time for meaningful attorney-client contact to gather
information in order to advocate effectively for the defendant's
pretrial release, the court shall appoint the public defender or
a licensed attorney at law of this State to represent the
defendant for purposes of that hearing, unless the defendant has
obtained licensed counsel. Defense counsel shall have access to
the same documentary information relied upon by the prosecution
and presented to the court.
(f-5) At each subsequent appearance of the defendant before
the court, the judge must find that the current conditions
imposed are necessary to reasonably ensure the appearance of the
defendant as required, the safety of any other person, and the
compliance of the defendant with all the conditions of pretrial
release. The court is not required to be presented with new
information or a change in circumstance to remove pretrial
conditions.
(g) Electronic monitoring, GPS monitoring, or home
confinement can only be imposed as a condition of pretrial
release if a no less restrictive condition of release or
combination of less restrictive condition of release would
reasonably ensure the appearance of the defendant for later
hearings or protect an identifiable person or persons from
imminent threat of serious physical harm.
(h) If the court imposes electronic monitoring, GPS
monitoring, or home confinement, the court shall set forth in
the record the basis for its finding. A defendant shall be given
custodial credit for each day he or she was subjected to home
confinement, at the same rate described in subsection (b) of
Section 5-4.5-100 of the Unified Code of Corrections. The court
may give custodial credit to a defendant for each day the
defendant was subjected to GPS monitoring without home
confinement or electronic monitoring without home confinement.
(i) If electronic monitoring, GPS monitoring, or home
confinement is imposed, the court shall determine every 60 days
if no less restrictive condition of release or combination of
less restrictive conditions of release would reasonably ensure
the appearance, or continued appearance, of the defendant for
later hearings or protect an identifiable person or persons from
imminent threat of serious physical harm. If the court finds
that there are less restrictive conditions of release, the court
shall order that the condition be removed. This subsection takes
effect January 1, 2022.
(j) Crime Victims shall be given notice by the State's
Attorney's office of this hearing as required in paragraph (1)
of subsection (b) of Section 4.5 of the Rights of Crime Victims
and Witnesses Act and shall be informed of their opportunity at
this hearing to obtain a protective order.
(k) The State and defendants may appeal court orders
imposing conditions of pretrial release.
(Source: P.A. 101-652, eff. 1-1-23; 102-28, eff. 6-25-21; 102558, eff. 8-20-21; 102-813, eff. 5-13-22; 102-1104, eff. 1-123.)
(725 ILCS 5/110-5.1)
Sec. 110-5.1. (Repealed).
(Source: Reenacted by P.A. 102-687,
internally, eff. 1-1-23.)
eff.
12-17-21.
Repealed
(725 ILCS 5/110-5.2)
Sec. 110-5.2. Pretrial release; pregnant pre-trial detainee.
(a) It is the policy of this State that a pre-trial detainee
shall not be required to deliver a child while in custody absent
a finding by the court that continued pre-trial custody is
necessary to alleviate a real and present threat to the safety
of any person or persons or the community, based on the specific
articulable facts of the case, or prevent the defendant's
willful flight.
(b) If the court reasonably believes that a pre-trial
detainee will give birth while in custody, the court shall order
an alternative to custody unless, after a hearing, the court
determines:
(1) the pregnant pretrial detainee is charged with an
offense for which pretrial release may be denied under
Section 110-6.1; and
(2) after a hearing under Section 110-6.1 that
considers the circumstances of the pregnancy, the court
determines that continued detention is the only way to
prevent a real and present threat to the safety of any
person or persons or the community, based on the specific
articulable facts of the case, or prevent the defendant's
willful flight.
(c) Electronic Monitoring may be ordered by the court only
if no less restrictive condition of release or combination of
less restrictive conditions of release would reasonably ensure
the appearance, or continued appearance, of the defendant for
later hearings or protect an identifiable person or persons from
imminent threat of serious physical harm. All pregnant people or
those who have given birth within 6 weeks shall be granted ample
movement to attend doctor's appointments and for emergencies
related to the health of the pregnancy, infant, or postpartum
person.
(d) This Section shall be applicable to a pregnant pre-trial
detainee in custody on or after the effective date of this
amendatory Act of the 100th General Assembly.
(Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23.)
(725 ILCS 5/110-6) (from Ch. 38, par. 110-6)
Sec. 110-6. Revocation of pretrial release, modification of
conditions of pretrial release, and sanctions for violations of
conditions of pretrial release.
(a) When a defendant has previously been granted pretrial
release under this Section for a felony or Class A misdemeanor,
that pretrial release may be revoked only if the defendant is
charged with a felony or Class A misdemeanor that is alleged to
have occurred during the defendant's pretrial release after a
hearing on the court's own motion or upon the filing of a
verified petition by the State.
When a defendant released pretrial is charged with a
violation of a protective order or was previously convicted of a
violation of a protective order and the subject of the
protective order is the same person as the victim in the current
underlying matter, the State shall file a verified petition
seeking revocation of pretrial release.
Upon the filing of a petition or upon motion of the court
seeking revocation, the court shall order the transfer of the
defendant and the petition or motion to the court before which
the previous felony or Class A misdemeanor is pending. The
defendant may be held in custody pending transfer to and a
hearing before such court. The defendant shall be transferred to
the court before which the previous matter is pending without
unnecessary delay, and the revocation hearing shall occur within
72 hours of the filing of the State's petition or the court's
motion for revocation.
A hearing at which pretrial release may be revoked must be
conducted in person (and not by way of two-way audio-visual
communication) unless the accused waives the right to be present
physically in court, the court determines that the physical
health and safety of any person necessary to the proceedings
would be endangered by appearing in court, or the chief judge of
the circuit orders use of that system due to operational
challenges in conducting the hearing in person. Such operational
challenges must be documented and approved by the chief judge of
the circuit, and a plan to address the challenges through
reasonable efforts must be presented and approved by the
Administrative Office of the Illinois Courts every 6 months.
The court before which the previous felony matter or Class A
misdemeanor is pending may revoke the defendant's pretrial
release after a hearing. During the hearing for revocation, the
defendant shall be represented by counsel and have an
opportunity to be heard regarding the violation and evidence in
mitigation. The court shall consider all relevant circumstances,
including, but not limited to, the nature and seriousness of the
violation or criminal act alleged. The State shall bear the
burden of proving, by clear and convincing evidence, that no
condition or combination of conditions of release would
reasonably ensure the appearance of the defendant for later
hearings or prevent the defendant from being charged with a
subsequent felony or Class A misdemeanor.
In lieu of revocation, the court may release the defendant
pre-trial, with or without modification of conditions of
pretrial release.
If the case that caused the revocation is dismissed, the
defendant is found not guilty in the case causing the
revocation, or the defendant completes a lawfully imposed
sentence on the case causing the revocation, the court shall,
without unnecessary delay, hold a hearing on conditions of
pretrial release pursuant to Section 110-5 and release the
defendant with or without modification of conditions of pretrial
release.
Both the State and the defendant may appeal an order
revoking pretrial release or denying a petition for revocation
of release.
(b) If a defendant previously has been granted pretrial
release under this Section for a Class B or Class C misdemeanor
offense, a petty or business offense, or an ordinance violation
and if the defendant is subsequently charged with a felony that
is alleged to have occurred during the defendant's pretrial
release or a Class A misdemeanor offense that is alleged to have
occurred during the defendant's pretrial release, such pretrial
release may not be revoked, but the court may impose sanctions
under subsection (c).
(c) The court shall follow the procedures set forth in
Section 110-3 to ensure the defendant's appearance in court if
the defendant:
(1) fails to appear in court as required by the
defendant's conditions of release;
(2) is charged with a felony or Class A misdemeanor
offense that is alleged to have occurred during the
defendant's pretrial release after having been previously
granted pretrial release for a Class B or Class C
misdemeanor, a petty or business offense, or an ordinance
violation that is alleged to have occurred during the
defendant's pretrial release;
(3) is charged with a Class B or C misdemeanor
offense, petty or business offense, or ordinance violation
that is alleged to have occurred during the defendant's
pretrial release; or
(4) violates any other condition of pretrial release
set by the court.
In response to a violation described in this subsection, the
court may issue a warrant specifying that the defendant must
appear before the court for a hearing for sanctions and may not
be released by law enforcement before that appearance.
(d) When a defendant appears in court pursuant to a summons
or warrant issued in accordance with Section 110-3 or after
being arrested for an offense that is alleged to have occurred
during the defendant's pretrial release, the State may file a
verified petition requesting a hearing for sanctions.
(e) During the hearing for sanctions, the defendant shall be
represented by counsel and have an opportunity to be heard
regarding the violation and evidence in mitigation. The State
shall bear the burden of proving by clear and convincing
evidence that:
(1) the defendant committed an act that violated a
term of the defendant's pretrial release;
(2) the defendant had actual knowledge that the
defendant's action would violate a court order;
(3) the violation of the court order was willful; and
(4) the violation was not caused by a lack of access
to financial monetary resources.
(f) Sanctions for violations of pretrial release may
include:
(1) a verbal or written admonishment from the court;
(2) imprisonment in the county jail for a period not
exceeding 30 days;
(3) (Blank); or
(4) a modification of the defendant's pretrial
conditions.
(g) The court may, at any time, after motion by either party
or on its own motion, remove previously set conditions of
pretrial release, subject to the provisions in this subsection.
The court may only add or increase conditions of pretrial
release at a hearing under this Section.
The court shall not remove a previously set condition of
pretrial release regulating contact with a victim or witness in
the case, unless the subject of the condition has been given
notice of the hearing as required in paragraph (1) of subsection
(b) of Section 4.5 of the Rights of Crime Victims and Witnesses
Act. If the subject of the condition of release is not present,
the court shall follow the procedures of paragraph (10) of
subsection (c-1) of the Rights of Crime Victims and Witnesses
Act.
(h) Crime victims shall be given notice by the State's
Attorney's office of all hearings under this Section as required
in paragraph (1) of subsection (b) of Section 4.5 of the Rights
of Crime Victims and Witnesses Act and shall be informed of
their opportunity at these hearings to obtain a protective
order.
(i) Nothing in this Section shall be construed to limit the
State's ability to file a verified petition seeking denial of
pretrial release under subsection (a) of Section 110-6.1 or
subdivision (d)(2) of Section 110-6.1.
(j) At each subsequent appearance of the defendant before
the court, the judge must find that continued detention under
this Section is necessary to reasonably ensure the appearance of
the defendant for later hearings or to prevent the defendant
from being charged with a subsequent felony or Class A
misdemeanor.
(Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23.)
(725 ILCS 5/110-6.1) (from Ch. 38, par. 110-6.1)
(Text of Section before amendment by P.A. 103-822)
Sec. 110-6.1. Denial of pretrial release.
(a) Upon verified petition by the State, the court shall
hold a hearing and may deny a defendant pretrial release only
if:
(1) the defendant is charged with a felony offense
other than a forcible felony for which, based on the charge
or the defendant's criminal history, a sentence of
imprisonment, without probation, periodic imprisonment or
conditional discharge, is required by law upon conviction,
and it is alleged that the defendant's pretrial release
poses a real and present threat to the safety of any person
or persons or the community, based on the specific
articulable facts of the case;
(1.5) the defendant's pretrial release poses a real
and present threat to the safety of any person or persons or
the community, based on the specific articulable facts of
the case, and the defendant is charged with a forcible
felony, which as used in this Section, means treason, first
degree murder, second degree murder, predatory criminal
sexual assault of a child, aggravated criminal sexual
assault, criminal sexual assault, armed robbery, aggravated
robbery, robbery, burglary where there is use of force
against another person, residential burglary, home invasion,
vehicular invasion, aggravated arson, arson, aggravated
kidnaping, kidnaping, aggravated battery resulting in great
bodily harm or permanent disability or disfigurement or any
other felony which involves the threat of or infliction of
great bodily harm or permanent disability or disfigurement;
(2) the defendant is charged with stalking or
aggravated stalking, and it is alleged that the defendant's
pre-trial release poses a real and present threat to the
safety of a victim of the alleged offense, and denial of
release is necessary to prevent fulfillment of the threat
upon which the charge is based;
(3) the defendant is charged with a violation of an
order of protection issued under Section 112A-14 of this
Code or Section 214 of the Illinois Domestic Violence Act of
1986, a stalking no contact order under Section 80 of the
Stalking No Contact Order Act, or of a civil no contact
order under Section 213 of the Civil No Contact Order Act,
and it is alleged that the defendant's pretrial release
poses a real and present threat to the safety of any person
or persons or the community, based on the specific
articulable facts of the case;
(4) the defendant is charged with domestic battery or
aggravated domestic battery under Section 12-3.2 or 12-3.3
of the Criminal Code of 2012 and it is alleged that the
defendant's pretrial release poses a real and present threat
to the safety of any person or persons or the community,
based on the specific articulable facts of the case;
(5) the defendant is charged with any offense under
Article 11 of the Criminal Code of 2012, except for Sections
11-14, 11-14.1, 11-18, 11-20, 11-30, 11-35, 11-40, and 11-45
of the Criminal Code of 2012, or similar provisions of the
Criminal Code of 1961 and it is alleged that the defendant's
pretrial release poses a real and present threat to the
safety of any person or persons or the community, based on
the specific articulable facts of the case;
(6) the defendant is charged with any of the
following offenses under the Criminal Code of 2012, and it
is alleged that the defendant's pretrial release poses a
real and present threat to the safety of any person or
persons or the community, based on the specific articulable
facts of the case:
(A) Section 24-1.2 (aggravated discharge of a
firearm);
(B) Section 24-2.5 (aggravated discharge of a
machine gun or a firearm equipped with a device designed
or use for silencing the report of a firearm);
(C) Section 24-1.5 (reckless discharge of a
firearm);
(D) Section 24-1.7 (armed habitual criminal);
(E) Section 24-2.2 (manufacture, sale or
transfer of bullets or shells represented to be armor
piercing bullets, dragon's breath shotgun shells, bolo
shells, or flechette shells);
(F) Section 24-3 (unlawful sale or delivery of
firearms);
(G) Section 24-3.3 (unlawful sale or delivery of
firearms on the premises of any school);
(H) Section 24-34 (unlawful sale of firearms by
liquor license);
(I) Section 24-3.5 (unlawful purchase of a
firearm);
(J) Section 24-3A (gunrunning);
(K) Section 24-3B (firearms trafficking);
(L) Section 10-9 (b) (involuntary servitude);
(M) Section 10-9 (c) (involuntary sexual
servitude of a minor);
(N) Section 10-9(d) (trafficking in persons);
(O) Non-probationable violations: (i) unlawful
use or possession of weapons by felons or persons in the
Custody of the Department of Corrections facilities
(Section 24-1.1), (ii) aggravated unlawful use of a
weapon (Section 24-1.6), or (iii) aggravated possession
of a stolen firearm (Section 24-3.9);
(P) Section 9-3 (reckless homicide and
involuntary manslaughter);
(Q) Section 19-3 (residential burglary);
(R) Section 10-5 (child abduction);
(S) Felony violations of Section 12C-5 (child
endangerment);
(T) Section 12-7.1 (hate crime);
(U) Section 10-3.1 (aggravated unlawful
restraint);
(V) Section 12-9 (threatening a public official);
(W) Subdivision (f)(1) of Section 12-3.05
(aggravated battery with a deadly weapon other than by
discharge of a firearm);
(6.5) the defendant is charged with any of the
following offenses, and it is alleged that the defendant's
pretrial release poses a real and present threat to the
safety of any person or persons or the community, based on
the specific articulable facts of the case:
(A) Felony violations of Sections 3.01, 3.02, or
3.03 of the Humane Care for Animals Act (cruel
treatment, aggravated cruelty, and animal torture);
(B) Subdivision (d)(1)(B) of Section 11-501 of
the Illinois Vehicle Code (aggravated driving under the
influence while operating a school bus with passengers);
(C) Subdivision (d)(1)(C) of Section 11-501 of
the Illinois Vehicle Code (aggravated driving under the
influence causing great bodily harm);
(D) Subdivision (d)(1)(D) of Section 11-501 of
the Illinois Vehicle Code (aggravated driving under the
influence
after
a
previous
reckless
homicide
conviction);
(E) Subdivision (d)(1)(F) of Section 11-501 of
the Illinois Vehicle Code (aggravated driving under the
influence leading to death); or
(F) Subdivision (d)(1)(J) of Section 11-501 of
the Illinois Vehicle Code (aggravated driving under the
influence that resulted in bodily harm to a child under
the age of 16);
(7) the defendant is charged with an attempt to
commit any charge listed in paragraphs (1) through (6.5),
and it is alleged that the defendant's pretrial release
poses a real and present threat to the safety of any person
or persons or the community, based on the specific
articulable facts of the case; or
(8) the person has a high likelihood of willful
flight to avoid prosecution and is charged with:
(A) Any felony described in subdivisions (a)(1)
through (a)(7) of this Section; or
(B) A felony offense other than a Class 4
offense.
(b) If the charged offense is a felony, as part of the
detention hearing, the court shall determine whether there is
probable cause the defendant has committed an offense, unless a
hearing pursuant to Section 109-3 of this Code has already been
held or a grand jury has returned a true bill of indictment
against the defendant. If there is a finding of no probable
cause, the defendant shall be released. No such finding is
necessary if the defendant is charged with a misdemeanor.
(c) Timing of petition.
(1) A petition may be filed without prior notice to
the defendant at the first appearance before a judge, or
within the 21 calendar days, except as provided in Section
110-6, after arrest and release of the defendant upon
reasonable notice to defendant; provided that while such
petition is pending before the court, the defendant if
previously released shall not be detained.
(2) Upon filing, the court shall immediately hold a
hearing on the petition unless a continuance is requested.
If a continuance is requested and granted, the hearing shall
be held within 48 hours of the defendant's first appearance
if the defendant is charged with first degree murder or a
Class X, Class 1, Class 2, or Class 3 felony, and within 24
hours if the defendant is charged with a Class 4 or
misdemeanor offense. The Court may deny or grant the request
for continuance. If the court decides to grant the
continuance, the Court retains the discretion to detain or
release the defendant in the time between the filing of the
petition and the hearing.
(d) Contents of petition.
(1) The petition shall be verified by the State and
shall state the grounds upon which it contends the defendant
should be denied pretrial release, including the real and
present threat to the safety of any person or persons or the
community, based on the specific articulable facts or flight
risk, as appropriate.
(2) If the State seeks to file a second or subsequent
petition under this Section, the State shall be required to
present a verified application setting forth in detail any
new facts not known or obtainable at the time of the filing
of the previous petition.
(e) Eligibility: All defendants shall be presumed eligible
for pretrial release, and the State shall bear the burden of
proving by clear and convincing evidence that:
(1) the proof is evident or the presumption great
that the defendant has committed an offense listed in
subsection (a), and
(2) for offenses listed in paragraphs (1) through (7)
of subsection (a), the defendant poses a real and present
threat to the safety of any person or persons or the
community, based on the specific articulable facts of the
case, by conduct which may include, but is not limited to, a
forcible felony, the obstruction of justice, intimidation,
injury, or abuse as defined by paragraph (1) of Section 103
of the Illinois Domestic Violence Act of 1986, and
(3) no condition or combination of conditions set
forth in subsection (b) of Section 110-10 of this Article
can mitigate (i) the real and present threat to the safety
of any person or persons or the community, based on the
specific articulable facts of the case, for offenses listed
in paragraphs (1) through (7) of subsection (a), or (ii) the
defendant's willful flight for offenses listed in paragraph
(8) of subsection (a), and
(4) for offenses under subsection (b) of Section 407
of the Illinois Controlled Substances Act that are subject
to paragraph (1) of subsection (a), no condition or
combination of conditions set forth in subsection (b) of
Section 110-10 of this Article can mitigate the real and
present threat to the safety of any person or persons or the
community, based on the specific articulable facts of the
case, and the defendant poses a serious risk to not appear
in court as required.
(f) Conduct of the hearings.
(1) Prior to the hearing, the State shall tender to
the defendant copies of the defendant's criminal history
available, any written or recorded statements, and the
substance of any oral statements made by any person, if
relied upon by the State in its petition, and any police
reports in the prosecutor's possession at the time of the
hearing.
(2) The State or defendant may present evidence at
the hearing by way of proffer based upon reliable
information.
(3) The defendant has the right to be represented by
counsel, and if he or she is indigent, to have counsel
appointed for him or her. The defendant shall have the
opportunity to testify, to present witnesses on his or her
own behalf, and to cross-examine any witnesses that are
called by the State. Defense counsel shall be given adequate
opportunity to confer with the defendant before any hearing
at which conditions of release or the detention of the
defendant are to be considered, with an accommodation for a
physical condition made to facilitate attorney/client
consultation. If defense counsel needs to confer or consult
with the defendant during any hearing conducted via a twoway audio-visual communication system, such consultation
shall not be recorded and shall be undertaken consistent
with constitutional protections.
(3.5) A hearing at which pretrial release may be
denied must be conducted in person (and not by way of twoway audio visual communication) unless the accused waives
the right to be present physically in court, the court
determines that the physical health and safety of any person
necessary to the proceedings would be endangered by
appearing in court, or the chief judge of the circuit orders
use of that system due to operational challenges in
conducting
the
hearing
in
person.
Such
operational
challenges must be documented and approved by the chief
judge of the circuit, and a plan to address the challenges
through reasonable efforts must be presented and approved by
the Administrative Office of the Illinois Courts every 6
months.
(4) If the defense seeks to compel the complaining
witness to testify as a witness in its favor, it shall
petition the court for permission. When the ends of justice
so require, the court may exercise its discretion and compel
the appearance of a complaining witness. The court shall
state on the record reasons for granting a defense request
to compel the presence of a complaining witness only on the
issue of the defendant's pretrial detention. In making a
determination under this Section, the court shall state on
the record the reason for granting a defense request to
compel the presence of a complaining witness, and only grant
the request if the court finds by clear and convincing
evidence that the defendant will be materially prejudiced if
the complaining witness does not appear. Cross-examination
of a complaining witness at the pretrial detention hearing
for the purpose of impeaching the witness' credibility is
insufficient reason to compel the presence of the witness.
In deciding whether to compel the appearance of a
complaining witness, the court shall be considerate of the
emotional and physical well-being of the witness. The pretrial detention hearing is not to be used for purposes of
discovery, and the post arraignment rules of discovery do
not apply. The State shall tender to the defendant, prior to
the hearing, copies, if any, of the defendant's criminal
history, if available, and any written or recorded
statements and the substance of any oral statements made by
any person, if in the State's Attorney's possession at the
time of the hearing.
(5) The rules concerning the admissibility of
evidence in criminal trials do not apply to the presentation
and consideration of information at the hearing. At the
trial concerning the offense for which the hearing was
conducted neither the finding of the court nor any
transcript or other record of the hearing shall be
admissible in the State's case-in-chief, but shall be
admissible for impeachment, or as provided in Section 11510.1 of this Code, or in a perjury proceeding.
(6) The defendant may not move to suppress evidence
or a confession, however, evidence that proof of the charged
crime may have been the result of an unlawful search or
seizure, or both, or through improper interrogation, is
relevant in assessing the weight of the evidence against the
defendant.
(7) Decisions regarding release, conditions of
release,
and
detention
prior
to
trial
must
be
individualized, and no single factor or standard may be used
exclusively to order detention. Risk assessment tools may
not be used as the sole basis to deny pretrial release.
(g) Factors to be considered in making a determination of
dangerousness. The court may, in determining whether the
defendant poses a real and present threat to the safety of any
person or persons or the community, based on the specific
articulable facts of the case, consider, but shall not be
limited to, evidence or testimony concerning:
(1) The nature and circumstances of any offense
charged, including whether the offense is a crime of
violence, involving a weapon, or a sex offense.
(2) The history and characteristics of the defendant
including:
(A) Any evidence of the defendant's prior
criminal history indicative of violent, abusive or
assaultive behavior, or lack of such behavior. Such
evidence may include testimony or documents received in
juvenile proceedings, criminal, quasi-criminal, civil
commitment, domestic relations, or other proceedings.
(B) Any evidence of the defendant's
psychological, psychiatric or other similar social
history which tends to indicate a violent, abusive, or
assaultive nature, or lack of any such history.
(3) The identity of any person or persons to whose
safety the defendant is believed to pose a threat, and the
nature of the threat.
(4) Any statements made by, or attributed to the
defendant, together with the circumstances surrounding them.
(5) The age and physical condition of the defendant.
(6) The age and physical condition of any victim or
complaining witness.
(7) Whether the defendant is known to possess or have
access to any weapon or weapons.
(8) Whether, at the time of the current offense or
any other offense or arrest, the defendant was on probation,
parole, aftercare release, mandatory supervised release or
other release from custody pending trial, sentencing, appeal
or completion of sentence for an offense under federal or
state law.
(9) Any other factors, including those listed in
Section 110-5 of this Article deemed by the court to have a
reasonable bearing upon the defendant's propensity or
reputation for violent, abusive, or assaultive behavior, or
lack of such behavior.
(h) Detention order. The court shall, in any order for
detention:
(1) make a written finding summarizing the court's
reasons for concluding that the defendant should be denied
pretrial release, including why less restrictive conditions
would not avoid a real and present threat to the safety of
any person or persons or the community, based on the
specific articulable facts of the case, or prevent the
defendant's willful flight from prosecution;
(2) direct that the defendant be committed to the
custody of the sheriff for confinement in the county jail
pending trial;
(3) direct that the defendant be given a reasonable
opportunity for private consultation with counsel, and for
communication with others of his or her choice by
visitation, mail and telephone; and
(4) direct that the sheriff deliver the defendant as
required
for
appearances
in
connection
with
court
proceedings.
(i) Detention. If the court enters an order for the
detention of the defendant pursuant to subsection (e) of this
Section, the defendant shall be brought to trial on the offense
for which he is detained within 90 days after the date on which
the order for detention was entered. If the defendant is not
brought to trial within the 90-day period required by the
preceding sentence, he shall not be denied pretrial release. In
computing the 90-day period, the court shall omit any period of
delay resulting from a continuance granted at the request of the
defendant and any period of delay resulting from a continuance
granted at the request of the State with good cause shown
pursuant to Section 103-5.
(i-5) At each subsequent appearance of the defendant before
the court, the judge must find that continued detention is
necessary to avoid a real and present threat to the safety of
any person or persons or the community, based on the specific
articulable facts of the case, or to prevent the defendant's
willful flight from prosecution.
(j) Rights of the defendant. The defendant shall be entitled
to appeal any order entered under this Section denying his or
her pretrial release.
(k) Appeal. The State may appeal any order entered under
this Section denying any motion for denial of pretrial release.
(l) Presumption of innocence. Nothing in this Section shall
be construed as modifying or limiting in any way the defendant's
presumption of innocence in further criminal proceedings.
(m) Interest of victims.
(1) Crime victims shall be given notice by the State's
Attorney's office of this hearing as required in paragraph (1)
of subsection (b) of Section 4.5 of the Rights of Crime Victims
and Witnesses Act and shall be informed of their opportunity at
this hearing to obtain a protective order.
(2) If the defendant is denied pretrial release, the court
may impose a no contact provision with the victim or other
interested party that shall be enforced while the defendant
remains in custody.
(Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23.)
(Text of Section after amendment by P.A. 103-822)
Sec. 110-6.1. Denial of pretrial release.
(a) Upon verified petition by the State, the court shall
hold a hearing and may deny a defendant pretrial release only
if:
(1) the defendant is charged with a felony offense
other than a forcible felony for which, based on the charge
or the defendant's criminal history, a sentence of
imprisonment, without probation, periodic imprisonment or
conditional discharge, is required by law upon conviction,
and it is alleged that the defendant's pretrial release
poses a real and present threat to the safety of any person
or persons or the community, based on the specific
articulable facts of the case;
(1.5) the defendant's pretrial release poses a real
and present threat to the safety of any person or persons or
the community, based on the specific articulable facts of
the case, and the defendant is charged with a forcible
felony, which as used in this Section, means treason, first
degree murder, second degree murder, predatory criminal
sexual assault of a child, aggravated criminal sexual
assault, criminal sexual assault, armed robbery, aggravated
robbery, robbery, burglary where there is use of force
against another person, residential burglary, home invasion,
vehicular invasion, aggravated arson, arson, aggravated
kidnaping, kidnaping, aggravated battery resulting in great
bodily harm or permanent disability or disfigurement or any
other felony which involves the threat of or infliction of
great bodily harm or permanent disability or disfigurement;
(2) the defendant is charged with stalking or
aggravated stalking, and it is alleged that the defendant's
pre-trial release poses a real and present threat to the
safety of a victim of the alleged offense, and denial of
release is necessary to prevent fulfillment of the threat
upon which the charge is based;
(3) the defendant is charged with a violation of an
order of protection issued under Section 112A-14 of this
Code or Section 214 of the Illinois Domestic Violence Act of
1986, a stalking no contact order under Section 80 of the
Stalking No Contact Order Act, or of a civil no contact
order under Section 213 of the Civil No Contact Order Act,
and it is alleged that the defendant's pretrial release
poses a real and present threat to the safety of any person
or persons or the community, based on the specific
articulable facts of the case;
(4) the defendant is charged with domestic battery or
aggravated domestic battery under Section 12-3.2 or 12-3.3
of the Criminal Code of 2012 and it is alleged that the
defendant's pretrial release poses a real and present threat
to the safety of any person or persons or the community,
based on the specific articulable facts of the case;
(5) the defendant is charged with any offense under
Article 11 of the Criminal Code of 2012, except for Sections
11-14, 11-14.1, 11-18, 11-20, 11-30, 11-35, 11-40, and 11-45
of the Criminal Code of 2012, or similar provisions of the
Criminal Code of 1961 and it is alleged that the defendant's
pretrial release poses a real and present threat to the
safety of any person or persons or the community, based on
the specific articulable facts of the case;
(6) the defendant is charged with any of the
following offenses under the Criminal Code of 2012, and it
is alleged that the defendant's pretrial release poses a
real and present threat to the safety of any person or
persons or the community, based on the specific articulable
facts of the case:
(A) Section 24-1.2 (aggravated discharge of a
firearm);
(B) Section 24-2.5 (aggravated discharge of a
machine gun or a firearm equipped with a device designed
or use for silencing the report of a firearm);
(C) Section 24-1.5 (reckless discharge of a
firearm);
(D) Section 24-1.7 (unlawful possession of a
firearm by a repeat felony offender);
(E) Section 24-2.2 (manufacture, sale or transfer
of bullets or shells represented to be armor piercing
bullets, dragon's breath shotgun shells, bolo shells, or
flechette shells);
(F) Section 24-3 (unlawful sale or delivery of
firearms);
(G) Section 24-3.3 (unlawful sale or delivery of
firearms on the premises of any school);
(H) Section 24-34 (unlawful sale of firearms by
liquor license);
(I) Section 24-3.5 (unlawful purchase of a
firearm);
(J) Section 24-3A (gunrunning);
(K) Section 24-3B (firearms trafficking);
(L) Section 10-9 (b) (involuntary servitude);
(M) Section 10-9 (c) (involuntary sexual
servitude of a minor);
(N) Section 10-9(d) (trafficking in persons);
(O) Non-probationable violations: (i) unlawful
possession of weapons by felons or persons in the
Custody of the Department of Corrections facilities
(Section 24-1.1), (ii) aggravated unlawful possession of
a
weapon
(Section
24-1.6),
or
(iii)
aggravated
possession of a stolen firearm (Section 24-3.9);
(P) Section 9-3 (reckless homicide and
involuntary manslaughter);
(Q) Section 19-3 (residential burglary);
(R) Section 10-5 (child abduction);
(S) Felony violations of Section 12C-5 (child
endangerment);
(T) Section 12-7.1 (hate crime);
(U) Section 10-3.1 (aggravated unlawful
restraint);
(V) Section 12-9 (threatening a public official);
(W) Subdivision (f)(1) of Section 12-3.05
(aggravated battery with a deadly weapon other than by
discharge of a firearm);
(6.5) the defendant is charged with any of the
following offenses, and it is alleged that the defendant's
pretrial release poses a real and present threat to the
safety of any person or persons or the community, based on
the specific articulable facts of the case:
(A) Felony violations of Sections 3.01, 3.02, or
3.03 of the Humane Care for Animals Act (cruel
treatment, aggravated cruelty, and animal torture);
(B) Subdivision (d)(1)(B) of Section 11-501 of
the Illinois Vehicle Code (aggravated driving under the
influence while operating a school bus with passengers);
(C) Subdivision (d)(1)(C) of Section 11-501 of
the Illinois Vehicle Code (aggravated driving under the
influence causing great bodily harm);
(D) Subdivision (d)(1)(D) of Section 11-501 of
the Illinois Vehicle Code (aggravated driving under the
influence
after
a
previous
reckless
homicide
conviction);
(E) Subdivision (d)(1)(F) of Section 11-501 of
the Illinois Vehicle Code (aggravated driving under the
influence leading to death); or
(F) Subdivision (d)(1)(J) of Section 11-501 of
the Illinois Vehicle Code (aggravated driving under the
influence that resulted in bodily harm to a child under
the age of 16);
(7) the defendant is charged with an attempt to
commit any charge listed in paragraphs (1) through (6.5),
and it is alleged that the defendant's pretrial release
poses a real and present threat to the safety of any person
or persons or the community, based on the specific
articulable facts of the case; or
(8) the person has a high likelihood of willful
flight to avoid prosecution and is charged with:
(A) Any felony described in subdivisions (a)(1)
through (a)(7) of this Section; or
(B) A felony offense other than a Class 4
offense.
(b) If the charged offense is a felony, as part of the
detention hearing, the court shall determine whether there is
probable cause the defendant has committed an offense, unless a
hearing pursuant to Section 109-3 of this Code has already been
held or a grand jury has returned a true bill of indictment
against the defendant. If there is a finding of no probable
cause, the defendant shall be released. No such finding is
necessary if the defendant is charged with a misdemeanor.
(c) Timing of petition.
(1) A petition may be filed without prior notice to
the defendant at the first appearance before a judge, or
within the 21 calendar days, except as provided in Section
110-6, after arrest and release of the defendant upon
reasonable notice to defendant; provided that while such
petition is pending before the court, the defendant if
previously released shall not be detained.
(2) Upon filing, the court shall immediately hold a
hearing on the petition unless a continuance is requested.
If a continuance is requested and granted, the hearing shall
be held within 48 hours of the defendant's first appearance
if the defendant is charged with first degree murder or a
Class X, Class 1, Class 2, or Class 3 felony, and within 24
hours if the defendant is charged with a Class 4 or
misdemeanor offense. The Court may deny or grant the request
for continuance. If the court decides to grant the
continuance, the Court retains the discretion to detain or
release the defendant in the time between the filing of the
petition and the hearing.
(d) Contents of petition.
(1) The petition shall be verified by the State and
shall state the grounds upon which it contends the defendant
should be denied pretrial release, including the real and
present threat to the safety of any person or persons or the
community, based on the specific articulable facts or flight
risk, as appropriate.
(2) If the State seeks to file a second or subsequent
petition under this Section, the State shall be required to
present a verified application setting forth in detail any
new facts not known or obtainable at the time of the filing
of the previous petition.
(e) Eligibility: All defendants shall be presumed eligible
for pretrial release, and the State shall bear the burden of
proving by clear and convincing evidence that:
(1) the proof is evident or the presumption great
that the defendant has committed an offense listed in
subsection (a), and
(2) for offenses listed in paragraphs (1) through (7)
of subsection (a), the defendant poses a real and present
threat to the safety of any person or persons or the
community, based on the specific articulable facts of the
case, by conduct which may include, but is not limited to, a
forcible felony, the obstruction of justice, intimidation,
injury, or abuse as defined by paragraph (1) of Section 103
of the Illinois Domestic Violence Act of 1986, and
(3) no condition or combination of conditions set
forth in subsection (b) of Section 110-10 of this Article
can mitigate (i) the real and present threat to the safety
of any person or persons or the community, based on the
specific articulable facts of the case, for offenses listed
in paragraphs (1) through (7) of subsection (a), or (ii) the
defendant's willful flight for offenses listed in paragraph
(8) of subsection (a), and
(4) for offenses under subsection (b) of Section 407
of the Illinois Controlled Substances Act that are subject
to paragraph (1) of subsection (a), no condition or
combination of conditions set forth in subsection (b) of
Section 110-10 of this Article can mitigate the real and
present threat to the safety of any person or persons or the
community, based on the specific articulable facts of the
case, and the defendant poses a serious risk to not appear
in court as required.
(f) Conduct of the hearings.
(1) Prior to the hearing, the State shall tender to
the defendant copies of the defendant's criminal history
available, any written or recorded statements, and the
substance of any oral statements made by any person, if
relied upon by the State in its petition, and any police
reports in the prosecutor's possession at the time of the
hearing.
(2) The State or defendant may present evidence at
the hearing by way of proffer based upon reliable
information.
(3) The defendant has the right to be represented by
counsel, and if he or she is indigent, to have counsel
appointed for him or her. The defendant shall have the
opportunity to testify, to present witnesses on his or her
own behalf, and to cross-examine any witnesses that are
called by the State. Defense counsel shall be given adequate
opportunity to confer with the defendant before any hearing
at which conditions of release or the detention of the
defendant are to be considered, with an accommodation for a
physical condition made to facilitate attorney/client
consultation. If defense counsel needs to confer or consult
with the defendant during any hearing conducted via a twoway audio-visual communication system, such consultation
shall not be recorded and shall be undertaken consistent
with constitutional protections.
(3.5) A hearing at which pretrial release may be
denied must be conducted in person (and not by way of twoway audio visual communication) unless the accused waives
the right to be present physically in court, the court
determines that the physical health and safety of any person
necessary to the proceedings would be endangered by
appearing in court, or the chief judge of the circuit orders
use of that system due to operational challenges in
conducting
the
hearing
in
person.
Such
operational
challenges must be documented and approved by the chief
judge of the circuit, and a plan to address the challenges
through reasonable efforts must be presented and approved by
the Administrative Office of the Illinois Courts every 6
months.
(4) If the defense seeks to compel the complaining
witness to testify as a witness in its favor, it shall
petition the court for permission. When the ends of justice
so require, the court may exercise its discretion and compel
the appearance of a complaining witness. The court shall
state on the record reasons for granting a defense request
to compel the presence of a complaining witness only on the
issue of the defendant's pretrial detention. In making a
determination under this Section, the court shall state on
the record the reason for granting a defense request to
compel the presence of a complaining witness, and only grant
the request if the court finds by clear and convincing
evidence that the defendant will be materially prejudiced if
the complaining witness does not appear. Cross-examination
of a complaining witness at the pretrial detention hearing
for the purpose of impeaching the witness' credibility is
insufficient reason to compel the presence of the witness.
In deciding whether to compel the appearance of a
complaining witness, the court shall be considerate of the
emotional and physical well-being of the witness. The pretrial detention hearing is not to be used for purposes of
discovery, and the post arraignment rules of discovery do
not apply. The State shall tender to the defendant, prior to
the hearing, copies, if any, of the defendant's criminal
history, if available, and any written or recorded
statements and the substance of any oral statements made by
any person, if in the State's Attorney's possession at the
time of the hearing.
(5) The rules concerning the admissibility of
evidence in criminal trials do not apply to the presentation
and consideration of information at the hearing. At the
trial concerning the offense for which the hearing was
conducted neither the finding of the court nor any
transcript or other record of the hearing shall be
admissible in the State's case-in-chief, but shall be
admissible for impeachment, or as provided in Section 11510.1 of this Code, or in a perjury proceeding.
(6) The defendant may not move to suppress evidence
or a confession, however, evidence that proof of the charged
crime may have been the result of an unlawful search or
seizure, or both, or through improper interrogation, is
relevant in assessing the weight of the evidence against the
defendant.
(7) Decisions regarding release, conditions of
release,
and
detention
prior
to
trial
must
be
individualized, and no single factor or standard may be used
exclusively to order detention. Risk assessment tools may
not be used as the sole basis to deny pretrial release.
(g) Factors to be considered in making a determination of
dangerousness. The court may, in determining whether the
defendant poses a real and present threat to the safety of any
person or persons or the community, based on the specific
articulable facts of the case, consider, but shall not be
limited to, evidence or testimony concerning:
(1) The nature and circumstances of any offense
charged, including whether the offense is a crime of
violence, involving a weapon, or a sex offense.
(2) The history and characteristics of the defendant
including:
(A) Any evidence of the defendant's prior
criminal history indicative of violent, abusive or
assaultive behavior, or lack of such behavior. Such
evidence may include testimony or documents received in
juvenile proceedings, criminal, quasi-criminal, civil
commitment, domestic relations, or other proceedings.
(B) Any evidence of the defendant's
psychological, psychiatric or other similar social
history which tends to indicate a violent, abusive, or
assaultive nature, or lack of any such history.
(3) The identity of any person or persons to whose
safety the defendant is believed to pose a threat, and the
nature of the threat.
(4) Any statements made by, or attributed to the
defendant, together with the circumstances surrounding them.
(5) The age and physical condition of the defendant.
(6) The age and physical condition of any victim or
complaining witness.
(7) Whether the defendant is known to possess or have
access to any weapon or weapons.
(8) Whether, at the time of the current offense or
any other offense or arrest, the defendant was on probation,
parole, aftercare release, mandatory supervised release or
other release from custody pending trial, sentencing, appeal
or completion of sentence for an offense under federal or
state law.
(9) Any other factors, including those listed in
Section 110-5 of this Article deemed by the court to have a
reasonable bearing upon the defendant's propensity or
reputation for violent, abusive, or assaultive behavior, or
lack of such behavior.
(h) Detention order. The court shall, in any order for
detention:
(1) make a written finding summarizing the court's
reasons for concluding that the defendant should be denied
pretrial release, including why less restrictive conditions
would not avoid a real and present threat to the safety of
any person or persons or the community, based on the
specific articulable facts of the case, or prevent the
defendant's willful flight from prosecution;
(2) direct that the defendant be committed to the
custody of the sheriff for confinement in the county jail
pending trial;
(3) direct that the defendant be given a reasonable
opportunity for private consultation with counsel, and for
communication with others of his or her choice by
visitation, mail and telephone; and
(4) direct that the sheriff deliver the defendant as
required
for
appearances
in
connection
with
court
proceedings.
(i) Detention. If the court enters an order for the
detention of the defendant pursuant to subsection (e) of this
Section, the defendant shall be brought to trial on the offense
for which he is detained within 90 days after the date on which
the order for detention was entered. If the defendant is not
brought to trial within the 90-day period required by the
preceding sentence, he shall not be denied pretrial release. In
computing the 90-day period, the court shall omit any period of
delay resulting from a continuance granted at the request of the
defendant and any period of delay resulting from a continuance
granted at the request of the State with good cause shown
pursuant to Section 103-5.
(i-5) At each subsequent appearance of the defendant before
the court, the judge must find that continued detention is
necessary to avoid a real and present threat to the safety of
any person or persons or the community, based on the specific
articulable facts of the case, or to prevent the defendant's
willful flight from prosecution.
(j) Rights of the defendant. The defendant shall be entitled
to appeal any order entered under this Section denying his or
her pretrial release.
(k) Appeal. The State may appeal any order entered under
this Section denying any motion for denial of pretrial release.
(l) Presumption of innocence. Nothing in this Section shall
be construed as modifying or limiting in any way the defendant's
presumption of innocence in further criminal proceedings.
(m) Interest of victims.
(1) Crime victims shall be given notice by the State's
Attorney's office of this hearing as required in paragraph (1)
of subsection (b) of Section 4.5 of the Rights of Crime Victims
and Witnesses Act and shall be informed of their opportunity at
this hearing to obtain a protective order.
(2) If the defendant is denied pretrial release, the court
may impose a no contact provision with the victim or other
interested party that shall be enforced while the defendant
remains in custody.
(Source: P.A. 102-1104, eff. 1-1-23; 103-822, eff. 1-1-25.)
(725 ILCS 5/110-6.2) (from Ch. 38, par. 110-6.2)
Sec. 110-6.2. Post-conviction detention.
(a) The court may order that a person who has been found
guilty of an offense and who is waiting imposition or execution
of sentence be held without release unless the court finds by
clear and convincing evidence that the person is not likely to
flee or pose a danger to any other person or the community if
released under Sections 110-5 and 110-10 of this Act.
(b) The court may order that person who has been found
guilty of an offense and sentenced to a term of imprisonment be
held without release unless the court finds by clear and
convincing evidence that:
(1) the person is not likely to flee or pose a danger
to the safety of any other person or the community if
released pending appeal; and
(2) that the appeal is not for purpose of delay and
raises a substantial question of law or fact likely to
result in reversal or an order for a new trial.
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/110-6.3) (from Ch. 38, par. 110-6.3)
Sec. 110-6.3. (Repealed).
(Source: Reenacted by P.A. 102-687, eff. 12-17-21.
internally, eff. 1-1-23.)
Repealed
(725 ILCS 5/110-6.4)
Sec. 110-6.4. Statewide risk-assessment tool. The Supreme
Court may establish a statewide risk-assessment tool to be used
in proceedings to assist the court in establishing conditions of
pretrial release for a defendant by assessing the defendant's
likelihood of appearing at future court proceedings or
determining if the defendant poses a real and present threat to
the physical safety of any person or persons. The Supreme Court
shall consider establishing a risk-assessment tool that does not
discriminate on the basis of race, gender, educational level,
socio-economic status, or neighborhood. If a risk-assessment
tool is utilized within a circuit that does not require a
personal interview to be completed, the Chief Judge of the
circuit or the director of the pretrial services agency may
exempt the requirement under Section 9 and subsection (a) of
Section 7 of the Pretrial Services Act.
For the purpose of this Section, "risk-assessment tool"
means
an
empirically
validated,
evidence-based
screening
instrument that demonstrates reduced instances of a defendant's
failure to appear for further court proceedings or prevents
future criminal activity.
(Source: P.A. 100-1, eff. 1-1-18; 100-863, eff. 8-14-18; 101652, eff. 1-1-23.)
(725 ILCS 5/110-6.5)
Sec. 110-6.5. (Repealed).
(Source: Reenacted by P.A. 102-687,
internally, eff. 1-1-23.)
eff.
12-17-21.
Repealed
(725 ILCS 5/110-6.6)
Sec. 110-6.6. Appeals.
(a) Appeals under this Article shall be governed by Supreme
Court Rules.
(b) If a hearing under this Article is conducted by means of
two-way audio-visual communication or other electronic recording
system, the audio-visual recording shall be entered into the
record as the transcript for purposes of the appeals described
in subsection (a). Nothing in this Section prohibits a
transcription by a court reporter from also being entered into
the record.
(Source: P.A. 102-1104, eff. 1-1-23.)
(725 ILCS 5/110-7) (from Ch. 38, par. 110-7)
Sec. 110-7. (Repealed).
(Source: Reenacted by P.A. 102-687, eff. 12-17-21.
internally, eff. 1-1-23.)
Repealed
(725 ILCS 5/110-7.5)
Sec. 110-7.5. Previously deposited bail security.
(a) On or after January 1, 2023, any person having been
previously released pretrial on the condition of the deposit of
security shall be allowed to remain on pretrial release under
the terms of their original bail bond. This Section shall not
limit the State's Attorney's ability to file a verified petition
for detention under Section 110-6.1 or a petition for revocation
or sanctions under Section 110-6.
(b) On or after January 1, 2023, any person who remains in
pretrial detention after having been ordered released with
pretrial conditions, including the condition of depositing
security, shall be entitled to a hearing under subsection (e) of
Section 110-5.
On or after January 1, 2023, any person, not subject to
subsection (b), who remains in pretrial detention and is
eligible for detention under Section 110-6.1 shall be entitled
to a hearing according to the following schedule:
(1) For persons charged with offenses under
paragraphs (1) through (7) of subsection (a) of Section 1106.1, the hearing shall be held within 90 days of the
person's motion for reconsideration of pretrial release
conditions.
(2) For persons charged with offenses under paragraph
(8) of subsection (a) of Section 110-6.1, the hearing shall
be held within 60 days of the person's motion for
reconsideration of pretrial release conditions.
(3) For persons charged with all other offenses not
listed in subsection (a) of Section 110-6.1, the hearing
shall be held within 7 days of the person's motion for
reconsideration of pretrial release conditions.
(c) Processing of previously deposited bail security. The
provisions of this Section shall apply to all monetary bonds,
regardless of whether they were previously posted in cash or in
the form of stocks, bonds, or real estate.
