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Public Act 098-1012 Public Act 1012 98TH GENERAL ASSEMBLY |
Public Act 098-1012 | HB3744 Enrolled | LRB098 14114 RLC 49633 b |
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| AN ACT concerning criminal law.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 5. The Code of Criminal Procedure of 1963 is | amended by changing Section 110-5 as follows:
| (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 the amount of monetary bail or | conditions of release, if
any,
which will reasonably assure 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 bail, the court | shall, on the
basis of available information, take into account | such matters as the
nature and circumstances of the offense | charged, whether the evidence
shows that as part of the offense | there was a use of violence or threatened
use of violence, | whether the offense involved corruption of public
officials or | employees, whether there was physical harm or threats of | physical
harm to any
public official, public employee, judge, | prosecutor, juror or witness,
senior citizen, child or | handicapped person, whether evidence shows that
during the | offense or during the arrest the defendant possessed or used a
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| firearm, machine gun, explosive or metal piercing ammunition or | explosive
bomb device or any military or paramilitary armament,
| whether the evidence
shows that the offense committed was | related to or in furtherance of the
criminal activities of an | organized gang or was motivated by the defendant's
membership | in or allegiance to an organized gang,
the condition of the
| victim, any written statement submitted by the victim or | proffer or
representation by the State regarding the
impact | which the alleged criminal conduct has had on the victim and | the
victim's concern, if any, with further contact with the | defendant if
released on bail, whether the offense was based on | racial, religious,
sexual orientation or ethnic hatred,
the | likelihood of the filing of a greater charge, the likelihood of
| conviction, the sentence applicable upon conviction, the | weight of the evidence
against such defendant, whether there | exists motivation or ability to
flee, whether there is any | verification as to prior residence, education,
or family ties | in the local jurisdiction, in another county,
state or foreign | country, the defendant's employment, financial resources,
| character and mental condition, past conduct, prior use of | alias names or
dates of birth, and length of residence in the | community,
the consent of the defendant to periodic drug | testing in accordance with
Section 110-6.5,
whether a foreign | national defendant is lawfully admitted in the United
States of | America, whether the government of the foreign national
| maintains an extradition treaty with the United States by which |
| the foreign
government will extradite to the United States its | national for a trial for
a crime allegedly committed in the | United States, whether the defendant is
currently subject to | deportation or exclusion under the immigration laws of
the | United States, whether the defendant, although a United States | citizen,
is considered under the law of any foreign state a | national of that state
for the purposes of extradition or | non-extradition to the United States,
the amount of unrecovered | proceeds lost as a result of
the alleged offense, the
source of | bail funds tendered or sought to be tendered for bail,
whether | from the totality of the court's consideration,
the loss of | funds posted or sought to be posted for bail will not deter the
| defendant from flight, whether the evidence shows that the | defendant is
engaged in significant
possession, manufacture, | or delivery of a controlled substance or cannabis,
either | individually or in consort with others,
whether at the time of | the offense
charged he or she was on bond or pre-trial release | pending trial, probation,
periodic imprisonment or conditional | discharge pursuant to this Code or the
comparable Code of any | other state or federal jurisdiction, whether the
defendant is | on bond or
pre-trial release pending the imposition or | execution of sentence or appeal of
sentence for any offense | under the laws of Illinois or any other state or
federal | jurisdiction, whether the defendant is under parole, aftercare | release, mandatory
supervised release, or
work release from the | Illinois Department of Corrections or Illinois Department of |
| Juvenile Justice or any penal
institution or corrections | department of any state or federal
jurisdiction, the | defendant's record of convictions, whether the defendant has | been
convicted of a misdemeanor or ordinance offense in | Illinois or similar
offense in other state or federal | jurisdiction within the 10 years
preceding the current charge | or convicted of a felony in Illinois, whether
the defendant was | convicted of an offense in another state or federal
| jurisdiction that would
be a felony if committed in Illinois | within the 20 years preceding the
current charge or has been | convicted of such felony and released from the
penitentiary | within 20 years preceding the current charge if a
penitentiary | sentence was imposed in Illinois or other state or federal
| jurisdiction, the defendant's records of juvenile adjudication | of delinquency in any
jurisdiction, any record of appearance or | failure to appear by
the defendant at
court proceedings, | whether there was flight to avoid arrest or
prosecution, | whether the defendant escaped or
attempted to escape to avoid | arrest, whether the defendant refused to
identify himself or | herself, or whether there was a refusal by the defendant to be
| fingerprinted as required by law. Information used by the court | in its
findings or stated in or
offered in connection with this | Section may be by way of proffer based upon
reliable | information offered by the State or defendant.