(1) Once security has been deposited and a charge is
pending or is thereafter filed in or transferred to a court
of competent jurisdiction, the latter court may continue the
original security in that court or modify the conditions of
pretrial release subject to the provisions of Section 110-6.
(2) After conviction, the court may order that a
previously
deposited
security
stand
pending
appeal,
reconsider conditions of release, or deny release subject to
the provisions of Section 110-6.2.
(3) After the entry of an order by the trial court
granting or denying pretrial release pending appeal, either
party may apply to the reviewing court having jurisdiction
or to a justice thereof sitting in vacation for an order
modifying the conditions of pretrial release or denying
pretrial release subject to the provisions of Section 1106.2.
(4) When the conditions of the previously posted bail
bond have been performed and the accused has been discharged
from all obligations in the cause, the clerk of the court
shall return to the accused or to the defendant's designee
by an assignment executed at the time the bail amount is
deposited, unless the court orders otherwise, 90% of the sum
which had been deposited and shall retain as bail bond costs
10% of the amount deposited. However, in no event shall the
amount retained by the clerk as bail bond costs be less than
$5.
Notwithstanding the foregoing, in counties with a
population of 3,000,000 or more, in no event shall the
amount retained by the clerk as bail bond costs exceed $100.
Bail bond deposited by or on behalf of a defendant in one
case may be used, in the court's discretion, to satisfy
financial obligations of that same defendant incurred in a
different case due to a fine, court costs, restitution or
fees of the defendant's attorney of record. In counties with
a population of 3,000,000 or more, the court shall not order
bail bond deposited by or on behalf of a defendant in one
case to be used to satisfy financial obligations of that
same defendant in a different case until the bail bond is
first used to satisfy court costs and attorney's fees in the
case in which the bail bond has been deposited and any other
unpaid child support obligations are satisfied.
In counties with a population of less than 3,000,000,
the court shall not order bail bond deposited by or on
behalf of a defendant in one case to be used to satisfy
financial obligations of that same defendant in a different
case until the bail bond is first used to satisfy court
costs in the case in which the bail bond has been deposited.
At the request of the defendant, the court may order
such 90% of the defendant's bail deposit, or whatever amount
is repayable to the defendant from such deposit, to be paid
to defendant's attorney of record.
(5) If there is an alleged violation of the
conditions of pretrial release in a matter in which the
defendant has previously deposited security, the court
having
jurisdiction
shall
follow
the
procedures
for
revocation of pretrial release or sanctions set forth in
Section 110-6. The previously deposited security shall be
returned to the defendant following the procedures of
paragraph (4) of subsection (a) of this Section once the
defendant has been discharged from all obligations in the
cause.
(6) If security was previously deposited for failure
to appear in a matter involving enforcement of child support
or maintenance, the amount of the cash deposit on the bond,
less outstanding costs, may be awarded to the person or
entity to whom the child support or maintenance is due.
(7) After a judgment for a fine and court costs or
either is entered in the prosecution of a cause in which a
deposit of security was previously made, the balance of such
deposit shall be applied to the payment of the judgment.
(Source: P.A. 102-1104, eff. 1-1-23.)
(725 ILCS 5/110-8) (from Ch. 38, par. 110-8)
Sec. 110-8. (Repealed).
(Source: Reenacted by P.A. 102-687, eff. 12-17-21.
internally, eff. 1-1-23.)
(725 ILCS 5/110-9) (from Ch. 38, par. 110-9)
Sec. 110-9. (Repealed).
(Source: Reenacted by P.A. 102-687, eff. 12-17-21.
internally, eff. 1-1-23.)
Repealed
Repealed
(725 ILCS 5/110-10) (from Ch. 38, par. 110-10)
Sec. 110-10. Conditions of pretrial release.
(a) If a person is released prior to conviction, the
conditions of pretrial release shall be that he or she will:
(1) Appear to answer the charge in the court having
jurisdiction on a day certain and thereafter as ordered by
the court until discharged or final order of the court;
(2) Submit himself or herself to the orders and
process of the court;
(3) (Blank);
(4) Not violate any criminal statute of any
jurisdiction;
(5) At a time and place designated by the court,
surrender all firearms in his or her possession to a law
enforcement officer designated by the court to take custody
of and impound the firearms and physically surrender his or
her Firearm Owner's Identification Card to the clerk of the
circuit court when the offense the person has been charged
with is a forcible felony, stalking, aggravated stalking,
domestic battery, any violation of the Illinois Controlled
Substances Act, the Methamphetamine Control and Community
Protection Act, or the Cannabis Control Act that is
classified as a Class 2 or greater felony, or any felony
violation of Article 24 of the Criminal Code of 1961 or the
Criminal Code of 2012; the court may, however, forgo the
imposition of this condition when the circumstances of the
case clearly do not warrant it or when its imposition would
be impractical; if the Firearm Owner's Identification Card
is confiscated, the clerk of the circuit court shall mail
the confiscated card to the Illinois State Police; all
legally possessed firearms shall be returned to the person
upon the charges being dismissed, or if the person is found
not guilty, unless the finding of not guilty is by reason of
insanity; and
(6) At a time and place designated by the court,
submit to a psychological evaluation when the person has
been charged with a violation of item (4) of subsection (a)
of Section 24-1 of the Criminal Code of 1961 or the Criminal
Code of 2012 and that violation occurred in a school or in
any conveyance owned, leased, or contracted by a school to
transport students to or from school or a school-related
activity, or on any public way within 1,000 feet of real
property comprising any school.
Psychological evaluations ordered pursuant to this Section
shall be completed promptly and made available to the State, the
defendant, and the court. As a further condition of pretrial
release under these circumstances, the court shall order the
defendant to refrain from entering upon the property of the
school, including any conveyance owned, leased, or contracted by
a school to transport students to or from school or a schoolrelated activity, or on any public way within 1,000 feet of real
property
comprising
any
school.
Upon
receipt
of
the
psychological evaluation, either the State or the defendant may
request a change in the conditions of pretrial release, pursuant
to Section 110-6 of this Code. The court may change the
conditions of pretrial release to include a requirement that the
defendant follow the recommendations of the psychological
evaluation, including undergoing psychiatric treatment. The
conclusions of the psychological evaluation and any statements
elicited from the defendant during its administration are not
admissible as evidence of guilt during the course of any trial
on the charged offense, unless the defendant places his or her
mental competency in issue.
(b) Additional conditions of release shall be set only when
it is determined that they are necessary to ensure the
defendant's appearance in court, ensure the defendant does not
commit any criminal offense, ensure the defendant complies with
all conditions of pretrial release, prevent the defendant's
unlawful interference with the orderly administration of
justice, or ensure compliance with the rules and procedures of
problem solving courts. However, conditions shall include the
least restrictive means and be individualized. Conditions shall
not mandate rehabilitative services unless directly tied to the
risk of pretrial misconduct. Conditions of supervision shall not
include punitive measures such as community service work or
restitution. Conditions may include the following:
(0.05) Not depart this State without leave of the
court;
(1) Report to or appear in person before such person
or agency as the court may direct;
(2) Refrain from possessing a firearm or other
dangerous weapon;
(3) Refrain from approaching or communicating with
particular persons or classes of persons;
(4) Refrain from going to certain described
geographic areas or premises;
(5) Be placed under direct supervision of the
Pretrial Services Agency, Probation Department or Court
Services Department in a pretrial home supervision capacity
with or without the use of an approved electronic monitoring
device subject to Article 8A of Chapter V of the Unified
Code of Corrections;
(6) For persons charged with violating Section 11-501
of the Illinois Vehicle Code, refrain from operating a motor
vehicle not equipped with an ignition interlock device, as
defined in Section 1-129.1 of the Illinois Vehicle Code,
pursuant to the rules promulgated by the Secretary of State
for the installation of ignition interlock devices. Under
this condition the court may allow a defendant who is not
self-employed to operate a vehicle owned by the defendant's
employer that is not equipped with an ignition interlock
device in the course and scope of the defendant's
employment;
(7) Comply with the terms and conditions of an order
of protection issued by the court under the Illinois
Domestic Violence Act of 1986 or an order of protection
issued by the court of another state, tribe, or United
States territory;
(8) Sign a written admonishment requiring that he or
she comply with the provisions of Section 110-12 regarding
any change in his or her address. The defendant's address
shall at all times remain a matter of record with the clerk
of the court; and
(9) Such other reasonable conditions as the court may
impose, so long as these conditions are the least
restrictive means to achieve the goals listed in subsection
(b), are individualized, and are in accordance with national
best practices as detailed in the Pretrial Supervision
Standards of the Supreme Court.
The defendant shall receive verbal and written notification
of conditions of pretrial release and future court dates,
including the date, time, and location of court.
(c) When a person is charged with an offense under Section
11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 1214.1, 12-15 or 12-16 of the Criminal Code of 1961 or the
Criminal Code of 2012, involving a victim who is a minor under
18 years of age living in the same household with the defendant
at the time of the offense, in releasing the defendant, the
judge shall impose conditions to restrict the defendant's access
to the victim which may include, but are not limited to
conditions that he will:
1. Vacate the household.
2. Make payment of temporary support to his
dependents.
3. Refrain from contact or communication with the
child victim, except as ordered by the court.
(d) When a person is charged with a criminal offense and the
victim is a family or household member as defined in Article
112A, conditions shall be imposed at the time of the defendant's
release that restrict the defendant's access to the victim.
Unless provided otherwise by the court, the restrictions shall
include requirements that the defendant do the following:
(1) refrain from contact or communication with the
victim for a minimum period of 72 hours following the
defendant's release; and
(2) refrain from entering or remaining at the
victim's residence for a minimum period of 72 hours
following the defendant's release.
(e) Local law enforcement agencies shall develop
standardized pretrial release forms for use in cases involving
family or household members as defined in Article 112A,
including specific conditions of pretrial release as provided in
subsection (d). Failure of any law enforcement department to
develop or use those forms shall in no way limit the
applicability and enforcement of subsections (d) and (f).
(f) If the defendant is released after conviction following
appeal or other post-conviction proceeding, the conditions of
the pretrial release shall be that he will, in addition to the
conditions set forth in subsections (a) and (b) hereof:
(1) Duly prosecute his appeal;
(2) Appear at such time and place as the court may
direct;
(3) Not depart this State without leave of the court;
(4) Comply with such other reasonable conditions as
the court may impose; and
(5) If the judgment is affirmed or the cause reversed
and remanded for a new trial, forthwith surrender to the
officer from whose custody he was released.
(g) Upon a finding of guilty for any felony offense, the
defendant shall physically surrender, at a time and place
designated by the court, any and all firearms in his or her
possession and his or her Firearm Owner's Identification Card as
a condition of being released pending sentencing.
(Source: P.A. 101-138, eff. 1-1-20; 101-652, eff. 1-1-23; 1021104, eff. 1-1-23.)
(725 ILCS 5/110-11) (from Ch. 38, par. 110-11)
Sec. 110-11. Pretrial release on a new trial. If the
judgment of conviction is reversed and the cause remanded for a
new trial the trial court may order that the conditions of
pretrial release stand pending such trial, or modify the
conditions of pretrial release.
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/110-12) (from Ch. 38, par. 110-12)
Sec. 110-12. Notice of change of address. A defendant who
has been admitted to pretrial release shall file a written
notice with the clerk of the court before which the proceeding
is pending of any change in his or her address within 24 hours
after such change, except that a defendant who has been admitted
to pretrial release for a forcible felony as defined in Section
2-8 of the Criminal Code of 2012 shall file a written notice
with the clerk of the court before which the proceeding is
pending and the clerk shall immediately deliver a time stamped
copy of the written notice to the prosecutor charged with the
prosecution within 24 hours prior to such change. The address of
a defendant who has been admitted to pretrial release shall at
all times remain a matter of record with the clerk of the court.
(Source: P.A. 101-652, eff. 1-1-23; 102-1104, eff. 1-1-23.)
(725 ILCS 5/110-13) (from Ch. 38, par. 110-13)
Sec. 110-13. (Repealed).
(Source: Reenacted by P.A. 102-687, eff. 12-17-21.
internally, eff. 1-1-23)
Repealed
(725 ILCS 5/110-14) (from Ch. 38, par. 110-14)
Sec. 110-14. Credit toward fines for pretrial incarceration.
(a) Any person denied pretrial release and against whom a
fine is levied on conviction of the offense shall be
automatically credited $30 for each day so incarcerated upon
application of the defendant. However, in no case shall the
amount so credited exceed the amount of the fine.
(b) Subsection (a) does not apply to a person incarcerated
for sexual assault as defined in paragraph (1) of subsection (a)
of Section 5-9-1.7 of the Unified Code of Corrections.
(c) A person subject to bail on a Category B offense, before
January 1, 2023, shall have $30 deducted from his or her 10%
cash bond amount every day the person is incarcerated. The
sheriff shall calculate and apply this $30 per day reduction and
send notice to the circuit clerk if a defendant's 10% cash bond
amount is reduced to $0, at which point the defendant shall be
released upon his or her own recognizance.
(d) The court may deny the incarceration credit in
subsection (c) of this Section if the person has failed to
appear as required before the court and is incarcerated based on
a warrant for failure to appear on the same original criminal
offense.
(e) (Blank).
(Source: P.A. 101-408, eff. 1-1-20; P.A. 101-652, eff. 7-1-21.
Repealed by P.A. 102-28. Reenacted by P.A. 102-687, eff. 12-1721. P.A. 102-1104, eff. 12-6-22.)
(725 ILCS 5/110-15) (from Ch. 38, par. 110-15)
Sec. 110-15. (Repealed).
(Source: Reenacted by P.A. 102-687, eff. 12-17-21.
internally, eff. 1-1-23.)
(725 ILCS 5/110-16) (from Ch. 38, par. 110-16)
Sec. 110-16. (Repealed).
(Source: Reenacted by P.A. 102-687, eff. 12-17-21.
internally, eff. 1-1-23.)
(725 ILCS 5/110-17) (from Ch. 38, par. 110-17)
Sec. 110-17. (Repealed).
(Source: Reenacted by P.A. 102-687, eff. 12-17-21.
internally, eff. 1-1-23.)
(725 ILCS 5/110-18) (from Ch. 38, par. 110-18)
Sec. 110-18. (Repealed).
(Source: Reenacted by P.A. 102-687, eff. 12-17-21.
internally, eff. 1-1-23.)
Repealed
Repealed
Repealed
Repealed
(725 ILCS 5/Art. 110A heading)
ARTICLE 110A. PEACE BONDS
(Repealed)
(Source: Repealed by P.A. 102-1104, eff. 1-1-23.)
(725 ILCS 5/Tit. IV heading)
TITLE IV. PROCEEDINGS TO COMMENCE PROSECUTION
(725 ILCS 5/Art. 111 heading)
ARTICLE 111. CHARGING AN OFFENSE
(725 ILCS 5/111-1) (from Ch. 38, par. 111-1)
Sec. 111-1. Methods of prosecution.
(a) When authorized by law a prosecution may be commenced
by:
(1) A complaint;
(2) An information;
(3) An indictment.
(b) Upon commencement of a prosecution for a violation of
Section 11-501 of the Illinois Vehicle Code, or a similar
provision of a local ordinance, or Section 9-3 of the Criminal
Code of 1961 or the Criminal Code of 2012 relating to the
offense of reckless homicide, the victims of these offenses
shall have all the rights under this Section as they do in
Section 4 of the Rights of Crime Victims and Witnesses Act.
For the purposes of this Section "victim" shall mean an
individual who has suffered personal injury as a result of the
commission of a violation of Section 11-501 of the Illinois
Vehicle Code, or a similar provision of a local ordinance, or
Section 9-3 of the Criminal Code of 1961 or the Criminal Code of
2012 relating to the offense of reckless homicide. In regard to
a violation of Section 9-3 of the Criminal Code of 1961 or the
Criminal Code of 2012 relating to the offense of reckless
homicide, "victim" shall also include, but not be limited to,
spouse, guardian, parent, or other family member.
(c) Upon arrest after commencement of a prosecution for a
sex offense against a person known to be an employee, the
State's Attorney shall immediately provide the superintendent of
schools or school administrator that employs the employee with a
copy of the complaint, information, or indictment.
For the purposes of this subsection: "employee" has the
meaning provided in subsection (a) of Section 24-5 of the School
Code; and "sex offense" has the meaning provided in Section 2 of
the Sex Offender Registration Act.
This subsection shall not be construed to diminish the
rights, privileges, or remedies of an employee under a
collective bargaining agreement or employment contract.
(Source: P.A. 101-521, eff. 8-23-19; 102-558, eff. 8-20-21.)
(725 ILCS 5/111-2) (from Ch. 38, par. 111-2)
Sec. 111-2. Commencement of prosecutions.
(a) All prosecutions of felonies shall be by information or
by indictment. No prosecution may be pursued by information
unless a preliminary hearing has been held or waived in
accordance with Section 109-3 and at that hearing probable cause
to believe the defendant committed an offense was found, and the
provisions of Section 109-3.1 of this Code have been complied
with.
(b) All other prosecutions may be by indictment, information
or complaint.
(c) Upon the filing of an information or indictment in open
court charging the defendant with the commission of a sex
offense defined in any Section of Article 11 of the Criminal
Code of 1961 or the Criminal Code of 2012, and a minor as
defined in Section 1-3 of the Juvenile Court Act of 1987 is
alleged to be the victim of the commission of the acts of the
defendant in the commission of such offense, the court may
appoint a guardian ad litem for the minor as provided in Section
2-17, 3-19, 4-16 or 5-610 of the Juvenile Court Act of 1987.
(d) Upon the filing of an information or indictment in open
court, the court shall immediately issue a warrant for the
arrest of each person charged with an offense directed to a
peace officer or some other person specifically named commanding
him to arrest such person.
(e) When the offense is eligible for pretrial release, the
judge shall endorse on the warrant the conditions of pretrial
release required by the order of the court, and if the court
orders the process returnable forthwith, the warrant shall
require that the accused be arrested and brought immediately
into court.
(f) Where the prosecution of a felony is by information or
complaint after preliminary hearing, or after a waiver of
preliminary hearing in accordance with paragraph (a) of this
Section, such prosecution may be for all offenses, arising from
the same transaction or conduct of a defendant even though the
complaint or complaints filed at the preliminary hearing charged
only one or some of the offenses arising from that transaction
or conduct.
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/111-3) (from Ch. 38, par. 111-3)
Sec. 111-3. Form of charge.
(a) A charge shall be in writing and allege the commission
of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have
been violated;
(3) Setting forth the nature and elements of the
offense charged;
(4) Stating the date and county of the offense as
definitely as can be done; and
(5) Stating the name of the accused, if known, and if
not known, designate the accused by any name or description
by which he can be identified with reasonable certainty.
(a-5) If the victim is alleged to have been subjected to an
offense involving an illegal sexual act including, but not
limited to, a sexual offense defined in Article 11 or Section
10-9 of the Criminal Code of 2012, the charge shall state the
identity of the victim by name, initials, or description.
(b) An indictment shall be signed by the foreman of the
Grand Jury and an information shall be signed by the State's
Attorney and sworn to by him or another. A complaint shall be
sworn to and signed by the complainant; provided, that when a
peace officer observes the commission of a misdemeanor and is
the complaining witness, the signing of the complaint by the
peace officer is sufficient to charge the defendant with the
commission of the offense, and the complaint need not be sworn
to if the officer signing the complaint certifies that the
statements set forth in the complaint are true and correct and
are subject to the penalties provided by law for false
certification under Section 1-109 of the Code of Civil Procedure
and perjury under Section 32-2 of the Criminal Code of 2012; and
further provided, however, that when a citation is issued on a
Uniform Traffic Ticket or Uniform Conservation Ticket (in a form
prescribed by the Conference of Chief Circuit Judges and filed
with the Supreme Court), the copy of such Uniform Ticket which
is filed with the circuit court constitutes a complaint to which
the defendant may plead, unless he specifically requests that a
verified complaint be filed.
(c) When the State seeks an enhanced sentence because of a
prior conviction, the charge shall also state the intention to
seek an enhanced sentence and shall state such prior conviction
so as to give notice to the defendant. However, the fact of such
prior conviction and the State's intention to seek an enhanced
sentence are not elements of the offense and may not be
disclosed to the jury during trial unless otherwise permitted by
issues properly raised during such trial. For the purposes of
this Section, "enhanced sentence" means a sentence which is
increased by a prior conviction from one classification of
offense to another higher level classification of offense set
forth in Section 5-4.5-10 of the Unified Code of Corrections
(730 ILCS 5/5-4.5-10); it does not include an increase in the
sentence applied within the same level of classification of
offense.
(c-5) Notwithstanding any other provision of law, in all
cases if an alleged fact (other than the fact of a prior
conviction) is not an element of an offense but is sought to be
used to increase the range of penalties for the offense beyond
the statutory maximum that could otherwise be imposed for the
offense, the alleged fact must be included in the charging
instrument or otherwise provided to the defendant through a
written notification before trial, submitted to a trier of fact
as an aggravating factor, and proved beyond a reasonable doubt.
Failure to prove the fact beyond a reasonable doubt is not a bar
to a conviction for commission of the offense, but is a bar to
increasing, based on that fact, the range of penalties for the
offense beyond the statutory maximum that could otherwise be
imposed for that offense. Nothing in this subsection (c-5)
requires the imposition of a sentence that increases the range
of penalties for the offense beyond the statutory maximum that
could otherwise be imposed for the offense if the imposition of
that sentence is not required by law.
(d) At any time prior to trial, the State on motion shall be
permitted to amend the charge, whether brought by indictment,
information or complaint, to make the charge comply with
subsection (c) or (c-5) of this Section. Nothing in Section 1035 of this Code precludes such an amendment or a written
notification made in accordance with subsection (c-5) of this
Section.
(e) The provisions of subsection (a) of Section 5-4.5-95 of
the Unified Code of Corrections shall not be affected by this
Section.
(Source: P.A. 103-51, eff. 1-1-24.)
(725 ILCS 5/111-4)
Sec. 111-4. Joinder of offenses and defendants.
(a) Two or more offenses may be charged in the same
indictment, information or complaint in a separate count for
each offense if the offenses charged, whether felonies or
misdemeanors or both, are based on the same act or on 2 or more
acts which are part of the same comprehensive transaction.
(b) Two or more defendants may be charged in the same
indictment, information or complaint if they are alleged to have
participated in the same act or in the same comprehensive
transaction out of which the offense or offenses arose. Such
defendants may be charged in one or more counts together or
separately and all of the defendants need not be charged in each
count.
(c) Two or more acts or transactions in violation of any
provision or provisions of Sections 8A-2, 8A-3, 8A-4, 8A-4A and
8A-5 of the Illinois Public Aid Code, Section 14 of the Illinois
Wage Payment and Collection Act, Sections 16-1, 16-1.3, 16-2,
16-3, 16-5, 16-7, 16-8, 16-10, 16-25, 16-30, 16A-3, 16B-2, 16G15, 16G-20, 16H-15, 16H-20, 16H-25, 16H-30, 16H-45, 16H-50, 16H55, 17-1, 17-3, 17-6, 17-30, 17-56, 17-60, or 29B-1, or item
(ii) of subsection (a) or (b) of Section 17-9, or subdivision
(a)(2) of Section 17-10.5, or subsection (a), (b), (c), (d),
(g), (h), or (i) of Section 17-10.6, or subsection (a) of
Section 17-32 of the Criminal Code of 1961 or the Criminal Code
of 2012 and Section 118 of Division I of the Criminal
Jurisprudence Act, may be charged as a single offense in a
single count of the same indictment, information or complaint,
if such acts or transactions by one or more defendants are in
furtherance of a single intention and design or if the property,
labor or services obtained are of the same person or are of
several persons having a common interest in such property, labor
or services. In such a charge, the period between the dates of
the first and the final such acts or transactions may be alleged
as the date of the offense and, if any such act or transaction
by any defendant was committed in the county where the
prosecution was commenced, such county may be alleged as the
county of the offense.
(Source: P.A. 99-629, eff. 1-1-17.)
(725 ILCS 5/111-5) (from Ch. 38, par. 111-5)
Sec. 111-5. Formal defects in a charge. An indictment,
information or complaint which charges the commission of an
offense in accordance with Section 111-3 of this Code shall not
be dismissed and may be amended on motion by the State's
Attorney or defendant at any time because of formal defects,
including:
(a) Any miswriting, misspelling or grammatical error;
(b) Any misjoinder of the parties defendant;
(c) Any misjoinder of the offense charged;
(d) The presence of any unnecessary allegation;
(e) The failure to negative any exception, any excuse
or proviso contained in the statute defining the offense; or
(f) The use of alternative or disjunctive allegations
as to the acts, means, intents or results charged.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/111-6) (from Ch. 38, par. 111-6)
Sec. 111-6. Bill of particulars.
When an indictment, information or complaint charges an
offense in accordance with the provisions of Section 111-3 of
this Code but fails to specify the particulars of the offense
sufficiently to enable the defendant to prepare his defense the
court may, on written motion of the defendant, require the
State's Attorney to furnish the defendant with a Bill of
Particulars containing such particulars as may be necessary for
the preparation of the defense. At the trial of the cause the
State's evidence shall be confined to the particulars of the
bill.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/111-7) (from Ch. 38, par. 111-7)
Sec. 111-7. Loss of charge.
When an indictment, information or complaint which has been
returned or presented to a court as authorized by law has become
illegible or cannot be produced at the arraignment or trial the
defendant may be arraigned and tried on a copy thereof certified
by the clerk of the court.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/111-8) (from Ch. 38, par. 111-8)
Sec. 111-8. Orders of protection to prohibit domestic
violence.
(a) Whenever a violation of Section 9-1, 9-2, 9-3, 10-3, 103.1, 10-4, 10-5, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60,
11-14.3 that involves soliciting for a prostitute, 11-14.4 that
involves soliciting for a juvenile prostitute, 11-15, 11-15.1,
11-20.1, 11-20.1B, 11-20.3, 11-20a, 12-1, 12-2, 12-3, 12-3.05,
12-3.2, 12-3.3, 12-3.5, 12-4, 12-4.1, 12-4.3, 12-4.6, 12-5, 126, 12-6.3, 12-7.3, 12-7.4, 12-7.5, 12-11, 12-13, 12-14, 12-14.1,
12-15, 12-16, 19-4, 19-6, 21-1, 21-2, 21-3, or 26.5-2 of the
Criminal Code of 1961 or the Criminal Code of 2012 or Section 11 of the Harassing and Obscene Communications Act is alleged in
an information, complaint or indictment on file, and the alleged
offender and victim are family or household members, as defined
in the Illinois Domestic Violence Act of 1986, as now or
hereafter amended, the People through the respective State's
Attorneys may by separate petition and upon notice to the
defendant, except as provided in subsection (c) herein, request
the court to issue an order of protection.
(b) In addition to any other remedies specified in Section
208 of the Illinois Domestic Violence Act of 1986, as now or
hereafter amended, the order may direct the defendant to
initiate no contact with the alleged victim or victims who are
family or household members and to refrain from entering the
residence, school or place of business of the alleged victim or
victims.
(c) The court may grant emergency relief without notice upon
a showing of immediate and present danger of abuse to the victim
or minor children of the victim and may enter a temporary order
pending notice and full hearing on the matter.
(Source: P.A. 99-642, eff. 7-28-16.)
(725 ILCS 5/111-9)
Sec. 111-9. Notification to forensic laboratories. Unless
the Supreme Court shall by Rule provide otherwise, upon
disposition, withdrawal, or dismissal of any charge, the State's
Attorney shall promptly notify the forensic laboratory or
laboratories in possession of evidence, reports, or other
materials or information related to that charge. Notification
may be given by any reasonable means under the circumstances,
including, but not limited to, the Illinois State Police
Laboratory Information Management System, email, or telephone.
(Source: P.A. 102-523, eff. 8-20-21.)
(725 ILCS 5/Art. 112 heading)
ARTICLE 112. GRAND JURY
(725 ILCS 5/112-1) (from Ch. 38, par. 112-1)
Sec. 112-1. Selection and qualification. The grand jurors
shall be summoned, drawn, qualified and certified according to
law.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/112-2) (from Ch. 38, par. 112-2)
Sec. 112-2. Impaneling the Grand Jury.
(a) The Grand Jury shall consist of 16 persons, 12 of whom
shall be necessary to constitute a quorum.
(b) The Grand Jury shall be impaneled, sworn and instructed
as to its duties by the court. The court shall select and swear
one of the grand jurors to serve as foreman.
(c) Before the Grand Jury shall enter upon the discharge of
their duties the following oath shall be administered to the
jurors:
"Do each of you swear (or affirm) that you will diligently
inquire into all matters presented to you; that you will return
no indictment through malice or ill will, or fail to return one
due to fear or reward; and that in all your decisions you will
present the truth, the whole truth, and nothing but the truth,
according to the best of your skill and understanding."
(Source: P.A. 102-495, eff. 8-20-21.)
(725 ILCS 5/112-3) (from Ch. 38, par. 112-3)
Sec. 112-3. Duration of Grand Jury.
(a) In counties with a population in excess of 1,000,000 a
Grand Jury shall be convened, impaneled and sworn, and shall
commence the performance of its duties for an indeterminate
period, on the first Monday of each month. In such counties a
Grand Jury shall serve until discharged by the court, except
that no Grand Jury shall serve in excess of 18 months and not
more than 6 Grand Juries shall sit at the same time.
In counties with a population in excess of 225,000 but less
than 1,000,000 a Grand Jury may be convened, empaneled, and
sworn and may sit at such times and for such periods as the
circuit court may order on its own motion or that of the State's
Attorney. No Grand Jury shall serve in excess of 18 months and
not more than 2 Grand Juries shall sit at the same time.
(b) In all other counties the Grand Jury shall be called and
sit at such times and for such periods as the circuit court may
order on its own motion or that of the State's Attorney;
provided, that no Grand Jury shall sit for a period in excess of
18 months and, provided further, that no more than one Grand
Jury shall sit at the same time.
(c) At any time for cause shown the court may excuse a grand
juror either temporarily or permanently and, if permanently, may
impanel another person in place of the grand juror excused.
(Source: P.A. 88-31.)
(725 ILCS 5/112-4) (from Ch. 38, par. 112-4)
Sec. 112-4. Duties of Grand Jury and State's Attorney.) (a)
The Grand Jury shall hear all evidence presented by the State's
Attorney.
(b) The Grand Jury has the right to subpoena and question
any person against whom the State's Attorney is seeking a Bill
of Indictment, or any other person, and to obtain and examine
any documents or transcripts relevant to the matter being
prosecuted by the State's Attorney. Prior to the commencement of
its duties and, again, before the consideration of each matter
or charge before the Grand Jury, the State's Attorney shall
inform the Grand Jury of these rights. In cases where the
initial charge has been commenced by information or complaint
and a finding of no probable cause has resulted as to any
offense charged therein, the Grand Jury shall be informed of the
finding entered at the preliminary hearing and further advised
that such finding shall not bar the State from initiating new
charges by indictment, information or complaint if the State's
Attorney has reasonable grounds to believe that the evidence
available at that time is sufficient to establish probable
cause. In such cases, the Grand Jury shall be further advised
that it has the right to subpoena and question any witness who
testified at the preliminary hearing, or who is believed to have
knowledge of such offense, and of its right to obtain and
examine the testimony heard at the preliminary hearing, either
through the production of a transcript of the proceedings, or
through the verbatim testimony of the court reporter who
attended the preliminary hearing. The State's Attorney shall
file an affidavit as part of the Grand Jury record indicating
whether the jurors were advised of such previous findings of no
probable cause and of their rights based upon such previous
finding.
Any person subpoenaed who is already charged with an offense
or against whom the State's Attorney is seeking a Bill of
Indictment shall have the right to be accompanied by counsel who
shall advise him of his rights during the proceedings but may
not participate in any other way. Before any testimony is given
by such a person, he shall be informed that he has the right to
refuse to answer any question that will tend to incriminate him,
that anything he says may be used against him in a court of law,
that he has the right to be accompanied and advised of his
rights by counsel, and that he will have counsel appointed for
him if he cannot afford one.
(c) The foreman shall preside over all hearings and swear
all witnesses. Except where otherwise provided by this Article,
the foreman may delegate duties to other grand jurors and
determine rules of procedure.
(d) If 9 grand jurors concur that the evidence before them
constitutes probable cause that a person has committed an
offense the State's Attorney shall prepare a Bill of Indictment
charging that person with such offense. The foreman shall sign
each Bill of Indictment which shall be returned in open court.
(e) When the evidence presented to the Grand Jury does not
warrant the return of a Bill of Indictment, the State's Attorney
may prepare a written memorandum to such effect, entitled, "No
Bill".
(Source: P.A. 85-690.)
(725 ILCS 5/112-4.1) (from Ch. 38, par. 112-4.1)
Sec. 112-4.1. Any person appearing before the grand jury
shall have the right to be accompanied by counsel who shall
advise him of his rights but shall not participate in any other
way.
(Source: P.A. 81-1112.)
(725 ILCS 5/112-5) (from Ch. 38, par. 112-5)
Sec. 112-5. Duties of others. (a) The clerk of the court
shall keep such records of Bills of Indictments and No Bills as
may be prescribed by Rule of the Supreme Court.
(b) The court may appoint an investigator or investigators
on petition showing good cause for same and signed by the
foreman and 8 other grand jurors. The duties and tenure of
appointment of such investigator or investigators shall be
determined by the court.
(Source: P.A. 85-690.)
(725 ILCS 5/112-6) (from Ch. 38, par. 112-6)
Sec. 112-6. Secrecy of proceedings.) (a) Only the State's
Attorney, his reporter and any other person authorized by the
court or by law may attend the sessions of the Grand Jury. Only
the grand jurors shall be present during the deliberations and
vote of the Grand Jury. If no reporter is assigned by the
State's Attorney to attend the sessions of the Grand Jury, the
court shall appoint such reporter.
(b) Matters other than the deliberations and vote of any
grand juror shall not be disclosed by the State's Attorney,
except as otherwise provided for in subsection (c). The court
may direct that a Bill of Indictment be kept secret until the
defendant is in custody or has given bail and in either event
the clerk shall seal the Bill of Indictment and no person shall
disclose the finding of the Bill of Indictment except when
necessary for the issuance and execution of a warrant.
(c) (1) Disclosure otherwise prohibited by this Section of
matters occurring before the Grand Jury, other than its
deliberations and the vote of any grand juror, may be made to:
a. a State's Attorney for use in the performance of such
State's Attorney's duty; and
b. such government personnel as are deemed necessary by the
State's Attorney in the performance of such State's Attorney's
duty to enforce State criminal law.
(2) Any person to whom matters are disclosed under paragraph
(1) of this subsection (c) shall not use the Grand Jury material
for any purpose other than assisting the State's Attorney in the
performance of such State's Attorney's duty to enforce State
criminal law. The State's Attorney shall promptly provide the
court, before which was impaneled the Grand Jury whose material
has been disclosed, with the names of the persons to whom such
disclosure has been made.
(3) Disclosure otherwise prohibited by this Section of
matters occurring before the Grand Jury may also be made when
the court, preliminary to or in connection with a judicial
proceeding, directs such in the interests of justice or when a
law so directs.
(d) Any grand juror or officer of the court who discloses,
other than to his attorney, matters occurring before the Grand
Jury other than in accordance with the provisions of this
subsection or Section 112-7 shall be punished as a contempt of
court, subject to proceedings in accordance to law.
(Source: P.A. 85-690.)
(725 ILCS 5/112-7) (from Ch. 38, par. 112-7)
Sec. 112-7. A transcript shall be made of all questions
asked of and answers given by witnesses before the grand jury.
(Source: P.A. 79-669.)
(725 ILCS 5/112-8)
Sec. 112-8. Destroyed instrument. When an instrument that is
the subject of an indictment has been destroyed or withheld by
the act or procurement of the defendant, and the fact of the
destruction or withholding is alleged in the indictment and
established on trial, the accused shall not be acquitted on
account of any misdescription of the instrument so withheld or
destroyed.
(Source: P.A. 89-234, eff. 1-1-96.)
(725 ILCS 5/Art. 112A heading)
ARTICLE 112A. PROTECTIVE ORDERS
(Source: P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-1) (from Ch. 38, par. 112A-1)
Sec. 112A-1. (Repealed).
(Source: P.A. 84-1305. Repealed by P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-1.5)
Sec. 112A-1.5. Purpose and construction. The purpose of this
Article is to protect the safety of victims of domestic
violence, sexual assault, sexual abuse, and stalking and the
safety of their family and household members; and to minimize
the trauma and inconvenience associated with attending separate
and multiple civil court proceedings to obtain protective
orders. This Article shall be interpreted in accordance with the
constitutional rights of crime victims set forth in Article I,
Section 8.1 of the Illinois Constitution, the purposes set forth
in Section 2 of the Rights of Crime Victims and Witnesses Act,
and the use of protective orders to implement the victim's right
to be reasonably protected from the defendant as provided in
Section 4.5 of the Rights of Victims and Witnesses Act.
(Source: P.A. 100-199, eff. 1-1-18; 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-2) (from Ch. 38, par. 112A-2)
Sec. 112A-2. (Repealed).
(Source: P.A. 98-558, eff. 1-1-14. Repealed by P.A. 100-199,
eff. 1-1-18.)
(725 ILCS 5/112A-2.5)
Sec. 112A-2.5. Types of protective orders. The following
protective orders may be entered in conjunction with a
delinquency petition or a criminal prosecution:
(1) a domestic violence order of protection in cases
involving domestic violence;
(2) a civil no contact order in cases involving
sexual offenses; or
(3) a stalking no contact order in cases involving
stalking offenses.
(Source: P.A. 100-199, eff. 1-1-18; 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-3) (from Ch. 38, par. 112A-3)
Sec. 112A-3. Definitions.
(a) In this Article:
"Advocate" means a person whose communications with the
victim are privileged under Section 8-802.1 or 8-802.2 of the
Code of Civil Procedure or Section 227 of the Illinois Domestic
Violence Act of 1986.
"Named victim" means the person named as the victim in the
delinquency petition or criminal prosecution.
"Protective order" means a domestic violence order of
protection, a civil no contact order, or a stalking no contact
order.
(b) For the purposes of domestic violence cases, the
following terms shall have the following meanings in this
Article:
(1) "Abuse" means physical abuse, harassment,
intimidation of a dependent, interference with personal
liberty or willful deprivation but does not include
reasonable direction of a minor child by a parent or person
in loco parentis.
(2) "Domestic violence" means abuse as described in
paragraph (1) of this subsection (b).
(3) "Family or household members" include spouses,
former spouses, parents, children, stepchildren, and other
persons related by blood or by present or prior marriage,
persons who share or formerly shared a common dwelling,
persons who have or allegedly have a child in common,
persons who share or allegedly share a blood relationship
through a child, persons who have or have had a dating or
engagement relationship, persons with disabilities and their
personal assistants, and caregivers as defined in subsection
(e) of Section 12-4.4a of the Criminal Code of 2012. For
purposes
of
this
paragraph
(3),
neither
a
casual
acquaintanceship nor ordinary fraternization between 2
individuals in business or social contexts shall be deemed
to constitute a dating relationship.
(4) "Harassment" means knowing conduct which is not
necessary to accomplish a purpose which is reasonable under
the circumstances; would cause a reasonable person emotional
distress; and does cause emotional distress to the
petitioner. Unless the presumption is rebutted by a
preponderance of the evidence, the following types of
conduct shall be presumed to cause emotional distress:
(i) creating a disturbance at petitioner's place
of employment or school;
(ii) repeatedly telephoning petitioner's place of
employment, home or residence;
(iii) repeatedly following petitioner about in a
public place or places;
(iv) repeatedly keeping petitioner under
surveillance by remaining present outside his or her
home, school, place of employment, vehicle or other
place
occupied
by
petitioner
or
by
peering
in
petitioner's windows;
(v) improperly concealing a minor child from
petitioner, repeatedly threatening to improperly remove
a minor child of petitioner's from the jurisdiction or
from the physical care of petitioner, repeatedly
threatening to conceal a minor child from petitioner, or
making a single such threat following an actual or
attempted improper removal or concealment, unless
respondent was fleeing from an incident or pattern of
domestic violence; or
(vi) threatening physical force, confinement or
restraint on one or more occasions.
(5) "Interference with personal liberty" means
committing or threatening physical abuse, harassment,
intimidation or willful deprivation so as to compel another
to engage in conduct from which she or he has a right to
abstain or to refrain from conduct in which she or he has a
right to engage.
(6) "Intimidation of a dependent" means subjecting a
person who is dependent because of age, health, or
disability to participation in or the witnessing of:
physical force against another or physical confinement or
restraint of another which constitutes physical abuse as
defined in this Article, regardless of whether the abused
person is a family or household member.
(7) "Order of protection" or "domestic violence order
of protection" means an ex parte or final order, granted
pursuant to this Article, which includes any or all of the
remedies authorized by Section 112A-14 of this Code.
(8) "Petitioner" may mean not only any named
petitioner for the domestic violence order of protection and
any named victim of abuse on whose behalf the petition is
brought, but also any other person protected by this
Article.
(9) "Physical abuse" includes sexual abuse and means
any of the following:
(i) knowing or reckless use of physical force,
confinement or restraint;
(ii) knowing, repeated and unnecessary sleep
deprivation; or
(iii) knowing or reckless conduct which creates
an immediate risk of physical harm.
(9.3) "Respondent" in a petition for a domestic
violence order of protection means the defendant.
(9.5) "Stay away" means for the respondent to refrain
from both physical presence and nonphysical contact with the
petitioner whether direct, indirect (including, but not
limited to, telephone calls, mail, email, faxes, and written
notes), or through third parties who may or may not know
about the domestic violence order of protection.
(10) "Willful deprivation" means wilfully denying a
person who because of age, health or disability requires
medication, medical care, shelter, accessible shelter or
services, food, therapeutic device, or other physical
assistance, and thereby exposing that person to the risk of
physical, mental or emotional harm, except with regard to
medical care and treatment when such dependent person has
expressed the intent to forgo such medical care or
treatment. This paragraph (10) does not create any new
affirmative duty to provide support to dependent persons.
(c) For the purposes of cases involving sexual offenses, the
following terms shall have the following meanings in this
Article:
(1) "Civil no contact order" means an ex parte or
final order granted under this Article, which includes a
remedy authorized by Section 112A-14.5 of this Code.
(2) "Family or household members" include spouses,
parents, children, stepchildren, and persons who share a
common dwelling.
(3) "Non-consensual" means a lack of freely given
agreement.
(4) "Petitioner" means not only any named petitioner
for the civil no contact order and any named victim of nonconsensual
sexual
conduct
or
non-consensual
sexual
penetration on whose behalf the petition is brought, but
includes any other person sought to be protected under this
Article.
(5) "Respondent" in a petition for a civil no
contact order means the defendant.
(6) "Sexual conduct" means any intentional or
knowing touching or fondling by the petitioner or the
respondent, either directly or through clothing, of the sex
organs, anus, or breast of the petitioner or the respondent,
or any part of the body of a child under 13 years of age, or
any transfer or transmission of semen by the respondent upon
any part of the clothed or unclothed body of the petitioner,
for the purpose of sexual gratification or arousal of the
petitioner or the respondent.
(7) "Sexual penetration" means any contact, however
slight, between the sex organ or anus of one person by an
object, the sex organ, mouth or anus of another person, or
any intrusion, however slight, of any part of the body of
one person or of any animal or object into the sex organ or
anus of another person, including, but not limited to,
cunnilingus, fellatio, or anal penetration. Evidence of
emission of semen is not required to prove sexual
penetration.
(8) "Stay away" means to refrain from both physical
presence and nonphysical contact with the petitioner
directly, indirectly, or through third parties who may or
may not know of the order. "Nonphysical contact" includes,
but is not limited to, telephone calls, mail, e-mail, fax,
and written notes.
(d) For the purposes of cases involving stalking offenses,
the following terms shall have the following meanings in this
Article:
(1) "Course of conduct" means 2 or more acts,
including, but not limited to, acts in which a respondent
directly, indirectly, or through third parties, by any
action,
method,
device,
or
means
follows,
monitors,
observes, surveils, threatens, or communicates to or about,
a person, engages in other contact, or interferes with or
damages a person's property or pet. A course of conduct may
include
contact
via
electronic
communications.
The
incarceration of a person in a penal institution who commits
the course of conduct is not a bar to prosecution.
(2) "Emotional distress" means significant mental
suffering, anxiety, or alarm.
(3) "Contact" includes any contact with the victim,
that is initiated or continued without the victim's consent,
or that is in disregard of the victim's expressed desire
that the contact be avoided or discontinued, including, but
not limited to, being in the physical presence of the
victim;
appearing
within
the
sight
of
the
victim;
approaching or confronting the victim in a public place or
on private property; appearing at the workplace or residence
of the victim; entering onto or remaining on property owned,
leased, or occupied by the victim; or placing an object on,
or delivering an object to, property owned, leased, or
occupied by the victim.
(4) "Petitioner" means any named petitioner for the
stalking no contact order or any named victim of stalking on
whose behalf the petition is brought.
(5) "Reasonable person" means a person in the
petitioner's circumstances with the petitioner's knowledge
of the respondent and the respondent's prior acts.
(6) "Respondent" in a petition for a civil no
contact order means the defendant.
(7) "Stalking" means engaging in a course of conduct
directed at a specific person, and he or she knows or should
know that this course of conduct would cause a reasonable
person to fear for his or her safety or the safety of a
third person or suffer emotional distress. "Stalking" does
not include an exercise of the right to free speech or
assembly that is otherwise lawful or picketing occurring at
the workplace that is otherwise lawful and arises out of a
bona
fide
labor
dispute,
including
any
controversy
concerning wages, salaries, hours, working conditions or
benefits,
including
health
and
welfare,
sick
leave,
insurance, and pension or retirement provisions, the making
or maintaining of collective bargaining agreements, and the
terms to be included in those agreements.
(8) "Stalking no contact order" means an ex parte or
final order granted under this Article, which includes a
remedy authorized by Section 112A-14.7 of this Code.
(Source: P.A. 100-199, eff. 1-1-18; 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-4) (from Ch. 38, par. 112A-4)
Sec. 112A-4. Persons protected by this Article.
(a) The following persons are protected by this Article in
cases involving domestic violence:
(1) any person abused by a family or household member;
(2) any minor child or dependent adult in the care of
such person;
(3) any person residing or employed at a private home
or public shelter which is housing an abused family or
household member; and
(4) any of the following persons if the person is
abused by a family or household member of a child:
(i) a foster parent of that child if the child
has been placed in the foster parent's home by the
Department of Children and Family Services or by another
state's public child welfare agency;
(ii) a legally appointed guardian or legally
appointed custodian of that child;
(iii) an adoptive parent of that child; or
(iv) a prospective adoptive parent of that child
if the child has been placed in the prospective adoptive
parent's home pursuant to the Adoption Act or pursuant
to another state's law.
For purposes of this paragraph (a)(4), individuals
who would have been considered "family or household members"
of the child under paragraph (3) of subsection (b) of
Section 112A-3 before a termination of the parental rights
with respect to the child continue to meet the definition of
"family or household members" of the child.
(a-5) The following persons are protected by this Article in
cases involving sexual offenses:
(1) any victim of non-consensual sexual conduct or
non-consensual sexual penetration on whose behalf the
petition is brought;
(2) any family or household member of the named
victim; and
(3) any employee of or volunteer at a rape crisis
center.
(a-10) The following persons are protected by this Article
in cases involving stalking offenses:
(1) any victim of stalking; and
(2) any family or household member of the named
victim.
(b) (Blank).
(Source: P.A. 100-199, eff. 1-1-18; 100-639, eff. 1-1-19.)
(725 ILCS 5/112A-4.5)
Sec. 112A-4.5. Who may file petition.
(a) A petition for a domestic violence order of protection
may be filed:
(1) by a named victim who has been abused by a family
or household member;
(2) by any person or by the State's Attorney on
behalf of a named victim who is a minor child or an adult
who has been abused by a family or household member and who,
because of age, health, disability, or inaccessibility,
cannot file the petition;
(3) by a State's Attorney on behalf of any minor
child or dependent adult in the care of the named victim, if
the named victim does not file a petition or request the
State's Attorney file the petition; or
(4) any of the following persons if the person is
abused by a family or household member of a child:
(i) a foster parent of that child if the child
has been placed in the foster parent's home by the
Department of Children and Family Services or by another
state's public child welfare agency;
(ii) a legally appointed guardian or legally
appointed custodian of that child;
(iii) an adoptive parent of that child;
(iv) a prospective adoptive parent of that child
if the child has been placed in the prospective adoptive
parent's home pursuant to the Adoption Act or pursuant
to another state's law.
For purposes of this paragraph (a)(4), individuals who would
have been considered "family or household members" of the child
under paragraph (3) of subsection (b) of Section 112A-3 before a
termination of the parental rights with respect to the child
continue to meet the definition of "family or household members"
of the child.
(b) A petition for a civil no contact order may be filed:
(1) by any person who is a named victim of
non-consensual sexual conduct or non-consensual sexual
penetration, including a single incident of non-consensual
sexual conduct or non-consensual sexual penetration;
(2) by a person or by the State's Attorney on behalf
of a named victim who is a minor child or an adult who is a
victim of non-consensual sexual conduct or non-consensual
sexual penetration but, because of age, disability, health,
or inaccessibility, cannot file the petition;
(3) by a State's Attorney on behalf of any minor
child who is a family or household member of the named
victim, if the named victim does not file a petition or
request the State's Attorney file the petition;
(4) by a service member of the Illinois National
Guard or any reserve military component serving within the
State who is a victim of non-consensual sexual conduct who
has also received a Military Protective Order; or
(5) by the Staff Judge Advocate of the Illinois
National Guard or any reserve military component serving in
the State on behalf of a named victim who is a victim of
non-consensual sexual conduct who has also received a
Military Protective Order only after receiving consent from
the victim, and the petition shall include a statement that
the victim has consented to the Staff Judge Advocate filing
the petition.
(c) A petition for a stalking no contact order may be filed:
(1) by any person who is a named victim of stalking;
(2) by a person or by the State's Attorney on behalf
of a named victim who is a minor child or an adult who is a
victim of stalking but, because of age, disability, health,
or inaccessibility, cannot file the petition;
(3) by a State's Attorney on behalf of any minor
child who is a family or household member of the named
victim, if the named victim does not file a petition or
request the State's Attorney file the petition;
(4) by a service member of the Illinois National
Guard or any reserve military component serving within the
State who is a victim of non-consensual sexual conduct who
has also received a Military Protective Order; or
(5) by the Staff Judge Advocate of the Illinois
National Guard or any reserve military component serving in
the State on behalf of a named victim who is a victim of
non-consensual sexual conduct who has also received a
Military Protective Order only after receiving consent from
the victim, and the petition shall include a statement that
the victim has consented to the Staff Judge Advocate filing
the petition.
(d) The State's Attorney shall file a petition on behalf of
any person who may file a petition under subsections (a), (b),
or (c) of this Section if the person requests the State's
Attorney to file a petition on the person's behalf, unless the
State's Attorney has a good faith basis to delay filing the
petition. The State's Attorney shall inform the person that the
State's Attorney will not be filing the petition at that time
and that the person may file a petition or may retain an
attorney to file the petition. The State's Attorney may file the
petition at a later date.
(d-5) (1) A person eligible to file a petition under
subsection (a), (b), or (c) of this Section may retain an
attorney to represent the petitioner on the petitioner's request
for a protective order. The attorney's representation is limited
to matters related to the petition and relief authorized under
this Article.
(2) Advocates shall be allowed to accompany the petitioner
and confer with the victim, unless otherwise directed by the
court. Advocates are not engaged in the unauthorized practice of
law when providing assistance to the petitioner.
(e) Any petition properly filed under this Article may seek
protection for any additional persons protected by this Article.
(Source: P.A. 102-890, eff. 5-19-22; 103-407, eff. 7-28-23.)
(725 ILCS 5/112A-5) (from Ch. 38, par. 112A-5)
Sec. 112A-5. Pleading; non-disclosure of address.
(a) A petition for a protective order shall be filed in
conjunction with a delinquency petition or criminal prosecution,
or in conjunction with imprisonment or a bond forfeiture
warrant, provided the petition names a victim of the alleged
crime. The petition may include a request for an ex parte
protective order, a final protective order, or both. The
petition shall be in writing and verified or accompanied by
affidavit and shall allege that:
(1) petitioner has been abused by respondent, who is
a family or household member;
(2) respondent has engaged in non-consensual sexual
conduct or non-consensual sexual penetration, including a
single incident of non-consensual sexual conduct or nonconsensual sexual penetration with petitioner; or
(3) petitioner has been stalked by respondent.
The petition shall further set forth whether there is any
other action between the petitioner and respondent. During the
pendency of this proceeding, the petitioner and respondent have
a continuing duty to inform the court of any subsequent
proceeding for a protective order in this State or any other
state.
(a-5) The petition shall indicate whether an ex parte
protective order, a protective order, or both are requested. If
the respondent receives notice of a petition for a final
protective order and the respondent requests a continuance to
respond to the petition, the petitioner may, either orally or in
writing, request an ex parte order.
(b) The petitioner shall not be required to disclose the
petitioner's address. If the petition states that disclosure of
petitioner's address would risk abuse to or endanger the safety
of petitioner or any member of petitioner's family or household
or reveal the confidential address of a shelter for domestic
violence victims, that address may be omitted from all documents
filed with the court.
(Source: P.A. 100-199, eff. 1-1-18; 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-5.5)
Sec. 112A-5.5. Time for filing petition; service on
respondent, hearing on petition, and default orders.
(a) A petition for a protective order may be filed at any
time, in person or online, after a criminal charge or
delinquency petition is filed and before the charge or
delinquency petition is dismissed, the defendant or juvenile is
acquitted, or the defendant or juvenile completes service of his
or her sentence.
(b) The request for an ex parte protective order may be
considered without notice to the respondent under Section 112A17.5 of this Code.
(c) A summons shall be issued and served for a protective
order. The summons may be served by delivery to the respondent
personally in open court in the criminal or juvenile delinquency
proceeding, in the form prescribed by subsection (d) of Supreme
Court Rule 101, except that it shall require the respondent to
answer or appear within 7 days. Attachments to the summons shall
include
the
petition
for
protective
order,
supporting
affidavits, if any, and any ex parte protective order that has
been issued.
(d) The summons shall be served by the sheriff or other law
enforcement officer at the earliest time available and shall
take precedence over any other summons, except those of a
similar emergency nature. Attachments to the summons shall
include
the
petition
for
protective
order,
supporting
affidavits, if any, and any ex parte protective order that has
been issued. Special process servers may be appointed at any
time and their designation shall not affect the responsibilities
and authority of the sheriff or other official process servers.
In a county with a population over 3,000,000, a special process
server may not be appointed if the protective order grants the
surrender of a child, the surrender of a firearm or Firearm
Owner's Identification Card, or the exclusive possession of a
shared residence.
(e) If the respondent is not served within 30 days of the
filing of the petition, the court shall schedule a court
proceeding on the issue of service. Either the petitioner, the
petitioner's counsel, or the State's Attorney shall appear and
the court shall either order continued attempts at personal
service or shall order service by publication, in accordance
with Sections 2-203, 2-206, and 2-207 of the Code of Civil
Procedure.
(f) The request for a final protective order can be
considered at any court proceeding in the delinquency or
criminal case after service of the petition. If the petitioner
has not been provided notice of the court proceeding at least 10
days in advance of the proceeding, the court shall schedule a
hearing on the petition and provide notice to the petitioner.
(f-5) A court in a county with a population above 250,000
shall offer the option of a remote hearing to a petitioner for a
protective order. The court has the discretion to grant or deny
the request for a remote hearing. Each court shall determine the
procedure for a remote hearing. The petitioner and respondent
may appear remotely or in person.
The court shall issue and publish a court order, standing
order, or local rule detailing information about the process for
requesting and participating in a remote court appearance. The
court order, standing order, or local rule shall be published on
the court's website and posted on signs throughout the
courthouse, including in the clerk's office. The sign shall be
written in plain language and include information about the
availability of remote court appearances and the process for
requesting a remote hearing.
(g) Default orders.
(1) A final domestic violence order of protection may
be entered by default:
(A) for any of the remedies sought in the
petition, if the respondent has been served with
documents under subsection (b) or (c) of this Section
and if the respondent fails to appear on the specified
return date or any subsequent hearing date agreed to by
the petitioner and respondent or set by the court; or
(B) for any of the remedies provided under
paragraph (1), (2), (3), (5), (6), (7), (8), (9), (10),
(11), (14), (15), (17), or (18) of subsection (b) of
Section 112A-14 of this Code, or if the respondent fails
to answer or appear in accordance with the date set in
the publication notice or the return date indicated on
the service of a household member.
(2) A final civil no contact order may be entered by
default for any of the remedies provided in Section 112A14.5 of this Code, if the respondent has been served with
documents under subsection (b) or (c) of this Section, and
if the respondent fails to answer or appear in accordance
with the date set in the publication notice or the return
date indicated on the service of a household member.
(3) A final stalking no contact order may be entered
by default for any of the remedies provided by Section 112A14.7 of this Code, if the respondent has been served with
documents under subsection (b) or (c) of this Section and if
the respondent fails to answer or appear in accordance with
the date set in the publication notice or the return date
indicated on the service of a household member.
(Source: P.A. 102-853, eff. 1-1-23; 103-154, eff. 6-30-23.)
(725 ILCS 5/112A-6) (from Ch. 38, par. 112A-6)
Sec. 112A-6. (Repealed).
(Source: P.A. 90-235, eff. 1-1-98. Repealed by P.A. 100-199,
eff. 1-1-18.)
(725 ILCS 5/112A-6.1)
Sec. 112A-6.1. Application of rules of civil procedure;
criminal law.
(a) Any proceeding to obtain, modify, re-open, or appeal a
protective order and service of pleadings and notices shall be
governed by the rules of civil procedure of this State. The Code
of Civil Procedure and Supreme Court and local court rules
applicable to civil proceedings shall apply, except as otherwise
provided by law. Civil law on venue, discovery, and penalties
for untrue statements shall not apply to protective order
proceedings heard under this Article.
(b) Criminal law on discovery, venue, and penalties for
untrue statements apply to protective order proceedings under
this Article.
(c) Court proceedings related to the entry of a protective
order and the determination of remedies shall not be used to
obtain discovery that would not otherwise be available in a
criminal prosecution or juvenile delinquency case.
(Source: P.A. 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-7) (from Ch. 38, par. 112A-7)
Sec. 112A-7. (Repealed).
(Source: P.A. 88-45. Repealed by P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-8) (from Ch. 38, par. 112A-8)
Sec. 112A-8. Subject matter jurisdiction. Each of the
circuit courts shall have the power to issue protective orders.
(Source: P.A. 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-9) (from Ch. 38, par. 112A-9)
Sec. 112A-9. Jurisdiction over persons. In child custody
proceedings, the court's personal jurisdiction is determined by
this State's Uniform Child-Custody Jurisdiction and Enforcement
Act. Otherwise, the courts of this State have jurisdiction to
bind (i) State residents, and (ii) non-residents having minimum
contacts with this State, to the extent permitted by the longarm statute, Section 2-209 of the Code of Civil Procedure, as
now or hereafter amended.
(Source: P.A. 93-108, eff. 1-1-04.)
(725 ILCS 5/112A-10) (from Ch. 38, par. 112A-10)
Sec. 112A-10. (Repealed).
(Source: P.A. 99-240, eff. 1-1-16. Repealed by P.A. 100-199,
eff. 1-1-18.)
(725 ILCS 5/112A-11) (from Ch. 38, par. 112A-11)
Sec. 112A-11. (Repealed).
(Source: P.A. 84-1305. Repealed by P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-11.1)
Sec. 112A-11.1. Procedure for determining whether certain
misdemeanor crimes are crimes of domestic violence for purposes
of federal law.
(a) When a defendant has been charged with a violation of
Section 12-1, 12-2, 12-3, 12-3.2, 12-3.4, or 12-3.5 of the
Criminal Code of 1961 or the Criminal Code of 2012, the State
may, at arraignment or no later than 45 days after arraignment,
for the purpose of notification to the Illinois State Police
Firearm Owner's Identification Card Office, serve on the
defendant and file with the court a notice alleging that
conviction of the offense would subject the defendant to the
prohibitions of 18 U.S.C. 922(g)(9) because of the relationship
between the defendant and the alleged victim and the nature of
the alleged offense.
(b) The notice shall include the name of the person alleged
to be the victim of the crime and shall specify the nature of
the alleged relationship as set forth in 18 U.S.C. 921(a)(33)(A)
(ii). It shall also specify the element of the charged offense
which requires the use or attempted use of physical force, or
the threatened use of a deadly weapon, as set forth 18 U.S.C.
921(a)(33)(A)(ii). It shall also include notice that the
defendant is entitled to a hearing on the allegation contained
in the notice and that if the allegation is sustained, that
determination and conviction shall be reported to the Illinois
State Police Firearm Owner's Identification Card Office.
(c) After having been notified as provided in subsection (b)
of this Section, the defendant may stipulate or admit, orally on
the record or in writing, that conviction of the offense would
subject the defendant to the prohibitions of 18 U.S.C. 922(g)
(9). In that case, the applicability of 18 U.S.C. 922(g)(9)
shall be deemed established for purposes of Section 112A-11.2.
If the defendant denies the applicability of 18 U.S.C. 922(g)(9)
as alleged in the notice served by the State, or stands mute
with respect to that allegation, then the State shall bear the
burden to prove beyond a reasonable doubt that the offense is
one to which the prohibitions of 18 U.S.C. 922(g)(9) apply. The
court may consider reliable hearsay evidence submitted by either
party provided that it is relevant to the determination of the
allegation. Facts previously proven at trial or elicited at the
time of entry of a plea of guilty shall be deemed established
beyond a reasonable doubt and shall not be relitigated. At the
conclusion of the hearing, or upon a stipulation or admission,
as applicable, the court shall make a specific written
determination with respect to the allegation.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/112A-11.2)
Sec. 112A-11.2. Notification to the Illinois State Police
Firearm Owner's Identification Card Office of determinations in
certain misdemeanor cases. Upon judgment of conviction of a
violation of Section 12-1, 12-2, 12-3, 12-3.2, 12-3.4, or 12-3.5
of the Criminal Code of 1961 or the Criminal Code of 2012 when
the defendant has been determined, under Section 112A-11.1, to
be subject to the prohibitions of 18 U.S.C. 922(g)(9), the
circuit court clerk shall include notification and a copy of the
written determination in a report of the conviction to the
Illinois State Police Firearm Owner's Identification Card Office
to enable the office to report that determination to the Federal
Bureau of Investigation and assist the Bureau in identifying
persons prohibited from purchasing and possessing a firearm
pursuant to the provisions of 18 U.S.C. 922.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/112A-11.5)
Sec. 112A-11.5. Issuance of protective order.
(a) Except as provided in subsection (a-5) of this Section,
the court shall grant the petition and enter a protective order
if the court finds prima facie evidence that a crime involving
domestic violence, a sexual offense, or a crime involving
stalking has been committed. The following shall be considered
prima facie evidence of the crime:
(1) an information, complaint, indictment, or
delinquency petition, charging a crime of domestic violence,
a sexual offense, or stalking or charging an attempt to
commit a crime of domestic violence, a sexual offense, or
stalking;
(2) an adjudication of delinquency, a finding of
guilt based upon a plea, or a finding of guilt after a trial
for a crime of domestic battery, a sexual crime, or stalking
or an attempt to commit a crime of domestic violence, a
sexual offense, or stalking;
(3) any dispositional order issued under Section
5-710 of the Juvenile Court Act of 1987, the imposition of
supervision, conditional discharge, probation, periodic
imprisonment, parole, aftercare release, or mandatory
supervised release for a crime of domestic violence, a
sexual offense, or stalking or an attempt to commit a crime
of domestic violence, a sexual offense, or stalking, or
imprisonment in conjunction with a bond forfeiture warrant;
or
(4) the entry of a protective order in a separate
civil case brought by the petitioner against the respondent.
(a-5) The respondent may rebut prima facie evidence of the
crime under paragraph (1) of subsection (a) of this Section by
presenting evidence of a meritorious defense. The respondent
shall file a written notice alleging a meritorious defense which
shall be verified and supported by affidavit. The verified
notice and affidavit shall set forth the evidence that will be
presented at a hearing. If the court finds that the evidence
presented at the hearing establishes a meritorious defense by a
preponderance of the evidence, the court may decide not to issue
a protective order.
(b) The petitioner shall not be denied a protective order
because the petitioner or the respondent is a minor.
(c) The court, when determining whether or not to issue a
protective order, may not require physical injury on the person
of the victim.
(d) If the court issues a final protective order under this
Section, the court shall afford the petitioner and respondent an
opportunity to be heard on the remedies requested in the
petition.
(Source: P.A. 100-199, eff. 1-1-18; 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-12) (from Ch. 38, par. 112A-12)
Sec. 112A-12. Transfer of issues not decided in cases
involving domestic violence.
(a) (Blank).
(a-5) A petition for a domestic violence order of protection
shall be treated as an expedited proceeding, and no court shall
transfer or otherwise decline to decide all or part of the
petition, except as otherwise provided in this Section. Nothing
in this Section shall prevent the court from reserving issues
when jurisdiction or notice requirements are not met.
(b) A criminal court may decline to decide contested issues
of physical care and possession of a minor child, temporary
allocation of parental responsibilities or significant decisionmaking responsibility, parenting time, or family support, unless
a decision on one or more of those contested issues is necessary
to avoid the risk of abuse, neglect, removal from the State, or
concealment within the State of the child or of separation of
the child from the primary caretaker.
(c) The court shall transfer to the appropriate court or
division any issue it has declined to decide. Any court may
transfer any matter which must be tried by jury to a more
appropriate calendar or division.
(d) If the court transfers or otherwise declines to decide
any issue, judgment on that issue shall be expressly reserved
and ruling on other issues shall not be delayed or declined.
(Source: P.A. 100-199, eff. 1-1-18; 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-13) (from Ch. 38, par. 112A-13)
Sec. 112A-13. (Repealed).
(Source: P.A. 91-357, eff. 7-29-99. Repealed by P.A. 100-199,
eff. 1-1-18.)
(725 ILCS 5/112A-14) (from Ch. 38, par. 112A-14)
Sec. 112A-14. Domestic violence order of protection;
remedies.
(a) (Blank).
(b) The court may order any of the remedies listed in this
subsection (b). The remedies listed in this subsection (b) shall
be in addition to other civil or criminal remedies available to
petitioner.
(1) Prohibition of abuse. Prohibit respondent's
harassment, interference with personal liberty, intimidation
of a dependent, physical abuse, or willful deprivation, as
defined in this Article, if such abuse has occurred or
otherwise appears likely to occur if not prohibited.
(2) Grant of exclusive possession of residence.
Prohibit respondent from entering or remaining in any
residence, household, or premises of the petitioner,
including one owned or leased by respondent, if petitioner
has a right to occupancy thereof. The grant of exclusive
possession of the residence, household, or premises shall
not affect title to real property, nor shall the court be
limited by the standard set forth in subsection (c-2) of
Section 501 of the Illinois Marriage and Dissolution of
Marriage Act.
(A) Right to occupancy. A party has a right to
occupancy of a residence or household if it is solely or
jointly owned or leased by that party, that party's
spouse, a person with a legal duty to support that party
or a minor child in that party's care, or by any person
or entity other than the opposing party that authorizes
that party's occupancy (e.g., a domestic violence
shelter). Standards set forth in subparagraph (B) shall
not preclude equitable relief.
(B) Presumption of hardships. If petitioner and
respondent each has the right to occupancy of a
residence or household, the court shall balance (i) the
hardships to respondent and any minor child or dependent
adult in respondent's care resulting from entry of this
remedy with (ii) the hardships to petitioner and any
minor child or dependent adult in petitioner's care
resulting from continued exposure to the risk of abuse
(should petitioner remain at the residence or household)
or from loss of possession of the residence or household
(should petitioner leave to avoid the risk of abuse).
When determining the balance of hardships, the court
shall also take into account the accessibility of the
residence or household. Hardships need not be balanced
if respondent does not have a right to occupancy.
The balance of hardships is presumed to favor
possession by petitioner unless the presumption is
rebutted by a preponderance of the evidence, showing
that the hardships to respondent substantially outweigh
the hardships to petitioner and any minor child or
dependent adult in petitioner's care. The court, on the
request of petitioner or on its own motion, may order
respondent to provide suitable, accessible, alternate
housing for petitioner instead of excluding respondent
from a mutual residence or household.
(3) Stay away order and additional prohibitions.
Order respondent to stay away from petitioner or any other
person protected by the domestic violence order of
protection,
or
prohibit
respondent
from
entering
or
remaining
present
at
petitioner's
school,
place
of
employment, or other specified places at times when
petitioner is present, or both, if reasonable, given the
balance of hardships. Hardships need not be balanced for the
court to enter a stay away order or prohibit entry if
respondent has no right to enter the premises.
(A) If a domestic violence order of protection
grants petitioner exclusive possession of the residence,
prohibits respondent from entering the residence, or
orders respondent to stay away from petitioner or other
protected persons, then the court may allow respondent
access to the residence to remove items of clothing and
personal adornment used exclusively by respondent,
medications, and other items as the court directs. The
right to access shall be exercised on only one occasion
as the court directs and in the presence of an agreedupon adult third party or law enforcement officer.
(B) When the petitioner and the respondent attend
the same public, private, or non-public elementary,
middle, or high school, the court when issuing a
domestic violence order of protection and providing
relief shall consider the severity of the act, any
continuing physical danger or emotional distress to the
petitioner, the educational rights guaranteed to the
petitioner and respondent under federal and State law,
the availability of a transfer of the respondent to
another school, a change of placement or a change of
program of the respondent, the expense, difficulty, and
educational disruption that would be caused by a
transfer of the respondent to another school, and any
other relevant facts of the case. The court may order
that the respondent not attend the public, private, or
non-public elementary, middle, or high school attended
by the petitioner, order that the respondent accept a
change of placement or change of program, as determined
by the school district or private or non-public school,
or place restrictions on the respondent's movements
within the school attended by the petitioner. The
respondent
bears
the
burden
of
proving
by
a
preponderance of the evidence that a transfer, change of
placement, or change of program of the respondent is not
available. The respondent also bears the burden of
production with respect to the expense, difficulty, and
educational disruption that would be caused by a
transfer of the respondent to another school. A
transfer, change of placement, or change of program is
not unavailable to the respondent solely on the ground
that the respondent does not agree with the school
district's or private or non-public school's transfer,
change of placement, or change of program or solely on
the ground that the respondent fails or refuses to
consent or otherwise does not take an action required to
effectuate a transfer, change of placement, or change of
program. When a court orders a respondent to stay away
from the public, private, or non-public school attended
by the petitioner and the respondent requests a transfer
to another attendance center within the respondent's
school district or private or non-public school, the
school district or private or non-public school shall
have sole discretion to determine the attendance center
to which the respondent is transferred. If the court
order results in a transfer of the minor respondent to
another attendance center, a change in the respondent's
placement, or a change of the respondent's program, the
parents, guardian, or legal custodian of the respondent
is responsible for transportation and other costs
associated with the transfer or change.
(C) The court may order the parents, guardian, or
legal custodian of a minor respondent to take certain
actions or to refrain from taking certain actions to
ensure that the respondent complies with the order. If
the court orders a transfer of the respondent to another
school, the parents, guardian, or legal custodian of the
respondent is responsible for transportation and other
costs associated with the change of school by the
respondent.
(4) Counseling. Require or recommend the respondent
to undergo counseling for a specified duration with a social
worker, psychologist, clinical psychologist, psychiatrist,
family service agency, alcohol or substance abuse program,
mental health center guidance counselor, agency providing
services to elders, program designed for domestic violence
abusers, or any other guidance service the court deems
appropriate. The court may order the respondent in any
intimate partner relationship to report to an Illinois
Department of Human Services protocol approved partner abuse
intervention program for an assessment and to follow all
recommended treatment.
(5) Physical care and possession of the minor child.
In order to protect the minor child from abuse, neglect, or
unwarranted separation from the person who has been the
minor child's primary caretaker, or to otherwise protect the
well-being of the minor child, the court may do either or
both of the following: (i) grant petitioner physical care or
possession of the minor child, or both, or (ii) order
respondent to return a minor child to, or not remove a minor
child from, the physical care of a parent or person in loco
parentis.
If the respondent is charged with abuse (as defined
in Section 112A-3 of this Code) of a minor child, there
shall be a rebuttable presumption that awarding physical
care to respondent would not be in the minor child's best
interest.
(6) Temporary allocation of parental responsibilities
and significant decision-making responsibilities. Award
temporary significant decision-making responsibility to
petitioner in accordance with this Section, the Illinois
Marriage and Dissolution of Marriage Act, the Illinois
Parentage Act of 2015, and this State's Uniform ChildCustody Jurisdiction and Enforcement Act.
If the respondent is charged with abuse (as defined
in Section 112A-3 of this Code) of a minor child, there
shall be a rebuttable presumption that awarding temporary
significant decision-making responsibility to respondent
would not be in the child's best interest.
(7) Parenting time. Determine the parenting time, if
any, of respondent in any case in which the court awards
physical care or temporary significant decision-making
responsibility of a minor child to petitioner. The court
shall restrict or deny respondent's parenting time with a
minor child if the court finds that respondent has done or
is likely to do any of the following:
(i) abuse or endanger the minor child during
parenting time;
(ii) use the parenting time as an opportunity to
abuse or harass petitioner or petitioner's family or
household members;
(iii) improperly conceal or detain the minor
child; or
(iv) otherwise act in a manner that is not in the
best interests of the minor child.
The court shall not be limited by the standards set
forth in Section 603.10 of the Illinois Marriage and
Dissolution of Marriage Act. If the court grants parenting
time, the order shall specify dates and times for the
parenting time to take place or other specific parameters or
conditions that are appropriate. No order for parenting time
shall refer merely to the term "reasonable parenting time".
Petitioner may deny respondent access to the minor child if,
when respondent arrives for parenting time, respondent is
under the influence of drugs or alcohol and constitutes a
threat to the safety and well-being of petitioner or
petitioner's minor children or is behaving in a violent or
abusive manner. If necessary to protect any member of
petitioner's
family
or
household
from
future
abuse,
respondent shall be prohibited from coming to petitioner's
residence to meet the minor child for parenting time, and
the petitioner and respondent shall submit to the court
their
recommendations
for
reasonable
alternative
arrangements for parenting time. A person may be approved to
supervise parenting time only after filing an affidavit
accepting
that
responsibility
and
acknowledging
accountability to the court.
(8) Removal or concealment of minor child. Prohibit
respondent from removing a minor child from the State or
concealing the child within the State.
(9) Order to appear. Order the respondent to appear
in court, alone or with a minor child, to prevent abuse,
neglect, removal or concealment of the child, to return the
child to the custody or care of the petitioner, or to permit
any court-ordered interview or examination of the child or
the respondent.
(10) Possession of personal property. Grant
petitioner exclusive possession of personal property and, if
respondent has possession or control, direct respondent to
promptly make it available to petitioner, if:
(i) petitioner, but not respondent, owns the
property; or
(ii) the petitioner and respondent own the
property jointly; sharing it would risk abuse of
petitioner by respondent or is impracticable; and the
balance of hardships favors temporary possession by
petitioner.
If petitioner's sole claim to ownership of the
property is that it is marital property, the court may award
petitioner temporary possession thereof under the standards
of subparagraph (ii) of this paragraph only if a proper
proceeding has been filed under the Illinois Marriage and
Dissolution of Marriage Act, as now or hereafter amended.
No order under this provision shall affect title to
property.
(11) Protection of property. Forbid the respondent
from
taking,
transferring,
encumbering,
concealing,
damaging, or otherwise disposing of any real or personal
property, except as explicitly authorized by the court, if:
(i) petitioner, but not respondent, owns the
property; or
(ii) the petitioner and respondent own the
property jointly, and the balance of hardships favors
granting this remedy.
If petitioner's sole claim to ownership of the
property is that it is marital property, the court may grant
petitioner relief under subparagraph (ii) of this paragraph
only if a proper proceeding has been filed under the
Illinois Marriage and Dissolution of Marriage Act, as now or
hereafter amended.
The court may further prohibit respondent from
improperly using the financial or other resources of an aged
member of the family or household for the profit or
advantage of respondent or of any other person.
(11.5) Protection of animals. Grant the petitioner
the exclusive care, custody, or control of any animal owned,
possessed, leased, kept, or held by either the petitioner or
the respondent or a minor child residing in the residence or
household of either the petitioner or the respondent and
order the respondent to stay away from the animal and forbid
the respondent from taking, transferring, encumbering,
concealing, harming, or otherwise disposing of the animal.
(12) Order for payment of support. Order respondent
to pay temporary support for the petitioner or any child in
the petitioner's care or over whom the petitioner has been
allocated parental responsibility, when the respondent has a
legal obligation to support that person, in accordance with
the Illinois Marriage and Dissolution of Marriage Act, which
shall govern, among other matters, the amount of support,
payment through the clerk and withholding of income to
secure payment. An order for child support may be granted to
a petitioner with lawful physical care of a child, or an
order or agreement for physical care of a child, prior to
entry of an order allocating significant decision-making
responsibility. Such a support order shall expire upon entry
of
a
valid
order
allocating
parental
responsibility
differently and vacating petitioner's significant decisionmaking responsibility unless otherwise provided in the
order.
(13) Order for payment of losses. Order respondent to
pay petitioner for losses suffered as a direct result of the
abuse. Such losses shall include, but not be limited to,
medical expenses, lost earnings or other support, repair or
replacement of property damaged or taken, reasonable
attorney's fees, court costs, and moving or other travel
expenses, including additional reasonable expenses for
temporary shelter and restaurant meals.
(i) Losses affecting family needs. If a party is
entitled to seek maintenance, child support, or property
distribution from the other party under the Illinois
Marriage and Dissolution of Marriage Act, as now or
hereafter amended, the court may order respondent to
reimburse petitioner's actual losses, to the extent that
such reimbursement would be "appropriate temporary
relief", as authorized by subsection (a)(3) of Section
501 of that Act.
(ii) Recovery of expenses. In the case of an
improper concealment or removal of a minor child, the
court may order respondent to pay the reasonable
expenses incurred or to be incurred in the search for
and recovery of the minor child, including, but not
limited
to,
legal
fees,
court
costs,
private
investigator fees, and travel costs.
(14) Prohibition of entry. Prohibit the respondent
from entering or remaining in the residence or household
while the respondent is under the influence of alcohol or
drugs and constitutes a threat to the safety and well-being
of the petitioner or the petitioner's children.
(14.5) Prohibition of firearm possession.
(A) A person who is subject to an existing
domestic violence order of protection issued under this
Code may not lawfully possess weapons or a Firearm
Owner's Identification Card under Section 8.2 of the
Firearm Owners Identification Card Act.
(B) Any firearms in the possession of the
respondent, except as provided in subparagraph (C) of
this paragraph (14.5), shall be ordered by the court to
be turned over to a person with a valid Firearm Owner's
Identification Card for safekeeping. The court shall
issue an order that the respondent comply with Section
9.5 of the Firearm Owners Identification Card Act.
(C) If the respondent is a peace officer as
defined in Section 2-13 of the Criminal Code of 2012,
the court shall order that any firearms used by the
respondent in the performance of his or her duties as a
peace
officer
be
surrendered
to
the
chief
law
enforcement executive of the agency in which the
respondent is employed, who shall retain the firearms
for safekeeping for the duration of the domestic
violence order of protection.
(D) Upon expiration of the period of
safekeeping,
if
the
firearms
or
Firearm
Owner's
Identification Card cannot be returned to respondent
because respondent cannot be located, fails to respond
to requests to retrieve the firearms, or is not lawfully
eligible to possess a firearm, upon petition from the
local law enforcement agency, the court may order the
local law enforcement agency to destroy the firearms,
use the firearms for training purposes, or for any other
application as deemed appropriate by the local law
enforcement agency; or that the firearms be turned over
to a third party who is lawfully eligible to possess
firearms, and who does not reside with respondent.
(15) Prohibition of access to records. If a domestic
violence order of protection prohibits respondent from
having contact with the minor child, or if petitioner's
address is omitted under subsection (b) of Section 112A-5 of
this Code, or if necessary to prevent abuse or wrongful
removal or concealment of a minor child, the order shall
deny respondent access to, and prohibit respondent from
inspecting, obtaining, or attempting to inspect or obtain,
school or any other records of the minor child who is in the
care of petitioner.
(16) Order for payment of shelter services. Order
respondent to reimburse a shelter providing temporary
housing and counseling services to the petitioner for the
cost of the services, as certified by the shelter and deemed
reasonable by the court.
(17) Order for injunctive relief. Enter injunctive
relief necessary or appropriate to prevent further abuse of
a family or household member or to effectuate one of the
granted remedies, if supported by the balance of hardships.
If the harm to be prevented by the injunction is abuse or
any other harm that one of the remedies listed in paragraphs
(1) through (16) of this subsection is designed to prevent,
no further evidence is necessary to establish that the harm
is an irreparable injury.
(18) Telephone services.
(A) Unless a condition described in subparagraph
(B) of this paragraph exists, the court may, upon
request by the petitioner, order a wireless telephone
service provider to transfer to the petitioner the right
to continue to use a telephone number or numbers
indicated
by
the
petitioner
and
the
financial
responsibility associated with the number or numbers, as
set forth in subparagraph (C) of this paragraph. In this
paragraph (18), the term "wireless telephone service
provider" means a provider of commercial mobile service
as defined in 47 U.S.C. 332. The petitioner may request
the transfer of each telephone number that the
petitioner, or a minor child in his or her custody,
uses. The clerk of the court shall serve the order on
the wireless telephone service provider's agent for
service of process provided to the Illinois Commerce
Commission. The order shall contain all of the
following:
(i) The name and billing telephone number of
the account holder including the name of the
wireless telephone service provider that serves the
account.
(ii) Each telephone number that will be
transferred.
(iii) A statement that the provider transfers
to the petitioner all financial responsibility for
and right to the use of any telephone number
transferred under this paragraph.
(B) A wireless telephone service provider shall
terminate the respondent's use of, and shall transfer to
the petitioner use of, the telephone number or numbers
indicated in subparagraph (A) of this paragraph unless
it notifies the petitioner, within 72 hours after it
receives the order, that one of the following applies:
(i) The account holder named in the order has
terminated the account.
(ii) A difference in network technology would
prevent or impair the functionality of a device on a
network if the transfer occurs.
(iii) The transfer would cause a geographic
or other limitation on network or service provision
to the petitioner.
(iv) Another technological or operational
issue would prevent or impair the use of the
telephone number if the transfer occurs.
(C) The petitioner assumes all financial
responsibility for and right to the use of any telephone
number transferred under this paragraph. In this
paragraph, "financial responsibility" includes monthly
service costs and costs associated with any mobile
device associated with the number.
(D) A wireless telephone service provider may
apply to the petitioner its routine and customary
requirements for establishing an account or transferring
a number, including requiring the petitioner to provide
proof of identification, financial information, and
customer preferences.
(E) Except for willful or wanton misconduct, a
wireless telephone service provider is immune from civil
liability for its actions taken in compliance with a
court order issued under this paragraph.
(F) All wireless service providers that provide
services to residential customers shall provide to the
Illinois Commerce Commission the name and address of an
agent for service of orders entered under this paragraph
(18). Any change in status of the registered agent must
be reported to the Illinois Commerce Commission within
30 days of such change.
(G) The Illinois Commerce Commission shall
maintain the list of registered agents for service for
each
wireless
telephone
service
provider
on
the
Commission's website. The Commission may consult with
wireless telephone service providers and the Circuit
Court Clerks on the manner in which this information is
provided and displayed.
(c) Relevant factors; findings.
(1) In determining whether to grant a specific
remedy, other than payment of support, the court shall
consider relevant factors, including, but not limited to,
the following:
(i) the nature, frequency, severity, pattern, and
consequences of the respondent's past abuse of the
petitioner or any family or household member, including
the concealment of his or her location in order to evade
service of process or notice, and the likelihood of
danger of future abuse to petitioner or any member of
petitioner's or respondent's family or household; and
(ii) the danger that any minor child will be
abused or neglected or improperly relocated from the
jurisdiction, improperly concealed within the State, or
improperly separated from the child's primary caretaker.
(2) In comparing relative hardships resulting to the
parties from loss of possession of the family home, the
court shall consider relevant factors, including, but not
limited to, the following:
(i) availability, accessibility, cost, safety,
adequacy,
location,
and
other
characteristics
of
alternate housing for each party and any minor child or
dependent adult in the party's care;
(ii) the effect on the party's employment; and
(iii) the effect on the relationship of the
party, and any minor child or dependent adult in the
party's care, to family, school, church, and community.
(3) Subject to the exceptions set forth in paragraph
(4) of this subsection (c), the court shall make its
findings in an official record or in writing, and shall at a
minimum set forth the following:
(i) That the court has considered the applicable
relevant factors described in paragraphs (1) and (2) of
this subsection (c).
(ii) Whether the conduct or actions of
respondent,
unless
prohibited,
will
likely
cause
irreparable harm or continued abuse.
(iii) Whether it is necessary to grant the
requested relief in order to protect petitioner or other
alleged abused persons.
(4) (Blank).
(5) Never married parties. No rights or
responsibilities for a minor child born outside of marriage
attach to a putative father until a father and child
relationship has been established under the Illinois
Parentage Act of 1984, the Illinois Parentage Act of 2015,
the Illinois Public Aid Code, Section 12 of the Vital
Records Act, the Juvenile Court Act of 1987, the Probate Act
of 1975, the Uniform Interstate Family Support Act, the
Expedited Child Support Act of 1990, any judicial,
administrative, or other act of another state or territory,
any other statute of this State, or by any foreign nation
establishing the father and child relationship, any other
proceeding substantially in conformity with the federal
Personal Responsibility and Work Opportunity Reconciliation
Act of 1996, or when both parties appeared in open court or
at an administrative hearing acknowledging under oath or
admitting by affirmation the existence of a father and child
relationship. Absent such an adjudication, no putative
father shall be granted temporary allocation of parental
responsibilities, including parenting time with the minor
child, or physical care and possession of the minor child,
nor shall an order of payment for support of the minor child
be entered.
(d) Balance of hardships; findings. If the court finds that
the balance of hardships does not support the granting of a
remedy governed by paragraph (2), (3), (10), (11), or (16) of
subsection (b) of this Section, which may require such
balancing, the court's findings shall so indicate and shall
include a finding as to whether granting the remedy will result
in hardship to respondent that would substantially outweigh the
hardship to petitioner from denial of the remedy. The findings
shall be an official record or in writing.
(e) Denial of remedies. Denial of any remedy shall not be
based, in whole or in part, on evidence that:
(1) respondent has cause for any use of force, unless
that cause satisfies the standards for justifiable use of
force provided by Article 7 of the Criminal Code of 2012;
(2) respondent was voluntarily intoxicated;
(3) petitioner acted in self-defense or defense of
another, provided that, if petitioner utilized force, such
force was justifiable under Article 7 of the Criminal Code
of 2012;
(4) petitioner did not act in self-defense or defense
of another;
(5) petitioner left the residence or household to
avoid further abuse by respondent;
(6) petitioner did not leave the residence or
household to avoid further abuse by respondent; or
(7) conduct by any family or household member excused
the abuse by respondent, unless that same conduct would have
excused such abuse if the parties had not been family or
household members.
(Source: P.A. 101-81, eff. 7-12-19; 102-237, eff. 1-1-22; 102538, eff. 8-20-21; 102-813, eff. 5-13-22.)
(725 ILCS 5/112A-14.5)
Sec. 112A-14.5. Civil no contact order; remedies.
(a) The court may order any of the remedies listed in this
Section. The remedies listed in this Section shall be in
addition to other civil or criminal remedies available to
petitioner:
(1) prohibit the respondent from knowingly coming
within, or knowingly remaining within, a specified distance
from the petitioner;
(2) restrain the respondent from having any contact,
including nonphysical contact, with the petitioner directly,
indirectly, or through third parties, regardless of whether
those third parties know of the order;
(3) prohibit the respondent from knowingly coming
within, or knowingly remaining within, a specified distance
from the petitioner's residence, school, day care or other
specified location;
(4) order the respondent to stay away from any
property or animal owned, possessed, leased, kept, or held
by the petitioner and forbid the respondent from taking,
transferring, encumbering, concealing, harming, or otherwise
disposing of the property or animal; and
(5) order any other injunctive relief as necessary or
appropriate for the protection of the petitioner.
(b) When the petitioner and the respondent attend the same
public or private elementary, middle, or high school, the court
when issuing a civil no contact order and providing relief shall
consider the severity of the act, any continuing physical danger
or emotional distress to the petitioner, the educational rights
guaranteed to the petitioner and respondent under federal and
State law, the availability of a transfer of the respondent to
another school, a change of placement or a change of program of
the respondent, the expense, difficulty, and educational
disruption that would be caused by a transfer of the respondent
to another school, and any other relevant facts of the case. The
court may order that the respondent not attend the public,
private, or non-public elementary, middle, or high school
attended by the petitioner, order that the respondent accept a
change of placement or program, as determined by the school
district or private or non-public school, or place restrictions
on the respondent's movements within the school attended by the
petitioner. The respondent bears the burden of proving by a
preponderance of the evidence that a transfer, change of
placement, or change of program of the respondent is not
available. The respondent also bears the burden of production
with respect to the expense, difficulty, and educational
disruption that would be caused by a transfer of the respondent
to another school. A transfer, change of placement, or change of
program is not unavailable to the respondent solely on the
ground that the respondent does not agree with the school
district's or private or non-public school's transfer, change of
placement, or change of program or solely on the ground that the
respondent fails or refuses to consent to or otherwise does not
take an action required to effectuate a transfer, change of
placement, or change of program. When a court orders a
respondent to stay away from the public, private, or non-public
school attended by the petitioner and the respondent requests a
transfer to another attendance center within the respondent's
school district or private or non-public school, the school
district or private or non-public school shall have sole
discretion to determine the attendance center to which the
respondent is transferred. If the court order results in a
transfer of the minor respondent to another attendance center, a
change in the respondent's placement, or a change of the
respondent's program, the parents, guardian, or legal custodian
of the respondent is responsible for transportation and other
costs associated with the transfer or change.
(c) The court may order the parents, guardian, or legal
custodian of a minor respondent to take certain actions or to
refrain from taking certain actions to ensure that the
respondent complies with the order. If the court orders a
transfer of the respondent to another school, the parents or
legal
guardians
of
the
respondent
are
responsible
for
transportation and other costs associated with the change of
school by the respondent.
(d) Denial of a remedy may not be based, in whole or in
part, on evidence that:
(1) the respondent has cause for any use of force,
unless that cause satisfies the standards for justifiable
use of force provided by Article 7 of the Criminal Code of
2012;
(2) the respondent was voluntarily intoxicated;
(3) the petitioner acted in self-defense or defense
of another, provided that, if the petitioner utilized force,
such force was justifiable under Article 7 of the Criminal
Code of 2012;
(4) the petitioner did not act in self-defense or
defense of another;
(5) the petitioner left the residence or household to
avoid
further
non-consensual
sexual
conduct
or
nonconsensual sexual penetration by the respondent; or
(6) the petitioner did not leave the residence or
household to avoid further non-consensual sexual conduct or
non-consensual sexual penetration by the respondent.
(e) Monetary damages are not recoverable as a remedy.
(Source: P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-14.7)
Sec. 112A-14.7. Stalking no contact order; remedies.
(a) The court may order any of the remedies listed in this
Section. The remedies listed in this Section shall be in
addition to other civil or criminal remedies available to
petitioner. A stalking no contact order shall order one or more
of the following:
(1) prohibit the respondent from threatening to
commit or committing stalking;
(2) order the respondent not to have any contact with
the petitioner or a third person specifically named by the
court;
(3) prohibit the respondent from knowingly coming
within, or knowingly remaining within a specified distance
of the petitioner or the petitioner's residence, school,
daycare, or place of employment, or any specified place
frequented by the petitioner; however, the court may order
the respondent to stay away from the respondent's own
residence, school, or place of employment only if the
respondent
has
been
provided
actual
notice
of
the
opportunity to appear and be heard on the petition;
(4) prohibit the respondent from possessing a
Firearm Owners Identification Card, or possessing or buying
firearms; and
(5) order other injunctive relief the court
determines to be necessary to protect the petitioner or
third party specifically named by the court.
(b) When the petitioner and the respondent attend the same
public, private, or non-public elementary, middle, or high
school, the court when issuing a stalking no contact order and
providing relief shall consider the severity of the act, any
continuing physical danger or emotional distress to the
petitioner, the educational rights guaranteed to the petitioner
and respondent under federal and State law, the availability of
a transfer of the respondent to another school, a change of
placement or a change of program of the respondent, the expense,
difficulty, and educational disruption that would be caused by a
transfer of the respondent to another school, and any other
relevant facts of the case. The court may order that the
respondent not attend the public, private, or non-public
elementary, middle, or high school attended by the petitioner,
order that the respondent accept a change of placement or
program, as determined by the school district or private or nonpublic school, or place restrictions on the respondent's
movements within the school attended by the petitioner. The
respondent bears the burden of proving by a preponderance of the
evidence that a transfer, change of placement, or change of
program of the respondent is not available. The respondent also
bears the burden of production with respect to the expense,
difficulty, and educational disruption that would be caused by a
transfer of the respondent to another school. A transfer, change
of placement, or change of program is not unavailable to the
respondent solely on the ground that the respondent does not
agree with the school district's or private or non-public
school's transfer, change of placement, or change of program or
solely on the ground that the respondent fails or refuses to
consent to or otherwise does not take an action required to
effectuate a transfer, change of placement, or change of
program. When a court orders a respondent to stay away from the
public, private, or non-public school attended by the petitioner
and the respondent requests a transfer to another attendance
center within the respondent's school district or private or
non-public school, the school district or private or non-public
school shall have sole discretion to determine the attendance
center to which the respondent is transferred. If the court
order results in a transfer of the minor respondent to another
attendance center, a change in the respondent's placement, or a
change of the respondent's program, the parents, guardian, or
legal
custodian
of
the
respondent
is
responsible
for
transportation and other costs associated with the transfer or
change.
(c) The court may order the parents, guardian, or legal
custodian of a minor respondent to take certain actions or to
refrain from taking certain actions to ensure that the
respondent complies with the order. If the court orders a
transfer of the respondent to another school, the parents,
guardian, or legal custodian of the respondent are responsible
for transportation and other costs associated with the change of
school by the respondent.
(d) The court shall not hold a school district or private or
non-public school or any of its employees in civil or criminal
contempt unless the school district or private or non-public
school has been allowed to intervene.
(e) The court may hold the parents, guardian, or legal
custodian of a minor respondent in civil or criminal contempt
for a violation of any provision of any order entered under this
Article for conduct of the minor respondent in violation of this
Article if the parents, guardian, or legal custodian directed,
encouraged, or assisted the respondent minor in the conduct.
(f) Monetary damages are not recoverable as a remedy.
(g) If the stalking no contact order prohibits the
respondent from possessing a Firearm Owner's Identification
Card, or possessing or buying firearms; the court shall
confiscate the respondent's Firearm Owner's Identification Card
and immediately return the card to the Illinois State Police
Firearm Owner's Identification Card Office.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/112A-15) (from Ch. 38, par. 112A-15)
Sec. 112A-15. Mutual orders of protection; correlative
separate orders. Mutual orders of protection are prohibited.
Correlative separate orders of protection undermine the purposes
of this Article and are prohibited. Nothing in this Section
prohibits a victim from seeking a civil order of protection.
(Source: P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-16) (from Ch. 38, par. 112A-16)
Sec. 112A-16. Accountability for actions of others. For the
purposes of issuing a domestic violence order of protection,
deciding what remedies should be included and enforcing the
order, Article 5 of the Criminal Code of 2012 shall govern
whether respondent is legally accountable for the conduct of
another person.
(Source: P.A. 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-17) (from Ch. 38, par. 112A-17)
Sec. 112A-17. (Repealed).
(Source: P.A. 97-333, eff. 8-12-11. Repealed by P.A. 100-199,
eff. 1-1-18.)
(725 ILCS 5/112A-17.5)
Sec. 112A-17.5. Ex parte protective orders.
(a) The petitioner may request expedited consideration of
the petition for an ex parte protective order. The court shall
consider the request on an expedited basis without requiring the
respondent's presence or requiring notice to the respondent.
(b) Issuance of ex parte protective orders in cases
involving domestic violence. An ex parte domestic violence order
of protection shall be issued if petitioner satisfies the
requirements of this subsection (b) for one or more of the
requested remedies. For each remedy requested, petitioner shall
establish that:
(1) the court has jurisdiction under Section 112A-9
of this Code;
(2) the requirements of subsection (a) of Section
112A-11.5 of this Code are satisfied; and
(3) there is good cause to grant the remedy,
regardless of prior service of process or notice upon the
respondent, because:
(A) for the remedy of prohibition of abuse
described in paragraph (1) of subsection (b) of Section
112A-14 of this Code; stay away order and additional
prohibitions described in paragraph (3) of subsection
(b) of Section 112A-14 of this Code; removal or
concealment of minor child described in paragraph (8) of
subsection (b) of Section 112A-14 of this Code; order to
appear described in paragraph (9) of subsection (b) of
Section 112A-14 of this Code; physical care and
possession of the minor child described in paragraph (5)
of subsection (b) of Section 112A-14 of this Code;
protection of property described in paragraph (11) of
subsection (b) of Section 112A-14 of this Code;
prohibition of entry described in paragraph (14) of
subsection (b) of Section 112A-14 of this Code;
prohibition of firearm possession described in paragraph
(14.5) of subsection (b) of Section 112A-14 of this
Code; prohibition of access to records described in
paragraph (15) of subsection (b) of Section 112A-14 of
this Code; injunctive relief described in paragraph (16)
of subsection (b) of Section 112A-14 of this Code; and
telephone services described in paragraph (18) of
subsection (b) of Section 112A-14 of this Code, the harm
which that remedy is intended to prevent would be likely
to occur if the respondent were given any prior notice,
or greater notice than was actually given, of the
petitioner's efforts to obtain judicial relief;
(B) for the remedy of grant of exclusive
possession of residence described in paragraph (2) of
subsection (b) of Section 112A-14 of this Code; the
immediate danger of further abuse of the petitioner by
the respondent, if the petitioner chooses or had chosen
to remain in the residence or household while the
respondent was given any prior notice or greater notice
than was actually given of the petitioner's efforts to
obtain judicial relief outweighs the hardships to the
respondent of an emergency order granting the petitioner
exclusive possession of the residence or household; and
the remedy shall not be denied because the petitioner
has or could obtain temporary shelter elsewhere while
prior notice is given to the respondent, unless the
hardship to the respondent from exclusion from the home
substantially outweigh the hardship to the petitioner;
or
(C) for the remedy of possession of personal
property described in paragraph (10) of subsection (b)
of Section 112A-14 of this Code; improper disposition of
the personal property would be likely to occur if the
respondent were given any prior notice, or greater
notice than was actually given, of the petitioner's
efforts to obtain judicial relief or the petitioner has
an immediate and pressing need for the possession of
that property.
An ex parte domestic violence order of protection may not
include the counseling, custody, or payment of support or
monetary compensation remedies provided by paragraphs (4), (12),
(13), and (16) of subsection (b) of Section 112A-14 of this
Code.
(c) Issuance of ex parte civil no contact order in cases
involving sexual offenses. An ex parte civil no contact order
shall be issued if the petitioner establishes that:
(1) the court has jurisdiction under Section 112A-9
of this Code;
(2) the requirements of subsection (a) of Section
112A-11.5 of this Code are satisfied; and
(3) there is good cause to grant the remedy,
regardless of prior service of process or of notice upon the
respondent, because the harm which that remedy is intended
to prevent would be likely to occur if the respondent were
given any prior notice, or greater notice than was actually
given, of the petitioner's efforts to obtain judicial
relief.
The court may order any of the remedies under Section 112A14.5 of this Code.
(d) Issuance of ex parte stalking no contact order in cases
involving stalking offenses. An ex parte stalking no contact
order shall be issued if the petitioner establishes that:
(1) the court has jurisdiction under Section 112A-9
of this Code;
(2) the requirements of subsection (a) of Section
112A-11.5 of this Code are satisfied; and
(3) there is good cause to grant the remedy,
regardless of prior service of process or of notice upon the
respondent, because the harm which that remedy is intended
to prevent would be likely to occur if the respondent were
given any prior notice, or greater notice than was actually
given, of the petitioner's efforts to obtain judicial
relief.
The court may order any of the remedies under Section 112A14.7 of this Code.
(e) Issuance of ex parte protective orders on court holidays
and evenings.
When the court is unavailable at the close of business, the
petitioner may file a petition for an ex parte protective order
before any available circuit judge or associate judge who may
grant relief under this Article. If the judge finds that
petitioner has satisfied the prerequisites in subsection (b),
(c), or (d) of this Section, the judge shall issue an ex parte
protective order.
The chief judge of the circuit court may designate for each
county in the circuit at least one judge to be reasonably
available to issue orally, by telephone, by facsimile, or
otherwise, an ex parte protective order at all times, whether or
not the court is in session.
The judge who issued the order under this Section shall
promptly communicate or convey the order to the sheriff to
facilitate the entry of the order into the Law Enforcement
Agencies Data System by the Illinois State Police under Section
112A-28 of this Code. Any order issued under this Section and
any documentation in support of it shall be certified on the
next court day to the appropriate court. The clerk of that court
shall immediately assign a case number, file the petition,
order, and other documents with the court and enter the order of
record and file it with the sheriff for service under subsection
(f) of this Section. Failure to comply with the requirements of
this subsection (e) shall not affect the validity of the order.
(f) Service of ex parte protective order on respondent.
(1) If an ex parte protective order is entered at the
time a summons or arrest warrant is issued for the criminal
charge, the petition for the protective order, any
supporting affidavits, if any, and the ex parte protective
order that has been issued shall be served with the summons
or arrest warrant. The enforcement of a protective order
under Section 112A-23 of this Code shall not be affected by
the lack of service or delivery, provided the requirements
of subsection (a) of Section 112A-23 of this Code are
otherwise met.
(2) If an ex parte protective order is entered after
a summons or arrest warrant is issued and before the
respondent makes an initial appearance in the criminal case,
the summons shall be in the form prescribed by subsection
(d) of Supreme Court Rule 101, except that it shall require
respondent to answer or appear within 7 days and shall be
accompanied by the petition for the protective order, any
supporting affidavits, if any, and the ex parte protective
order that has been issued.
(3) If an ex parte protective order is entered after
the respondent has been served notice of a petition for a
final protective order and the respondent has requested a
continuance to respond to the petition, the ex parte
protective order shall be served: (A) in open court if the
respondent is present at the proceeding at which the order
was entered; or (B) by summons in the form prescribed by
subsection (d) of Supreme Court Rule 101.
(4) No fee shall be charged for service of summons.
(5) The summons shall be served by the sheriff or
other law enforcement officer at the earliest time and shall
take precedence over other summonses except those of a
similar emergency nature. Special process servers may be
appointed at any time, and their designation shall not
affect the responsibilities and authority of the sheriff or
other official process servers. In a county with a
population over 3,000,000, a special process server may not
be appointed if an ex parte protective order grants the
surrender of a child, the surrender of a firearm or Firearm
Owner's Identification Card, or the exclusive possession of
a shared residence. Process may be served in court.
(g) Upon 7 days' notice to the petitioner, or a shorter
notice period as the court may prescribe, a respondent subject
to an ex parte protective order may appear and petition the
court to re-hear the petition. Any petition to re-hear shall be
verified and shall allege the following:
(1) that respondent did not receive prior notice of
the initial hearing in which the ex parte protective order
was entered under Section 112A-17.5 of this Code; and
(2) that respondent had a meritorious defense to the
order or any of its remedies or that the order or any of its
remedies was not authorized under this Article.
The verified petition and affidavit shall set forth the
evidence of the meritorious defense that will be presented at a
hearing. If the court finds that the evidence presented at the
hearing on the petition establishes a meritorious defense by a
preponderance of the evidence, the court may decide to vacate
the protective order or modify the remedies.
(h) If the ex parte protective order granted petitioner
exclusive possession of the residence and the petition of
respondent seeks to re-open or vacate that grant, the court
shall set a date for hearing within 14 days on all issues
relating to exclusive possession. Under no circumstances shall a
court continue a hearing concerning exclusive possession beyond
the 14th day except by agreement of the petitioner and the
respondent. Other issues raised by the pleadings may be
consolidated for the hearing if the petitioner, the respondent,
and the court do not object.
(i) Duration of ex parte protective order. An ex parte order
shall remain in effect until the court considers the request for
a final protective order after notice has been served on the
respondent or a default final protective order is entered,
whichever occurs first. If a court date is scheduled for the
issuance of a default protective order and the petitioner fails
to personally appear or appear through counsel or the
prosecuting attorney, the petition shall be dismissed and the ex
parte order terminated.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/112A-18) (from Ch. 38, par. 112A-18)
Sec. 112A-18. (Repealed).
(Source: P.A. 87-1186. Repealed by P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-19) (from Ch. 38, par. 112A-19)
Sec. 112A-19. (Repealed).
(Source: P.A. 84-1305. Repealed by P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-20) (from Ch. 38, par. 112A-20)
Sec. 112A-20. Duration and extension of final protective
orders.
(a) (Blank).
(b) A final protective order shall remain in effect as
follows:
(1) if entered during pre-trial release, until
disposition, withdrawal, or dismissal of the underlying
charge; if, however, the case is continued as an independent
cause of action, the order's duration may be for a fixed
period of time not to exceed 2 years;
(2) if in effect in conjunction with a bond
forfeiture warrant, until final disposition or an additional
period of time not exceeding 2 years; no domestic violence
order of protection, however, shall be terminated by a
dismissal that is accompanied by the issuance of a bond
forfeiture warrant;
(3) until 2 years after the expiration of any
supervision, conditional discharge, probation, periodic
imprisonment, parole, aftercare release, or mandatory
supervised
release
for
domestic
violence
orders
of
protection and civil no contact orders;
(4) until 2 years after the date set by the court for
expiration of any sentence of imprisonment and subsequent
parole, aftercare release, or mandatory supervised release
for domestic violence orders of protection and civil no
contact orders;
(5) permanent for a stalking no contact order if a
judgment of conviction for stalking is entered; or
(6) permanent for a civil no contact order at the
victim's request if a judgment of conviction for criminal
sexual assault, aggravated criminal sexual assault, criminal
sexual abuse, excluding a conviction under subsection (c) of
Section 11-1.50 of the Criminal Code of 2012, or aggravated
criminal sexual abuse is entered.
(c) Computation of time. The duration of a domestic violence
order of protection shall not be reduced by the duration of any
prior domestic violence order of protection.
(d) Law enforcement records. When a protective order expires
upon the occurrence of a specified event, rather than upon a
specified date as provided in subsection (b), no expiration date
shall be entered in Illinois State Police records. To remove the
protective order from those records, either the petitioner or
the respondent shall request the clerk of the court to file a
certified copy of an order stating that the specified event has
occurred or that the protective order has been vacated or
modified with the sheriff, and the sheriff shall direct that law
enforcement records shall be promptly corrected in accordance
with the filed order.
(e) Extension of Orders. Any domestic violence order of
protection or civil no contact order that expires 2 years after
the expiration of the defendant's sentence under paragraph (2),
(3), or (4) of subsection (b) of Section 112A-20 of this Article
may be extended one or more times, as required. The petitioner,
petitioner's
counsel,
or
the
State's
Attorney
on
the
petitioner's behalf shall file the motion for an extension of
the final protective order in the criminal case and serve the
motion in accordance with Supreme Court Rules 11 and 12. The
court shall transfer the motion to the appropriate court or
division for consideration under subsection (e) of Section 220
of the Illinois Domestic Violence Act of 1986, subsection (c) of
Section 216 of the Civil No Contact Order Act, or subsection (c)
of Section 105 of the Stalking No Contact Order as appropriate.
(f) Termination date. Any final protective order which would
expire on a court holiday shall instead expire at the close of
the next court business day.
(g) Statement of purpose. The practice of dismissing or
suspending a criminal prosecution in exchange for issuing a
protective order undermines the purposes of this Article. This
Section shall not be construed as encouraging that practice.
(Source: P.A. 102-184, eff. 1-1-22; 102-538, eff. 8-20-21; 102813, eff. 5-13-22.)
(725 ILCS 5/112A-21) (from Ch. 38, par. 112A-21)
Sec. 112A-21. Contents of orders.
(a) Any domestic violence order of protection shall
describe, in reasonable detail and not by reference to any other
document, the following:
(1) Each remedy granted by the court, in reasonable
detail and not by reference to any other document, so that
respondent may clearly understand what he or she must do or
refrain from doing. Pre-printed form orders of protection
shall include the definitions of the types of abuse, as
provided in Section 112A-3 of this Code. Remedies set forth
in pre-printed form for domestic violence orders shall be
numbered
consistently
with
and
corresponding
to
the
numerical sequence of remedies listed in Section 112A-14 of
this Code (at least as of the date the form orders are
printed).
(2) The reason for denial of petitioner's request for
any remedy listed in Section 112A-14 of this Code.
(b) A domestic violence order of protection shall further
state the following:
(1) The name of each petitioner that the court finds
is a victim of a charged offense, and that respondent is a
member of the family or household of each such petitioner,
and the name of each other person protected by the order and
that such person is protected by this Code.
(2) For any remedy requested by petitioner on which
the court has declined to rule, that that remedy is
reserved.
(3) The date and time the domestic violence order of
protection was issued.
(4) (Blank).
(5) (Blank).
(6) (Blank).
(c) Any domestic violence order of protection shall include
the following notice, printed in conspicuous type:
"Any knowing violation of a domestic violence order
of
protection
forbidding
physical
abuse,
harassment,
intimidation, interference with personal liberty, willful
deprivation, or entering or remaining present at specified
places when the protected person is present, or granting
exclusive possession of the residence or household, or
granting a stay away order is a Class A misdemeanor for a
first offense, and a Class 4 felony for persons with a prior
conviction for certain offenses under subsection (d) of
Section 12-3.4 of the Criminal Code of 2012. Grant of
exclusive possession of the residence or household shall
constitute notice forbidding trespass to land. Any knowing
violation of an order awarding legal custody or physical
care of a child or prohibiting removal or concealment of a
child may be a Class 4 felony. Any willful violation of any
order is contempt of court. Any violation may result in fine
or imprisonment."
(d) (Blank).
(e) A domestic violence order of protection shall state,
"This Order of Protection is enforceable, even without
registration, in all 50 states, the District of Columbia, tribal
lands, and the U.S. territories pursuant to the Violence Against
Women Act (18 U.S.C. 2265). Violating this Order of Protection
may subject the respondent to federal charges and punishment (18
U.S.C. 2261-2262). The respondent may be subject to federal
criminal penalties for possessing, transporting, shipping, or
receiving any firearm or ammunition under the Gun Control Act
(18 U.S.C. 922(g)(8) and (9))."
(Source: P.A. 100-199, eff. 1-1-18; 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-21.5)
Sec. 112A-21.5. Contents of civil no contact orders.
(a) Any civil no contact order shall describe each remedy
granted by the court, in reasonable detail and not by reference
to any other document, so that the respondent may clearly
understand what he or she must do or refrain from doing.
(b) A civil no contact order shall further state the
following:
(1) The name of each petitioner that the court finds
is a victim of a charged offense and the name of each other
person protected by the civil no contact order.
(2) The date and time the civil no contact order was
issued.
(c) A civil no contact order shall include the following
notice, printed in conspicuous type:
"Any knowing violation of a civil no contact order is
a Class A misdemeanor. Any second or subsequent violation is
a Class 4 felony."
"This Civil No Contact Order is enforceable, even
without registration, in all 50 states, the District of
Columbia, tribal lands, and the U.S. territories under the
Violence Against Women Act (18 U.S.C. 2265)."
(Source: P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-21.7)
Sec. 112A-21.7. Contents of stalking no contact orders.
(a) Any stalking no contact order shall describe each remedy
granted by the court, in reasonable detail and not by reference
to any other document, so that the respondent may clearly
understand what he or she must do or refrain from doing.
(b) A stalking no contact order shall further state the
following:
(1) The name of each petitioner that the court finds
was the victim of stalking by the respondent.
(2) The date and time the stalking no contact order
was issued.
(c) A stalking no contact order shall include the following
notice, printed in conspicuous type:
"An initial knowing violation of a stalking no
contact order is a Class A misdemeanor. Any second or
subsequent knowing violation is a Class 4 felony."
"This Stalking No Contact Order is enforceable, even
without registration, in all 50 states, the District of
Columbia, tribal lands, and the U.S. territories under the
Violence Against Women Act (18 U.S.C. 2265)."
(Source: P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-22) (from Ch. 38, par. 112A-22)
Sec. 112A-22. Notice of orders.
(a) Entry and issuance. Upon issuance of any protective
order, the clerk shall immediately, or on the next court day if
an ex parte order is issued under subsection (e) of Section
112A-17.5 of this Code, (i) enter the order on the record and
file it in accordance with the circuit court procedures and (ii)
provide a file stamped copy of the order to respondent and to
petitioner, if present, and to the State's Attorney. If the
victim is not present the State's Attorney shall (i) as soon as
practicable notify the petitioner the order has been entered and
(ii) provide a file stamped copy of the order to the petitioner
within 3 days.
(b) Filing with sheriff. The clerk of the issuing judge
shall, on the same day that a protective order is issued, file a
copy of that order with the sheriff or other law enforcement
officials charged with maintaining Illinois State Police records
or charged with serving the order upon respondent. If the order
was issued under subsection (e) of Section 112A-17.5 of this
Code, the clerk on the next court day shall file a certified
copy of the order with the sheriff or other law enforcement
officials charged with maintaining Illinois State Police
records.
(c) (Blank).
(c-2) Service by sheriff. Unless respondent was present in
court when the order was issued, the sheriff, other law
enforcement official, or special process server shall promptly
serve that order upon respondent and file proof of the service,
in the manner provided for service of process in civil
proceedings. Instead of serving the order upon the respondent;
however, the sheriff, other law enforcement official, special
process server, or other persons defined in Section 112A-22.1 of
this Code may serve the respondent with a short form
notification as provided in Section 112A-22.1 of this Code. If
process has not yet been served upon the respondent, process
shall be served with the order or short form notification if the
service is made by the sheriff, other law enforcement official,
or special process server.
(c-3) If the person against whom the protective order is
issued is arrested and the written order is issued under
subsection (e) of Section 112A-17.5 of this Code and received by
the custodial law enforcement agency before the respondent or
arrestee is released from custody, the custodial law enforcement
agency shall promptly serve the order upon the respondent or
arrestee before the respondent or arrestee is released from
custody. In no event shall detention of the respondent or
arrestee be extended for a hearing on the petition for
protective order or receipt of the order issued under Section
112A-17 of this Code.
(c-4) Extensions, modifications, and revocations. Any order
extending, modifying, or revoking any protective order shall be
promptly recorded, issued, and served as provided in this
Section.
(c-5) (Blank).
(d) (Blank).
(e) Notice to health care facilities and health care
practitioners. Upon the request of the petitioner, the clerk of
the circuit court shall send a certified copy of the protective
order to any specified health care facility or health care
practitioner requested by the petitioner at the mailing address
provided by the petitioner.
(f) Disclosure by health care facilities and health care
practitioners. After receiving a certified copy of a protective
order that prohibits a respondent's access to records, no health
care facility or health care practitioner shall allow a
respondent access to the records of any child who is a protected
person under the protective order, or release information in
those records to the respondent, unless the order has expired or
the respondent shows a certified copy of the court order
vacating the corresponding protective order that was sent to the
health care facility or practitioner. Nothing in this Section
shall be construed to require health care facilities or health
care practitioners to alter procedures related to billing and
payment. The health care facility or health care practitioner
may file the copy of the protective order in the records of a
child who is a protected person under the protective order, or
may employ any other method to identify the records to which a
respondent is prohibited access. No health care facility or
health care practitioner shall be civilly or professionally
liable for reliance on a copy of a protective order, except for
willful and wanton misconduct.
(g) Notice to schools. Upon the request of the petitioner,
within 24 hours of the issuance of a protective order, the clerk
of the issuing judge shall send a certified copy of the
protective order to the day-care facility, pre-school or prekindergarten, or private school or the principal office of the
public school district or any college or university in which any
child who is a protected person under the protective order or
any child of the petitioner is enrolled as requested by the
petitioner at the mailing address provided by the petitioner. If
the child transfers enrollment to another day-care facility,
pre-school, pre-kindergarten, private school, public school,
college, or university, the petitioner may, within 24 hours of
the transfer, send to the clerk written notice of the transfer,
including the name and address of the institution to which the
child is transferring. Within 24 hours of receipt of notice from
the petitioner that a child is transferring to another day-care
facility, pre-school, pre-kindergarten, private school, public
school, college, or university, the clerk shall send a certified
copy of the order to the institution to which the child is
transferring.
(h) Disclosure by schools. After receiving a certified copy
of a protective order that prohibits a respondent's access to
records,
neither
a
day-care
facility,
pre-school,
prekindergarten, public or private school, college, or university
nor its employees shall allow a respondent access to a protected
child's records or release information in those records to the
respondent. The school shall file the copy of the protective
order in the records of a child who is a protected person under
the order. When a child who is a protected person under the
protective order transfers to another day-care facility, preschool, pre-kindergarten, public or private school, college, or
university, the institution from which the child is transferring
may, at the request of the petitioner, provide, within 24 hours
of the transfer, written notice of the protective order, along
with a certified copy of the order, to the institution to which
the child is transferring.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/112A-22.1)
Sec. 112A-22.1. Short form notification.
(a) Instead of personal service of a protective order under
Section 112A-22 of this Code, a sheriff, other law enforcement
official, special process server, or personnel assigned by the
Department of Corrections or Department of Juvenile Justice to
investigate the alleged misconduct of committed persons or
alleged violations of the person's conditions of parole,
aftercare release, or mandatory supervised release, may serve a
respondent with a short form notification. The short form
notification shall include the following:
(1) Respondent's name.
(2) Respondent's date of birth, if known.
(3) Petitioner's name.
(4) Names of other protected parties.
(5) Date and county in which the protective order was
filed.
(6) Court file number.
(7) Hearing date and time, if known.
(8) Conditions that apply to the respondent, either
in checklist form or handwritten.
(b) The short form notification shall contain the following
notice in bold print:
"The order is now enforceable. You must report to the office
of the sheriff or the office of the circuit court in (name of
county) County to obtain a copy of the order. You are subject to
arrest and may be charged with a misdemeanor or felony if you
violate any of the terms of the order."
(c) Upon verification of the identity of the respondent and
the existence of an unserved order against the respondent, a
sheriff or other law enforcement official may detain the
respondent for a reasonable time necessary to complete and serve
the short form notification.
(d) When service is made by short form notification under
this Section, it may be proved by the affidavit of the person
making the service.
(e) The Attorney General shall make the short form
notification form available to law enforcement agencies in this
State.
(Source: P.A. 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-22.3)
Sec. 112A-22.3. Withdrawal or dismissal of charges or
petition.
(a) Voluntary dismissal or withdrawal of any delinquency
petition or criminal prosecution or a finding of not guilty
shall not require dismissal or vacation of the protective order;
instead, at the request of the petitioner, petitioner's counsel,
or the State's Attorney on behalf of the petitioner, it may be
treated as an independent action and, if necessary and
appropriate, transferred to a different court or division.
Dismissal of any delinquency petition or criminal prosecution
shall not affect the validity of any previously issued
protective order.
(b) Withdrawal or dismissal of any petition for a protective
order shall operate as a dismissal without prejudice.
(Source: P.A. 100-199, eff. 1-1-18; 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-22.5)
Sec. 112A-22.5. (Repealed).
(Source: P.A. 91-903, eff. 1-1-01. Repealed by P.A. 100-199,
eff. 1-1-18.)
(725 ILCS 5/112A-22.10)
Sec. 112A-22.10. (Repealed).
(Source: P.A. 97-50, eff. 6-28-11; 98-558, eff. 1-1-14. Repealed
by P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-23) (from Ch. 38, par. 112A-23)
Sec. 112A-23. Enforcement of protective orders.
(a) When violation is crime. A violation of any protective
order, whether issued in a civil, quasi-criminal proceeding or
by a military judge, shall be enforced by a criminal court when:
(1) The respondent commits the crime of violation of
a domestic violence order of protection pursuant to Section
12-3.4 or 12-30 of the Criminal Code of 1961 or the Criminal
Code of 2012, by having knowingly violated:
(i) remedies described in paragraph (1), (2),
(3), (14), or (14.5) of subsection (b) of Section 112A14 of this Code,
(ii) a remedy, which is substantially similar to
the remedies authorized under paragraph (1), (2), (3),
(14), or (14.5) of subsection (b) of Section 214 of the
Illinois Domestic Violence Act of 1986, in a valid order
of protection, which is authorized under the laws of
another state, tribe, or United States territory, or
(iii) any other remedy when the act constitutes a
crime against the protected parties as defined by the
Criminal Code of 1961 or the Criminal Code of 2012.
Prosecution for a violation of a domestic violence
order of protection shall not bar concurrent prosecution for
any other crime, including any crime that may have been
committed at the time of the violation of the domestic
violence order of protection; or
(2) The respondent commits the crime of child
abduction pursuant to Section 10-5 of the Criminal Code of
1961 or the Criminal Code of 2012, by having knowingly
violated:
(i) remedies described in paragraph (5), (6), or
(8) of subsection (b) of Section 112A-14 of this Code,
or
(ii) a remedy, which is substantially similar to
the remedies authorized under paragraph (1), (5), (6),
or (8) of subsection (b) of Section 214 of the Illinois
Domestic Violence Act of 1986, in a valid domestic
violence order of protection, which is authorized under
the laws of another state, tribe, or United States
territory.
(3) The respondent commits the crime of violation of
a civil no contact order when the respondent violates
Section 12-3.8 of the Criminal Code of 2012. Prosecution for
a violation of a civil no contact order shall not bar
concurrent prosecution for any other crime, including any
crime that may have been committed at the time of the
violation of the civil no contact order.
(4) The respondent commits the crime of violation of
a stalking no contact order when the respondent violates
Section 12-3.9 of the Criminal Code of 2012. Prosecution for
a violation of a stalking no contact order shall not bar
concurrent prosecution for any other crime, including any
crime that may have been committed at the time of the
violation of the stalking no contact order.
(b) When violation is contempt of court. A violation of any
valid protective order, whether issued in a civil or criminal
proceeding or by a military judge, may be enforced through civil
or criminal contempt procedures, as appropriate, by any court
with jurisdiction, regardless where the act or acts which
violated the protective order were committed, to the extent
consistent with the venue provisions of this Article. Nothing in
this Article shall preclude any Illinois court from enforcing
any valid protective order issued in another state. Illinois
courts may enforce protective orders through both criminal
prosecution and contempt proceedings, unless the action which is
second in time is barred by collateral estoppel or the
constitutional prohibition against double jeopardy.
(1) In a contempt proceeding where the petition for a
rule to show cause sets forth facts evidencing an immediate
danger that the respondent will flee the jurisdiction,
conceal a child, or inflict physical abuse on the petitioner
or minor children or on dependent adults in petitioner's
care, the court may order the attachment of the respondent
without prior service of the rule to show cause or the
petition for a rule to show cause. Bond shall be set unless
specifically denied in writing.
(2) A petition for a rule to show cause for violation
of a protective order shall be treated as an expedited
proceeding.
(c) Violation of custody, allocation of parental
responsibility, or support orders. A violation of remedies
described in paragraph (5), (6), (8), or (9) of subsection (b)
of Section 112A-14 of this Code may be enforced by any remedy
provided by Section 607.5 of the Illinois Marriage and
Dissolution of Marriage Act. The court may enforce any order for
support issued under paragraph (12) of subsection (b) of Section
112A-14 of this Code in the manner provided for under Parts V
and VII of the Illinois Marriage and Dissolution of Marriage
Act.
(d) Actual knowledge. A protective order may be enforced
pursuant to this Section if the respondent violates the order
after the respondent has actual knowledge of its contents as
shown through one of the following means:
(1) (Blank).
(2) (Blank).
(3) By service of a protective order under subsection
(f) of Section 112A-17.5 or Section 112A-22 of this Code.
(4) By other means demonstrating actual knowledge of
the contents of the order.
(e) The enforcement of a protective order in civil or
criminal court shall not be affected by either of the following:
(1) The existence of a separate, correlative order
entered under Section 112A-15 of this Code.
(2) Any finding or order entered in a conjoined
criminal proceeding.
(e-5) If a civil no contact order entered under subsection
(6) of Section 112A-20 of the Code of Criminal Procedure of 1963
conflicts with an order issued pursuant to the Juvenile Court
Act of 1987 or the Illinois Marriage and Dissolution of Marriage
Act, the conflicting order issued under subsection (6) of
Section 112A-20 of the Code of Criminal Procedure of 1963 shall
be void.
(f) Circumstances. The court, when determining whether or
not a violation of a protective order has occurred, shall not
require physical manifestations of abuse on the person of the
victim.
(g) Penalties.
(1) Except as provided in paragraph (3) of this
subsection (g), where the court finds the commission of a
crime or contempt of court under subsection (a) or (b) of
this Section, the penalty shall be the penalty that
generally applies in such criminal or contempt proceedings,
and may include one or more of the following: incarceration,
payment of restitution, a fine, payment of attorneys' fees
and costs, or community service.
(2) The court shall hear and take into account
evidence of any factors in aggravation or mitigation before
deciding an appropriate penalty under paragraph (1) of this
subsection (g).
(3) To the extent permitted by law, the court is
encouraged to:
(i) increase the penalty for the knowing
violation of any protective order over any penalty
previously imposed by any court for respondent's
violation of any protective order or penal statute
involving petitioner as victim and respondent as
defendant;
(ii) impose a minimum penalty of 24 hours
imprisonment for respondent's first violation of any
protective order; and
(iii) impose a minimum penalty of 48 hours
imprisonment for respondent's second or subsequent
violation of a protective order
unless the court explicitly finds that an increased
penalty or that period of imprisonment would be manifestly
unjust.
(4) In addition to any other penalties imposed for a
violation of a protective order, a criminal court may
consider evidence of any violations of a protective order:
(i) to modify the conditions of pretrial release
on an underlying criminal charge pursuant to Section
110-6 of this Code;
(ii) to revoke or modify an order of probation,
conditional discharge, or supervision, pursuant to
Section 5-6-4 of the Unified Code of Corrections;
(iii) to revoke or modify a sentence of periodic
imprisonment, pursuant to Section 5-7-2 of the Unified
Code of Corrections.
(Source: P.A. 102-184, eff. 1-1-22; 102-558, eff. 8-20-21; 102813, eff. 5-13-22; 102-890, eff. 5-19-22; 103-407, eff. 7-2823.)
(725 ILCS 5/112A-24) (from Ch. 38, par. 112A-24)
Sec. 112A-24. Modification, re-opening, and extension of
orders.
(a) Except as otherwise provided in this Section, upon
motion by petitioner, petitioner's counsel, or the State's
Attorney on behalf of the petitioner, the court may modify a
protective order:
(1) If respondent has abused petitioner since the
hearing for that order, by adding or altering one or more
remedies, as authorized by Section 112A-14, 112A-14.5, or
112A-14.7 of this Code; and
(2) Otherwise, by adding any remedy authorized by
Section 112A-14, 112A-14.5, or 112A-14.7 which was:
(i) reserved in that protective order;
(ii) not requested for inclusion in that
protective order; or
(iii) denied on procedural grounds, but not on
the merits.
(a-5) A petitioner, petitioner's counsel, or the State's
Attorney on the petitioner's behalf may file a motion to vacate
or modify a final stalking no contact order. The motion shall be
served in accordance with Supreme Court Rules 11 and 12.
(b) Upon motion by the petitioner, petitioner's counsel,
State's Attorney, or respondent, the court may modify any prior
domestic violence order of protection's remedy for custody,
visitation or payment of support in accordance with the relevant
provisions of the Illinois Marriage and Dissolution of Marriage
Act.
(c) After 30 days following the entry of a protective order,
a court may modify that order only when changes in the
applicable law or facts since that final order was entered
warrant a modification of its terms.
(d) (Blank).
(e) (Blank).
(f) (Blank).
(g) This Section does not limit the means, otherwise
available by law, for vacating or modifying protective orders.
(Source: P.A. 100-199, eff. 1-1-18; 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-25) (from Ch. 38, par. 112A-25)
Sec. 112A-25. Immunity from prosecution. Any individual or
organization acting in good faith to report the abuse of any
person 60 years of age or older or to do any of the following in
complying with the provisions of this Article shall not be
subject to criminal prosecution or civil liability as a result
of such action: providing any information to the appropriate law
enforcement agency, providing that the giving of any information
does not violate any privilege of confidentiality under law;
assisting in any investigation; assisting in the preparation of
any materials for distribution under this Article; or by
providing services ordered under a protective order.
(Source: P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-26) (from Ch. 38, par. 112A-26)
Sec. 112A-26. Arrest without warrant.
(a) Any law enforcement officer may make an arrest without
warrant if the officer has probable cause to believe that the
person has committed or is committing any crime, including but
not limited to violation of a domestic violence order of
protection, under Section 12-3.4 or 12-30 of the Criminal Code
of 1961 or the Criminal Code of 2012, violation of a civil no
contact order, under Section 11-1.75 of the Criminal Code of
2012, or violation of a stalking no contact order, under Section
12-7.5A of the Criminal Code of 2012, even if the crime was not
committed in the presence of the officer.
(b) The law enforcement officer may verify the existence of
a protective order by telephone or radio communication with his
or her law enforcement agency or by referring to the copy of the
order provided by petitioner or respondent.
(Source: P.A. 100-199, eff. 1-1-18; 100-597, eff. 6-29-18.)
(725 ILCS 5/112A-27) (from Ch. 38, par. 112A-27)
Sec. 112A-27. Law enforcement policies.
(a) Every law enforcement agency shall develop, adopt, and
implement written policies regarding arrest procedures for
domestic violence incidents consistent with the provisions of
this Article. In developing these policies, each law enforcement
agency shall consult with community organizations and other law
enforcement agencies with expertise in recognizing and handling
domestic violence incidents.
(b) In the initial training of new recruits and every 5
years in the continuing education of law enforcement officers,
every law enforcement agency shall provide training to aid in
understanding the actions of domestic violence victims and
abusers and to prevent further victimization of those who have
been abused, focusing specifically on looking beyond the
physical evidence to the psychology of domestic violence
situations, such as the dynamics of the aggressor-victim
relationship, separately evaluating claims where both parties
claim to be the victim, and long-term effects.
The Law Enforcement Training Standards Board shall formulate
and administer the training under this subsection (b) as part of
the current programs for both new recruits and active law
enforcement officers. The Board shall formulate the training by
July 1, 2017, and implement the training statewide by July 1,
2018. In formulating the training, the Board shall work with
community organizations with expertise in domestic violence to
determine which topics to include. The Law Enforcement Training
Standards Board shall oversee the implementation and continual
administration of the training.
(Source: P.A. 99-810, eff. 1-1-17.)
(725 ILCS 5/112A-28) (from Ch. 38, par. 112A-28)
Sec. 112A-28. Data maintenance by law enforcement agencies.
(a) All sheriffs shall furnish to the Illinois State Police,
daily, in the form and detail the Illinois State Police
requires, copies of any recorded protective orders issued by the
court, and any foreign protective orders, including, but not
limited to, an order of protection issued by a military judge,
filed by the clerk of the court, and transmitted to the sheriff
by the clerk of the court. Each protective order shall be
entered in the Law Enforcement Agencies Data System on the same
day it is issued by the court.
(b) The Illinois State Police shall maintain a complete and
systematic record and index of all valid and recorded protective
orders issued or filed under this Act. The data shall be used to
inform all dispatchers and law enforcement officers at the scene
of an alleged incident of abuse or violation of a protective
order of any recorded prior incident of abuse involving the
abused party and the effective dates and terms of any recorded
protective order.
(c) The data, records and transmittals required under this
Section shall pertain to:
(1) any valid emergency, interim or plenary domestic
violence order of protection, civil no contact or stalking
no contact order issued in a civil proceeding; and
(2) any valid ex parte or final protective order
issued in a criminal proceeding or authorized under the laws
of another state, tribe, or United States territory.
(Source: P.A. 102-538, eff. 8-20-21; 102-890, eff. 5-19-22; 103407, eff. 7-28-23.)
(725 ILCS 5/112A-29) (from Ch. 38, par. 112A-29)
Sec. 112A-29. Reports by law enforcement officers.
(a) Every law enforcement officer investigating an alleged
incident of abuse between family or household members shall make
a written police report of any bona fide allegation and the
disposition of such investigation. The police report shall
include the victim's statements as to the frequency and severity
of prior incidents of abuse by the same family or household
member and the number of prior calls for police assistance to
prevent such further abuse.
(b) Every police report completed pursuant to this Section
shall be recorded and compiled as a domestic crime within the
meaning of Section 5.1 of the Criminal Identification Act.
(Source: P.A. 87-1186.)
(725 ILCS 5/112A-30) (from Ch. 38, par. 112A-30)
Sec. 112A-30. Assistance by law enforcement officers.
(a) Whenever a law enforcement officer has reason to believe
that a person has been abused by a family or household member,
the officer shall immediately use all reasonable means to
prevent further abuse, including:
(1) Arresting the abusing party, where appropriate;
(2) If there is probable cause to believe that
particular weapons were used to commit the incident of
abuse, subject to constitutional limitations, seizing and
taking inventory of the weapons;
(3) Accompanying the victim of abuse to his or her
place of residence for a reasonable period of time to remove
necessary personal belongings and possessions;
(4) Offering the victim of abuse immediate and
adequate information (written in a language appropriate for
the victim or in Braille or communicated in appropriate sign
language), which shall include a summary of the procedures
and relief available to victims of abuse under this Article
and the officer's name and badge number;
(5) Providing the victim with one referral to an
accessible service agency;
(6) Advising the victim of abuse about seeking
medical attention and preserving evidence (specifically
including photographs of injury or damage and damaged
clothing or other property); and
(7) Providing or arranging accessible transportation
for the victim of abuse (and, at the victim's request, any
minors or dependents in the victim's care) to a medical
facility for treatment of injuries or to a nearby place of
shelter or safety; or, after the close of court business
hours, providing or arranging for transportation for the
victim (and, at the victim's request, any minors or
dependents in the victim's care) to the nearest available
circuit judge or associate judge so the victim may file a
petition for an emergency order of protection under Section
217 of the Illinois Domestic Violence Act of 1986. When a
victim of abuse chooses to leave the scene of the offense,
it shall be presumed that it is in the best interests of any
minors or dependents in the victim's care to remain with the
victim or a person designated by the victim, rather than to
remain with the abusing party.
(b) Whenever a law enforcement officer does not exercise
arrest powers or otherwise initiate criminal proceedings, the
officer shall:
(1) Make a police report of the investigation of any
bona fide allegation of an incident of abuse and the
disposition of the investigation, in accordance with
subsection (a) of Section 112A-29;
(2) Inform the victim of abuse of the victim's right
to request that a criminal proceeding be initiated where
appropriate, including specific times and places for meeting
with the State's Attorney's office, a warrant officer, or
other official in accordance with local procedure; and
(3) Advise the victim of the importance of seeking
medical attention and preserving evidence (specifically
including photographs of injury or damage and damaged
clothing or other property).
(c) Except as provided by Section 24-6 of the Criminal Code
of 2012 or under a court order, any weapon seized under
subsection (a)(2) shall be returned forthwith to the person from
whom it was seized when it is no longer needed for evidentiary
purposes.
(Source: P.A. 100-199, eff. 1-1-18.)
(725 ILCS 5/112A-31) (from Ch. 38, par. 112A-31)
Sec. 112A-31. Limited law enforcement liability. Any act of
omission or commission by any law enforcement officer acting in
good faith in rendering emergency assistance or otherwise
enforcing this Article shall not impose civil liability upon the
law enforcement officer or his or her supervisor or employer,
unless the act is a result of willful or wanton misconduct.
(Source: P.A. 87-1186.)
(725 ILCS 5/Tit. V heading)
TITLE V. PROCEEDINGS PRIOR TO TRIAL
(725 ILCS 5/Art. 113 heading)
ARTICLE 113. ARRAIGNMENT
(725 ILCS 5/113-1) (from Ch. 38, par. 113-1)
Sec. 113-1. Procedure on arraignment.
Before any person is tried for the commission of an offense
he shall be called into open court, informed of the charge
against him, and called upon to plead thereto. If the defendant
so requests the formal charge shall be read to him before he is
required to plead. An entry of the arraignment shall be made of
record.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/113-2) (from Ch. 38, par. 113-2)
Sec. 113-2. Joint defendants.
Defendants who are jointly charged may be arraigned
separately or together in the discretion of the court.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/113-3) (from Ch. 38, par. 113-3)
Sec. 113-3. (a) Every person charged with an offense shall
be allowed counsel before pleading to the charge. If the
defendant desires counsel and has been unable to obtain same
before arraignment the court shall recess court or continue the
cause for a reasonable time to permit defendant to obtain
counsel and consult with him before pleading to the charge. If
the accused is a dissolved corporation, and is not represented
by counsel, the court may, in the interest of justice, appoint
as counsel a licensed attorney of this State.
(b) In all cases, except where the penalty is a fine only,
if the court determines that the defendant is indigent and
desires counsel, the Public Defender shall be appointed as
counsel. If there is no Public Defender in the county or if the
defendant requests counsel other than the Public Defender and
the court finds that the rights of the defendant will be
prejudiced by the appointment of the Public Defender, the court
shall appoint as counsel a licensed attorney at law of this
State, except that in a county having a population of 2,000,000
or more the Public Defender shall be appointed as counsel in all
misdemeanor cases where the defendant is indigent and desires
counsel unless the case involves multiple defendants, in which
case the court may appoint counsel other than the Public
Defender for the additional defendants. The court shall require
an affidavit signed by any defendant who requests courtappointed counsel. Such affidavit shall be in the form
established
by
the
Supreme
Court
containing
sufficient
information to ascertain the assets and liabilities of that
defendant. The Court may direct the Clerk of the Circuit Court
to assist the defendant in the completion of the affidavit. Any
person who knowingly files such affidavit containing false
information concerning his assets and liabilities shall be
liable to the county where the case, in which such false
affidavit is filed, is pending for the reasonable value of the
services rendered by the public defender or other courtappointed counsel in the case to the extent that such services
were unjustly or falsely procured.
(c) Upon the filing with the court of a verified statement
of services rendered the court shall order the county treasurer
of the county of trial to pay counsel other than the Public
Defender a reasonable fee. The court shall consider all relevant
circumstances, including but not limited to the time spent while
court is in session, other time spent in representing the
defendant, and expenses reasonably incurred by counsel. In
counties with a population greater than 2,000,000, the court
shall order the county treasurer of the county of trial to pay
counsel other than the Public Defender a reasonable fee stated
in the order and based upon a rate of compensation of not more
than $40 for each hour spent while court is in session and not
more than $30 for each hour otherwise spent representing a
defendant, and such compensation shall not exceed $150 for each
defendant represented in misdemeanor cases and $1250 in felony
cases,
in
addition
to
expenses
reasonably
incurred
as
hereinafter
in
this
Section
provided,
except
that,
in
extraordinary circumstances, payment in excess of the limits
herein stated may be made if the trial court certifies that such
payment is necessary to provide fair compensation for protracted
representation. A trial court may entertain the filing of this
verified statement before the termination of the cause, and may
order the provisional payment of sums during the pendency of the
cause.
(d) In capital cases, in addition to counsel, if the court
determines that the defendant is indigent the court may, upon
the filing with the court of a verified statement of services
rendered, order the county Treasurer of the county of trial to
pay
necessary
expert
witnesses
for
defendant
reasonable
compensation stated in the order not to exceed $250 for each
defendant.
(e) If the court in any county having a population greater
than 2,000,000 determines that the defendant is indigent the
court may, upon the filing with the court of a verified
statement of such expenses, order the county treasurer of the
county of trial, in such counties having a population greater
than 2,000,000 to pay the general expenses of the trial incurred
by the defendant not to exceed $50 for each defendant.
(f) The provisions of this Section relating to appointment
of counsel, compensation of counsel, and payment of expenses in
capital cases apply except when the compensation and expenses
are being provided under the Capital Crimes Litigation Act.
(Source: P.A. 91-589, eff. 1-1-00.)
(725 ILCS 5/113-3.1) (from Ch. 38, par. 113-3.1)
Sec. 113-3.1. Payment for court-appointed counsel.
(a) Whenever under either Section 113-3 of this Code or Rule
607 of the Illinois Supreme Court the court appoints counsel to
represent a defendant, the court may order the defendant to pay
to the Clerk of the Circuit Court a reasonable sum to reimburse
either the county or the State for such representation. In a
hearing to determine the amount of the payment, the court shall
consider the affidavit prepared by the defendant under Section
113-3 of this Code and any other information pertaining to the
defendant's financial circumstances which may be submitted by
the parties. Such hearing shall be conducted on the court's own
motion or on motion of the prosecutor at any time after the
appointment of counsel but no later than 90 days after the entry
of a final order disposing of the case at the trial level.
(b) Any sum ordered paid under this Section may not exceed
$500 for a defendant charged with a misdemeanor, $5,000 for a
defendant charged with a felony, or $2,500 for a defendant who
is appealing a conviction of any class offense.
(c) The method of any payment required under this Section
shall be as specified by the Court. The court may order that
payments be made on a monthly basis during the term of
representation; however, the sum deposited as money bond shall
not be used to satisfy this court order. At any time prior to
full payment of any payment order the court on its own motion or
the motion of any party may reduce, increase, or suspend the
ordered payment, or modify the method of payment, as the
interest of fairness may require. No increase, suspension, or
reduction may be ordered without a hearing and notice to all
parties.
(d) The Supreme Court or the circuit courts may provide by
rule for procedures for the enforcement of orders entered under
this Section. Such rules may provide for the assessment of all
costs, including attorneys' fees which are required for the
enforcement of orders entered under this Section when the court
in an enforcement proceeding has first found that the defendant
has willfully refused to pay. The Clerk of the Circuit Court
shall keep records and make reports to the court concerning
funds paid under this Section in whatever manner the court
directs.
(e) Whenever an order is entered under this Section for the
reimbursement of the State due to the appointment of the State
Appellate Defender as counsel on appeal, the order shall provide
that the Clerk of the Circuit Court shall retain all funds paid
pursuant to such order until the full amount of the sum ordered
to be paid by the defendant has been paid. When no balance
remains due on such order, the Clerk of the Circuit Court shall
inform the court of this fact and the court shall promptly order
the Clerk of the Circuit Court to pay to the State Treasurer all
of the sum paid.
(f) The Clerk of the Circuit Court shall retain all funds
under this Section paid for the reimbursement of the county, and
shall inform the court when no balance remains due on an order
entered hereunder. The Clerk of the Circuit Court shall make
payments of funds collected under this Section to the County
Treasurer in whatever manner and at whatever point as the court
may direct, including payments made on a monthly basis during
the term of representation.
(g) A defendant who fails to obey any order of court entered
under this Section may be punished for contempt of court. Any
arrearage in payments may be reduced to judgment in the court's
discretion and collected by any means authorized for the
collection of money judgments under the law of this State.
(Source: P.A. 102-1104, eff. 1-1-23.)
(725 ILCS 5/113-4) (from Ch. 38, par. 113-4)
Sec. 113-4. Plea.
(a) When called upon to plead at arraignment the defendant
shall be furnished with a copy of the charge and shall plead
guilty, guilty but mentally ill, or not guilty.
(b) If the defendant stands mute a plea of not guilty shall
be entered for him and the trial shall proceed on such plea.
(c) If the defendant pleads guilty such plea shall not be
accepted until the court shall have fully explained to the
defendant the following:
(1) the maximum and minimum penalty provided by law
for the offense which may be imposed by the court;
(2) as a consequence of a conviction or a plea of
guilty, the sentence for any future conviction may be
increased or there may be a higher possibility of the
imposition of consecutive sentences;
(3) as a consequence of a conviction or a plea of
guilty, there may be registration requirements that restrict
where the defendant may work, live, or be present; and
(4) as a consequence of a conviction or a plea of
guilty, there may be an impact upon the defendant's ability
to, among others:
(A) retain or obtain housing in the public or
private market;
(B) retain or obtain employment; and
(C) retain or obtain a firearm, an occupational
license, or a driver's license.
After such explanation if the defendant understandingly
persists in his plea it shall be accepted by the court and
recorded.
(d) If the defendant pleads guilty but mentally ill, the
court shall not accept such a plea until the defendant has
undergone examination by a clinical psychologist or psychiatrist
and the judge has examined the psychiatric or psychological
report or reports, held a hearing on the issue of the
defendant's mental condition and is satisfied that there is a
factual basis that the defendant was mentally ill at the time of
the offense to which the plea is entered.
(e) If a defendant pleads not guilty, the court shall advise
him at that time or at any later court date on which he is
present that if he escapes from custody or is released on bond
and fails to appear in court when required by the court that his
failure to appear would constitute a waiver of his right to
confront the witnesses against him and trial could proceed in
his absence.
(Source: P.A. 99-871, eff. 1-1-17.)
(725 ILCS 5/113-4.1) (from Ch. 38, par. 113-4.1)
Sec. 113-4.1. Plea of nolo contendere.
A defendant who is charged with a violation of the Illinois
Income Tax Act may plead not guilty, guilty or, with the consent
of the court, nolo contendere. The court may refuse to accept a
plea of guilty, and shall not accept such plea or a plea of nolo
contendere without first addressing the defendant personally and
determining that the plea is made voluntarily with understanding
of the nature of the charge and the consequences of the plea. If
a defendant refuses to plead or if the court refuses to accept a
plea of guilty or if a defendant corporation fails to appear,
the court shall enter a plea of not guilty. The court shall not
enter a judgment upon a plea of guilty unless it is satisfied
that there is a factual basis for the plea.
(Source: P.A. 78-267.)
(725 ILCS 5/113-5) (from Ch. 38, par. 113-5)
Sec. 113-5. Plea and Waiver of Jury by Person under 18. No
person under the age of 18 years shall be permitted to plead
guilty, guilty but mentally ill or waive trial by jury in any
case except where the penalty is by fine only unless he is
represented by counsel in open court.
(Source: P.A. 82-553.)
(725 ILCS 5/113-6) (from Ch. 38, par. 113-6)
Sec. 113-6. Effect of failure to arraign and irregularity of
arraignment.
Neither a failure to arraign nor an irregularity in the
arraignment shall effect the validity of any proceeding in the
cause if the defendant pleads to the charge or proceeds to trial
without objecting to such failure or irregularity.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/113-8)
Sec. 113-8. Advisement concerning status as a noncitizen.
(a) Before the acceptance of a plea of guilty, guilty but
mentally ill, or nolo contendere to a misdemeanor or felony
offense, the court shall give the following advisement to the
defendant in open court:
"If you are not a citizen of the United States, you are
hereby advised that conviction of the offense for which you have
been charged may have the consequence of deportation, exclusion
from admission to the United States, or denial of naturalization
under the laws of the United States.".
(b) If the defendant is arraigned on or after the effective
date of this amendatory Act of the 101st General Assembly, and
the court fails to advise the defendant as required by
subsection (a) of this Section, and the defendant shows that
conviction of the offense to which the defendant pleaded guilty,
guilty but mentally ill, or nolo contendere may have the
consequence for the defendant of deportation, exclusion from
admission to the United States, or denial of naturalization
under the laws of the United States, the court, upon the
defendant's motion, shall vacate the judgment and permit the
defendant to withdraw the plea of guilty, guilty but mentally
ill, or nolo contendere and enter a plea of not guilty. The
motion shall be filed within 2 years of the date of the
defendant's conviction.
(Source: P.A. 101-409, eff. 1-1-20; 102-1030, eff. 5-27-22.)
(725 ILCS 5/Art. 114 heading)
ARTICLE 114. PRE-TRIAL MOTIONS
(725 ILCS 5/114-1) (from Ch. 38, par. 114-1)
Sec. 114-1. Motion to dismiss charge.
(a) Upon the written motion of the defendant made prior to
trial before or after a plea has been entered the court may
dismiss the indictment, information or complaint upon any of the
following grounds:
(1) The defendant has not been placed on trial in
compliance with Section 103-5 of this Code.
(2) The prosecution of the offense is barred by
Sections 3-3 through 3-8 of the Criminal Code of 2012.
(3) The defendant has received immunity from
prosecution for the offense charged.
(4) The indictment was returned by a Grand Jury which
was improperly selected and which results in substantial
injustice to the defendant.
(5) The indictment was returned by a Grand Jury which
acted contrary to Article 112 of this Code and which results
in substantial injustice to the defendant.
(6) The court in which the charge has been filed does
not have jurisdiction.
(7) The county is an improper place of trial.
(8) The charge does not state an offense.
(9) The indictment is based solely upon the testimony
of an incompetent witness.
(10) The defendant is misnamed in the charge and the
misnomer results in substantial injustice to the defendant.
(11) The requirements of Section 109-3.1 have not
been complied with.
(b) The court shall require any motion to dismiss to be
filed within a reasonable time after the defendant has been
arraigned. Any motion not filed within such time or an extension
thereof shall not be considered by the court and the grounds
therefor, except as to subsections (a)(6) and (a)(8) of this
Section, are waived.
(c) If the motion presents only an issue of law the court
shall determine it without the necessity of further pleadings.
If the motion alleges facts not of record in the case the State
shall file an answer admitting or denying each of the factual
allegations of the motion.
(d) When an issue of fact is presented by a motion to
dismiss and the answer of the State the court shall conduct a
hearing and determine the issues.
(d-5) When a defendant seeks dismissal of the charge upon
the ground set forth in subsection (a)(7) of this Section, the
defendant shall make a prima facie showing that the county is an
improper place of trial. Upon such showing, the State shall have
the burden of proving, by a preponderance of the evidence, that
the county is the proper place of trial.
(d-6) When a defendant seeks dismissal of the charge upon
the grounds set forth in subsection (a)(2) of this Section, the
prosecution shall have the burden of proving, by a preponderance
of the evidence, that the prosecution of the offense is not
barred by Sections 3-3 through 3-8 of the Criminal Code of 2012.
(e) Dismissal of the charge upon the grounds set forth in
subsections (a)(4) through (a)(11) of this Section shall not
prevent the return of a new indictment or the filing of a new
charge, and upon such dismissal the court may order that the
defendant be held in custody or, if the defendant had been
previously released on pretrial release, that the pretrial
release be continued for a specified time pending the return of
a new indictment or the filing of a new charge.
(f) If the court determines that the motion to dismiss based
upon the grounds set forth in subsections (a)(6) and (a)(7) is
well founded it may, instead of dismissal, order the cause
transferred to a court of competent jurisdiction or to a proper
place of trial.
(Source: P.A. 100-434, eff. 1-1-18; 101-652, eff. 1-1-23.)
(725 ILCS 5/114-2) (from Ch. 38, par. 114-2)
Sec. 114-2. Motion for a bill of particulars.
(a) A written motion for a bill of particulars shall be
filed before or within a reasonable time after arraignment and
shall specify the particulars of the offense necessary to enable
the defendant to prepare his defense.
(b) A bill of particulars may be amended at any time before
trial subject to such conditions as justice may require.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/114-3) (from Ch. 38, par. 114-3)
Sec. 114-3. Motion to discharge jury panel.
(a) Any objection to the manner in which a jury panel has
been selected or drawn shall be raised by a motion to discharge
the jury panel prior to the voir dire examination. For good
cause shown the court may entertain the motion after the voir
dire has begun but such motion shall not be heard after a jury
has been sworn to hear the cause.
(b) The motion shall be in writing supported by affidavit
and shall state facts which show that the jury panel was
improperly selected or drawn.
(c) If the motion states facts which show that the jury
panel has been improperly selected or drawn it shall be the duty
of the court to conduct a hearing. The burden of proving that
the jury panel was improperly selected or drawn shall be upon
the movant.
(d) If the court finds that the jury panel was improperly
selected or drawn the court shall order the jury panel
discharged and the selection or drawing of a new panel in the
manner provided by law.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/114-4) (from Ch. 38, par. 114-4)
Sec. 114-4. Motion for continuance.
(a) The defendant or the State may move for a continuance.
If the motion is made more than 30 days after arraignment the
court shall require that it be in writing and supported by
affidavit.
(b) A written motion for continuance made by defendant more
than 30 days after arraignment may be granted when:
(1) Counsel for the defendant is ill, has died, or is
held to trial in another cause; or
(2) Counsel for the defendant has been unable to
prepare for trial because of illness or because he has been
held to trial in another cause; or
(3) A material witness is unavailable and the defense
will be prejudiced by the absence of his testimony; however,
this shall not be a ground for continuance if the State will
stipulate that the testimony of the witness would be as
alleged; or
(4) The defendant cannot stand trial because of
physical or mental incompetency; or
(5) Pre-trial publicity concerning the case has
caused a prejudice against defendant on the part of the
community; or
(6) The amendment of a charge or a bill of
particulars has taken the defendant by surprise and he
cannot fairly defend against such an amendment without a
continuance.
(c) A written motion for continuance made by the State more
than 30 days after arraignment may be granted when:
(1) The prosecutor assigned to the case is ill, has
died, or is held to trial in another cause; or
(2) A material witness is unavailable and the
prosecution will be prejudiced by the absence of his
testimony; however this shall not be a ground for
continuance if the defendant will stipulate that the
testimony of the witness would be as alleged; or
(3) Pre-trial publicity concerning the case has
caused a prejudice against the prosecution on the part of
the community.
(d) The court may upon the written motion of either party or
upon the court's own motion order a continuance for grounds not
stated in subsections (b) and (c) of this Section if he finds
that the interests of justice so require.
(e) All motions for continuance are addressed to the
discretion of the trial court and shall be considered in the
light of the diligence shown on the part of the movant. Where 1
year has expired since the filing of an information or
indictments, filed after January 1, 1980, if the court finds
that the State has failed to use due diligence in bringing the
case to trial, the court may, after a hearing had on the cause,
on its own motion, dismiss the information or indictment. Any
demand that the defendant had made for a speedy trial under
Section 103-5 of this code shall not abate if the State files a
new information or the grand jury reindicts in the cause.
After a hearing has been held upon the issue of the State's
diligence and the court has found that the State has failed to
use due diligence in pursuing the prosecution, the court may not
dismiss the indictment or information without granting the State
one more court date upon which to proceed. Such date shall be
not less than 14 nor more than 30 days from the date of the
court's finding. If the State is not prepared to proceed upon
that
date,
the
court
shall
dismiss
the
indictment
or
information, as provided in this Section.
(f) After trial has begun a reasonably brief continuance may
be granted to either side in the interests of justice.
(g) During the time the General Assembly is in session, the
court shall, on motion of either party or on its own motion,
grant a continuance where the party or his attorney is a member
of either house of the General Assembly whose presence is
necessary for the full, fair trial of the cause and, in the case
of an attorney, where the attorney was retained by the party
before the cause was set for trial.
(h) This Section shall be construed to the end that criminal
cases are tried with due diligence consonant with the rights of
the defendant and the State to a speedy, fair and impartial
trial.
(i) Physical incapacity of a defendant may be grounds for a
continuance at any time. If, upon written motion of the
defendant or the State or upon the court's own motion, and after
presentation of affidavits or evidence, the court determines
that the defendant is physically unable to appear in court or to
assist in his defense, or that such appearance would endanger
his health or result in substantial prejudice, a continuance
shall be granted. If such continuance precedes the appearance of
counsel for such defendant the court shall simultaneously
appoint counsel in the manner prescribed by Section 113-3 of
this Act. Such continuance shall suspend the provisions of
Section 103-5 of this Act, which periods of time limitation
shall commence anew when the court, after presentation of
additional affidavits or evidence, has determined that such
physical incapacity has been substantially removed.
(j) In actions arising out of building code violations or
violations of municipal ordinances caused by the failure of a
building or structure to conform to the minimum standards of
health and safety, the court shall grant a continuance only upon
a written motion by the party seeking the continuance specifying
the reason why such continuance should be granted.
(k) In prosecutions for violations of Section 10-1, 10-2,
11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 1214.1, 12-15 or 12-16 of the Criminal Code of 1961 or the
Criminal Code of 2012 involving a victim or witness who is a
minor under 18 years of age, the court shall, in ruling on any
motion or other request for a delay or continuance of
proceedings, consider and give weight to the adverse impact the
delay or continuance may have on the well-being of a child or
witness.
(l) The court shall consider the age of the victim and the
condition of the victim's health when ruling on a motion for a
continuance.
(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
(725 ILCS 5/114-5) (from Ch. 38, par. 114-5)
Sec. 114-5. Substitution of judge. (a) Within 10 days after
a cause involving only one defendant has been placed on the
trial call of a judge the defendant may move the court in
writing for a substitution of that judge on the ground that such
judge is so prejudiced against him that he cannot receive a fair
trial. Upon the filing of such a motion the court shall proceed
no further in the cause but shall transfer it to another judge
not named in the motion. The defendant may name only one judge
as prejudiced, pursuant to this subsection; provided, however,
that in a case in which the offense charged is a Class X felony
or may be punished by death or life imprisonment, the defendant
may name two judges as prejudiced.
(b) Within 24 hours after a motion is made for substitution
of judge in a cause with multiple defendants each defendant
shall have the right to move in accordance with subsection (a)
of this Section for a substitution of one judge. The total
number of judges named as prejudiced by all defendants shall not
exceed the total number of defendants. The first motion for
substitution of judge in a cause with multiple defendants shall
be made within 10 days after the cause has been placed on the
trial call of a judge.
(c) Within 10 days after a cause has been placed on the
trial call of a judge the State may move the court in writing
for a substitution of that judge on the ground that such judge
is prejudiced against the State. Upon the filing of such a
motion the court shall proceed no further in the cause but shall
transfer it to another judge not named in the motion. The State
may name only one judge as prejudiced, pursuant to this
subsection.
(d) In addition to the provisions of subsections (a), (b)
and (c) of this Section the State or any defendant may move at
any time for substitution of judge for cause, supported by
affidavit. Upon the filing of such motion a hearing shall be
conducted as soon as possible after its filing by a judge not
named in the motion; provided, however, that the judge named in
the motion need not testify, but may submit an affidavit if the
judge wishes. If the motion is allowed, the case shall be
assigned to a judge not named in the motion. If the motion is
denied the case shall be assigned back to the judge named in the
motion.
(Source: P.A. 84-1428.)
(725 ILCS 5/114-6) (from Ch. 38, par. 114-6)
Sec. 114-6. Change of place of trial.) (a) A defendant may
move the court for a change of place of trial on the ground that
there exists in the county in which the charge is pending such
prejudice against him on the part of the inhabitants that he
cannot receive a fair trial in such county.
(b) The motion shall be in writing and supported by
affidavit which shall state facts showing the nature of the
prejudice alleged. The State may file counter-affidavits. The
court shall conduct a hearing and determine the merits of the
motion.
(c) If the court determines that there exists in the county
where the prosecution is pending such prejudice against the
defendant that he cannot receive a fair trial it shall transfer
the cause to the circuit court in any county where a fair trial
may be had.
(d) In all cases of change of place of trial the clerk of
the court from which the change is granted shall immediately
prepare a full transcript of the record and proceedings in the
case, and of the petition, affidavits and order for the change
of place of trial, and transmit the same, together with all
papers filed in the case, including the indictment and
recognizances of the defendant and all witnesses, to the proper
court. If the change is granted to a part but not all of several
defendants, a certified copy of the indictment or information,
and of the other papers in the case, shall be transmitted to the
court to which the change of place of trial is ordered, and such
certified copies shall stand as the originals. Such transcript
and papers may be transmitted by mail, or in such other way as
the court may direct.
(e) When the applicant is in custody or confined in jail,
the court shall enter an order directed to the sheriff or other
officer having custody of the applicant, to remove his body to
the common jail of the county to which the place of trial is
changed, and there deliver him to the keeper of the jail,
together with the warrant by virtue of which he is confined or
held in custody, not more than 3 days next before the day upon
which the trial is to commence in the court; and the sheriff
shall obey such order and shall endorse on such warrant of
commitment the reason of the change of custody, and shall
deliver such warrant, with the body of the prisoner, to the
keeper of the jail of the proper county, who shall receive the
same and give to the sheriff a receipt therefor, and shall take
charge of and keep the prisoner in the same manner as if he had
originally been committed to his custody.
(f) When the place of trial is changed in any criminal case,
the parties and witnesses, and all others who may have entered
recognizances to attend the trial of such cause, having notice
of the change of place of trial, must attend at the time and
place at which the trial is to be had according to such change,
and a failure to do so shall operate as a forfeiture of the
recognizance.
(g) When the place of trial is changed the State's attorney
shall have all the witnesses on the part of the prosecution
recognized to appear at the court to which the change is ordered
on the day upon which the trial is to commence.
(h) Upon the termination of any trial, when a change of
place of trial has been obtained, the clerk of the court in
which the trial is had shall submit a certified statement of all
costs, fees, charges, claims and expenses resulting from such
change of place of trial and necessarily incurred in connection
with or incident to the trial of the case, or any appeal
therefrom, or required in executing any and all orders of the
court made in the case, but shall not include charges for the
use of the courtroom or the facilities thereof, nor shall it
include fees or salaries paid to employees of the county in
which the trial is held, unless it is made necessary by reason
of such trial, and when so certified, the items thereof shall be
paid by the county in which such indictment or information was
found to the officers and persons entitled thereto. All fines
imposed and collected in the county where the trial is had,
shall be paid over to the county in which the indictment or
information was found.
(Source: P.A. 82-280.)
(725 ILCS 5/114-7) (from Ch. 38, par. 114-7)
Sec. 114-7. Joinder of related prosecutions.
The court may order 2 or more charges to be tried together
if the offenses and the defendants could have been joined in a
single charge. The procedure shall be the same as if the
prosecution were under a single charge.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/114-8) (from Ch. 38, par. 114-8)
Sec. 114-8. Motion for severance.
(a) If it appears that a defendant or the State is
prejudiced by a joinder of related prosecutions or defendants in
a single charge or by joinder of separate charges or defendants
for trial the court may order separate trials, grant a severance
of defendants, or provide any other relief as justice may
require.
(b) In the case of a prosecution of multiple defendants for
criminal sexual assault, aggravated criminal sexual assault,
predatory criminal sexual assault of a child, criminal sexual
abuse, or aggravated criminal sexual abuse arising out of the
same course of conduct, the court, in deciding a motion to sever
the charges and try the defendants separately, must consider,
subject to constitutional limitations, the impact upon the
alleged victim of multiple trials requiring the victim's
testimony.
(Source: P.A. 94-668, eff. 1-1-06.)
(725 ILCS 5/114-9) (from Ch. 38, par. 114-9)
Sec. 114-9. Motion for a list of witnesses.
(a) On motion of the defendant the court shall order the
State to furnish the defense with a list of prosecution
witnesses and their last known addresses, except the home
address of any peace officer witness shall not be required to be
so furnished, the address of his assignment station being
sufficient for the purposes of this statute.
(b) The court may permit witnesses not named in an original
or amended list to testify when the names of the additional
witnesses were not known and could not have been obtained by the
exercise of due diligence prior to trial.
(c) The requirements of subsection (a) of this Section shall
not apply to rebuttal witnesses.
(Source: P.A. 77-1428.)
(725 ILCS 5/114-10) (from Ch. 38, par. 114-10)
Sec. 114-10. Motion to produce confession.
(a) On motion of a defendant in any criminal case made prior
to trial the court shall order the State to furnish the
defendant with a copy of any written confession made to any law
enforcement officer of this State or any other State and a list
of the witnesses to its making and acknowledgment. If the
defendant has made an oral confession a list of the witnesses to
its making shall be furnished.
(b) The list of witnesses may upon notice and motion be
amended by the State prior to trial.
(c) No such confession shall be received in evidence which
has not been furnished in compliance with subsection (a) of this
Section unless the court is satisfied that the prosecutor was
unaware of the existence of such confession prior to trial and
that he could not have become aware of such in the exercise of
due diligence.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/114-11) (from Ch. 38, par. 114-11)
Sec. 114-11. Motion to Suppress Confession.
(a) Prior to the trial of any criminal case a defendant may
move to suppress as evidence any confession given by him on the
ground that it was not voluntary.
(b) The motion shall be in writing and state facts showing
wherein the confession is involuntary.
(c) If the allegations of the motion state facts which, if
true, show that the confession was not voluntarily made the
court shall conduct a hearing into the merits of the motion.
(d) The burden of going forward with the evidence and the
burden of proving that a confession was voluntary shall be on
the State. Objection to the failure of the State to call all
material witnesses on the issue of whether the confession was
voluntary must be made in the trial court.
(e) The motion shall be made only before a court with
jurisdiction to try the offense.
(f) The issue of the admissibility of the confession shall
not be submitted to the jury. The circumstances surrounding the
making of the confession may be submitted to the jury as bearing
upon the credibility or the weight to be given to the
confession.
(g) The motion shall be made before trial unless opportunity
therefor did not exist or the defendant was not aware of the
grounds for the motion. If the motion is made during trial, and
the court determines that the motion is not untimely, and the
court conducts a hearing on the merits and enters an order
suppressing the confession, the court shall terminate the trial
with respect to every defendant who was a party to the hearing
and who was within the scope of the order of suppression,
without further proceedings, unless the State files a written
notice that there will be no interlocutory appeal from such
order of suppression. In the event of such termination, the
court shall proceed with the trial of other defendants not thus
affected. Such termination of trial shall be proper and shall
not bar subsequent prosecution of the identical charges and
defendants; however, if after such termination the State fails
to prosecute the interlocutory appeal until a determination of
the merits of the appeal by the reviewing court, the termination
shall be improper within the meaning of subparagraph (a) (3) of
Section 3-4 of the Criminal Code of 2012 and subsequent
prosecution of such defendants upon such charges shall be
barred.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/114-12) (from Ch. 38, par. 114-12)
Sec. 114-12. Motion to Suppress Evidence Illegally Seized.
(a) A defendant aggrieved by an unlawful search and seizure
may move the court for the return of property and to suppress as
evidence anything so obtained on the ground that:
(1) The search and seizure without a warrant was
illegal; or
(2) The search and seizure with a warrant was illegal
because the warrant is insufficient on its face; the
evidence seized is not that described in the warrant; there
was not probable cause for the issuance of the warrant; or,
the warrant was illegally executed.
(b) The motion shall be in writing and state facts showing
wherein the search and seizure were unlawful. The judge shall
receive evidence on any issue of fact necessary to determine the
motion and the burden of proving that the search and seizure
were unlawful shall be on the defendant. If the motion is
granted the property shall be restored, unless otherwise subject
to lawful detention, and it shall not be admissible in evidence
against the movant at any trial.
(1) If a defendant seeks to suppress evidence because
of the conduct of a peace officer in obtaining the evidence,
the State may urge that the peace officer's conduct was
taken in a reasonable and objective good faith belief that
the conduct was proper and that the evidence discovered
should not be suppressed if otherwise admissible. The court
shall not suppress evidence which is otherwise admissible in
a criminal proceeding if the court determines that the
evidence was seized by a peace officer who acted in good
faith.
(2) "Good faith" means whenever a peace officer
obtains evidence:
(i) pursuant to a search or an arrest warrant
obtained from a neutral and detached judge, which
warrant is free from obvious defects other than nondeliberate errors in preparation and contains no
material misrepresentation by any agent of the State,
and the officer reasonably believed the warrant to be
valid; or
(ii) pursuant to a warrantless search incident to
an arrest for violation of a statute or local ordinance
which is later declared unconstitutional or otherwise
invalidated.
(3) This amendatory Act of 1987 shall not be
construed to limit the enforcement of any appropriate civil
remedy or criminal sanction in actions pursuant to other
provisions of law against any individual or government
entity found to have conducted an unreasonable search or
seizure.
(4) This amendatory Act of 1987 does not apply to
unlawful electronic eavesdropping or wiretapping.
(c) The motion shall be made before trial unless opportunity
therefor did not exist or the defendant was not aware of the
grounds for the motion. If the motion is made during trial, and
the court determines that the motion is not untimely, and the
court conducts a hearing on the merits and enters an order
suppressing the evidence, the court shall terminate the trial
with respect to every defendant who was a party to the hearing
and who was within the scope of the order of suppression,
without further proceedings, unless the State files a written
notice that there will be no interlocutory appeal from such
order of suppression. In the event of such termination, the
court shall proceed with the trial of other defendants not thus
affected. Such termination of trial shall be proper and shall
not bar subsequent prosecution of the identical charges and
defendants; however, if after such termination the State fails
to prosecute the interlocutory appeal until a determination of
the merits of the appeal by the reviewing court, the termination
shall be improper within the meaning of subparagraph (a)(3) of
Section 3-4 of the Criminal Code of 2012 and subsequent
prosecution of such defendants upon such charges shall be
barred.
(d) The motion shall be made only before a court with
jurisdiction to try the offense.
(e) The order or judgment granting or denying the motion
shall state the findings of facts and conclusions of law upon
which the order or judgment is based.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/114-13) (from Ch. 38, par. 114-13)
Sec. 114-13. Discovery in criminal cases.
(a) Discovery procedures in criminal cases shall be in
accordance with Supreme Court Rules.
(b) Any public investigative, law enforcement, or other
public agency responsible for investigating any homicide offense
or participating in an investigation of any homicide offense,
other than defense investigators, shall provide to the authority
prosecuting the offense all investigative material, including
but not limited to reports, memoranda, and field notes, that
have been generated by or have come into the possession of the
investigating agency concerning the homicide offense being
investigated. In addition, the investigating agency shall
provide
to
the
prosecuting
authority
any
material
or
information, including but not limited to reports, memoranda,
and field notes, within its possession or control that would
tend to negate the guilt of the accused of the offense charged
or reduce his or her punishment for the homicide offense. Every
investigative and law enforcement agency in this State shall
adopt policies to ensure compliance with these standards. Any
investigative,
law
enforcement,
or
other
public
agency
responsible for investigating any "non-homicide felony" offense
or participating in an investigation of any "non-homicide
felony" offense, other than defense investigators, shall provide
to the authority prosecuting the offense all investigative
material, including but not limited to reports and memoranda
that have been generated by or have come into the possession of
the investigating agency concerning the "non-homicide felony"
offense being investigated. In addition, the investigating
agency shall provide to the prosecuting authority any material
or information, including but not limited to reports and
memoranda, within its possession or control that would tend to
negate the guilt of the accused of the "non-homicide felony"
offense charged or reduce his or her punishment for the "nonhomicide felony" offense. This obligation to furnish exculpatory
evidence exists whether the information was recorded or
documented in any form. Every investigative and law enforcement
agency in this State shall adopt policies to ensure compliance
with these standards.
(Source: P.A. 93-605, eff. 11-19-03.)
(725 ILCS 5/114-13.5)
Sec. 114-13.5. Evidence deposition; elder abuse. In a
prosecution for abuse, neglect, or financial exploitation of an
eligible adult as defined in the Adult Protective Services Act,
the eligible adult may give testimony in the form of an evidence
deposition and not be required to appear in court to testify.
(Source: P.A. 98-49, eff. 7-1-13.)
(725 ILCS 5/114-15)
Sec. 114-15. (Repealed).
(Source: P.A. 99-143, eff. 7-27-15. Repealed by P.A. 103-51,
eff. 1-1-24.)
(725 ILCS 5/Tit. VI heading)
TITLE VI. PROCEEDINGS AT TRIAL
(725 ILCS 5/Art. 115 heading)
ARTICLE 115. TRIAL
(725 ILCS 5/115-1) (from Ch. 38, par. 115-1)
Sec. 115-1. Method of Trial. All prosecutions except on a
plea of guilty or guilty but mentally ill shall be tried by the
court and a jury unless the defendant waives a jury trial in
writing.
(Source: P.A. 87-410.)
(725 ILCS 5/115-1.5)
Sec. 115-1.5. Waiver of counsel by persons under 17 years of
age prohibited. A person under 17 years of age may not waive the
right to the assistance of counsel in his or her defense in any
judicial proceeding. This Section does not apply to a minor
charged with an offense for which the penalty is a fine only.
Except for violations of Sections 11-401, 11-402, 11-501, and
11-503 of the Illinois Vehicle Code, this Section does not apply
to proceedings involving violations of the Illinois Vehicle
Code.
(Source: P.A. 94-345, eff. 7-26-05.)
(725 ILCS 5/115-2) (from Ch. 38, par. 115-2)
Sec. 115-2. Pleas of Guilty and guilty but mentally ill. (a)
Before or during trial a plea of guilty may be accepted when:
(1) The defendant enters a plea of guilty in open court;
(2) The court has informed the defendant of the consequences
of his plea and of the maximum penalty provided by law which may
be imposed upon acceptance of such plea.
Upon acceptance of a plea of guilty the court shall
determine the factual basis for the plea.
(b) Before or during trial a plea of guilty but mentally ill
may be accepted by the court when:
(1) the defendant has undergone an examination by a clinical
psychologist or psychiatrist and has waived his right to trial;
and
(2) the judge has examined the psychiatric or psychological
report or reports; and
(3) the judge has held a hearing, at which either party may
present evidence, on the issue of the defendant's mental health
and, at the conclusion of such hearing, is satisfied that there
is a factual basis that the defendant was mentally ill at the
time of the offense to which the plea is entered.
(Source: P.A. 82-553.)
(725 ILCS 5/115-3) (from Ch. 38, par. 115-3)
Sec. 115-3. Trial by the Court.
(a) A trial shall be conducted in the presence of the
defendant unless he waives the right to be present.
(b) Upon conclusion of the trial the court shall enter a
general finding, except that, when the affirmative defense of
insanity has been presented during the trial and acquittal is
based solely upon the defense of insanity, the court shall enter
a finding of not guilty by reason of insanity. In the event of a
finding of not guilty by reason of insanity, a hearing shall be
held
pursuant
to
the
Mental
Health
and
Developmental
Disabilities Code to determine whether the defendant is subject
to involuntary admission.
(c) When the defendant has asserted a defense of insanity,
the court may find the defendant guilty but mentally ill if,
after hearing all of the evidence, the court finds that:
(1) the State has proven beyond a reasonable doubt
that the defendant is guilty of the offense charged; and
(2) the defendant has failed to prove his insanity as
required in subsection (b) of Section 3-2 of the Criminal
Code of 2012 and subsections (a), (b) and (e) of Section 6-2
of the Criminal Code of 2012; and
(3) the defendant has proven by a preponderance of
the evidence that he was mentally ill, as defined in
subsections (c) and (d) of Section 6-2 of the Criminal Code
of 2012 at the time of the offense.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-4) (from Ch. 38, par. 115-4)
Sec. 115-4. Trial by Court and Jury.)
(a) Questions of law shall be decided by the court and
questions of fact by the jury.
(b) The jury shall consist of 12 members.
(c) Upon request the parties shall be furnished with a list
of prospective jurors with their addresses if known.
(d) Each party may challenge jurors for cause. If a
prospective juror has a physical impairment, the court shall
consider such prospective juror's ability to perceive and
appreciate the evidence when considering a challenge for cause.
(e) A defendant tried alone shall be allowed 20 peremptory
challenges in a capital case, 10 in a case in which the
punishment may be imprisonment in the penitentiary, and 5 in all
other cases; except that, in a single trial of more than one
defendant, each defendant shall be allowed 12 peremptory
challenges in a capital case, 6 in a case in which the
punishment may be imprisonment in the penitentiary, and 3 in all
other cases. If several charges against a defendant or
defendants are consolidated for trial, each defendant shall be
allowed peremptory challenges upon one charge only, which single
charge shall be the charge against that defendant authorizing
the greatest maximum penalty. The State shall be allowed the
same number of peremptory challenges as all of the defendants.
(f) After examination by the court the jurors may be
examined, passed upon, accepted and tendered by opposing counsel
as provided by Supreme Court rules.
(g) After the jury is impaneled and sworn the court may
direct the selection of 2 alternate jurors who shall take the
same oath as the regular jurors. Each party shall have one
additional peremptory challenge for each alternate juror. If
before the final submission of a cause a member of the jury dies
or is discharged he shall be replaced by an alternate juror in
the order of selection.
(h) A trial by the court and jury shall be conducted in the
presence of the defendant unless he waives the right to be
present.
(i) After arguments of counsel the court shall instruct the
jury as to the law.
(j) Unless the affirmative defense of insanity has been
presented during the trial, the jury shall return a general
verdict as to each offense charged. When the affirmative defense
of insanity has been presented during the trial, the court shall
provide the jury not only with general verdict forms but also
with a special verdict form of not guilty by reason of insanity,
as to each offense charged, and in such event the court shall
separately instruct the jury that a special verdict of not
guilty by reason of insanity may be returned instead of a
general verdict but such special verdict requires a unanimous
finding by the jury that the defendant committed the acts
charged but at the time of the commission of those acts the
defendant was insane. In the event of a verdict of not guilty by
reason of insanity, a hearing shall be held pursuant to the
Mental Health and Developmental Disabilities Code to determine
whether the defendant is subject to involuntary admission. When
the affirmative defense of insanity has been presented during
the trial, the court, where warranted by the evidence, shall
also provide the jury with a special verdict form of guilty but
mentally ill, as to each offense charged and shall separately
instruct the jury that a special verdict of guilty but mentally
ill may be returned instead of a general verdict, but that such
special verdict requires a unanimous finding by the jury that:
(1) the State has proven beyond a reasonable doubt that the
defendant is guilty of the offense charged; and (2) the
defendant has failed to prove his insanity as required in
subsection (b) of Section 3-2 of the Criminal Code of 2012 and
subsections (a), (b) and (e) of Section 6-2 of the Criminal Code
of 2012; and (3) the defendant has proven by a preponderance of
the evidence that he was mentally ill, as defined in subsections
(c) and (d) of Section 6-2 of the Criminal Code of 2012 at the
time of the offense.
(k) When, at the close of the State's evidence or at the
close of all of the evidence, the evidence is insufficient to
support a finding or verdict of guilty the court may and on
motion of the defendant shall make a finding or direct the jury
to return a verdict of not guilty, enter a judgment of acquittal
and discharge the defendant.
(l) When the jury retires to consider its verdict an officer
of the court shall be appointed to keep them together and to
prevent conversation between the jurors and others; however, if
any juror is deaf, the jury may be accompanied by and may
communicate with a court-appointed interpreter during its
deliberations. Upon agreement between the State and defendant or
his counsel the jury may seal and deliver its verdict to the
clerk of the court, separate, and then return such verdict in
open court at its next session.
(m) In the trial of a capital or other offense, any juror
who is a member of a panel or jury which has been impaneled and
sworn as a panel or as a jury shall be permitted to separate
from other such jurors during every period of adjournment to a
later day, until final submission of the cause to the jury for
determination, except that no such separation shall be permitted
in any trial after the court, upon motion by the defendant or
the State or upon its own motion, finds a probability that
prejudice to the defendant or to the State will result from such
separation.
(n) The members of the jury shall be entitled to take notes
during the trial, and the sheriff of the county in which the
jury is sitting shall provide them with writing materials for
this purpose. Such notes shall remain confidential, and shall be
destroyed by the sheriff after the verdict has been returned or
a mistrial declared.
(o) A defendant tried by the court and jury shall only be
found guilty, guilty but mentally ill, not guilty or not guilty
by reason of insanity, upon the unanimous verdict of the jury.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-4.1) (from Ch. 38, par. 115-4.1)
Sec. 115-4.1. Absence of defendant.
(a) When a defendant after arrest and an initial court
appearance for a non-capital felony or a misdemeanor, fails to
appear for trial, at the request of the State and after the
State has affirmatively proven through substantial evidence that
the defendant is willfully avoiding trial, the court may
commence trial in the absence of the defendant. Absence of a
defendant as specified in this Section shall not be a bar to
indictment of a defendant, return of information against a
defendant, or arraignment of a defendant for the charge for
which pretrial release has been granted. If a defendant fails to
appear at arraignment, the court may enter a plea of "not
guilty" on his behalf. If a defendant absents himself before
trial on a capital felony, trial may proceed as specified in
this Section provided that the State certifies that it will not
seek a death sentence following conviction. Trial in the
defendant's absence shall be by jury unless the defendant had
previously waived trial by jury. The absent defendant must be
represented by retained or appointed counsel. The court, at the
conclusion of all of the proceedings, may order the clerk of the
circuit court to pay counsel such sum as the court deems
reasonable, from any bond monies which were posted by the
defendant with the clerk, after the clerk has first deducted all
court costs. If trial had previously commenced in the presence
of the defendant and the defendant willfully absents himself for
two successive court days, the court shall proceed to trial. All
procedural rights guaranteed by the United States Constitution,
Constitution of the State of Illinois, statutes of the State of
Illinois, and rules of court shall apply to the proceedings the
same as if the defendant were present in court and had not
either had his or her pretrial release revoked or escaped from
custody. The court may set the case for a trial which may be
conducted under this Section despite the failure of the
defendant to appear at the hearing at which the trial date is
set. When such trial date is set the clerk shall send to the
defendant, by certified mail at his last known address indicated
on his bond slip, notice of the new date which has been set for
trial. Such notification shall be required when the defendant
was not personally present in open court at the time when the
case was set for trial.
(b) The absence of a defendant from a trial conducted
pursuant to this Section does not operate as a bar to concluding
the trial, to a judgment of conviction resulting therefrom, or
to a final disposition of the trial in favor of the defendant.
(c) Upon a verdict of not guilty, the court shall enter
judgment for the defendant. Upon a verdict of guilty, the court
shall set a date for the hearing of post-trial motions and shall
hear such motion in the absence of the defendant. If post-trial
motions are denied, the court shall proceed to conduct a
sentencing hearing and to impose a sentence upon the defendant.
(d) A defendant who is absent for part of the proceedings of
trial, post-trial motions, or sentencing, does not thereby
forfeit his right to be present at all remaining proceedings.
(e) When a defendant who in his absence has been either
convicted or sentenced or both convicted and sentenced appears
before the court, he must be granted a new trial or new
sentencing hearing if the defendant can establish that his
failure to appear in court was both without his fault and due to
circumstances beyond his control. A hearing with notice to the
State's Attorney on the defendant's request for a new trial or a
new sentencing hearing must be held before any such request may
be granted. At any such hearing both the defendant and the State
may present evidence.
(f) If the court grants only the defendant's request for a
new sentencing hearing, then a new sentencing hearing shall be
held in accordance with the provisions of the Unified Code of
Corrections. At any such hearing, both the defendant and the
State may offer evidence of the defendant's conduct during his
period of absence from the court. The court may impose any
sentence authorized by the Unified Code of Corrections and is
not in any way limited or restricted by any sentence previously
imposed.
(g) A defendant whose motion under paragraph (e) for a new
trial or new sentencing hearing has been denied may file a
notice of appeal therefrom. Such notice may also include a
request for review of the judgment and sentence not vacated by
the trial court.
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/115-4.5)
Sec. 115-4.5. Death of defendant. Whenever the prosecuting
attorney learns of the death of the defendant prior to the entry
of a final and appealable judgment in a criminal case, he or she
shall promptly notify the other party and file a certificate of
notice of the defendant's death with the circuit court before
which the case is pending. Upon filing of the certificate, the
court shall enter an order abating the proceedings ab initio.
(Source: P.A. 99-778, eff. 1-1-17.)
(725 ILCS 5/115-5) (from Ch. 38, par. 115-5)
Sec. 115-5. Business records as evidence.
(a) Any writing or record, whether in the form of an entry
in a book or otherwise, made as a memorandum or record of any
act, transaction, occurrence, or event, shall be admissible as
evidence of such act, transaction, occurrence, or event, if made
in regular course of any business, and if it was the regular
course of such business to make such memorandum or record at the
time of such act, transaction, occurrence, or event or within a
reasonable time thereafter.
All other circumstances of the making of such writing or
record, including lack of personal knowledge by the entrant or
maker, may be shown to affect its weight, but such circumstances
shall not affect its admissibility.
The term "business," as used in this Section, includes
business, profession, occupation, and calling of every kind.
(b) If any business, institution, member of a profession or
calling, or any department or agency of government, in the
regular course of business or activity has kept or recorded any
memorandum, writing, entry, print, representation or combination
thereof, of any act, transaction, occurrence, or event, and in
the regular course of business has caused any or all of the same
to be recorded, copied, or reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic,
optical imaging, or other process which accurately reproduces or
forms a medium for so reproducing the original, the original may
be destroyed in the regular course of business unless its
preservation is required by law. Such reproduction, when
satisfactorily identified, is as admissible in evidence as the
original itself in any proceeding whether the original is in
existence or not and an enlargement or facsimile of such
reproduction is likewise admissible in evidence if the original
reproduction is in existence and available for inspection under
direction of court. The introduction of a reproduced record,
enlargement, or facsimile does not preclude admission of the
original. This Section shall not be construed to exclude from
evidence any document or copy thereof which is otherwise
admissible under the rules of evidence.
(c) No writing or record made in the regular course of any
business shall become admissible as evidence by the application
of this Section if:
(1) Such writing or record has been made by anyone in
the regular course of any form of hospital or medical
business; or
(2) Such writing or record has been made by anyone
during an investigation of an alleged offense or during any
investigation relating to pending or anticipated litigation
of any kind, except during a hearing to revoke a sentence of
probation or conditional discharge or an order of court
supervision that is based on a technical violation of a
sentencing order when the hearing involves a probationer or
defendant who has transferred or moved from the county
having jurisdiction over the original charge or sentence.
For the purposes of this subsection (c), "technical
violation" means a breach of a sentencing order but does not
include an allegation of a subsequent criminal act asserted
in a formal criminal charge.
(d) Upon request of the moving party and with reasonable
notice given to the opposing party, in a criminal prosecution in
which the defendant is accused of an offense under Article 16 or
17 of the Criminal Code of 1961 or the Criminal Code of 2012,
the court may, after a hearing, for good cause and upon
appropriate safeguards, permit live foundational testimony
business records as evidence, subject to cross-examination, in
open court by means of a contemporaneous audio and video
transmission from outside of this State.
(Source: P.A. 98-579, eff. 1-1-14.)
(725 ILCS 5/115-5.1) (from Ch. 38, par. 115-5.1)
Sec. 115-5.1. In any civil or criminal action the records of
the coroner's medical or laboratory examiner summarizing and
detailing the performance of his or her official duties in
performing medical examinations upon deceased persons or
autopsies, or both, and kept in the ordinary course of business
of the coroner's office, duly certified by the county coroner or
chief supervisory coroner's pathologist or medical examiner,
shall be received as competent evidence in any court of this
State, to the extent permitted by this Section. These reports,
specifically including but not limited to the pathologist's
protocol, autopsy reports and toxicological reports, shall be
public documents and thereby may be admissible as prima facie
evidence of the facts, findings, opinions, diagnoses and
conditions stated therein.
A duly certified coroner's protocol or autopsy report, or
both, complying with the requirements of this Section may be
duly admitted into evidence as an exception to the hearsay rule
as prima facie proof of the cause of death of the person to whom
it relates. The records referred to in this Section shall be
limited
to
the
records
of
the
results
of
post-mortem
examinations of the findings of autopsy and toxicological
laboratory examinations.
Persons who prepare reports or records offered in evidence
hereunder may be subpoenaed as witnesses in civil or criminal
cases upon the request of either party to the cause. However, if
such person is dead, the county coroner or a duly authorized
official of the coroner's office may testify to the fact that
the examining pathologist, toxicologist or other medical or
laboratory examiner is deceased and that the offered report or
record was prepared by such deceased person. The witness must
further attest that the medical report or record was prepared in
the ordinary and usual course of the deceased person's duty or
employment in conformity with the provisions of this Section.
(Source: P.A. 82-783.)
(725 ILCS 5/115-6) (from Ch. 38, par. 115-6)
Sec. 115-6. Appointment of Psychiatrist or Clinical
Psychologist. If the defendant has given notice that he may rely
upon the defense of insanity as defined in Section 6-2 of the
Criminal Code of 2012 or the defendant indicates that he intends
to plead guilty but mentally ill or the defense of intoxicated
or drugged condition as defined in Section 6-3 of the Criminal
Code of 2012 or if the facts and circumstances of the case
justify a reasonable belief that the aforesaid defenses may be
raised, the Court shall, on motion of the State, order the
defendant to submit to examination by at least one clinical
psychologist or psychiatrist, to be named by the prosecuting
attorney. The Court shall also order the defendant to submit to
an examination by one neurologist, one clinical psychologist and
one electroencephalographer to be named by the prosecuting
attorney if the State asks for one or more of such additional
examinations. The Court may order additional examinations if the
Court finds that additional examinations by additional experts
will be of substantial value in the determination of issues of
insanity or drugged conditions. The reports of such experts
shall be made available to the defense. Any statements made by
defendant to such experts shall not be admissible against the
defendant unless he raises the defense of insanity or the
defense of drugged condition, in which case they shall be
admissible only on the issue of whether he was insane or
drugged. The refusal of the defendant to cooperate in such
examinations shall not automatically preclude the raising of the
aforesaid defenses but shall preclude the defendant from
offering expert evidence or testimony tending to support such
defenses if the expert evidence or testimony is based upon the
expert's examination of the defendant. If the Court, after a
hearing, determines to its satisfaction that the defendant's
refusal to cooperate was unreasonable it may, in its sound
discretion, bar any or all evidence upon the defense asserted.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-6.1)
Sec. 115-6.1. Prostitution; affirmative defense.
(a) In prosecutions for prostitution, when the accused
intends to raise at trial the affirmative defense provided in
subsection (c-5) of Section 11-14 of the Criminal Code of 2012
and has reason to believe that the evidence presented in
asserting that defense may jeopardize the safety of the accused,
courtroom personnel, or others impacted by human trafficking,
the accused may file under seal a motion for an in camera
hearing to review the accused's safety concerns. Upon receipt of
the motion and notice to the parties, the court shall conduct an
in camera hearing, with counsel present, limited to review of
potential safety concerns. The court shall cause an official
record of the in camera hearing to be made, which shall be kept
under seal. The court shall not consider the merits of the
affirmative defense during the in camera review.
(b) If the court finds by a preponderance of the evidence
that the assertion of an affirmative defense under subsection
(c-5) of Section 11-14 of the Criminal Code of 2012 by the
accused in open court would likely jeopardize the safety of the
accused, court personnel, or other persons, the court may clear
the courtroom with the agreement of the accused, order
additional in camera hearings, seal the records, prohibit court
personnel from disclosing the proceedings without prior court
approval, or take any other appropriate measure that in the
court's discretion will enhance the safety of the proceedings
and ensure the accused a full and fair opportunity to assert his
or her affirmative defense.
(c) Statements made by the accused during the in camera
hearing to review safety concerns shall not be admissible
against the accused for the crimes charged.
(Source: P.A. 99-109, eff. 7-22-15.)
(725 ILCS 5/115-7) (from Ch. 38, par. 115-7)
Sec. 115-7. a. In prosecutions for predatory criminal sexual
assault of a child, aggravated criminal sexual assault, criminal
sexual assault, aggravated criminal sexual abuse, criminal
sexual abuse, or criminal transmission of HIV; and in
prosecutions for battery and aggravated battery, when the
commission of the offense involves sexual penetration or sexual
conduct as defined in Section 11-0.1 of the Criminal Code of
2012; and with the trial or retrial of the offenses formerly
known as rape, deviate sexual assault, indecent liberties with a
child, and aggravated indecent liberties with a child, the prior
sexual activity or the reputation of the alleged victim or
corroborating witness under Section 115-7.3 of this Code is
inadmissible except (1) as evidence concerning the past sexual
conduct of the alleged victim or corroborating witness under
Section 115-7.3 of this Code with the accused when this evidence
is offered by the accused upon the issue of whether the alleged
victim or corroborating witness under Section 115-7.3 of this
Code consented to the sexual conduct with respect to which the
offense is alleged; or (2) when constitutionally required to be
admitted.
b. No evidence admissible under this Section shall be
introduced unless ruled admissible by the trial judge after an
offer of proof has been made at a hearing to be held in camera
in order to determine whether the defense has evidence to
impeach the witness in the event that prior sexual activity with
the defendant is denied. Such offer of proof shall include
reasonably specific information as to the date, time and place
of the past sexual conduct between the alleged victim or
corroborating witness under Section 115-7.3 of this Code and the
defendant. Unless the court finds that reasonably specific
information as to date, time or place, or some combination
thereof, has been offered as to prior sexual activity with the
defendant, counsel for the defendant shall be ordered to refrain
from inquiring into prior sexual activity between the alleged
victim or corroborating witness under Section 115-7.3 of this
Code and the defendant. The court shall not admit evidence under
this Section unless it determines at the hearing that the
evidence is relevant and the probative value of the evidence
outweighs the danger of unfair prejudice. The evidence shall be
admissible at trial to the extent an order made by the court
specifies the evidence that may be admitted and areas with
respect to which the alleged victim or corroborating witness
under Section 115-7.3 of this Code may be examined or cross
examined.
(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-7.1) (from Ch. 38, par. 115-7.1)
Sec. 115-7.1. Court may not order mental examination of sex
victim. Except where explicitly authorized by this Code or by
the Rules of the Supreme Court of Illinois, no court may require
or order a witness who is the victim of an alleged sex offense
to submit to or undergo either a psychiatric or psychological
examination.
(Source: P.A. 83-289.)
(725 ILCS 5/115-7.2) (from Ch. 38, par. 115-7.2)
Sec. 115-7.2. In a prosecution for an illegal sexual act
perpetrated upon a victim, including but not limited to
prosecutions for violations of Sections 11-1.20 through 11-1.60
or 12-13 through 12-16 of the Criminal Code of 1961 or the
Criminal Code of 2012, or ritualized abuse of a child under
Section 12-33 of the Criminal Code of 1961 or the Criminal Code
of 2012, testimony by an expert, qualified by the court relating
to any recognized and accepted form of post-traumatic stress
syndrome shall be admissible as evidence.
(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-7.3)
Sec. 115-7.3. Evidence in certain cases.
(a) This Section applies to criminal cases in which:
(1) the defendant is accused of predatory criminal
sexual assault of a child, aggravated criminal sexual
assault, criminal sexual assault, aggravated criminal sexual
abuse, criminal sexual abuse, child pornography, aggravated
child pornography, criminal transmission of HIV, or child
abduction as defined in paragraph (10) of subsection (b) of
Section 10-5 of the Criminal Code of 1961 or the Criminal
Code of 2012;
(2) the defendant is accused of battery, aggravated
battery, first degree murder, or second degree murder when
the commission of the offense involves sexual penetration or
sexual conduct as defined in Section 11-0.1 of the Criminal
Code of 2012; or
(3) the defendant is tried or retried for any of the
offenses formerly known as rape, deviate sexual assault,
indecent liberties with a child, or aggravated indecent
liberties with a child.
(b) If the defendant is accused of an offense set forth in
paragraph (1) or (2) of subsection (a) or the defendant is tried
or retried for any of the offenses set forth in paragraph (3) of
subsection (a), evidence of the defendant's commission of
another offense or offenses set forth in paragraph (1), (2), or
(3) of subsection (a), or evidence to rebut that proof or an
inference from that proof, may be admissible (if that evidence
is otherwise admissible under the rules of evidence) and may be
considered for its bearing on any matter to which it is
relevant.
(c) In weighing the probative value of the evidence against
undue prejudice to the defendant, the court may consider:
(1) the proximity in time to the charged or predicate
offense;
(2) the degree of factual similarity to the charged
or predicate offense; or
(3) other relevant facts and circumstances.
(d) In a criminal case in which the prosecution intends to
offer evidence under this Section, it must disclose the
evidence, including statements of witnesses or a summary of the
substance of any testimony, at a reasonable time in advance of
trial, or during trial if the court excuses pretrial notice on
good cause shown.
(e) In a criminal case in which evidence is offered under
this Section, proof may be made by specific instances of
conduct, testimony as to reputation, or testimony in the form of
an expert opinion, except that the prosecution may offer
reputation testimony only after the opposing party has offered
that testimony.
(f) In prosecutions for a violation of Section 10-2, 111.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-3.05, 12-4, 12-13,
12-14, 12-14.1, 12-15, 12-16, or 18-5 of the Criminal Code of
1961 or the Criminal Code of 2012, involving the involuntary
delivery of a controlled substance to a victim, no inference may
be made about the fact that a victim did not consent to a test
for the presence of controlled substances.
(Source: P.A. 97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13; 98160, eff. 1-1-14.)
(725 ILCS 5/115-7.4)
Sec. 115-7.4. Evidence in domestic violence cases.
(a) In a criminal prosecution in which the defendant is
accused of an offense of domestic violence as defined in
paragraphs (1) and (3) of Section 103 of the Illinois Domestic
Violence Act of 1986, or first degree murder or second degree
murder when the commission of the offense involves domestic
violence, evidence of the defendant's commission of another
offense or offenses of domestic violence is admissible, and may
be considered for its bearing on any matter to which it is
relevant.
(b) In weighing the probative value of the evidence against
undue prejudice to the defendant, the court may consider:
(1) the proximity in time to the charged or predicate
offense;
(2) the degree of factual similarity to the charged
or predicate offense; or
(3) other relevant facts and circumstances.
(c) In a criminal case in which the prosecution intends to
offer evidence under this Section, it must disclose the
evidence, including statements of witnesses or a summary of the
substance of any testimony, at a reasonable time in advance of
trial, or during trial if the court excuses pretrial notice on
good cause shown.
(d) In a criminal case in which evidence is offered under
this Section, proof may be made by specific instances of
conduct, testimony as to reputation, or testimony in the form of
an expert opinion, except that the prosecution may offer
reputation testimony only after the opposing party has offered
that testimony.
(Source: P.A. 97-1036, eff. 8-20-12.)
(725 ILCS 5/115-8) (from Ch. 38, par. 115-8)
Sec. 115-8. A defendant may waive his right to be present
during trial. However, upon motion of the State's Attorney made
prior to or during trial, the court shall order the defendant to
present himself in open court for the purpose of identification.
(Source: P.A. 77-1426.)
(725 ILCS 5/115-9) (from Ch. 38, par. 115-9)
Sec. 115-9. (a) In a prosecution for theft, retail theft,
deceptive
practice,
robbery,
armed
robbery,
burglary
or
residential burglary, the court shall receive as competent
evidence, a photograph of property over which the accused is
alleged to have exerted unauthorized control or to have
otherwise obtained unlawfully, if the photograph:
(1) will serve the purpose of demonstrating the nature of
the property; and
(2) is otherwise admissible into evidence under all other
rules of law governing the admissibility of photographs into
evidence. The fact that it is impractical to introduce into
evidence the actual property for any reason, including its size,
weight, or unavailability, need not be established for the court
to find a photograph of that property to be competent evidence.
If a photograph is found to be competent evidence under this
subsection, it is admissible into evidence in place of the
property and to the same extent as the property itself.
(b) A law enforcement agency that is holding as evidence
property over which a person is alleged to have exerted
unauthorized control or to have otherwise obtained unlawfully,
shall return that property to its owner if:
(1) the property has been photographed in a manner that will
serve the purpose of demonstrating the nature of the property,
and if these photographs are filed with or retained by the law
enforcement agency in place of the property;
(2) receipt for the property is obtained from the owner upon
delivery by the law enforcement agency;
(3) the prosecuting attorney who is prosecuting a case that
involves the property furnishes the law enforcement agency with
a written request for return of the property to its owner; and
(4) the property may be lawfully possessed by the owner.
(c) Notwithstanding the provisions of subsection (b) of this
Section a court may, if a motion so requesting is filed by
defendant before expiration of the time period specified in
subsection (d) of this Section, order the law enforcement agency
to hold such property as evidence pending completion of trial.
(d) The time period during which the defendant may file a
motion with the court for retention of the property as evidence
shall be as follows:
(1) if the property was being displayed, held, stored or
offered for sale to the public by a person or entity holding a
Retailers Occupation Tax Number issued by the State of Illinois,
the time period shall expire 14 days after the arrest of the
defendant;
(2) for all other property, the time period shall expire 30
days after the filing of an information or indictment, or in the
case of misdemeanor charges within 30 days after the filing of a
complaint.
(Source: P.A. 83-1362.)
(725 ILCS 5/115-9.2)
Sec. 115-9.2. Currency used in undercover investigation.
(a) In a prosecution in which United States currency was
used by a law enforcement officer or agency or by a person
acting under the direction of a law enforcement officer or
agency in an undercover investigation of an offense that has
imprisonment as an available sentence for a violation of the
offense, the court shall receive, as competent evidence, a
photograph, photostatic copy, or photocopy of the currency used
in the undercover investigation, if:
(1) the photograph, photostatic copy, or photocopy
will serve the purpose of demonstrating the nature of the
currency;
(2) the individual serial numbers of the currency are
clearly visible or if the amount of currency exceeds $500
the individual serial numbers of a sample of 10% of the
currency are clearly visible, and any identification marks
placed on the currency by law enforcement as part of the
investigation are clearly visible;
(3) the photograph, photostatic copy, or photocopy
complies with federal law, rule, or regulation requirements
on photographs, photostatic copies, or photocopies of United
States currency; and
(4) the photograph, photostatic copy, or photocopy is
otherwise admissible into evidence under all other rules of
law governing the admissibility of photographs, photostatic
copies, or photocopies into evidence.
(b) The fact that it is impractical to introduce into
evidence the actual currency for any reason, including its size,
weight, or unavailability, need not be established for the court
to find a photograph, photostatic copy, or photocopy of that
currency to be competent evidence.
(c) If a photograph, photostatic copy, or photocopy is found
to be competent evidence under this Section, it is admissible
into evidence in place of the currency and to the same extent as
the currency itself.
(Source: P.A. 99-685, eff. 1-1-17; 100-201, eff. 8-18-17.)
(725 ILCS 5/115-10) (from Ch. 38, par. 115-10)
Sec. 115-10. Certain hearsay exceptions.
(a) In a prosecution for a physical or sexual act
perpetrated upon or against a child under the age of 13, a
person with an intellectual disability, a person with a
cognitive impairment, or a person with a developmental
disability, including, but not limited to, prosecutions for
violations of Sections 11-1.20 through 11-1.60 or 12-13 through
12-16 of the Criminal Code of 1961 or the Criminal Code of 2012
and prosecutions for violations of Sections 10-1 (kidnapping),
10-2 (aggravated kidnapping), 10-3 (unlawful restraint), 10-3.1
(aggravated unlawful restraint), 10-4 (forcible detention), 10-5
(child abduction), 10-6 (harboring a runaway), 10-7 (aiding or
abetting child abduction), 11-9 (public indecency), 11-11
(sexual relations within families), 11-21 (harmful material),
12-1 (assault), 12-2 (aggravated assault), 12-3 (battery), 123.2 (domestic battery), 12-3.3 (aggravated domestic battery),
12-3.05 or 12-4 (aggravated battery), 12-4.1 (heinous battery),
12-4.2 (aggravated battery with a firearm), 12-4.3 (aggravated
battery of a child), 12-4.7 (drug induced infliction of great
bodily harm), 12-5 (reckless conduct), 12-6 (intimidation), 126.1 or 12-6.5 (compelling organization membership of persons),
12-7.1 (hate crime), 12-7.3 (stalking), 12-7.4 (aggravated
stalking), 12-10 or 12C-35 (tattooing the body of a minor), 1211
or
19-6
(home
invasion),
12-21.5
or
12C-10
(child
abandonment), 12-21.6 or 12C-5 (endangering the life or health
of a child) or 12-32 (ritual mutilation) of the Criminal Code of
1961 or the Criminal Code of 2012 or any sex offense as defined
in subsection (B) of Section 2 of the Sex Offender Registration
Act, the following evidence shall be admitted as an exception to
the hearsay rule:
(1) testimony by the victim of an out of court
statement made by the victim that he or she complained of
such act to another; and
(2) testimony of an out of court statement made by
the victim describing any complaint of such act or matter or
detail pertaining to any act which is an element of an
offense which is the subject of a prosecution for a sexual
or physical act against that victim.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside
the presence of the jury that the time, content, and
circumstances of the statement provide sufficient safeguards
of reliability; and
(2) The child or person with an intellectual
disability,
a
cognitive
impairment,
or
developmental
disability either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is
corroborative evidence of the act which is the subject
of the statement; and
(3) In a case involving an offense perpetrated
against a child under the age of 13, the out of court
statement was made before the victim attained 13 years of
age or within 3 months after the commission of the offense,
whichever occurs later, but the statement may be admitted
regardless of the age of the victim at the time of the
proceeding.
(c) If a statement is admitted pursuant to this Section, the
court shall instruct the jury that it is for the jury to
determine the weight and credibility to be given the statement
and that, in making the determination, it shall consider the age
and maturity of the child, or the intellectual capabilities of
the person with an intellectual disability, a cognitive
impairment, or developmental disability, the nature of the
statement, the circumstances under which the statement was made,
and any other relevant factor.
(d) The proponent of the statement shall give the adverse
party reasonable notice of his intention to offer the statement
and the particulars of the statement.
(e) Statements described in paragraphs (1) and (2) of
subsection (a) shall not be excluded on the basis that they were
obtained as a result of interviews conducted pursuant to a
protocol adopted by a Child Advocacy Advisory Board as set forth
in subsections (c), (d), and (e) of Section 3 of the Children's
Advocacy Center Act or that an interviewer or witness to the
interview was or is an employee, agent, or investigator of a
State's Attorney's office.
(f) For the purposes of this Section:
"Person with a cognitive impairment" means a person with a
significant impairment of cognition or memory that represents a
marked deterioration from a previous level of function.
Cognitive impairment includes, but is not limited to, dementia,
amnesia, delirium, or a traumatic brain injury.
"Person with a developmental disability" means a person with
a disability that is attributable to (1) an intellectual
disability, cerebral palsy, epilepsy, or autism, or (2) any
other condition that results in an impairment similar to that
caused by an intellectual disability and requires services
similar to those required by a person with an intellectual
disability.
"Person with an intellectual disability" means a person with
significantly subaverage general intellectual functioning which
exists concurrently with an impairment in adaptive behavior.
(Source: P.A. 99-143, eff. 7-27-15; 99-752, eff. 1-1-17; 100201, eff. 8-18-17.)
(725 ILCS 5/115-10.1) (from Ch. 38, par. 115-10.1)
Sec. 115-10.1. Admissibility of Prior Inconsistent
Statements. In all criminal cases, evidence of a statement made
by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the
hearing or trial, and
(b) the witness is subject to cross-examination concerning
the statement, and
(c) the statement-(1) was made under oath at a trial, hearing, or other
proceeding, or
(2) narrates, describes, or explains an event or condition
of which the witness had personal knowledge, and
(A) the statement is proved to have been written or signed
by the witness, or
(B) the witness acknowledged under oath the making of the
statement either in his testimony at the hearing or trial in
which the admission into evidence of the prior statement is
being sought, or at a trial, hearing, or other proceeding, or
(C) the statement is proved to have been accurately recorded
by a tape recorder, videotape recording, or any other similar
electronic means of sound recording.
Nothing in this Section shall render a prior inconsistent
statement inadmissible for purposes of impeachment because such
statement was not recorded or otherwise fails to meet the
criteria set forth herein.
(Source: P.A. 83-1042.)
(725 ILCS 5/115-10.2)
Sec. 115-10.2. Admissibility of prior statements when
witness refused to testify despite a court order to testify.
(a) A statement not specifically covered by any other
hearsay
exception
but
having
equivalent
circumstantial
guarantees of trustworthiness, is not excluded by the hearsay
rule if the declarant is unavailable as defined in subsection
(c) and if the court determines that:
(1) the statement is offered as evidence of a
material fact; and
(2) the statement is more probative on the point for
which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and
(3) the general purposes of this Section and the
interests of justice will best be served by admission of the
statement into evidence.
(b) A statement may not be admitted under this exception
unless the proponent of it makes known to the adverse party
sufficiently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, the
proponent's
intention
to
offer
the
statement,
and
the
particulars of the statement, including the name and address of
the declarant.
(c) Unavailability as a witness is limited to the situation
in which the declarant persists in refusing to testify
concerning the subject matter of the declarant's statement
despite an order of the court to do so.
(d) A declarant is not unavailable as a witness if
exemption, refusal, claim or lack of memory, inability or
absence is due to the procurement or wrongdoing of the proponent
of a statement for purpose of preventing the witness from
attending or testifying.
(e) Nothing in this Section shall render a prior statement
inadmissible for purposes of impeachment because the statement
was not recorded or otherwise fails to meet the criteria set
forth in this Section.
(f) Prior statements are admissible under this Section only
if the statements were made under oath and were subject to
cross-examination by the adverse party in a prior trial,
hearing, or other proceeding.
(Source: P.A. 93-413, eff. 8-5-03; 93-443, eff. 8-5-03; 94-53,
eff. 6-17-05.)
(725 ILCS 5/115-10.2a)
Sec. 115-10.2a. Admissibility of prior statements in
domestic violence prosecutions when the witness is unavailable
to testify.
(a) In a domestic violence prosecution, a statement, made by
an individual identified in Section 201 of the Illinois Domestic
Violence Act of 1986 as a person protected by that Act, that is
not specifically covered by any other hearsay exception but
having equivalent circumstantial guarantees of trustworthiness,
is not excluded by the hearsay rule if the declarant is
identified as unavailable as defined in subsection (c) and if
the court determines that:
(1) the statement is offered as evidence of a
material fact; and
(2) the statement is more probative on the point for
which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and
(3) the general purposes of this Section and the
interests of justice will best be served by admission of the
statement into evidence.
(b) A statement may not be admitted under this exception
unless the proponent of it makes known to the adverse party
sufficiently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, the
proponent's
intention
to
offer
the
statement,
and
the
particulars of the statement, including the name and address of
the declarant.
(c) Unavailability as a witness includes circumstances in
which the declarant:
(1) is exempted by ruling of the court on the ground
of privilege from testifying concerning the subject matter
of the declarant's statement; or
(2) persists in refusing to testify concerning the
subject matter of the declarant's statement despite an order
of the court to do so; or
(3) testifies to a lack of memory of the subject
matter of the declarant's statement; or
(4) is unable to be present or to testify at the
hearing because of health or then existing physical or
mental illness or infirmity; or
(5) is absent from the hearing and the proponent of
the statement has been unable to procure the declarant's
attendance by process or other reasonable means; or
(6) is a crime victim as defined in Section 3 of the
Rights of Crime Victims and Witnesses Act and the failure of
the declarant to testify is caused by the defendant's
intimidation of the declarant as defined in Section 12-6 of
the Criminal Code of 2012.
(d) A declarant is not unavailable as a witness if
exemption, refusal, claim of lack of memory, inability, or
absence is due to the procurement or wrongdoing of the proponent
of a statement for purpose of preventing the witness from
attending or testifying.
(e) Nothing in this Section shall render a prior statement
inadmissible for purposes of impeachment because the statement
was not recorded or otherwise fails to meet the criteria set
forth in this Section.
(Source: P.A. 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-10.3)
Sec. 115-10.3. Hearsay exception regarding elder adults.
(a) In a prosecution for a physical act, abuse, neglect, or
financial exploitation perpetrated upon or against an eligible
adult, as defined in the Adult Protective Services Act, who has
been diagnosed by a physician to suffer from (i) any form of
dementia, developmental disability, or other form of mental
incapacity or (ii) any physical infirmity, including but not
limited to prosecutions for violations of Sections 10-1, 10-2,
10-3, 10-3.1, 10-4, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60,
11-11, 12-1, 12-2, 12-3, 12-3.05, 12-3.2, 12-3.3, 12-4, 12-4.1,
12-4.2, 12-4.5, 12-4.6, 12-4.7, 12-5, 12-6, 12-7.3, 12-7.4, 1211, 12-11.1, 12-13, 12-14, 12-15, 12-16, 12-21, 16-1, 16-1.3,
17-1, 17-3, 17-56, 18-1, 18-2, 18-3, 18-4, 18-5, 18-6, 19-6, 201.1, 24-1.2, and 33A-2, or subsection (b) of Section 12-4.4a of
the Criminal Code of 2012, the following evidence shall be
admitted as an exception to the hearsay rule:
(1) testimony by an eligible adult, of an out of
court statement made by the eligible adult, that he or she
complained of such act to another; and
(2) testimony of an out of court statement made by
the eligible adult, describing any complaint of such act or
matter or detail pertaining to any act which is an element
of an offense which is the subject of a prosecution for a
physical act, abuse, neglect, or financial exploitation
perpetrated upon or against the eligible adult.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside
the presence of the jury that the time, content, and
circumstances of the statement provide sufficient safeguards
of reliability; and
(2) The eligible adult either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is
corroborative evidence of the act which is the subject
of the statement.
(c) If a statement is admitted pursuant to this Section, the
court shall instruct the jury that it is for the jury to
determine the weight and credibility to be given the statement
and that, in making the determination, it shall consider the
condition of the eligible adult, the nature of the statement,
the circumstances under which the statement was made, and any
other relevant factor.
(d) The proponent of the statement shall give the adverse
party reasonable notice of his or her intention to offer the
statement and the particulars of the statement.
(Source: P.A. 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 971150, eff. 1-25-13; 98-49, eff. 7-1-13.)
(725 ILCS 5/115-10.4)
Sec. 115-10.4. Admissibility of prior statements when
witness is deceased.
(a) A statement not specifically covered by any other
hearsay
exception
but
having
equivalent
circumstantial
guarantees of trustworthiness is not excluded by the hearsay
rule if the declarant is deceased and if the court determines
that:
(1) the statement is offered as evidence of a
material fact; and
(2) the statement is more probative on the point for
which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and
(3) the general purposes of this Section and the
interests of justice will best be served by admission of the
statement into evidence.
(b) A statement may not be admitted under this exception
unless the proponent of it makes known to the adverse party
sufficiently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, the
proponent's
intention
to
offer
the
statement,
and
the
particulars of the statement, including the name of the
declarant.
(c) Unavailability as a witness under this Section is
limited to the situation in which the declarant is deceased.
(d) Any prior statement that is sought to be admitted under
this Section must have been made by the declarant under oath at
a trial, hearing, or other proceeding and been subject to crossexamination by the adverse party.
(e) Nothing in this Section shall render a prior statement
inadmissible for purposes of impeachment because the statement
was not recorded or otherwise fails to meet the criteria set
forth in this Section.
(Source: P.A. 94-53, eff. 6-17-05.)
(725 ILCS 5/115-10.5)
Sec. 115-10.5. Hearsay exception regarding safe zone
testimony.
(a) In any prosecution for any offense charged as a
violation of Section 407 of the Illinois Controlled Substances
Act, Section 55 of the Methamphetamine Control and Community
Protection Act, or Section 5-130 of the Juvenile Court Act of
1987 the following evidence shall be admitted as an exception to
the hearsay rule any testimony by any qualified individual
regarding the status of any property as:
(1) a truck stop or safety rest area, or
(2) a school or conveyance owned, leased or
contracted by a school to transport students to or from
school, or
(3) residential property owned, operated, and managed
by a public housing agency, or
(4) a public park, or
(5) the real property comprising any church,
synagogue, or other building, structure, or place used
primarily for religious worship, or
(6) the real property comprising any of the following
places, buildings, or structures used primarily for housing
or providing space for activities for senior citizens:
nursing homes, assisted-living centers, senior citizen
housing complexes, or senior centers oriented toward daytime
activities.
(b) As used in this Section, "qualified individual" means
any person who (i) lived or worked within the territorial
jurisdiction where the offense took place when the offense took
place; and (ii) is familiar with various public places within
the territorial jurisdiction where the offense took place when
the offense took place.
(c) For the purposes of this Section, "qualified individual"
includes any peace officer, or any member of any duly organized
State, county, or municipal peace unit, assigned to the
territorial jurisdiction where the offense took place when the
offense took place.
(d) This Section applies to all prosecutions pending at the
time this amendatory Act of the 91st General Assembly takes
effect and to all prosecutions commencing on or after its
effective date.
(Source: P.A. 94-556, eff. 9-11-05.)
(725 ILCS 5/115-10.5a)
Sec. 115-10.5a. Admissibility of evidence concerning gang
databases.
(a) In this Section, "gang database", "gang member", and
"shared gang database" have the same meanings ascribed to those
terms as in Section 5 of the Law Enforcement Gang Database
Information Act.
(b) In all criminal cases, evidence which indicates the mere
presence that the person was or is on a gang database or a
shared gang database is not admissible.
(Source: P.A. 103-185, eff. 6-30-23.)
(725 ILCS 5/115-10.6)
Sec. 115-10.6. (Repealed).
(Source: P.A. 97-1150, eff. 1-25-13. Repealed by P.A. 99-243,
eff. 8-3-15.)
(725 ILCS 5/115-10.7)
Sec. 115-10.7. (Repealed).
(Source: P.A. 96-377, eff. 8-11-09. Repealed by P.A. 99-243,
eff. 8-3-15.)
(725 ILCS 5/115-11) (from Ch. 38, par. 115-11)
Sec. 115-11. In a prosecution for a criminal offense defined
in Article 11 or in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50,
11-1.60, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the Criminal
Code of 1961 or the Criminal Code of 2012, when the alleged
victim of the offense was a minor under 18 years of age at the
time of the offense, the court may exclude from the proceedings
while the victim is testifying, regardless of the alleged
victim's age at the time of the victim's courtroom testimony,
all persons, who, in the opinion of the court, do not have a
direct interest in the case, except the media. When the court
publishes to the trier of fact videos, photographs, or any
depiction of a minor under 18 years of age engaged in a sex act,
the court may exclude from the proceedings all persons, who, in
the opinion of the court, do not have a direct interest in the
case, except the media. The court shall enter its finding that
particular parties are disinterested and the basis for that
finding into the record.
(Source: P.A. 102-994, eff. 5-27-22; 103-154, eff. 6-30-23.)
(725 ILCS 5/115-11.1) (from Ch. 38, par. 115-11.1)
Sec. 115-11.1. Use of "Rape". The use of the word "rape",
"rapist", or any derivative of "rape" by any victim, witness,
State's Attorney, defense attorney, judge or other court
personnel in any prosecutions of offenses in Sections 11-1.20
through 11-1.60 or 12-13 through 12-16 of the Criminal Code of
1961 or the Criminal Code of 2012 is not inadmissible.
(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-12) (from Ch. 38, par. 115-12)
Sec. 115-12. Substantive Admissibility of Prior
Identification. A statement is not rendered inadmissible by the
hearsay rule if (a) the declarant testifies at the trial or
hearing, and (b) the declarant is subject to cross-examination
concerning the statement, and (c) the statement is one of
identification of a person made after perceiving him.
(Source: P.A. 83-367.)
(725 ILCS 5/115-13) (from Ch. 38, par. 115-13)
Sec. 115-13. In a prosecution for violation of Section 111.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1,
12-15 or 12-16 of the Criminal Code of 1961 or the Criminal Code
of 2012, statements made by the victim to medical personnel for
purposes
of
medical
diagnosis
or
treatment
including
descriptions of the cause of symptom, pain or sensations, or the
inception or general character of the cause or external source
thereof insofar as reasonably pertinent to diagnosis or
treatment shall be admitted as an exception to the hearsay rule.
(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)
(725 ILCS 5/115-14) (from Ch. 38, par. 115-14)
Sec. 115-14. Witness Competency. (a) Every person,
irrespective of age, is qualified to be a witness and no person
is disqualified to testify to any matter, except as provided in
subsection (b).
(b) A person is disqualified to be a witness if he or she
is:
(1) Incapable of expressing himself or herself concerning
the matter so as to be understood, either directly or through
interpretation by one who can understand him or her; or
(2) Incapable of understanding the duty of a witness to tell
the truth.
(c) A party may move the court prior to a witness' testimony
being received in evidence, requesting that the court make a
determination if a witness is competent to testify. The hearing
shall be conducted outside the presence of the jury and the
burden of proof shall be on the moving party.
(Source: P.A. 85-1190.)
(725 ILCS 5/115-15)
Sec. 115-15. Laboratory reports.
(a) In any criminal prosecution for a violation of the
Cannabis Control Act, the Illinois Controlled Substances Act, or
the Methamphetamine Control and Community Protection Act, a
laboratory report from the Illinois State Police, Division of
Forensic Services, that is signed and sworn to by the person
performing an analysis and that states (1) that the substance
that is the basis of the alleged violation has been weighed and
analyzed, and (2) the person's findings as to the contents,
weight and identity of the substance, and (3) that it contains
any amount of a controlled substance or cannabis is prima facie
evidence of the contents, identity and weight of the substance.
Attached to the report shall be a copy of a notarized statement
by the signer of the report giving the name of the signer and
stating (i) that he or she is an employee of the Illinois State
Police, Division of Forensic Services, (ii) the name and
location of the laboratory where the analysis was performed,
(iii) that performing the analysis is a part of his or her
regular duties, and (iv) that the signer is qualified by
education, training and experience to perform the analysis. The
signer shall also allege that scientifically accepted tests were
performed with due caution and that the evidence was handled in
accordance with established and accepted procedures while in the
custody of the laboratory.
(a-5) In any criminal prosecution for reckless homicide
under Section 9-3 of the Criminal Code of 1961 or the Criminal
Code of 2012, or driving under the influence of alcohol, other
drug, or combination of both, in violation of Section 11-501 of
the Illinois Vehicle Code or in any civil action held under a
statutory summary suspension or revocation hearing under Section
2-118.1 of the Illinois Vehicle Code, a laboratory report from
the Illinois State Police, Division of Forensic Services, that
is signed and sworn to by the person performing an analysis, and
that states that the sample of blood, other bodily substance, or
urine was tested for alcohol or drugs, and contains the person's
findings as to the presence and amount of alcohol or drugs and
type of drug is prima facie evidence of the presence, content,
and amount of the alcohol or drugs analyzed in the blood, other
bodily substance, or urine. Attached to the report must be a
copy of a notarized statement by the signer of the report giving
the name of the signer and stating (1) that he or she is an
employee of the Illinois State Police, Division of Forensic
Services, (2) the name and location of the laboratory where the
analysis was performed, (3) that performing the analysis is a
part of his or her regular duties, (4) that the signer is
qualified by education, training, and experience to perform the
analysis, and (5) that scientifically accepted tests were
performed with due caution and that the evidence was handled in
accordance with established and accepted procedures while in the
custody of the laboratory.
(b) The State's Attorney shall serve a copy of the report on
the attorney of record for the accused, or on the accused if he
or she has no attorney, before any proceeding in which the
report is to be used against the accused other than at a
preliminary hearing or grand jury hearing when the report may be
used without having been previously served upon the accused.
(c) The report shall not be prima facie evidence if the
accused or his or her attorney demands the testimony of the
person signing the report by serving the demand upon the State's
Attorney within 7 days from the accused or his or her attorney's
receipt of the report.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/115-16)
Sec. 115-16. Witness disqualification. No person shall be
disqualified as a witness in a criminal case or proceeding by
reason of his or her interest in the event of the case or
proceeding, as a party or otherwise, or by reason of his or her
having been convicted of a crime; but the interest or conviction
may be shown for the purpose of affecting the credibility of the
witness. A defendant in a criminal case or proceeding shall only
at his or her own request be deemed a competent witness, and the
person's neglect to testify shall not create a presumption
against the person, nor shall the court permit a reference or
comment to be made to or upon that neglect.
In criminal cases, husband and wife may testify for or
against each other. Neither, however, may testify as to any
communication or admission made by either of them to the other
or as to any conversation between them during marriage, except
in cases in which either is charged with an offense against the
person or property of the other, in case of spouse abandonment,
when the interests of their child or children or of any child or
children in either spouse's care, custody, or control are
directly involved, when either is charged with or under
investigation for an offense under Section 11-1.20, 11-1.30, 111.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1, 12-15, or 12-16
of the Criminal Code of 1961 or the Criminal Code of 2012 and
the victim is a minor under 18 years of age in either spouse's
care, custody, or control at the time of the offense, or as to
matters in which either has acted as agent of the other.
(Source: P.A. 96-1242, eff. 7-23-10; 96-1551, eff. 7-1-11; 971150, eff. 1-25-13.)
(725 ILCS 5/115-17)
Sec. 115-17. Clerk; issuance of subpoenas. It is the duty of
the clerk of the court to issue subpoenas, either on the part of
the people or of the accused, directed to the sheriff or coroner
of any county of this State. An attorney admitted to practice in
the State of Illinois, as an officer of the court, may also
issue subpoenas in a pending action. A witness who is duly
subpoenaed who neglects or refuses to attend any court, under
the requisitions of the subpoena, shall be proceeded against and
punished for contempt of the court. Attachments against
witnesses who live in a different county from that where the
subpoena is returnable may be served in the same manner as
warrants are directed to be served out of the county from which
they issue.
(Source: P.A. 96-485, eff. 1-1-10.)
(725 ILCS 5/115-17a)
Sec. 115-17a. Subpoenas to crime victims. In a post
conviction proceeding, before the crime victim may be subpoenaed
by the defendant, the defendant must first petition the court
and give notice to the victim. At the hearing on the petition,
the victim shall be given the opportunity to appear and object
to the requested subpoena. At the request of the victim, the
State's Attorney shall represent the victim in the proceeding.
The court shall grant the request for the subpoena only if and
to the extent it determines that the subpoena seeks evidence
that is material and relevant to the post conviction hearing.
For the purposes of this Section, "crime victim" has the meaning
ascribed to it in Section 3 of the Rights of Crime Victims and
Witnesses Act.
(Source: Incorporates P.A. 89-291, eff. 1-1-96; 89-626, eff. 89-96.)
(725 ILCS 5/115-17b)
Sec. 115-17b. Administrative subpoenas.
(a) Definitions. As used in this Section:
"Electronic communication services" and "remote
computing services" have the same meaning as provided in the
Electronic Communications Privacy Act in Chapter 121
(commencing with Section 2701) of Part I of Title 18 of the
United States Code Annotated.
"Offense involving the sexual exploitation of
children" means an offense under Section 11-1.20, 11-1.30,
11-1.40, 11-1.50, 11-1.60, 11-6, 11-6.5, 11-6.6, 11-9.1, 1114.4, 11-15.1, 11-17.1, 11-18.1, 11-19.1, 11-19.2, 11-20.1,
11-20.1B, 11-20.3, 11-21, 11-23, 11-25, 11-26, 12-13, 12-14,
12-14.1, 12-15, or 12-16 of the Criminal Code of 1961 or the
Criminal Code of 2012 or any attempt to commit any of these
offenses when the victim is under 18 years of age.
(b) Subpoenas duces tecum. In any criminal investigation of
an offense involving the sexual exploitation of children, the
Attorney General, or his or her designee, or a State's Attorney,
or his or her designee, may issue in writing and cause to be
served subpoenas duces tecum to providers of electronic
communication services or remote computing services requiring
the production of records relevant to the investigation. Any
such request for records shall not extend beyond requiring the
provider to disclose the information specified in 18 U.S.C.
2703(c)(2). Any subpoena duces tecum issued under this Section
shall be made returnable to the Chief Judge of the Circuit Court
for the Circuit in which the State's Attorney resides, or his or
her designee, or for subpoenas issued by the Attorney General,
the subpoena shall be made returnable to the Chief Judge of the
Circuit Court for the Circuit to which the investigation
pertains, or his or her designee, to determine whether the
documents
are
privileged
and
whether
the
subpoena
is
unreasonable or oppressive.
(c) Contents of subpoena. A subpoena under this Section
shall describe the records or other things required to be
produced and prescribe a return date within a reasonable period
of time within which the objects or records can be assembled and
made available.
(c-5) Contemporaneous notice to Chief Judge. Whenever a
subpoena is issued under this Section, the Attorney General or
his or her designee or the State's Attorney or his or her
designee shall be required to provide a copy of the subpoena to
the Chief Judge of the county in which the subpoena is
returnable.
(d) Modifying or quashing subpoena. At any time before the
return date specified in the subpoena, the person or entity to
whom the subpoena is directed may petition for an order
modifying or quashing the subpoena on the grounds that the
subpoena is oppressive or unreasonable or that the subpoena
seeks privileged documents or records.
(e) Ex parte order. An Illinois circuit court for the
circuit in which the subpoena is or will be issued, upon
application of the Attorney General, or his or her designee, or
State's Attorney, or his or her designee, may issue an ex parte
order that no person or entity disclose to any other person or
entity (other than persons necessary to comply with the
subpoena) the existence of such subpoena for a period of up to
90 days.
(1) Such order may be issued upon a showing that the
things being sought may be relevant to the investigation and
there is reason to believe that such disclosure may result
in:
(A) endangerment to the life or physical safety
of any person;
(B) flight to avoid prosecution;
(C) destruction of or tampering with evidence;
(D) intimidation of potential witnesses; or
(E) otherwise seriously jeopardizing an
investigation or unduly delaying a trial.
(2) An order under this Section may be renewed for
additional periods of up to 90 days upon a showing that the
circumstances described in paragraph (1) of this subsection
(e) continue to exist.
(f) Enforcement. A witness who is duly subpoenaed who
neglects or refuses to comply with the subpoena shall be
proceeded against and punished for contempt of the court. A
subpoena duces tecum issued under this Section may be enforced
pursuant to the Uniform Act to Secure the Attendance of
Witnesses
from
Within
or
Without
a
State
in
Criminal
Proceedings.
(g) Immunity from civil liability. Notwithstanding any
federal, State, or local law, any person, including officers,
agents, and employees, receiving a subpoena under this Section,
who complies in good faith with the subpoena and thus produces
the materials sought, shall not be liable in any court of
Illinois to any customer or other person for such production or
for nondisclosure of that production to the customer.
(Source: P.A. 99-642, eff. 7-28-16.)
(725 ILCS 5/115-18)
Sec. 115-18. Employee protected. No employer shall discharge
or terminate, or threaten to discharge or terminate, from his or
her employment, or otherwise punish or penalize his or her
employee who is a witness to a crime, because of time lost from
regular employment resulting from his or her attendance at a
proceeding under subpoena issued in any criminal proceeding
relative
to
the
crime.
An
employer
who
knowingly
or
intentionally violates this Section shall be proceeded against
and punished for contempt of court. This Section shall not be
construed as requiring an employer to pay an employee for time
lost resulting from attendance at any proceeding.
(Source: P.A. 89-234, eff. 1-1-96.)
(725 ILCS 5/115-19)
Sec. 115-19. Polygraph. In the course of a criminal trial
the court shall not require, request, or suggest that the
defendant submit to a polygraphic detection deception test,
commonly known as a lie detector test, to questioning under the
effect of thiopental sodium, or to any other test or questioning
by means of a mechanical device or chemical substance.
(Source: P.A. 89-234, eff. 1-1-96.)
(725 ILCS 5/115-20)
Sec. 115-20. Evidence of prior conviction.
(a) Evidence of a prior conviction of a defendant for
domestic battery, aggravated battery committed against a family
or household member as defined in Section 112A-3, stalking,
aggravated stalking, or violation of an order of protection is
admissible in a later criminal prosecution for any of these
types of offenses when the victim is the same person who was the
victim of the previous offense that resulted in conviction of
the defendant.
(b) If the defendant is accused of an offense set forth in
subsection (a) or the defendant is tried or retried for any of
the offenses set forth in subsection (a), evidence of the
defendant's conviction for another offense or offenses set forth
in subsection (a) may be admissible (if that evidence is
otherwise admissible under the rules of evidence) and may be
considered for its bearing on any matter to which it is relevant
if the victim is the same person who was the victim of the
previous offense that resulted in conviction of the defendant.
(c) In weighing the probative value of the evidence against
undue prejudice to the defendant, the court may consider:
(1) the proximity in time to the charged or predicate
offense;
(2) the degree of factual similarity to the charged
or predicate offense; or
(3) other relevant facts and circumstances.
(d) In a criminal case in which the prosecution intends to
offer evidence under this Section, it must disclose the
evidence, including statements of witnesses or a summary of the
substance of any testimony, at a reasonable time in advance of
trial, or during trial if the court excuses pretrial notice on
good cause shown.
(e) In a criminal case in which evidence is offered under
this Section, proof may be made by specific instances of conduct
as evidenced by proof of conviction, testimony as to reputation,
or testimony in the form of an expert opinion, except that the
prosecution may offer reputation testimony only after the
opposing party has offered that testimony.
(Source: P.A. 90-387, eff. 1-1-98.)
(725 ILCS 5/115-21)
Sec. 115-21. Informant testimony.
(a) For the purposes of this Section, "informant" means
someone who is purporting to testify about admissions made to
him or her by the accused while detained or incarcerated in a
penal institution contemporaneously.
(b) This Section applies to any criminal proceeding brought
under Sections 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.2, 9-3.3, 111.30, 11-1.40, or 20-1.1 of the Criminal Code of 1961 or the
Criminal Code of 2012, in which the prosecution attempts to
introduce evidence of incriminating statements made by the
accused to or overheard by an informant.
(c) Except as provided in subsection (d-5), in any case
under this Section, the prosecution shall disclose at least 30
days prior to a relevant evidentiary hearing or trial:
(1) the complete criminal history of the informant;
(2) any deal, promise, inducement, or benefit that
the offering party has made or will make in the future to
the informant;
(3) the statements made by the accused;
(4) the time and place of the statements, the time
and place of their disclosure to law enforcement officials,
and the names of all persons who were present when the
statements were made;
(5) whether at any time the informant recanted that
testimony or statement and, if so, the time and place of the
recantation, the nature of the recantation, and the names of
the persons who were present at the recantation;
(6) other cases in which the informant testified,
provided that the existence of such testimony can be
ascertained through reasonable inquiry and whether the
informant received any promise, inducement, or benefit in
exchange for or subsequent to that testimony or statement;
and
(7) any other information relevant to the informant's
credibility.
(d) Except as provided in subsection (d-5), in any case
under this Section, the prosecution shall timely disclose at
least 30 days prior to any relevant evidentiary hearing or trial
its intent to introduce the testimony of an informant. The court
shall conduct a hearing to determine whether the testimony of
the informant is reliable, unless the defendant waives such a
hearing. If the prosecution fails to show by a preponderance of
the evidence that the informant's testimony is reliable, the
court shall not allow the testimony to be heard at trial. At
this hearing, the court shall consider the factors enumerated in
subsection (c) as well as any other factors relating to
reliability.
(d-5) The court may permit the prosecution to disclose its
intent to introduce the testimony of an informant with less
notice than the 30-day notice required under subsections (c) and
(d) of this Section if the court finds that the informant was
not known prior to the 30-day notice period and could not have
been discovered or obtained by the exercise of due diligence by
the prosecution prior to the 30-day notice period. Upon good
cause shown, the court may set a reasonable notice period under
the circumstances or may continue the trial on its own motion to
allow for a reasonable notice period, which motion shall toll
the speedy trial period under Section 103-5 of this Code for the
period of the continuance.
(e) If a lawful recording of an incriminating statement is
made of an accused to an informant or made of a statement of an
informant to law enforcement or the prosecution, including any
deal, promise, inducement, or other benefit offered to the
informant, the accused may request a reliability hearing under
subsection (d) of this Section and the prosecution shall be
subject to the disclosure requirements of subsection (c) of this
Section.
(f) (Blank).
(g) This Section applies to all criminal prosecutions under
subsection (b) of this Section on or after the effective date of
this amendatory Act of the 100th General Assembly.
(Source: P.A. 100-1119, eff. 1-1-19.)
(725 ILCS 5/115-22)
Sec. 115-22. Witness inducements. When the State intends to
introduce the testimony of a witness in a capital case, the
State shall, before trial, disclose to the defendant and to his
or her defense counsel the following information, which shall be
reduced to writing:
(1) whether the witness has received or been promised
anything, including pay, immunity from prosecution, leniency
in prosecution, or personal advantage, in exchange for
testimony;
(2) any other case in which the witness testified or
offered statements against an individual but was not called,
and whether the statements were admitted in the case, and
whether the witness received any deal, promise, inducement,
or benefit in exchange for that testimony or statement;
provided that the existence of such testimony can be
ascertained through reasonable inquiry;
(3) whether the witness has ever changed his or her
testimony;
(4) the criminal history of the witness; and
(5) any other evidence relevant to the credibility of
the witness.
(Source: P.A. 93-605, eff. 11-19-03.)
(725 ILCS 5/115-23)
Sec. 115-23. Admissibility of cannabis. In a prosecution for
a violation of subsection (a) of Section 4 of the Cannabis
Control Act or a municipal ordinance for possession of cannabis
that is punished by only a fine, cannabis shall only be admitted
into evidence based upon:
(1) a properly administered field test; or
(2) opinion testimony of a peace officer based on
the officer's training and experience as qualified by the
court.
(Source: P.A. 99-697, eff. 7-29-16.)
(725 ILCS 5/Art. 116 heading)
ARTICLE 116. POST-TRIAL MOTIONS
(725 ILCS 5/116-1) (from Ch. 38, par. 116-1)
Sec. 116-1. Motion for new trial.
(a) Following a verdict or finding of guilty the court may
grant the defendant a new trial.
(b) A written motion for a new trial shall be filed by the
defendant within 30 days following the entry of a finding or the
return of a verdict. Reasonable notice of the motion shall be
served upon the State.
(c) The motion for a new trial shall specify the grounds
therefor.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/116-2) (from Ch. 38, par. 116-2)
Sec. 116-2. Motion in arrest of judgment. (a) A written
motion in arrest of judgment shall be filed by the defendant
within 30 days following the entry of a verdict or finding of
guilty. Reasonable notice of the motion shall be served upon the
State.
(b) The court shall grant the motion when:
(1) The indictment, information or complaint does not charge
an offense, or
(2) The court is without jurisdiction of the cause.
(c) A motion in arrest of judgment attacking the indictment,
information, or complaint on the ground that it does not charge
an offense shall be denied if the indictment, information or
complaint apprised the accused of the precise offense charged
with sufficient specificity to prepare his defense and allow
pleading a resulting conviction as a bar to future prosecution
out of the same conduct.
(Source: P.A. 86-391.)
(725 ILCS 5/116-2.1)
Sec. 116-2.1. Motion to vacate prostitution convictions for
sex trafficking victims.
(a) A motion under this Section may be filed at any time
following the entry of a verdict or finding of guilty where the
conviction was under Section 11-14 (prostitution) or Section 1114.2 (first offender; felony prostitution) of the Criminal Code
of 1961 or the Criminal Code of 2012 or a similar local
ordinance and the defendant's participation in the offense was a
result of having been a trafficking victim under Section 10-9
(involuntary servitude, involuntary sexual servitude of a minor,
or trafficking in persons) of the Criminal Code of 1961 or the
Criminal Code of 2012; or a victim of a severe form of
trafficking under the federal Trafficking Victims Protection Act
(22 U.S.C. Section 7102(13)); provided that:
(1) a motion under this Section shall state why the
facts giving rise to this motion were not presented to the
trial court, and shall be made with due diligence, after the
defendant has ceased to be a victim of such trafficking or
has sought services for victims of such trafficking, subject
to reasonable concerns for the safety of the defendant,
family members of the defendant, or other victims of such
trafficking that may be jeopardized by the bringing of such
motion, or for other reasons consistent with the purpose of
this Section; and
(2) reasonable notice of the motion shall be served
upon the State.
(b) The court may grant the motion if, in the discretion of
the court, the violation was a result of the defendant having
been a victim of human trafficking. Evidence of such may
include, but is not limited to:
(1) certified records of federal or State court
proceedings which demonstrate that the defendant was a
victim of a trafficker charged with a trafficking offense
under Section 10-9 of the Criminal Code of 1961 or the
Criminal Code of 2012, or under 22 U.S.C. Chapter 78;
(2) certified records of "approval notices" or "law
enforcement
certifications"
generated
from
federal
immigration proceedings available to such victims; or
(3) a sworn statement from a trained professional
staff of a victim services organization, an attorney, a
member of the clergy, or a medical or other professional
from whom the defendant has sought assistance in addressing
the trauma associated with being trafficked.
Alternatively, the court may consider such other evidence as
it deems of sufficient credibility and probative value in
determining whether the defendant is a trafficking victim or
victim of a severe form of trafficking.
(c) If the court grants a motion under this Section, it must
vacate the conviction and may take such additional action as is
appropriate in the circumstances.
(Source: P.A. 97-267, eff. 1-1-12; 97-897, eff. 1-1-13; 97-1150,
eff. 1-25-13.)
(725 ILCS 5/116-3)
Sec. 116-3. Motion for fingerprint, Integrated Ballistic
Identification System, or forensic testing not available at
trial or guilty plea regarding actual innocence.
(a) A defendant may make a motion before the trial court
that entered the judgment of conviction in his or her case for
the
performance
of
fingerprint,
Integrated
Ballistic
Identification System, or forensic DNA testing, including
comparison analysis of genetic marker groupings of the evidence
collected by criminal justice agencies pursuant to the alleged
offense, to those of the defendant, to those of other forensic
evidence, and to those maintained under subsection (f) of
Section 5-4-3 of the Unified Code of Corrections, on evidence
that was secured in relation to the trial or guilty plea which
resulted in his or her conviction, and:
(1) was not subject to the testing which is now
requested at the time of trial; or
(2) although previously subjected to testing, can be
subjected to additional testing utilizing a method that was
not scientifically available at the time of trial that
provides a reasonable likelihood of more probative results.
Reasonable notice of the motion shall be served upon the
State.
(b) The defendant must present a prima facie case that:
(1) identity was the issue in the trial or guilty
plea which resulted in his or her conviction; and
(2) the evidence to be tested has been subject to a
chain of custody sufficient to establish that it has not
been substituted, tampered with, replaced, or altered in any
material aspect.
(c) The trial court shall allow the testing under reasonable
conditions designed to protect the State's interests in the
integrity of the evidence and the testing process upon a
determination that:
(1) the result of the testing has the scientific
potential to produce new, noncumulative evidence (i)
materially relevant to the defendant's assertion of actual
innocence when the defendant's conviction was the result of
a trial, even though the results may not completely
exonerate the defendant, or (ii) that would raise a
reasonable probability that the defendant would have been
acquitted if the results of the evidence to be tested had
been available prior to the defendant's guilty plea and the
petitioner had proceeded to trial instead of pleading
guilty, even though the results may not completely exonerate
the defendant; and
(2) the testing requested employs a scientific method
generally accepted within the relevant scientific community.
(d) If evidence previously tested pursuant to this Section
reveals an unknown fingerprint from the crime scene that does
not match the defendant or the victim, the order of the Court
shall direct the prosecuting authority to request the Illinois
State Police Bureau of Forensic Science to submit the unknown
fingerprint evidence into the FBI's Integrated Automated
Fingerprint Identification System (AIFIS) for identification.
(e) In the court's order to allow testing, the court shall
order the investigating authority to prepare an inventory of the
evidence related to the case and issue a copy of the inventory
to the prosecution, the petitioner, and the court.
(f) When a motion is filed to vacate based on favorable
post-conviction testing results, the State may, upon request,
reactivate victim services for the victim of the crime during
the pendency of the proceedings, and, as determined by the court
after consultation with the victim or victim advocate, or both,
following final adjudication of the case.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/116-4)
Sec. 116-4. Preservation of evidence for forensic testing.
(a) Before or after the trial in a prosecution for a
violation of Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 111.60, 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the Criminal
Code of 1961 or the Criminal Code of 2012 or in a prosecution
for an offense defined in Article 9 of that Code, or in a
prosecution for an attempt in violation of Section 8-4 of that
Code of any of the above-enumerated offenses, unless otherwise
provided herein under subsection (b) or (c), a law enforcement
agency or an agent acting on behalf of the law enforcement
agency shall preserve, subject to a continuous chain of custody,
any physical evidence in their possession or control that is
reasonably likely to contain forensic evidence, including, but
not limited to, fingerprints or biological material secured in
relation to a trial and with sufficient documentation to locate
that evidence.
(b) After a judgment of conviction is entered, the evidence
shall either be impounded with the Clerk of the Circuit Court or
shall be securely retained by a law enforcement agency.
Retention shall be until the completion of the sentence,
including the period of mandatory supervised release for the
offense, or January 1, 2006, whichever is later, for any
conviction for an offense or an attempt of an offense defined in
Article 9 of the Criminal Code of 1961 or the Criminal Code of
2012 or in Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60,
12-13, 12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code of
1961 or the Criminal Code of 2012 or for 7 years following any
conviction for any other felony for which the defendant's
genetic profile may be taken by a law enforcement agency and
submitted for comparison in a forensic DNA database for unsolved
offenses.
(c) After a judgment of conviction is entered, the law
enforcement agency required to retain evidence described in
subsection (a) may petition the court with notice to the
defendant or, in cases where the defendant has died, his estate,
his attorney of record, or an attorney appointed for that
purpose by the court for entry of an order allowing it to
dispose of evidence if, after a hearing, the court determines by
a preponderance of the evidence that:
(1) it has no significant value for forensic science
analysis and should be returned to its rightful owner,
destroyed, used for training purposes, or as otherwise
provided by law; or
(2) it has no significant value for forensic science
analysis and is of a size, bulk, or physical character not
usually retained by the law enforcement agency and cannot
practicably be retained by the law enforcement agency; or
(3) there no longer exists a reasonable basis to
require the preservation of the evidence because of the
death of the defendant.
(d) The court may order the disposition of the evidence if
the defendant is allowed the opportunity to take reasonable
measures to remove or preserve portions of the evidence in
question for future testing.
(d-5) Any order allowing the disposition of evidence
pursuant to subsection (c) or (d) shall be a final and
appealable order. No evidence shall be disposed of until 30 days
after the order is entered, and if a notice of appeal is filed,
no evidence shall be disposed of until the mandate has been
received by the circuit court from the appellate court.
(d-10) All records documenting the possession, control,
storage, and destruction of evidence and all police reports,
evidence control or inventory records, and other reports cited
in this Section, including computer records, must be retained
for as long as the evidence exists and may not be disposed of
without the approval of the Local Records Commission.
(e) In this Section, "law enforcement agency" includes any
of the following or an agent acting on behalf of any of the
following: a municipal police department, county sheriff's
office, any prosecuting authority, the Illinois State Police, or
any other State, university, county, federal, or municipal
police unit or police force.
"Biological material" includes, but is not limited to, any
blood, hair, saliva, or semen from which genetic marker
groupings may be obtained.
(Source: P.A. 102-538, eff. 8-20-21; 103-51, eff. 1-1-24.)
(725 ILCS 5/116-5)
Sec. 116-5. Motion for DNA database search (genetic marker
groupings comparison analysis).
(a) Upon motion by a defendant charged with any offense
where DNA evidence may be material to the defense investigation
or relevant at trial, a court may order a DNA database search by
the Illinois State Police. Such analysis may include comparing:
(1) the genetic profile from forensic evidence that
was secured in relation to the trial against the genetic
profile of the defendant,
(2) the genetic profile of items of forensic evidence
secured in relation to trial to the genetic profile of other
forensic evidence secured in relation to trial, or
(3) the genetic profiles referred to in subdivisions
(1) and (2) against:
(i) genetic profiles of offenders maintained
under subsection (f) of Section 5-4-3 of the Unified
Code of Corrections, or
(ii) genetic profiles, including but not limited
to, profiles from unsolved crimes maintained in state or
local DNA databases by law enforcement agencies.
(b) If appropriate federal criteria are met, the court may
order the Illinois State Police to request the National DNA
index system to search its database of genetic profiles.
(c) If requested by the defense, a defense representative
shall be allowed to view any genetic marker grouping analysis
conducted by the Illinois State Police. The defense shall be
provided with copies of all documentation, correspondence,
including digital correspondence, notes, memoranda, and reports
generated in relation to the analysis.
(d) Reasonable notice of the motion shall be served upon the
State.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/Art. 117)
ARTICLE 117. PROBATION
(725 ILCS 5/117-1) (from Ch. 38, par. 117-1)
Sec. 117-1. (Repealed).
(Source: Repealed by P.A. 77-2097, eff. 1-1-73.)
(725 ILCS 5/117-2) (from Ch. 38, par. 117-2)
Sec. 117-2. (Repealed).
(Source: Repealed by P.A. 77-2097, eff. 1-1-73.)
(725 ILCS 5/117-3) (from Ch. 38, par. 117-3)
Sec. 117-3. (Repealed).
(Source: Repealed by P.A. 77-2097, eff. 1-1-73.)
(725 ILCS 5/Art. 118)
ARTICLE 118. SENTENCE AND JUDGMENT
(725 ILCS 5/118-1) (from Ch. 38, par. 118-1)
Sec. 118-1. (Repealed).
(Source: Repealed by P.A. 77-2097, eff. 1-1-73.)
(725 ILCS 5/118-2) (from Ch. 38, par. 118-2)
Sec. 118-2. (Repealed).
(Source: Repealed by P.A. 77-2097, eff. 1-1-73.)
(725 ILCS 5/Art. 119 heading)
ARTICLE 119. EXECUTION OF SENTENCE
(725 ILCS 5/119-1)
Sec. 119-1. Death penalty abolished.
(a) Beginning on the effective date of this amendatory Act
of the 96th General Assembly, notwithstanding any other law to
the contrary, the death penalty is abolished and a sentence to
death may not be imposed.
(b) All unobligated and unexpended moneys remaining in the
Capital Litigation Trust Fund on the effective date of this
amendatory Act of the 96th General Assembly shall be transferred
into the Death Penalty Abolition Fund, a special fund in the
State treasury, to be expended by the Illinois Criminal Justice
Information Authority, for services for families of victims of
homicide or murder and for training of law enforcement
personnel.
(Source: P.A. 96-1543, eff. 7-1-11.)
(725 ILCS 5/119-5) (from Ch. 38, par. 119-5)
Sec. 119-5. (Repealed).
(Source: P.A. 93-379, eff. 7-24-03. Repealed by P.A. 103-51,
eff. 1-1-24.)
(725 ILCS 5/Art. 120 heading)
ARTICLE 120. APPEAL BY THE STATE
(725 ILCS 5/120-1) (from Ch. 38, par. 120-1)
Sec. 120-1. (Repealed).
(Source: Repealed by P.A. 76-1412, eff. 9-22-69.)
(725 ILCS 5/120-2) (from Ch. 38, par. 120-2)
Sec. 120-2. (Repealed).
(Source: Repealed by Laws 1967, p. 3615.)
(725 ILCS 5/120-3) (from Ch. 38, par. 120-3)
Sec. 120-3. (Repealed).
(Source: Repealed by Laws 1967, p. 3615.)
(725 ILCS 5/120-4) (from Ch. 38, par. 120-4)
Sec. 120-4. (Repealed).
(Source: Repealed by Laws 1967, p. 3615.)
(725 ILCS 5/Art. 121 heading)
ARTICLE 121. APPEAL
BY DEFENDANT
(725 ILCS 5/121-1) (from Ch. 38, par. 121-1)
Sec. 121-1. Application of article.
Unless otherwise provided by Rules of the Supreme Court this
Article shall govern review in all criminal cases.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/121-13) (from Ch. 38, par. 121-13)
Sec. 121-13. Pauper appeals.
(a) In any case wherein the defendant was convicted of a
felony, if the court determines that the defendant desires
counsel on appeal but is indigent the Public Defender or the
State Appellate Defender shall be appointed as counsel, unless
with the consent of the defendant and for good cause shown, the
court may appoint counsel other than the Public Defender or the
State Appellate Defender.
(b) In any case wherein the defendant was convicted of a
felony the reviewing court, upon petition of the defendant's
counsel made not more frequently than every 60 days after
appointment, shall determine a reasonable amount to be allowed
an indigent defendant's counsel other than the Public Defender
or
the
State
Appellate
Defender
for
compensation
and
reimbursement of expenditures necessarily incurred in the
prosecution
of
the
appeal
or
review
proceedings.
The
compensation shall not exceed $1500 in each case, except that,
in extraordinary circumstances, payment in excess of the limits
herein stated may be made if the reviewing court certifies that
the payment is necessary to provide fair compensation for
protracted representation. The reviewing court shall enter an
order directing the county treasurer of the county where the
case was tried to pay the amount allowed by the court. The
reviewing court may order the provisional payment of sums during
the pendency of the cause.
(c) (Blank).
(Source: P.A. 103-51, eff. 1-1-24.)
(725 ILCS 5/Art. 121A heading)
ARTICLE 121A. PENDING DIRECT APPEAL AFTER DEFENDANT'S DEATH
(Source: P.A. 99-778, eff. 1-1-17.)
(725 ILCS 5/121A-1)
Sec. 121A-1. Application of Article. Unless otherwise
provided by Rules of the Supreme Court, this Article shall
govern pending direct appeal in all criminal cases after the
death of the defendant.
(Source: P.A. 99-778, eff. 1-1-17.)
(725 ILCS 5/121A-2)
Sec. 121A-2. Pending direct appeal after the defendant's
death.
(a) Whenever the prosecuting attorney learns of the death of
the defendant following the entry of a final and appealable
judgment but prior to the conclusion of the defendant's direct
appeal from the conviction, he or she shall promptly notify the
other party and file a certificate of notice of the defendant's
death with the reviewing court before which the direct appeal is
pending.
(b) Unless the executor or administrator of the defendant's
estate or other successor in interest files a verified motion to
intervene in the direct appeal within 30 days of the filing of
the certificate under subsection (a) of this Section, the
reviewing court shall dismiss the direct appeal without
disturbing the judgment of the circuit court.
(c) If the court receives a timely petition for leave to
intervene by an authorized party, the reviewing court shall
permit the petitioning party to intervene in the direct appeal
in place of the defendant and the direct appeal shall proceed in
the same manner as if the defendant were still alive. The
authority to intervene shall terminate automatically upon
completion of the proceedings in the direct appeal.
(d) Nothing in this Section shall be construed to authorize
the filing or continued litigation of a post-conviction petition
or other collateral attack on a conviction or sentence on behalf
of a deceased defendant.
(Source: P.A. 99-778, eff. 1-1-17.)
(725 ILCS 5/Art. 122 heading)
ARTICLE 122. POST-CONVICTION HEARING
(725 ILCS 5/122-1) (from Ch. 38, par. 122-1)
Sec. 122-1. Petition in the trial court.
(a) Any person imprisoned in the penitentiary may institute
a proceeding under this Article if the person asserts that:
(1) in the proceedings which resulted in his or her
conviction there was a substantial denial of his or her
rights under the Constitution of the United States or of the
State of Illinois or both;
(2) (blank); or
(3) (blank).
(a-5) A proceeding under paragraph (2) of subsection (a) may
be commenced within a reasonable period of time after the
person's conviction notwithstanding any other provisions of this
Article. In such a proceeding regarding actual innocence, if the
court determines the petition is frivolous or is patently
without merit, it shall dismiss the petition in a written order,
specifying the findings of fact and conclusions of law it made
in reaching its decision. Such order of dismissal is a final
judgment and shall be served upon the petitioner by certified
mail within 10 days of its entry.
(b) The proceeding shall be commenced by filing with the
clerk of the court in which the conviction took place a petition
(together with a copy thereof) verified by affidavit. Petitioner
shall also serve another copy upon the State's Attorney by any
of the methods provided in Rule 7 of the Supreme Court. The
clerk shall docket the petition for consideration by the court
pursuant to Section 122-2.1 upon his or her receipt thereof and
bring the same promptly to the attention of the court.
(c) No proceedings under this Article shall be commenced
more than 6 months after the conclusion of proceedings in the
United States Supreme Court, unless the petitioner alleges facts
showing that the delay was not due to his or her culpable
negligence. If a petition for certiorari is not filed, no
proceedings under this Article shall be commenced more than 6
months from the date for filing a certiorari petition, unless
the petitioner alleges facts showing that the delay was not due
to his or her culpable negligence. If a defendant does not file
a direct appeal, the post-conviction petition shall be filed no
later than 3 years from the date of conviction, unless the
petitioner alleges facts showing that the delay was not due to
his or her culpable negligence.
This limitation does not apply to a petition advancing a
claim of actual innocence.
(d) A person seeking relief by filing a petition under this
Section must specify in the petition or its heading that it is
filed under this Section. A trial court that has received a
petition complaining of a conviction or sentence that fails to
specify in the petition or its heading that it is filed under
this Section need not evaluate the petition to determine whether
it could otherwise have stated some grounds for relief under
this Article.
(e) (Blank).
(f) Only one petition may be filed by a petitioner under
this Article without leave of the court. Leave of court may be
granted only if a petitioner demonstrates cause for his or her
failure to bring the claim in his or her initial post-conviction
proceedings and prejudice results from that failure. For
purposes of this subsection (f): (1) a prisoner shows cause by
identifying an objective factor that impeded his or her ability
to raise a specific claim during his or her initial postconviction proceedings; and (2) a prisoner shows prejudice by
demonstrating that the claim not raised during his or her
initial post-conviction proceedings so infected the trial that
the resulting conviction or sentence violated due process.
(Source: P.A. 102-639, eff. 8-27-21; 103-51, eff. 1-1-24.)
(725 ILCS 5/122-2) (from Ch. 38, par. 122-2)
Sec. 122-2. Contents of petition.
The petition shall identify the proceeding in which the
petitioner was convicted, give the date of the rendition of the
final judgment complained of, and clearly set forth the respects
in which petitioner's constitutional rights were violated. The
petition shall have attached thereto affidavits, records, or
other evidence supporting its allegations or shall state why the
same are not attached. The petition shall identify any previous
proceedings that the petitioner may have taken to secure relief
from his conviction. Argument and citations and discussion of
authorities shall be omitted from the petition.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/122-2.1) (from Ch. 38, par. 122-2.1)
Sec. 122-2.1. (a) Within 90 days after the filing and
docketing of each petition, the court shall examine such
petition and enter an order thereon pursuant to this Section.
(1) (Blank).
(2) If the petitioner is sentenced to imprisonment
and the court determines the petition is frivolous or is
patently without merit, it shall dismiss the petition in a
written order, specifying the findings of fact and
conclusions of law it made in reaching its decision. Such
order of dismissal is a final judgment and shall be served
upon the petitioner by certified mail within 10 days of its
entry.
(b) If the petition is not dismissed pursuant to this
Section, the court shall order the petition to be docketed for
further consideration in accordance with Sections 122-4 through
122-6.
(c) In considering a petition pursuant to this Section, the
court may examine the court file of the proceeding in which the
petitioner was convicted, any action taken by an appellate court
in such proceeding and any transcripts of such proceeding.
(Source: P.A. 103-51, eff. 1-1-24.)
(725 ILCS 5/122-2.2)
Sec. 122-2.2. Intellectual disability and post-conviction
relief.
(a) (Blank).
(b) All other provisions of this Article governing petitions
for post-conviction relief shall apply to a petition for postconviction relief alleging an intellectual disability.
(Source: P.A. 103-51, eff. 1-1-24.)
(725 ILCS 5/122-3) (from Ch. 38, par. 122-3)
Sec. 122-3. Waiver of claims.
Any claim of substantial denial of constitutional rights not
raised in the original or an amended petition is waived.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/122-4) (from Ch. 38, par. 122-4)
Sec. 122-4. Pauper petitions. If the petition is not
dismissed pursuant to Section 122-2.1, and alleges that the
petitioner is unable to pay the costs of the proceeding, the
court may order that the petitioner be permitted to proceed as a
poor person and order a transcript of the proceedings delivered
to petitioner in accordance with Rule of the Supreme Court. If
the petitioner is without counsel and alleges that he is without
means to procure counsel, he shall state whether or not he
wishes counsel to be appointed to represent him. If appointment
of counsel is so requested, and the petition is not dismissed
pursuant to Section 122-2.1, the court shall appoint counsel if
satisfied that the petitioner has no means to procure counsel. A
petitioner who is a prisoner in an Illinois Department of
Corrections facility who files a pleading, motion, or other
filing that purports to be a legal document seeking postconviction relief under this Article against the State, the
Illinois Department of Corrections, the Prisoner Review Board,
or any of their officers or employees in which the court makes a
specific finding that the pleading, motion, or other filing that
purports to be a legal document is frivolous shall not proceed
as a poor person and shall be liable for the full payment of
filing fees and actual court costs as provided in Article XXII
of the Code of Civil Procedure.
The court, at the conclusion of the proceedings upon receipt
of a petition by the appointed counsel, shall determine a
reasonable amount to be allowed an indigent defendant's counsel
other than the Public Defender or the State Appellate Defender
for compensation and reimbursement of expenditures necessarily
incurred in the proceedings. The compensation shall not exceed
$500 in each case, except that, in extraordinary circumstances,
payment in excess of the limits herein stated may be made if the
trial court certifies that the payment is necessary to provide
fair compensation for protracted representation, and the amount
is approved by the chief judge of the circuit. The court shall
enter an order directing the county treasurer of the county
where the case was tried to pay the amount thereby allowed by
the court. The court may order the provisional payment of sums
during the pendency of the cause.
(Source: P.A. 103-51, eff. 1-1-24.)
(725 ILCS 5/122-5) (from Ch. 38, par. 122-5)
Sec. 122-5. Proceedings on petition.) Within 30 days after
the making of an order pursuant to subsection (b) of Section
122-2.1, or within such further time as the court may set, the
State shall answer or move to dismiss. In the event that a
motion to dismiss is filed and denied, the State must file an
answer within 20 days after such denial. No other or further
pleadings shall be filed except as the court may order on its
own motion or on that of either party. The court may in its
discretion grant leave, at any stage of the proceeding prior to
entry of judgment, to withdraw the petition. The court may in
its discretion make such order as to amendment of the petition
or any other pleading, or as to pleading over, or filing further
pleadings, or extending the time of filing any pleading other
than the original petition, as shall be appropriate, just and
reasonable and as is generally provided in civil cases.
(Source: P.A. 83-942.)
(725 ILCS 5/122-6) (from Ch. 38, par. 122-6)
Sec. 122-6. Disposition in trial court. The court may
receive proof by affidavits, depositions, oral testimony, or
other evidence. In its discretion the court may order the
petitioner brought before the court for the hearing. If the
court finds in favor of the petitioner, it shall enter an
appropriate order with respect to the judgment or sentence in
the former proceedings and such supplementary orders as to
rearraignment, retrial, custody, conditions of pretrial release
or discharge as may be necessary and proper.
(Source: P.A. 101-652, eff. 1-1-23.)
(725 ILCS 5/122-7) (from Ch. 38, par. 122-7)
Sec. 122-7. Any final judgment entered upon such petition
shall be reviewed in a manner pursuant to the rules of the
Supreme Court.
(Source: P.A. 79-917.)
(725 ILCS 5/122-8)
Sec. 122-8. (Repealed).
(Source: P.A. 83-942. Repealed by P.A. 96-1200, eff. 7-22-10.)
(725 ILCS 5/122-9)
Sec. 122-9. Motion to resentence by the People.
(a) The purpose of sentencing is to advance public safety
through punishment, rehabilitation, and restorative justice. By
providing a means to reevaluate a sentence after some time has
passed, the General Assembly intends to provide the State's
Attorney and the court with another tool to ensure that these
purposes are achieved.
(b) At any time upon the recommendation of the State's
Attorney of the county in which the defendant was sentenced, the
State's Attorney may petition the sentencing court or the
sentencing court's successor to resentence the offender if the
original sentence no longer advances the interests of justice.
The sentencing court or the sentencing court's successor may
resentence the offender if it finds that the original sentence
no longer advances the interests of justice.
(c) Upon the receipt of a petition for resentencing, the
court may resentence the defendant in the same manner as if the
offender had not previously been sentenced; however, the new
sentence, if any, may not be greater than the initial sentence.
(d) The court may consider postconviction factors,
including, but not limited to, the inmate's disciplinary record
and record of rehabilitation while incarcerated; evidence that
reflects whether age, time served, and diminished physical
condition, if any, have reduced the inmate's risk for future
violence; and evidence that reflects changed circumstances since
the inmate's original sentencing such that the inmate's
continued incarceration no longer serves the interests of
justice. Credit shall be given for time served.
(e) Victims shall be afforded all rights as outlined in the
Rights of Crime Victims and Witnesses Act.
(f) A resentencing under this Section shall not reopen the
defendant's conviction to challenges that would otherwise be
barred.
(g) Nothing in this Section shall be construed to limit the
power of the Governor under the Constitution to grant a
reprieve, commutation of sentence, or pardon.
(Source: P.A. 102-102, eff. 1-1-22; 102-813, eff. 5-13-22.)
(725 ILCS 5/123)
Sec. 123. (Renumbered).
(Source: P.A. 102-102, eff. 1-1-22. Renumbered by P.A. 102-813,
eff. 5-13-22.)
(725 ILCS 5/Tit. VIII heading)
TITLE VIII. MISCELLANEOUS
(725 ILCS 5/Art. 124A heading)
ARTICLE 124A. LIENS AND COSTS
(725 ILCS 5/124A-5)
Sec. 124A-5. Judgment for costs of prosecution.
(a) Except as otherwise provided in subsection (b), when a
person is convicted of an offense under a statute, or at common
law, the court shall enter judgment that the offender pay the
costs of the prosecution. The costs shall include reasonable
costs incurred by the Sheriff for serving arrest warrants, for
picking up the offender from a county other than the one in
which he or she was convicted, and for picking up the offender
from a location outside the State of Illinois pursuant either to
his or her extradition or to his or her waiver of extradition.
(b) During the first 180 days following a person's release
from a penal institution, a court shall not order the person to
pay any outstanding fines, taxes, or costs arising from a
criminal proceeding involving the person.
(Source: P.A. 103-254, eff. 1-1-24.)
(725 ILCS 5/124A-10)
Sec. 124A-10. Lien. The property, real and personal, of a
person who is convicted of an offense shall be bound, and a lien
is created on the property, both real and personal, of every
offender, not exempt from the enforcement of a judgment or
attachment, from the time of finding the indictment at least so
far as will be sufficient to pay the fine and costs of
prosecution. The clerk of the court in which the conviction is
had shall upon the expiration of 30 days after judgment is
entered issue a certified copy of the judgment for any fine that
remains unpaid, and all costs of conviction remaining unpaid.
Unless a court ordered payment schedule is implemented, the
clerk of the court may add to any judgment a delinquency amount
equal to 5% of the unpaid fines, costs, fees, and penalties that
remain unpaid after 30 days, 10% of the unpaid fines, costs,
fees, and penalties that remain unpaid after 60 days, and 15% of
the unpaid fines, costs, fees, and penalties that remain unpaid
after 90 days. Notice to those parties affected may be made by
signage posting or publication. The clerk of the court may also
after a period of 90 days release to credit reporting agencies,
information regarding unpaid amounts. The additional delinquency
amounts collected under this Section shall be used to defray
additional administrative costs incurred by the clerk of the
court in collecting unpaid fines, costs, fees, and penalties.
The certified copy of the judgment shall state the day on which
the arrest was made or indictment found, as the case may be.
Enforcement of the judgment may be directed to the proper
officer of any county in this State. The officer to whom the
certified copy of the judgment is delivered shall levy the
judgment upon all the estate, real and personal, of the
defendant (not exempt from enforcement) possessed by him or her
on the day of the arrest or finding the indictment, as stated in
the certified copy of the judgment and any such property
subsequently acquired; and the property so levied upon shall be
advertised and sold in the same manner as in civil cases, with
the like rights to all parties that may be interested in the
property. It is not an objection to the selling of any property
under the judgment that the defendant is in custody for the fine
or costs, or both.
(Source: P.A. 92-653, eff. 1-1-03.)
(725 ILCS 5/124A-15)
Sec. 124A-15. Reversal of conviction; refund of fines, fees,
and costs.
(a) A defendant convicted in a criminal prosecution whose
conviction is reversed by a finding of factual innocence in a
collateral proceeding such as habeas corpus or post-conviction
relief under Article 122 of this Code is not liable for any
costs or fees of the court or circuit clerk's office, or for any
charge of subsistence while detained in custody. If the
defendant has paid any costs, fine, or fees, in the case, a
refund of those costs shall be determined by the judge and paid
by the clerk of the court. The timing of the refund payment
shall be determined by the clerk of the court based upon the
availability of funds in the subject fund account.
(b) To receive a refund under this Section, a defendant must
submit a request for the refund to the clerk of the court on a
form and in a manner prescribed by the clerk. The defendant must
attach to the form an order from the court demonstrating the
defendant's right to the refund and the amount of the refund.
(Source: P.A. 98-943, eff. 1-1-15; 99-883, eff. 1-1-17.)
(725 ILCS 5/124A-20)
Sec. 124A-20. Assessment waiver.
(a) As used in this Section:
"Assessments" means any costs imposed on a criminal
defendant under Article 15 of the Criminal and Traffic
Assessment Act, but does not include violation of the Illinois
Vehicle Code assessments except as provided in subsection (a-5).
"Indigent person" means any person who meets one or more of
the following criteria:
(1) He or she is receiving assistance under one or
more of the following means-based governmental public
benefits programs: Supplemental Security Income; Aid to the
Aged, Blind and Disabled; Temporary Assistance for Needy
Families; Supplemental Nutrition Assistance Program; General
Assistance; Transitional Assistance; or State Children and
Family Assistance.
(2) His or her available personal income is 200% or
less of the current poverty level, unless the applicant's
assets that are not exempt under Part 9 or 10 of Article XII
of the Code of Civil Procedure are of a nature and value
that the court determines that the applicant is able to pay
the assessments.
(3) He or she is, in the discretion of the court,
unable to proceed in an action with payment of assessments
and whose payment of those assessments would result in
substantial hardship to the person or his or her family.
"Poverty level" means the current poverty level as
established by the United States Department of Health and Human
Services.
(a-5) In a county having a population of more than
3,000,000, "assessments" means any costs imposed on a criminal
defendant under Article 15 of the Criminal and Traffic
Assessment Act, including violation of the Illinois Vehicle Code
assessments. This subsection is inoperative on and after July 1,
2024.
(b) For criminal offenses reflected in Schedules 1, 3, 4, 5,
7, and 8 of Article 15 of the Criminal and Traffic Assessment
Act, upon the application of any defendant, after the
commencement of an action, but no later than 30 days after
sentencing:
(1) If the court finds that the applicant is an
indigent person, the court shall grant the applicant a full
assessment waiver exempting him or her from the payment of
any assessments.
(2) The court shall grant the applicant a partial
assessment as follows:
(A) 75% of all assessments shall be waived if the
applicant's available income is greater than 200% but no
more than 250% of the poverty level, unless the
applicant's assets that are not exempt under Part 9 or
10 of Article XII of the Code of Civil Procedure are
such that the applicant is able, without undue hardship,
to pay the total assessments.
(B) 50% of all assessments shall be waived if the
applicant's available income is greater than 250% but no
more than 300% of the poverty level, unless the
applicant's assets that are not exempt under Part 9 or
10 of Article XII of the Code of Civil Procedure are
such that the court determines that the applicant is
able, without undue hardship, to pay a greater portion
of the assessments.
(C) 25% of all assessments shall be waived if the
applicant's available income is greater than 300% but no
more than 400% of the poverty level, unless the
applicant's assets that are not exempt under Part 9 or
10 of Article XII of the Code of Civil Procedure are
such that the court determines that the applicant is
able, without undue hardship, to pay a greater portion
of the assessments.
(b-5) For traffic and petty offenses reflected in Schedules
2, 6, 9, 10, and 13 of Article 15 of the Criminal and Traffic
Assessment Act, upon the application of any defendant, after the
commencement of an action, but no later than 30 days after
sentencing, the court shall grant the applicant a partial
assessment as follows:
(1) 50% of all assessments shall be waived if the
court finds that the applicant is an indigent person or if
the applicant's available income is not greater than 200% of
the poverty level, unless the applicant's assets that are
not exempt under Part 9 or 10 of Article XII of the Code of
Civil Procedure are such that the applicant is able, without
undue hardship, to pay the total assessments.
(2) 37.5% of all assessments shall be waived if the
applicant's available income is greater than 200% but no
more than 250% of the poverty level, unless the applicant's
assets that are not exempt under Part 9 or 10 of Article XII
of the Code of Civil Procedure are such that the applicant
is able, without undue hardship, to pay the total
assessments.
(3) 25% of all assessments shall be waived if the
applicant's available income is greater than 250% but no
more than 300% of the poverty level, unless the applicant's
assets that are not exempt under Part 9 or 10 of Article XII
of the Code of Civil Procedure are such that the court
determines that the applicant is able, without undue
hardship, to pay a greater portion of the assessments.
(4) 12.5% of all assessments shall be waived if the
applicant's available income is greater than 300% but no
more than 400% of the poverty level, unless the applicant's
assets that are not exempt under Part 9 or 10 of Article XII
of the Code of Civil Procedure are such that the court
determines that the applicant is able, without undue
hardship, to pay a greater portion of the assessments.
(c) An application for a waiver of assessments shall be in
writing, signed by the defendant or, if the defendant is a
minor, by another person having knowledge of the facts, and
filed no later than 30 days after sentencing. The contents of
the application for a waiver of assessments, and the procedure
for deciding the applications, shall be established by Supreme
Court Rule. Factors to consider in evaluating an application
shall include:
(1) the applicant's receipt of needs based
governmental
public
benefits,
including
Supplemental
Security Income (SSI); Aid to the Aged, Blind and Disabled
(AABD); Temporary Assistance for Needy Families (TANF);
Supplemental Nutrition Assistance Program (SNAP or "food
stamps"); General Assistance; Transitional Assistance; or
State Children and Family Assistance;
(2) the employment status of the applicant and amount
of monthly income, if any;
(3) income received from the applicant's pension,
Social Security benefits, unemployment benefits, and other
sources;
(4) income received by the applicant from other
household members;
(5) the applicant's monthly expenses, including
rent, home mortgage, other mortgage, utilities, food,
medical, vehicle, childcare, debts, child support, and other
expenses; and
(6) financial affidavits or other similar supporting
documentation provided by the applicant showing that payment
of the imposed assessments would result in substantial
hardship to the applicant or the applicant's family.
(d) The clerk of court shall provide the application for a
waiver of assessments to any defendant who indicates an
inability to pay the assessments. The clerk of the court shall
post in a conspicuous place in the courthouse a notice, no
smaller than 8.5 x 11 inches and using no smaller than 30-point
typeface printed in English and in Spanish, advising criminal
defendants they may ask the court for a waiver of any court
ordered assessments. The notice shall be substantially as
follows:
"If you are unable to pay the required assessments,
you may ask the court to waive payment of them. Ask the
clerk of the court for forms."
(e) For good cause shown, the court may allow an applicant
whose application is denied or who receives a partial assessment
waiver to defer payment of the assessments, make installment
payments, or make payment upon reasonable terms and conditions
stated in the order.
(f) Nothing in this Section shall be construed to affect the
right of a party to court-appointed counsel, as authorized by
any other provision of law or by the rules of the Illinois
Supreme Court.
(g) The provisions of this Section are severable under
Section 1.31 of the Statute on Statutes.
(Source: P.A. 102-558, eff. 8-20-21; 102-620, eff. 8-27-21.)
(725 ILCS 5/Art. 124B heading)
ARTICLE 124B. FORFEITURE
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/Art. 124B Pt. 5 heading)
Part 5. General Provisions
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-5)
Sec. 124B-5. Purpose and scope. The purpose of this Article
is to set forth in one place the provisions relating to
forfeiture of property in connection with violations of certain
criminal statutes. Part 100 of this Article sets forth standard
provisions that apply to these forfeiture proceedings. In Parts
300 and following, for each type of criminal violation, this
Article sets forth (i) provisions that apply to forfeiture only
in connection with that type of violation and (ii) by means of
incorporation by reference, the standard forfeiture provisions
that apply to that type of violation.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-10)
Sec. 124B-10. Applicability; offenses. This Article applies
to forfeiture of property in connection with the following:
(1) A violation of Section 10-9 or 10A-10 of the
Criminal Code of 1961 or the Criminal Code of 2012
(involuntary servitude; involuntary servitude of a minor; or
trafficking in persons).
(2) A violation of subdivision (a)(1) of Section
11-14.4 of the Criminal Code of 1961 or the Criminal Code of
2012 (promoting juvenile prostitution) or a violation of
Section 11-17.1 of the Criminal Code of 1961 (keeping a
place of juvenile prostitution).
(3) A violation of subdivision (a)(4) of Section
11-14.4 of the Criminal Code of 1961 or the Criminal Code of
2012 (promoting juvenile prostitution) or a violation of
Section 11-19.2 of the Criminal Code of 1961 (exploitation
of a child).
(4) A second or subsequent violation of Section 11-20
of the Criminal Code of 1961 or the Criminal Code of 2012
(obscenity).
(5) A violation of Section 11-20.1 of the Criminal
Code of 1961 or the Criminal Code of 2012 (child
pornography).
(6) A violation of Section 11-20.1B or 11-20.3 of the
Criminal Code of 1961 (aggravated child pornography).
(6.5) A violation of Section 11-23.5 of the Criminal
Code of 2012.
(7) A violation of Section 12C-65 of the Criminal
Code of 2012 or Article 44 of the Criminal Code of 1961
(unlawful transfer of a telecommunications device to a
minor).
(8) A violation of Section 17-50 or Section 16D-5 of
the Criminal Code of 2012 or the Criminal Code of 1961
(computer fraud).
(9) A felony violation of Section 17-6.3 or Article
17B of the Criminal Code of 2012 or the Criminal Code of
1961 (WIC fraud).
(10) A felony violation of Section 48-1 of the
Criminal Code of 2012 or Section 26-5 of the Criminal Code
of 1961 (dog fighting).
(11) A violation of Article 29D of the Criminal Code
of 1961 or the Criminal Code of 2012 (terrorism).
(12) A felony violation of Section 4.01 of the Humane
Care for Animals Act (animals in entertainment).
(Source: P.A. 97-897, eff. 1-1-13; 97-1108, eff. 1-1-13; 971109, eff. 1-1-13; 97-1150, eff. 1-25-13; 98-1138, eff. 6-1-15.)
(725 ILCS 5/124B-15)
Sec. 124B-15. Applicability; actions. This Article applies
to actions pending on the effective date of this amendatory Act
of the 96th General Assembly as well as actions commenced on or
after that date.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/Art. 124B Pt. 100 heading)
Part 100. Standard Forfeiture Provisions
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-100)
Sec. 124B-100. Definition; "offense". For purposes of this
Article, "offense" is defined as follows:
(1) In the case of forfeiture authorized under
Section 10A-15 of the Criminal Code of 1961 or Section 10-9
of the Criminal Code of 2012, "offense" means the offense of
involuntary servitude, involuntary servitude of a minor, or
trafficking in persons in violation of Section 10-9 or 10A10 of those Codes.
(2) In the case of forfeiture authorized under
subdivision (a)(1) of Section 11-14.4, or Section 11-17.1,
of the Criminal Code of 1961 or the Criminal Code of 2012,
"offense"
means
the
offense
of
promoting
juvenile
prostitution or keeping a place of juvenile prostitution in
violation of subdivision (a)(1) of Section 11-14.4, or
Section 11-17.1, of those Codes.
(3) In the case of forfeiture authorized under
subdivision (a)(4) of Section 11-14.4, or Section 11-19.2,
of the Criminal Code of 1961 or the Criminal Code of 2012,
"offense"
means
the
offense
of
promoting
juvenile
prostitution or exploitation of a child in violation of
subdivision (a)(4) of Section 11-14.4, or Section 11-19.2,
of those Codes.
(4) In the case of forfeiture authorized under
Section 11-20 of the Criminal Code of 1961 or the Criminal
Code of 2012, "offense" means the offense of obscenity in
violation of that Section.
(5) In the case of forfeiture authorized under
Section 11-20.1 of the Criminal Code of 1961 or the Criminal
Code of 2012, "offense" means the offense of child
pornography in violation of Section 11-20.1 of that Code.
(6) In the case of forfeiture authorized under
Section 11-20.1B or 11-20.3 of the Criminal Code of 1961,
"offense" means the offense of aggravated child pornography
in violation of Section 11-20.1B or 11-20.3 of that Code.
(7) In the case of forfeiture authorized under
Section 12C-65 of the Criminal Code of 2012 or Article 44 of
the Criminal Code of 1961, "offense" means the offense of
unlawful transfer of a telecommunications device to a minor
in violation of Section 12C-65 or Article 44 of those Codes.
(8) In the case of forfeiture authorized under
Section 17-50 or 16D-5 of the Criminal Code of 1961 or the
Criminal Code of 2012, "offense" means the offense of
computer fraud in violation of Section 17-50 or 16D-5 of
those Codes.
(9) In the case of forfeiture authorized under
Section 17-6.3 or Article 17B of the Criminal Code of 1961
or the Criminal Code of 2012, "offense" means any felony
violation of Section 17-6.3 or Article 17B of those Codes.
(10) In the case of forfeiture authorized under
Section 29D-65 of the Criminal Code of 1961 or the Criminal
Code of 2012, "offense" means any offense under Article 29D
of that Code.
(11) In the case of forfeiture authorized under
Section 4.01 of the Humane Care for Animals Act, Section 265 of the Criminal Code of 1961, or Section 48-1 of the
Criminal Code of 2012, "offense" means any felony offense
under either of those Sections.
(12) In the case of forfeiture authorized under
Section 124B-1000(b) of the Code of Criminal Procedure of
1963, "offense" means an offense in violation of the
Criminal Code of 1961, the Criminal Code of 2012, the
Illinois Controlled Substances Act, the Cannabis Control
Act, or the Methamphetamine Control and Community Protection
Act, or an offense involving a telecommunications device
possessed by a person on the real property of any elementary
or secondary school without authority of the school
principal.
(Source: P.A. 96-712, eff. 1-1-10; 96-1551, eff. 7-1-11; 97-897,
eff. 1-1-13; 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 971150, eff. 1-25-13.)
(725 ILCS 5/124B-105)
Sec. 124B-105. Definition; "conveyance". In this Article,
"conveyance" means a vehicle, vessel, or aircraft.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-110)
Sec. 124B-110. Definition; "owner". In this Article, "owner"
means a person with an ownership interest in the specific
property sought to be forfeited, including a leasehold, lien,
mortgage, recorded security interest, or valid assignment of an
ownership interest. "Owner" does not include any of the
following:
(1) A person with only a general unsecured interest
in, or claim against, the property or estate of another.
(2) A bailee, unless the bailor is identified and the
bailee shows a colorable legitimate interest in the property
seized.
(3) A nominee who exercises no dominion or control
over the property.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-115)
Sec. 124B-115. Definition; "person". In this Article,
"person" means any individual, corporation, partnership, firm,
organization, or association.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-120)
Sec. 124B-120. Definition; "property". In this Article,
"property" means:
(1) Real property, including, without limitation,
land, fixtures or improvements on land, and anything growing
on or found in land.
(2) Tangible or intangible personal property,
including,
without
limitation,
rights,
privileges,
interests, claims, securities, and money.
"Property" includes any leasehold or possessory interest
and, in the case of real property, includes a beneficial
interest in a land trust.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-125)
Sec. 124B-125. Real property exempt from forfeiture.
(a) An interest in real property is exempt from forfeiture
under this Article if its owner or interest holder establishes
by a preponderance of evidence that he or she meets all of the
following requirements:
(1) He or she is not legally accountable for the
conduct giving rise to the forfeiture, or did not solicit,
conspire, or attempt to commit the conduct giving rise to
the forfeiture.
(2) He or she had not acquired and did not stand to
acquire substantial proceeds from the conduct giving rise to
the forfeiture other than as an interest holder in an armslength commercial transaction.
(3) He or she does not hold the property for the
benefit of or as a nominee for any person whose conduct gave
rise to the forfeiture, and, if he or she acquired the
interest through any such person, he or she acquired it as a
bona fide purchaser for value without knowingly taking part
in the conduct giving rise to the forfeiture.
(4) He or she acquired the interest before a notice
of seizure for forfeiture or a lis pendens notice with
respect to the property was filed in the office of the
recorder of deeds of the county in which the property is
located and either:
(A) acquired the interest before the commencement
of the conduct giving rise to the forfeiture, and the
person whose conduct gave rise to the forfeiture did not
have the authority to convey the interest to a bona fide
purchaser for value at the time of the conduct; or
(B) acquired the interest after the commencement
of the conduct giving rise to the forfeiture, and he or
she acquired the interest as a mortgagee, secured
creditor, lienholder, or bona fide purchaser for value
without knowledge of the conduct that gave rise to the
forfeiture.
(5) With respect to a property interest in existence
at the time the illegal conduct giving rise to the
forfeiture took place, he or she either:
(A) did not know of the conduct giving rise to
the forfeiture; or
(B) upon learning of the conduct giving rise to
the forfeiture, did all that reasonably could be
expected under the circumstances to terminate that use
of the property.
(6) The property is not a type of property,
possession of which is otherwise in violation of law.
(b) For purposes of paragraph (5) of subsection (a), ways in
which a person may show that he or she did all that reasonably
could be expected include demonstrating that he or she, to the
extent permitted by law, did either of the following:
(1) Gave timely notice to an appropriate law
enforcement agency of information that led the person to
know that the conduct giving rise to a forfeiture would
occur or had occurred.
(2) In a timely fashion revoked or made a good faith
attempt to revoke permission for those engaging in the
conduct to use the property or took reasonable actions in
consultation with a law enforcement agency to discourage or
prevent the illegal use of the property.
A person is not required by this subsection (b) to take
steps that the person reasonably believes would be likely to
subject any person (other than the person whose conduct gave
rise to the forfeiture) to physical danger.
(Source: P.A. 96-712, eff. 1-1-10; 97-813, eff. 7-13-12.)
(725 ILCS 5/124B-130)
Sec. 124B-130. Personal property exempt from forfeiture.
(a) An interest in personal property is exempt from
forfeiture under this Article if its owner or interest holder
establishes by a preponderance of evidence that he or she meets
all of the following requirements:
(1) He or she is not legally accountable for the
conduct giving rise to the forfeiture, did not acquiesce in
it, and did not know and could not reasonably have known of
the conduct or that the conduct was likely to occur.
(2) He or she had not acquired and did not stand to
acquire substantial proceeds from the conduct giving rise to
the forfeiture other than as an interest holder in an armslength commercial transaction.
(3) He or she does not hold the property for the
benefit of or as a nominee for any person whose conduct gave
rise to the forfeiture, and, if he or she acquired the
interest through any such person, he or she acquired it as a
bona fide purchaser for value without knowingly taking part
in the conduct giving rise to the forfeiture.
(4) He or she acquired the interest without knowledge
of the seizure of the property for forfeiture and either:
(A) acquired the interest before the commencement
of the conduct giving rise to the forfeiture, and the
person whose conduct gave rise to the forfeiture did not
have the authority to convey the interest to a bona fide
purchaser for value at the time of the conduct; or
(B) acquired the interest after the commencement
of the conduct giving rise to the forfeiture, and he or
she acquired the interest as a mortgagee, secured
creditor, lienholder, or bona fide purchaser for value
without knowledge of the conduct that gave rise to the
forfeiture.
(5) With respect to a property interest in existence
at the time the illegal conduct giving rise to the
forfeiture took place, he or she either:
(A) did not know of the conduct giving rise to
the forfeiture; or
(B) upon learning of the conduct giving rise to
the forfeiture, did all that reasonably could be
expected under the circumstances to terminate that use
of the property.
(6) With respect to conveyances, he or she did not
hold the property jointly or in common with a person whose
conduct gave rise to the forfeiture.
(7) The property is not a type of property,
possession of which is otherwise in violation of law.
(b) For purposes of paragraph (5) of subsection (a), ways in
which a person may show that he or she did all that reasonably
could be expected include demonstrating that he or she, to the
extent permitted by law, did either of the following:
(1) Gave timely notice to an appropriate law
enforcement agency of information that led the person to
know that the conduct giving rise to a forfeiture would
occur or had occurred.
(2) In a timely fashion revoked or made a good faith
attempt to revoke permission for those engaging in the
conduct to use the property or took reasonable actions in
consultation with a law enforcement agency to discourage or
prevent the illegal use of the property.
A person is not required by this subsection (b) to take
steps that the person reasonably believes would be likely to
subject any person (other than the person whose conduct gave
rise to the forfeiture) to physical danger.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-135)
Sec. 124B-135. Burden of proof of exemption. It is not
necessary for the State to negate any exemption in this Article
in any complaint or other pleading or in any trial, hearing, or
other proceeding under this Article. The burden of proof of any
exemption is upon the person claiming the exemption.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-140)
Sec. 124B-140. Court order with respect to innocent owner.
If the court determines, in accordance with Sections 124B-125
through 124B-135, that an innocent owner has a partial interest
in property otherwise subject to forfeiture, or a joint tenancy
or tenancy by the entirety in that property, the court may enter
an appropriate order doing any of the following:
(1) Severing and releasing the property.
(2) Transferring the property to the State with a
provision that the State compensate the innocent owner to
the extent of his or her ownership interest once a final
order of forfeiture has been entered and the property has
been reduced to liquid assets.
(3) Permitting the innocent owner to retain the
property subject to a lien in favor of the State to the
extent of the forfeitable interest in the property.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-145)
Sec. 124B-145. Property constituting attorney's fees;
forfeiture not applicable. Nothing in this Article applies to
property that constitutes reasonable bona fide attorney's fees
paid to an attorney for services rendered or to be rendered in a
forfeiture proceeding under this Article, or in a criminal
proceeding relating directly to a forfeiture proceeding under
this Article, if (i) the property was paid before its seizure
and before the issuance of any seizure warrant or court order
prohibiting transfer of the property and (ii) the attorney, at
the time he or she received the property, did not know that it
was property subject to forfeiture under this Article.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-150)
Sec. 124B-150. Protective order; probable cause.
(a) Upon application of the State, the circuit court
presiding over the trial of the person or persons charged with
the offense giving rise to forfeiture may enter a restraining
order or injunction, or take other appropriate action, to
preserve the availability of property for forfeiture under this
Article. Before entering such an order or taking such action,
the court shall first determine the following:
(1) Whether there is probable cause to believe that
the person or persons so charged have committed the offense.
(2) Whether the property is subject to forfeiture
under this Article.
(b) In order to make the determinations of probable cause
required under subsection (a), the court shall conduct a hearing
without a jury. In that hearing, the State must establish both
of the following:
(1) There is probable cause that the person or
persons charged have committed the offense.
(2) There is probable cause that property may be
subject to forfeiture under this Article.
(c) The court may conduct the hearing under subsection (b)
simultaneously with a preliminary hearing if the prosecution is
commenced by information or complaint. The court may conduct the
hearing under subsection (b) at any stage in the criminal
proceedings upon the State's motion.
(d) The court may accept a finding of probable cause at a
preliminary hearing following the filing of an information
charging the offense or following the return of an indictment by
a grand jury charging the offense as sufficient evidence of
probable cause as required under paragraph (1) of subsection
(b).
(e) Upon making a finding of probable cause as required
under this Section, 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 under this Article.
(f) The Attorney General or State's Attorney shall file a
certified copy of the restraining order, injunction, or other
prohibition with the recorder of deeds or registrar of titles of
each county where any property of the defendant subject to
forfeiture is located.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-155)
Sec. 124B-155. Rights of certain parties unaffected by
protective order; release of property.
(a) A restraining order or injunction entered, or other
action taken, by the court under Section 124B-150 does not
affect the rights of any bona fide purchaser, mortgagee,
judgment creditor, or other lienholder that arose before the
date on which a certified copy of the restraining order,
injunction, or other prohibition was filed in accordance with
subsection (f) of Section 124B-150.
(b) At any time, upon verified petition by the defendant or
by an innocent owner or innocent bona fide third party
lienholder who neither had knowledge of, nor consented to, the
illegal act or omission, the court may conduct a hearing to
release all or portions of any property that the court
previously determined to be subject to forfeiture or subject to
any restraining order, injunction, or other action. For good
cause shown and in the court's sound discretion, the court may
release the property to the defendant or innocent owner or
innocent bona fide third party lienholder who neither had
knowledge of, nor consented to, the illegal act or omission.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-160)
Sec. 124B-160. Petition for forfeiture; forfeiture hearing;
burden of proof.
(a) The Attorney General or State's Attorney may file a
petition for forfeiture of property in connection with an
offense as defined in this Article, and, within a reasonable
time after sentencing, the court shall conduct a hearing to
determine whether any property is subject to forfeiture under
this Article. Every person with any property interest in the
property alleged to be subject to forfeiture may appear as a
party and present evidence at the hearing.
(b) At the forfeiture hearing, the State has the burden of
establishing, by a preponderance of the evidence, that the
property is subject to forfeiture under this Article.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-165)
Sec. 124B-165. Order of forfeiture; sale of forfeited
property; publication of notice; challenge to forfeiture.
(a) Upon the court's determination that property is subject
to forfeiture, the court shall enter an order of forfeiture with
respect to the property at issue. Except as provided in Section
124B-705, the order shall authorize the Attorney General or
State's Attorney to seize all property declared forfeited under
this Article (if the property has not already been seized) upon
terms and conditions the court deems proper. The Attorney
General or State's Attorney may then sell the forfeited property
unless the court determines that the property is required by law
to be destroyed or is harmful to the public.
(b) Following the entry of the order of forfeiture, the
Attorney General or State's Attorney shall cause publication of
notice of the order and his or her intent to dispose of the
property. Publication shall be in a newspaper of general
circulation in the county where the property was seized, for a
period of 3 successive weeks.
(c) Within 30 days after the publication, any person may
petition the court to adjudicate the validity of his or her
interest in the property and whether the interest is protected
under this Article.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-170)
Sec. 124B-170. Judicial review.
(a) Within 30 days after publication of the notice under
Section 124B-165, any person claiming an interest in the
property declared forfeited may file a verified claim with the
court expressing his or her interest in the property. The claim
must set forth the following:
(1) The caption of the proceedings as set forth in
the notice of order of forfeiture.
(2) The claimant's name and address.
(3) The nature and extent of the claimant's interest
in the property.
(4) The circumstances of the claimant's acquisition
of the interest in the property, including the date of the
transfer and the identity of the transferor.
(5) The names and addresses of all other persons
known by the claimant to have an interest in the property.
(6) The specific provision of law relied on in
asserting that the property is not subject to forfeiture.
(7) All essential facts supporting each assertion.
(8) The relief sought by the claimant.
(b) The claim must be accompanied by a cost bond in the form
of a cashier's check payable to the clerk of the court in the
amount of 10% of the reasonable value of the property as alleged
by the Attorney General or State's Attorney or the amount of
$100, whichever is greater, conditioned upon the claimant's
payment, in the case of forfeiture, of all costs and expenses of
the proceeding under this Section.
(c) Upon the filing of a claim and cost bond as provided in
this Section, the court shall determine whether the property is
subject to forfeiture in accordance with this Article. If none
of the seized property is declared forfeited in a proceeding
under this Section, then, unless the court orders otherwise, the
clerk of the court shall return to the claimant 90% of the
amount deposited with the clerk as a cost bond under this
Section. If any of the seized property is declared forfeited in
a proceeding under this Section, then the clerk of the court
shall transfer 90% of the amount deposited with the clerk as a
cost bond under this Section to the prosecuting authority. In
either case, the clerk shall retain the remaining 10% of the
amount deposited as costs for the proceeding under this Section.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-175)
Sec. 124B-175. Distribution of forfeited moneys and proceeds
from sale of forfeited property. All moneys forfeited under this
Article, together with the proceeds from the sale of all
property forfeited under this Article, shall be distributed as
set forth in this Article.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-180)
Sec. 124B-180. Segregation of moneys from sale proceeds for
certain purposes. Before any distribution under Section 124B-175
or as otherwise prescribed by law, the court may order the
Attorney General or State's Attorney to segregate moneys from
the proceeds of the sale sufficient to do any of the following:
(1) Satisfy any order of restitution, as the court
may deem appropriate.
(2) Satisfy any legal right, title, or interest that
the court deems superior to any right, title, or interest of
the defendant at the time of the commission of the acts that
gave rise to forfeiture under this Article.
(3) Satisfy any bona fide purchaser for value of the
right, title, or interest in the property who was without
reasonable notice that the property was subject to
forfeiture.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-190)
Sec. 124B-190. Construction. It is the intent of the General
Assembly that the forfeiture provisions of this Article be
liberally construed so as to effect their purpose. The
forfeiture of property and other remedies under this Article
shall be considered to be in addition to, and not exclusive of,
any sentence or other remedy provided by law.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-195)
Sec. 124B-195. Reporting. Property seized or forfeited under
this Article is subject to reporting under the Seizure and
Forfeiture Reporting Act.
(Source: P.A. 100-512, eff. 7-1-18.)
(725 ILCS 5/Art. 124B Pt. 300 heading)
Part 300. Forfeiture; Involuntary Servitude
and Trafficking in Persons
(Source: P.A. 96-712, eff. 1-1-10; 97-897, eff. 1-1-13.)
(725 ILCS 5/124B-300)
Sec. 124B-300. Persons and property subject to forfeiture. A
person who commits the offense of involuntary servitude,
involuntary servitude of a minor, or trafficking of persons
under Section 10A-10 or Section 10-9 of the Criminal Code of
1961 or the Criminal Code of 2012, promoting juvenile
prostitution, keeping a place of juvenile prostitution, or
promoting prostitution that involves keeping a place of
prostitution under subsection (a)(1) or (a)(4) of Section 1114.4 or under Section 11-14.3, 11-17.1, or 11-19.2 of the
Criminal Code of 1961 or of the Criminal Code of 2012 shall
forfeit to the State of Illinois any profits or proceeds and any
property he or she has acquired or maintained in violation of
Section 10A-10 or Section 10-9 of the Criminal Code of 1961 or
the Criminal Code of 2012, promoting juvenile prostitution,
keeping a place of juvenile prostitution, or promoting
prostitution that involves keeping a place of prostitution under
subsection (a)(1) or (a)(4) of Section 11-14.4 or under Section
11-14.3, 11-17.1, or 11-19.2 of the Criminal Code of 1961 or of
the Criminal Code of 2012 that the sentencing court determines,
after a forfeiture hearing under this Article, to have been
acquired or maintained as a result of maintaining a person in
involuntary servitude or participating in trafficking of
persons.
(Source: P.A. 97-1150, eff. 1-25-13; 98-1013, eff. 1-1-15.)
(725 ILCS 5/124B-305)
Sec. 124B-305. Distribution of property and sale proceeds.
All moneys and the sale proceeds of all other property forfeited
and seized under this Part 300 shall be distributed as follows:
(1) 45% shall be divided equally between all State
agencies and units of local government whose officers or
employees conducted the investigation or initiated the
hearing that resulted in the forfeiture.
(2) 50% shall be deposited into the Specialized
Services for Survivors of Human Trafficking Fund and
disbursed in accordance with subsections (d), (e), and (f)
of Section 5-9-1.21 of the Unified Code of Corrections.
(3) 5% shall be paid to the Office of the State's
Attorneys Appellate Prosecutor to train State's Attorneys on
forfeiture
proceedings
and
topics
related
to
human
trafficking.
(Source: P.A. 97-897, eff. 1-1-13; 98-1013, eff. 1-1-15.)
(725 ILCS 5/124B-310)
Sec. 124B-310. Standard forfeiture provisions incorporated
by reference. All of the provisions of Part 100 of this Article
are incorporated by reference into this Part 300.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/Art. 124B Pt. 400 heading)
Part 400. Obscenity
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-400)
Sec. 124B-400. Legislative declaration. Obscenity is a farreaching and extremely profitable crime. This crime persists
despite the threat of prosecution and successful prosecution
because existing sanctions do not effectively reach the money
and other assets generated by it. It is therefore necessary to
supplement existing sanctions by mandating forfeiture of money
and other assets generated by this crime. Forfeiture diminishes
the financial incentives that encourage and sustain obscenity
and secures for the State, local government, and prosecutors a
resource for prosecuting these crimes.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-405)
Sec. 124B-405. Persons and property subject to forfeiture. A
person who has been convicted previously of the offense of
obscenity under Section 11-20 of the Criminal Code of 1961 or
the Criminal Code of 2012 and who is convicted of a second or
subsequent offense of obscenity under that Section shall forfeit
the following to the State of Illinois:
(1) Any property constituting or derived from any
proceeds that the person obtained, directly or indirectly,
as a result of the offense.
(2) Any of the person's property used in any manner,
wholly or in part, to commit the offense.
(Source: P.A. 96-712, eff. 1-1-10; 97-1150, eff. 1-25-13.)
(725 ILCS 5/124B-410)
Sec. 124B-410. No prior restraint. Nothing in this Part 400
shall be construed as authorizing the prior restraint of any
showing, performance, or exhibition of allegedly obscene films,
plays, or other presentations or of any sale or distribution of
allegedly obscene materials.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-415)
Sec. 124B-415. Order to destroy property. If the Attorney
General or State's Attorney believes any property forfeited and
seized under this Part 400 describes, depicts, or portrays any
of the acts or activities described in subsection (b) of Section
11-20 of the Criminal Code of 1961 or the Criminal Code of 2012,
the Attorney General or State's Attorney shall apply to the
court for an order to destroy that property. If the court
determines that the property describes, depicts, or portrays
such acts or activities it shall order the Attorney General or
State's Attorney to destroy the property.
(Source: P.A. 96-712, eff. 1-1-10; 97-1150, eff. 1-25-13.)
(725 ILCS 5/124B-420)
Sec. 124B-420. Distribution of property and sale proceeds.
(a) All moneys and the sale proceeds of all other property
forfeited and seized under this Part 400 shall be distributed as
follows:
(1) 50% shall be distributed to the unit of local
government whose officers or employees conducted the
investigation into the offense and caused the arrest or
arrests and prosecution leading to the forfeiture, except
that
if
the
investigation,
arrest
or
arrests,
and
prosecution leading to the forfeiture were undertaken by the
sheriff, this portion shall be distributed to the county for
deposit into a special fund in the county treasury
appropriated to the sheriff. Amounts distributed to the
county for the sheriff or to units of local government under
this paragraph shall be used for enforcement of laws or
ordinances governing obscenity and child pornography. If the
investigation, arrest or arrests, and prosecution leading to
the forfeiture were undertaken solely by a State agency,
however, the portion designated in this paragraph shall be
paid into the State treasury to be used for enforcement of
laws governing obscenity and child pornography.
(2) 25% shall be distributed to the county in which
the prosecution resulting in the forfeiture was instituted,
deposited into a special fund in the county treasury, and
appropriated to the State's Attorney for use in the
enforcement
of
laws
governing
obscenity
and
child
pornography.
(3) 25% shall be distributed to the Office of the
State's Attorneys Appellate Prosecutor and deposited into
the Obscenity Profits Forfeiture Fund, which is hereby
created in the State treasury, to be used by the Office of
the State's Attorneys Appellate Prosecutor for additional
expenses incurred in prosecuting appeals arising under
Sections 11-20, 11-20.1, 11-20.1B, and 11-20.3 of the
Criminal Code of 1961 or the Criminal Code of 2012. Any
amounts remaining in the Fund after all additional expenses
have been paid shall be used by the Office to reduce the
participating county contributions to the Office on a prorated basis as determined by the board of governors of the
Office of the State's Attorneys Appellate Prosecutor based
on the populations of the participating counties.
(b) Before any distribution under subsection (a), the
Attorney General or State's Attorney shall retain from the
forfeited moneys or sale proceeds, or both, sufficient moneys to
cover expenses related to the administration and sale of the
forfeited property.
(Source: P.A. 96-712, eff. 1-1-10; 96-1551, eff. 7-1-11; 971150, eff. 1-25-13.)
(725 ILCS 5/124B-425)
Sec. 124B-425. Forfeiture provisions not applicable to
libraries. This Part 400 does not apply to any property of a
public library or any property of a library operated by an
institution accredited by a generally recognized accrediting
agency.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-430)
Sec. 124B-430. Standard forfeiture provisions incorporated
by reference. All of the provisions of Part 100 of this Article
are incorporated by reference into this Part 400.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/Art. 124B Pt. 500 heading)
Part 500. Other Sex Offenses
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-500)
(Text of Section before amendment by P.A. 103-825)
Sec. 124B-500. Persons and property subject to forfeiture. A
person
who
commits
child
pornography,
aggravated
child
pornography, or non-consensual dissemination of private sexual
images under Section 11-20.1, 11-20.1B, 11-20.3, or 11-23.5 of
the Criminal Code of 1961 or the Criminal Code of 2012 shall
forfeit the following property to the State of Illinois:
(1) Any profits or proceeds and any property the
person has acquired or maintained in violation of Section
11-20.1, 11-20.1B, 11-20.3, or 11-23.5 of the Criminal Code
of 1961 or the Criminal Code of 2012 that the sentencing
court determines, after a forfeiture hearing under this
Article, to have been acquired or maintained as a result of
child pornography, aggravated child pornography, or nonconsensual dissemination of private sexual images.
(2) Any interest in, securities of, claim against, or
property or contractual right of any kind affording a source
of influence over any enterprise that the person has
established, operated, controlled, or conducted in violation
of Section 11-20.1, 11-20.1B, 11-20.3, or 11-23.5 of the
Criminal Code of 1961 or the Criminal Code of 2012 that the
sentencing court determines, after a forfeiture hearing
under this Article, to have been acquired or maintained as a
result of child pornography, aggravated child pornography,
or non-consensual dissemination of private sexual images.
(3) Any computer that contains a depiction of child
pornography in any encoded or decoded format in violation of
Section 11-20.1, 11-20.1B, or 11-20.3 of the Criminal Code
of 1961 or the Criminal Code of 2012. For purposes of this
paragraph (3), "computer" has the meaning ascribed to it in
Section 17-0.5 of the Criminal Code of 2012.
(Source: P.A. 97-1150, eff. 1-25-13; 98-1013, eff. 1-1-15; 981138, eff. 6-1-15.)
(Text of Section after amendment by P.A. 103-825)
Sec. 124B-500. Persons and property subject to forfeiture. A
person
who
commits
child
pornography,
aggravated
child
pornography, obscene depiction of a purported child, nonconsensual dissemination of private sexual images, or nonconsensual
dissemination
of
sexually
explicit
digitized
depictions under Section 11-20.1, 11-20.1B, 11-20.3, 11-20.4,
11-23.5, or 11-23.7 of the Criminal Code of 1961 or the Criminal
Code of 2012 shall forfeit the following property to the State
of Illinois:
(1) Any profits or proceeds and any property the
person has acquired or maintained in violation of Section
11-20.1, 11-20.1B, 11-20.3, 11-20.4, 11-23.5, or 11-23.7 of
the Criminal Code of 1961 or the Criminal Code of 2012 that
the sentencing court determines, after a forfeiture hearing
under this Article, to have been acquired or maintained as a
result of child pornography, aggravated child pornography,
obscene depiction of a purported child, non-consensual
dissemination of private sexual images, or non-consensual
dissemination of sexually explicit digitized depictions.
(2) Any interest in, securities of, claim against, or
property or contractual right of any kind affording a source
of influence over any enterprise that the person has
established, operated, controlled, or conducted in violation
of Section 11-20.1, 11-20.1B, 11-20.3, 11-20.4, 11-23.5, or
11-23.7 of the Criminal Code of 1961 or the Criminal Code of
2012 that the sentencing court determines, after a
forfeiture hearing under this Article, to have been acquired
or maintained as a result of child pornography, aggravated
child pornography, obscene depiction of a purported child,
non-consensual dissemination of private sexual images, or
non-consensual dissemination of sexually explicit digitized
depictions.
(3) Any computer that contains a depiction of child
pornography or an obscene depiction of a purported child in
any encoded or decoded format in violation of Section 1120.1, 11-20.1B, 11-20.3, or 11-20.4 of the Criminal Code of
1961 or the Criminal Code of 2012. For purposes of this
paragraph (3), "computer" has the meaning ascribed to it in
Section 17-0.5 of the Criminal Code of 2012.
(Source: P.A. 103-825, eff. 1-1-25.)
(725 ILCS 5/124B-505)
Sec. 124B-505. Distribution of property and sale proceeds.
(a) All moneys and the sale proceeds of all other property
forfeited and seized under this Part 500 shall be distributed as
follows:
(1) One-half shall be divided equally between all
State agencies and units of local government whose officers
or employees conducted the investigation that resulted in
the forfeiture.
(2) One-half shall be deposited into the Violent
Crime Victims Assistance Fund.
(b) Before any distribution under subsection (a), the
Attorney General or State's Attorney shall retain from the
forfeited moneys or sale proceeds, or both, sufficient moneys to
cover expenses related to the administration and sale of the
forfeited property.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-510)
Sec. 124B-510. Standard forfeiture provisions incorporated
by reference. All of the provisions of Part 100 of this Article
are incorporated by reference into this Part 500.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/Art. 124B Pt. 600 heading)
Part 600. Computer Crime
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-600)
Sec. 124B-600. Persons and property subject to forfeiture. A
person who commits the offense of computer fraud as set forth in
Section 16D-5 or Section 17-50 of the Criminal Code of 1961 or
the Criminal Code of 2012 shall forfeit any property that the
sentencing court determines, after a forfeiture hearing under
this Article, the person has acquired or maintained, directly or
indirectly, in whole or in part, as a result of that offense.
The person shall also forfeit any interest in, securities of,
claim against, or contractual right of any kind that affords the
person a source of influence over any enterprise that the person
has
established,
operated,
controlled,
conducted,
or
participated in conducting, if the person's relationship to or
connection with any such thing or activity directly or
indirectly, in whole or in part, is traceable to any item or
benefit that the person has obtained or acquired through
computer fraud.
(Source: P.A. 96-712, eff. 1-1-10; 97-1108, eff. 1-1-13; 971150, eff. 1-25-13.)
(725 ILCS 5/124B-605)
Sec. 124B-605. Distribution of property and sale proceeds.
(a) All moneys and the sale proceeds of all other property
forfeited and seized under this Part 600 shall be distributed as
follows:
(1) 50% shall be distributed to the unit of local
government whose officers or employees conducted the
investigation into computer fraud and caused the arrest or
arrests and prosecution leading to the forfeiture. Amounts
distributed to units of local government shall be used for
training or enforcement purposes relating to detection,
investigation, or prosecution of financial crimes, including
computer fraud. If, however, the investigation, arrest or
arrests, and prosecution leading to the forfeiture were
undertaken solely by a State agency, the portion provided
under this paragraph (1) shall be paid into the State Police
Services Fund of the Illinois State Police to be used for
training or enforcement purposes relating to detection,
investigation, or prosecution of financial crimes, including
computer fraud.
(2) 50% shall be distributed to the county in which
the prosecution and petition for forfeiture resulting in the
forfeiture was instituted by the State's Attorney and shall
be deposited into a special fund in the county treasury and
appropriated to the State's Attorney for use in training or
enforcement purposes relating to detection, investigation,
or prosecution of financial crimes, including computer
fraud. If a prosecution and petition for forfeiture
resulting in the forfeiture has been maintained by the
Attorney General, 50% of the proceeds shall be paid into the
Attorney General's Financial Crime Prevention Fund. If the
Attorney General and the State's Attorney have participated
jointly in any part of the proceedings, 25% of the proceeds
forfeited shall be paid to the county in which the
prosecution and petition for forfeiture resulting in the
forfeiture occurred, and 25% shall be paid into the Attorney
General's Financial Crime Prevention Fund to be used for the
purposes stated in this paragraph (2).
(b) Before any distribution under subsection (a), the
Attorney General or State's Attorney shall retain from the
forfeited moneys or sale proceeds, or both, sufficient moneys to
cover expenses related to the administration and sale of the
forfeited property.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/124B-610)
Sec. 124B-610. Computer used in commission of felony;
forfeiture. If a person commits a felony under any provision of
the Criminal Code of 1961 or the Criminal Code of 2012 or
another statute and the instrumentality used in the commission
of the offense, or in connection with or in furtherance of a
scheme or design to commit the offense, is a computer owned by
the defendant (or, if the defendant is a minor, owned by the
minor's parent or legal guardian), the computer is subject to
forfeiture under this Article. A computer, or any part of a
computer, is not subject to forfeiture under this Article,
however, under either of the following circumstances:
(1) The computer accessed in the commission of the
offense was owned or leased by the victim or an innocent
third party at the time the offense was committed.
(2) The rights of a creditor, lienholder, or person
having a security interest in the computer at the time the
offense was committed will be adversely affected.
(Source: P.A. 96-712, eff. 1-1-10; 97-1150, eff. 1-25-13.)
(725 ILCS 5/124B-615)
Sec. 124B-615. Standard forfeiture provisions incorporated
by reference. All of the provisions of Part 100 of this Article
are incorporated by reference into this Part 600.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/Art. 124B Pt. 700 heading)
Part 700. WIC Fraud
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-700)
Sec. 124B-700. Persons and property subject to forfeiture. A
person who commits a felony violation of Article 17B or Section
17-6.3 of the Criminal Code of 1961 or the Criminal Code of 2012
shall forfeit any property that the sentencing court determines,
after a forfeiture hearing under this Article, (i) the person
has acquired, in whole or in part, as a result of committing the
violation or (ii) the person has maintained or used, in whole or
in part, to facilitate, directly or indirectly, the commission
of the violation. The person shall also forfeit any interest in,
securities of, claim against, or contractual right of any kind
that affords the person a source of influence over any
enterprise
that
the
person
has
established,
operated,
controlled, conducted, or participated in conducting, if the
person's relationship to or connection with any such thing or
activity directly or indirectly, in whole or in part, is
traceable to any item or benefit that the person has obtained or
acquired as a result of a felony violation of Article 17B or
Section 17-6.3 of the Criminal Code of 1961 or the Criminal Code
of 2012. Property subject to forfeiture under this Part 700
includes the following:
(1) All moneys, things of value, books, records, and
research products and materials that are used or intended to
be used in committing a felony violation of Article 17B or
Section 17-6.3 of the Criminal Code of 1961 or the Criminal
Code of 2012.
(2) Everything of value furnished, or intended to be
furnished, in exchange for a substance in violation of
Article 17B or Section 17-6.3 of the Criminal Code of 1961
or the Criminal Code of 2012; all proceeds traceable to that
exchange; and all moneys, negotiable instruments, and
securities used or intended to be used to commit or in any
manner to facilitate the commission of a felony violation of
Article 17B or Section 17-6.3 of the Criminal Code of 1961
or the Criminal Code of 2012.
(3) All real property, including any right, title,
and interest (including, but not limited to, any leasehold
interest or the beneficial interest in a land trust) in the
whole of any lot or tract of land and any appurtenances or
improvements, that is used or intended to be used, in any
manner or part, to commit or in any manner to facilitate the
commission of a felony violation of Article 17B or Section
17-6.3 of the Criminal Code of 1961 or the Criminal Code of
2012 or that is the proceeds of any act that constitutes a
felony violation of Article 17B or Section 17-6.3 of the
Criminal Code of 1961 or the Criminal Code of 2012.
(Source: P.A. 96-712, eff. 1-1-10; 97-1108, eff. 1-1-13; 971150, eff. 1-25-13.)
(725 ILCS 5/124B-705)
Sec. 124B-705. Seizure and inventory of property subject to
forfeiture. Property taken or detained under this Part shall not
be subject to replevin, but is deemed to be in the custody of
the Director of the Illinois State Police subject only to the
order and judgments of the circuit court having jurisdiction
over the forfeiture proceedings and the decisions of the
Attorney General or State's Attorney under this Article. When
property is seized under this Article, the seizing agency shall
promptly conduct an inventory of the seized property and
estimate the property's value and shall forward a copy of the
estimate of the property's value to the Director of the Illinois
State Police. Upon receiving the notice of seizure, the Director
may do any of the following:
(1) Place the property under seal.
(2) Remove the property to a place designated by the
Director.
(3) Keep the property in the possession of the
seizing agency.
(4) Remove the property to a storage area for
safekeeping or, if the property is a negotiable instrument
or money and is not needed for evidentiary purposes, deposit
it in an interest bearing account.
(5) Place the property under constructive seizure by
posting notice of the pending forfeiture on it, by giving
notice of the pending forfeiture to its owners and interest
holders, or by filing a notice of the pending forfeiture in
any appropriate public record relating to the property.
(6) Provide for another agency or custodian,
including an owner, secured party, or lienholder, to take
custody of the property on terms and conditions set by the
Director.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/124B-710)
Sec. 124B-710. Sale of forfeited property by Director of the
Illinois State Police.
(a) The court shall authorize the Director of the Illinois
State Police to seize any property declared forfeited under this
Article on terms and conditions the court deems proper.
(b) When property is forfeited under this Part 700, the
Director of the Illinois State Police shall sell the property
unless the property is required by law to be destroyed or is
harmful to the public. The Director shall distribute the
proceeds of the sale, together with any moneys forfeited or
seized, in accordance with Section 124B-715.
(c) (Blank).
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/124B-715)
Sec. 124B-715. Distribution of all other property and sale
proceeds. All moneys and the sale proceeds of all property
forfeited and seized under this Part 700 shall be distributed to
the Special Supplemental Food Program for Women, Infants and
Children (WIC) program administered by the Illinois Department
of Human Services.
(Source: P.A. 100-512, eff. 7-1-18.)
(725 ILCS 5/124B-720)
Sec. 124B-720. Standard forfeiture provisions incorporated
by reference. All of the provisions of Part 100 of this Article
are incorporated by reference into this Part 700.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/Art. 124B Pt. 800 heading)
Part 800. Terrorism
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-800)
Sec. 124B-800. Persons and property subject to forfeiture.
(a) A person who commits an offense under Article 29D of the
Criminal Code of 1961 or the Criminal Code of 2012 shall forfeit
any property that the sentencing court determines, after a
forfeiture hearing under this Article, (i) the person has
acquired or maintained, directly or indirectly, in whole or in
part, as a result of the offense or (ii) the person used, was
about to use, or intended to use in connection with the offense.
The person shall also forfeit any interest in, securities of,
claim against, or contractual right of any kind that affords the
person a source of influence over any enterprise that the person
has
established,
operated,
controlled,
conducted,
or
participated in conducting, if the person's relationship to or
connection with any such thing or activity directly or
indirectly, in whole or in part, is traceable to any item or
benefit that the person has obtained or acquired as a result of
a violation of Article 29D of the Criminal Code of 1961 or the
Criminal Code of 2012 or that the person used, was about to use,
or intended to use in connection with a violation of Article 29D
of the Criminal Code of 1961 or the Criminal Code of 2012.
(b) For purposes of this Part 800, "person" has the meaning
given in Section 124B-115 of this Code and, in addition to that
meaning,
includes,
without
limitation,
any
charitable
organization, whether incorporated or unincorporated, any
professional fund raiser, professional solicitor, limited
liability
company,
association,
joint
stock
company,
association, trust, trustee, or any group of people formally or
informally affiliated or associated for a common purpose, and
any officer, director, partner, member, or agent of any person.
(Source: P.A. 96-712, eff. 1-1-10; 97-1150, eff. 1-25-13.)
(725 ILCS 5/124B-805)
Sec. 124B-805. Asset freeze or seizure; ex parte proceeding.
(a) Whenever it appears that there is probable cause to
believe that any person used, is using, is about to use, or is
intending to use property in any way that constitutes or would
constitute an offense as defined in this Article, the Attorney
General or any State's Attorney may make an ex parte application
to the circuit court to freeze or seize all assets of that
person. Upon a showing of probable cause in the ex parte
hearing, the circuit court shall issue an order to freeze or
seize all assets of that person. A copy of the freeze or seize
order shall be served upon the person whose property has been
frozen or seized.
(b) At any time within 30 days after service of the order to
freeze or seize property, the person whose property was ordered
frozen or seized, or any person claiming an interest in the
property, may file a motion to release his or her property. The
court shall hold a hearing on the motion within 10 days.
(c) In any proceeding to release property, the burden of
proof shall be by a preponderance of evidence and shall be on
the State to show that the person used, was using, is about to
use, or is intending to use any property in any way that
constitutes or would constitute an offense as defined in this
Article. If the court finds that any property was being used, is
about to be used, or is intended to be used in any way that
constitutes or would constitute an offense as defined in this
Article, the court shall order the property frozen or held until
further order of the court. Any property so ordered held or
frozen is subject to forfeiture under the procedures set forth
in this Article.
(d) Upon the request of the defendant, the court may release
property frozen or seized under this Section in an amount
sufficient to pay attorney's fees for representation of the
defendant at a hearing conducted under this Article.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-810)
Sec. 124B-810. Forfeiture hearing following property freeze
or seizure.
(a) If a person having any property interest in property
frozen or seized under Section 124B-805 is charged with an
offense within 60 days after the property is frozen or seized,
the court that renders judgment on the charge shall conduct a
forfeiture hearing within 30 days after the judgment to
determine whether the property (i) was used, about to be used,
or intended to be used to commit an offense as defined in this
Article or in connection with any such offense or (ii) was
integrally related to any offense as defined in this Article or
intended offense as defined in this Article.
(b) The State shall commence a forfeiture proceeding under
subsection (a) by filing a written petition with the court. The
petition must be verified and must include the following:
(1) Material allegations of fact.
(2) The name and address of every person determined
by the State to have any property interest in the frozen or
seized property.
(3) A representation that written notice of the date,
time, and place of the forfeiture hearing has been mailed to
every person described in paragraph (2) by certified mail at
least 10 days before the date.
(4) A request for forfeiture.
(c) Every person described in paragraph (2) of subsection
(b) may appear as a party and present evidence at the hearing.
The quantum of proof required is a preponderance of the
evidence, and the burden of proof is on the State.
(d) If the court determines that the frozen or seized
property was used, about to be used, or intended to be used to
commit an offense as defined in this Article or in connection
with any such offense, or was integrally related to any offense
as defined in this Article or intended offense as defined in
this Article, the court shall enter an order of forfeiture and
disposition of the frozen or seized property. All property
forfeited may be liquidated, and the resultant money, together
with any other money forfeited, shall be distributed as set
forth in this Article.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-815)
Sec. 124B-815. No release of property for payment of
attorney's fees. No judge shall release any property that is the
subject of a petition filed under subsection (b) of Section
124B-810 or a hearing conducted under Section 124B-150 or 124B160 for the payment of attorney's fees for any person claiming
an interest in that property.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-820)
Sec. 124B-820. No offense charged or no conviction; in rem
proceeding.
(a) If a person is not charged with an offense within 60
days after property is frozen or seized under Section 124B-805,
or if the prosecution of the charge is permanently terminated or
indefinitely discontinued without any judgment of conviction, or
if a judgment of acquittal is entered, the Attorney General or
State's Attorney shall immediately commence an in rem proceeding
for the forfeiture of any frozen or seized property in the
circuit court by filing a complaint that contains the same
information as required in a petition under subsection (b) of
Section 124B-810. The court shall conduct the in rem proceeding
in the same manner as other forfeiture proceedings under this
Article.
(b) Any person having any property interest in the frozen or
seized property may commence a separate civil proceeding in the
manner provided by law.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-825)
Sec. 124B-825. Distribution of property and sale proceeds.
After the deduction of all requisite expenses of administration
and sale, the Attorney General or State's Attorney shall
distribute the proceeds of the sale of forfeited property, along
with any property forfeited or seized, between participating law
enforcement agencies in equitable portions as determined by the
court entering the forfeiture order.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-830)
Sec. 124B-830. Standard forfeiture provisions incorporated
by reference. All of the provisions of Part 100 of this Article
are incorporated by reference into this Part 800.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/Art. 124B Pt. 900 heading)
Part 900. Animals
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-900)
Sec. 124B-900. Legislative declaration. The General Assembly
finds that the forfeiture of real property that is used or
intended to be used in connection with any show, exhibition,
program, or other activity featuring or otherwise involving a
fight between an animal and any other animal or human or
involving the intentional killing of any animal for the purpose
of sport, wagering, or entertainment will have a significant
beneficial effect in deterring the rising incidence of those
activities within this State, as well as other crimes that
frequently occur in partnership with animal fighting, such as
illegal
gambling,
possession
of
narcotics,
and
weapons
violations.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-905)
Sec. 124B-905. Persons and property subject to forfeiture. A
person who commits a felony violation of Section 4.01 of the
Humane Care for Animals Act or a felony violation of Section 481 or Section 26-5 of the Criminal Code of 2012 or the Criminal
Code of 1961 shall forfeit the following:
(1) Any moneys, profits, or proceeds the person
acquired, in whole or in part, as a result of committing the
violation.
(2) Any real property or interest in real property
that the sentencing court determines, after a forfeiture
hearing under this Article, (i) the person has acquired, in
whole or in part, as a result of committing the violation or
(ii) the person has maintained or used, in whole or in part,
to facilitate, directly or indirectly, the commission of the
violation. Real property subject to forfeiture under this
Part 900 includes property that belongs to any of the
following:
(A) The person organizing the show, exhibition,
program, or other activity described in subsections (a)
through (g) of Section 4.01 of the Humane Care for
Animals Act, Section 48-1 of the Criminal Code of 2012,
or Section 26-5 of the Criminal Code of 1961.
(B) Any other person participating in the
activity described in subsections (a) through (g) of
Section 4.01 of the Humane Care for Animals Act, Section
48-1 of the Criminal Code of 2012, or Section 26-5 of
the Criminal Code of 1961 who is related to the
organization and operation of the activity.
(C) Any person who knowingly allowed the
activities to occur on his or her premises.
The person shall also forfeit any interest in, securities
of, claim against, or contractual right of any kind that affords
the person a source of influence over any enterprise that the
person has established, operated, controlled, conducted, or
participated in conducting, if the person's relationship to or
connection with any such thing or activity directly or
indirectly, in whole or in part, is traceable to any item or
benefit that the person has obtained or acquired as a result of
a felony violation of Section 4.01 of the Humane Care for
Animals Act, a felony violation of Section 48-1 of the Criminal
Code of 2012 or Section 26-5 of the Criminal Code of 1961.
(Source: P.A. 96-712, eff. 1-1-10; 97-1108, eff. 1-1-13; 971150, eff. 1-25-13.)
(725 ILCS 5/124B-910)
Sec. 124B-910. Notice to or service on owner or interest
holder.
(a) Whenever notice of pending forfeiture or service of an
in rem complaint is required under this Article, the notice or
service shall be given or made as follows:
(1) If the owner's or interest holder's name and
current address are known, then notice or service shall be
given or made either by personal service or by 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 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. If an owner's or interest
holder's address changes before the effective date of the
notice of pending forfeiture, however, the owner or interest
holder shall promptly notify the seizing agency of the
change in address. If the owner's or interest holder's
address changes after the effective date of the notice of
pending forfeiture, the owner or interest holder shall
promptly notify the State's Attorney or Attorney General of
the change in address.
(2) If the property seized is a conveyance, then
notice or service shall be given or made 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. Notice shall be given by mailing a copy of the
notice by certified mail, return receipt requested, to that
address.
(3) If the owner's or interest holder's address is
not known and is not on record as provided in paragraph (2),
then notice of pending forfeiture shall be given by
publication for 3 successive weeks in a newspaper of general
circulation in the county in which the seizure occurred.
(b) Notice of pending forfeiture served under this Article
is
effective
upon
personal
service,
the
last
date
of
publication, or the mailing of written notice, whichever is
earlier.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-915)
Sec. 124B-915. Property vests in State. All property
declared forfeited under this Article vests in the State on the
date of 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 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 Article that the
transferee's interest is exempt from forfeiture.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-920)
Sec. 124B-920. Defendant precluded from later denying the
essential allegations of the offense. 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 Article
regardless of the pendency of an appeal from that conviction.
However, evidence of the pendency of an appeal is admissible.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-925)
Sec. 124B-925. Settlement of claims. Notwithstanding any
other provision of this Article, the Attorney General or State's
Attorney and a claimant of seized property may enter into an
agreed-upon settlement concerning the seized property in an
amount and upon terms that are set out in writing in a
settlement agreement.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/124B-930)
Sec. 124B-930. Disposal of property.
(a) Real property taken or detained under this Part is not
subject to replevin, but is deemed to be in the custody of the
Director of the Illinois State Police subject only to the order
and judgments of the circuit court having jurisdiction over the
forfeiture proceedings and the decisions of the State's Attorney
or Attorney General under this Article.
(b) When property is forfeited under this Article, the
Director of the Illinois State Police shall sell all such
property and shall distribute the proceeds of the sale, together
with any moneys forfeited or seized, in accordance with Section
124B-935.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/124B-935)
Sec. 124B-935. Distribution of property and sale proceeds.
All moneys and the sale proceeds of all other property forfeited
and seized under this Part 900 shall be distributed as follows:
(1) 65% shall be distributed to the local, municipal,
county, or State law enforcement agency or agencies that
conducted or participated in the investigation resulting in
the forfeiture. The distribution shall bear a reasonable
relationship to the degree of direct participation of the
law enforcement agency in the effort resulting in the
forfeiture, taking into account the total value of the
property forfeited and the total law enforcement effort with
respect to the violation of the law upon which the
forfeiture is based.
(2) 12.5% shall be distributed to the Office of the
State's Attorney of the county in which the prosecution
resulting in the forfeiture was instituted for use in the
enforcement of laws, including laws governing animal
fighting.
(3) 12.5% shall be distributed to the Illinois
Department of Agriculture for reimbursement of expenses
incurred in the investigation, prosecution, and appeal of
cases arising under laws governing animal fighting.
(4) 10% shall be retained by the Illinois State
Police for expenses related to the administration and sale
of seized and forfeited property.
(Source: P.A. 102-538, eff. 8-20-21.)
(725 ILCS 5/124B-940)
Sec. 124B-940. Standard forfeiture provisions incorporated
by reference. All of the provisions of Part 100 of this Article
are incorporated by reference into this Part 900.
(Source: P.A. 96-712, eff. 1-1-10.)
(725 ILCS 5/Art. 124B Pt. 1000 heading)
Part 1000. Unlawful Telecommunications Device
(Source: P.A. 97-1109, eff. 1-1-13.)
(725 ILCS 5/124B-1000)
Sec. 124B-1000. Persons and property subject to forfeiture.
(a) A person who commits the offense of unlawful transfer of
a telecommunications device to a minor in violation of Section
12C-65 or Article 44 of the Criminal Code of 2012 or the
Criminal Code of 1961 shall forfeit any telecommunications
device used in the commission of the offense or which
constitutes evidence of the commission of such offense.
(b) A person who commits an offense prohibited by the
Criminal Code of 1961, the Criminal Code of 2012, the Illinois
Controlled Substances Act, the Cannabis Control Act, or the
Methamphetamine Control and Community Protection Act, or an
offense involving a telecommunications device possessed by a
person on the real property of any elementary or secondary
school without authority of the school principal shall forfeit
any telecommunications device used in the commission of the
offense or which constitutes evidence of the commission of such
offense. A person who is not a student of the particular
elementary or secondary school, who is on school property as an
invitee
of
the
school,
and
who
has
possession
of
a
telecommunications device for lawful and legitimate purposes,
shall not need to obtain authority from the school principal to
possess the telecommunications device on school property.
(Source: P.A. 97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)
(725 ILCS 5/124B-1010)
Sec. 124B-1010. Seizure. A telecommunications device subject
to forfeiture may be seized and delivered forthwith to the
investigating law enforcement agency. Such telecommunications
device shall not be seized unless it was used in the commission
of an offense specified in Section 124B-1000, or constitutes
evidence of such an offense. Within 15 days after such delivery,
the investigating law enforcement agency shall give notice of
seizure to any known owners, lien holders and secured parties of
such property. Within that 15 day period the investigating law
enforcement agency shall also notify the State's Attorney of the
county of seizure about the seizure.
(Source: P.A. 97-1109, eff. 1-1-13.)
(725 ILCS 5/124B-1020)
Sec.
124B-1020.
Exception
to
forfeiture.
No
telecommunications device shall be forfeited by reason of any
act or omission established by the owner thereof to have been
committed or omitted by any person other than the owner while
the device was unlawfully in the possession of a person who
acquired possession thereof in violation of the criminal laws of
the United States, or of any state.
(Source: P.A. 97-1109, eff. 1-1-13.)
(725 ILCS 5/124B-1030)
Sec. 124B-1030. (Repealed).
(Source: P.A. 97-1109, eff. 1-1-13. Repealed by P.A. 100-512,
eff. 7-1-18.)
(725 ILCS 5/124B-1040)
Sec. 124B-1040. Distribution of property from sale of
proceeds. The proceeds of any sale of property, after payment of
all liens and deduction of the reasonable charges and expenses
incurred by the investigating law enforcement agency in storing
and selling the property, shall be paid into the general fund of
the level of government responsible for the operation of the
investigating law enforcement agency.
(Source: P.A. 97-1109, eff. 1-1-13.)
(725 ILCS 5/124B-1045)
Sec. 124B-1045. Definition. "Telecommunications device"
means a device which is portable or which may be installed in a
motor vehicle, boat, or other means of transportation, and which
is capable of receiving or transmitting speech, data, signals,
or other information, including but not limited to paging
devices, cellular and mobile telephones, and radio transceivers,
transmitters and receivers, but not including radios designed to
receive only standard AM and FM broadcasts.
(Source: P.A. 97-1109, eff. 1-1-13.)
(725 ILCS 5/124B-1050)
Sec. 124B-1050. Standard forfeiture provisions incorporated
by reference. All of the provisions of Part 100 of this Article
are incorporated by reference into this Part 1000.
(Source: P.A. 97-1109, eff. 1-1-13.)
(725 ILCS 5/Art. 125 heading)
ARTICLE 125. CONSTRUCTION AND EFFECTIVE DATE
(725 ILCS 5/125-1) (from Ch. 38, par. 125-1)
Sec. 125-1. Effect of headings. Section, Article and Title
headings contained herein shall not be deemed to govern, limit,
modify or in any manner affect the scope, meaning or intent of
the provisions of any Section, Article or Title hereof.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/125-2) (from Ch. 38, par. 125-2)
Sec. 125-2. Partial invalidity.
The invalidity of any provision of this Code shall not
affect the validity of the remainder of this Code.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/125-3) (from Ch. 38, par. 125-3)
Sec. 125-3. Savings provisions.
(a) The provisions of Sections 2, 3 and 4 of "An Act to
revise the law in relation to the construction of the statutes",
approved March 5, 1874, as heretofore and hereafter amended,
shall apply in all construction of this Code.
(b) In any case pending on or after the effective date of
this Code involving an offense committed prior to such date the
procedural provisions of this Code shall govern insofar as they
are justly applicable and their application does not introduce
confusion or delay.
(c) Provisions of this Code according a defense or
mitigation shall apply with the consent of the defendant.
(d) Provisions of this Code governing the treatment,
eligibility, release or discharge of prisoners, probationers and
parolees shall apply to persons under sentence for offenses
committed prior to the effective date of this Code except that
the minimum or maximum period of their detention or supervision
shall in no case be increased.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/125-4) (from Ch. 38, par. 125-4)
Sec. 125-4. Effective date.
This Code shall take effect January 1, 1964.
(Source: Laws 1963, p. 2836.)
(725 ILCS 5/Art. 126 heading)
ARTICLE 126. REPEAL
(725 ILCS 5/126-1) (from Ch. 38, par. 126-1)
Sec. 126-1. Repeal.
The following Acts and parts of Acts are repealed:
Section 229 and 274 of Division I, Sections 7, 12 and 13 of
Division II, Sections 1, 2, 3, 4, 5, 6, 7a and 16a of Division
III, Sections 3, 4, 5, 6, 7 and 8 of Division VI, all of
Division VII, all of Division VIII, Section 3 of Division X,
Sections 1, 2, 3, 4, 5, 6, 7, 9, 10 and 11 of Division XI, all
of Division XII, Sections 1, 2, 2a, 3, 4, 5, 8, 8a, 11, 12, 13,
14, 15, 16, 17 and 18 of Division XIII, Sections 1, 2, 3, 3a, 4,
5, 7, 14, 18 and 19 of Division XIV, all of Division XV and
Sections 350-A, 350-B and 350-C of "An Act to revise the law in
relation to criminal jurisprudence", approved March 27, 1874, as
amended;
"An Act to bar certain prosecutions for violations of
criminal laws of this State", approved July 22, 1959;
"An Act in relation to the punishment of criminals",
approved June 23, 1883, as amended;
"An Act in relation to the punishment and parole of habitual
criminals", approved April 11, 1957;
"An Act to bar certain actions for want of prosecution",
approved July 8, 1957, as amended;
"An Act providing that persons arrested for certain offenses
shall be furnished with a copy of the information or complaint
upon which they are charged", approved July 8, 1933;
"An Act in relation to the holding of persons in custody
without their being able to notify their families or to have
legal assistance", approved May 14, 1951;
"An Act to regulate the granting of continuances in criminal
cases", approved June 26, 1885, as amended;
Sections 1, 2, 3, 4, 5, 6.1, 7, 8, 15, 16 and 17 of "An Act
providing for a system of probation, for the appointment and
compensation
of
probation
officers,
and
authorizing
the
suspension of final judgment and the imposition of sentence upon
persons found guilty of certain defined crimes and offenses, and
legalizing
their
ultimate
discharge
without
punishment",
approved June 10, 1911, as amended;
Sections 1, 1a, 2, 3, 3.1, 3a, 9, 9.1 and 16 of "An Act to
revise the law in relation to the fixing of the punishment and
the sentence and commitment of persons convicted of crime or
offenses, and providing for a system of parole", approved June
25, 1917, as amended; and
"An Act to provide a remedy for persons convicted and
imprisoned in the penitentiary, who assert that rights
guaranteed to them by the Constitution of the United States or
the State of Illinois, or both, have been denied or violated, in
proceedings in which they were convicted", approved August 4,
1949.
(Source: Laws 1963, p. 2836.)