All evidence | shall be admissible if it is relevant and
reliable regardless | of whether it would be admissible under the rules of
evidence |
| applicable at criminal trials.
If the State presents evidence | that the offense committed by the defendant
was related to or | in furtherance of the criminal activities of an organized
gang | or was motivated by the defendant's membership in or allegiance | to an
organized gang, and if the court determines that the | evidence may be
substantiated, the court shall prohibit the | defendant from associating with
other members of the organized | gang as a condition of bail or release.
For the purposes of | this Section,
"organized gang" has the meaning ascribed to it | in Section 10 of the Illinois
Streetgang Terrorism Omnibus | Prevention Act.
| (b) The amount of bail shall be:
| (1) Sufficient to assure compliance with the | conditions set forth in the
bail bond, which shall include | the defendant's current address with a written
| admonishment to the defendant that he or she must 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 public record with the clerk
of | the court.
| (2) Not oppressive.
| (3) Considerate of the financial ability of the | accused.
| (4) When a person is charged with a drug related | offense involving
possession or delivery of cannabis or | possession or delivery of a
controlled substance as defined |
| in the Cannabis Control Act,
the Illinois Controlled | Substances Act, or the Methamphetamine Control and | Community Protection Act, the full street value
of the | drugs seized shall be considered. "Street value" shall be
| determined by the court on the basis of a proffer by the | State based upon
reliable information of a law enforcement | official contained in a written
report as to the amount | seized and such proffer may be used by the court as
to the | current street value of the smallest unit of the drug | seized.
| (b-5) Upon the filing of a written request demonstrating | reasonable cause, the State's Attorney may request a source of | bail hearing either before or after the posting of any funds.
| If the hearing is granted, before the posting of any bail, the | accused must file a written notice requesting that the court | conduct a source of bail hearing. The notice must be | accompanied by justifying affidavits stating the legitimate | and lawful source of funds for bail. At the hearing, the court | shall inquire into any matters stated in any justifying | affidavits, and may also inquire into matters appropriate to | the determination which shall include, but are not limited to, | the following: | (1) the background, character, reputation, and | relationship to the accused of any surety; and | (2) the source of any money or property deposited by | any surety, and whether any such money or property |
| constitutes the fruits of criminal or unlawful conduct; and | (3) the source of any money posted as cash bail, and | whether any such money constitutes the fruits of criminal | or unlawful conduct; and | (4) the background, character, reputation, and | relationship to the accused of the person posting cash | bail. | Upon setting the hearing, the court shall examine, under | oath, any persons who may possess material information. | The State's Attorney has a right to attend the hearing, to | call witnesses and to examine any witness in the proceeding. | The court shall, upon request of the State's Attorney, continue | the proceedings for a reasonable period to allow the State's | Attorney to investigate the matter raised in any testimony or | affidavit.
If the hearing is granted after the accused has | posted bail, the court shall conduct a hearing consistent with | this subsection (b-5). At the conclusion of the hearing, the | court must issue an order either approving of disapproving the | bail.
| (c) When a person is charged with an offense punishable by | fine only the
amount of the bail shall not exceed double the | amount of the maximum penalty.
| (d) When a person has been convicted of an offense and only | a fine has
been imposed the amount of the bail shall not exceed | double the amount of
the fine.
| (e) The State may appeal any order granting bail or setting
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| a given amount for bail. | (f) When a person is charged with a violation of an order | of protection under Section 12-3.4 or 12-30 of the Criminal | Code of 1961 or the Criminal Code of 2012 or when a person is | charged with domestic battery, aggravated domestic battery, | kidnapping, aggravated kidnaping, unlawful restraint, | aggravated unlawful restraint, stalking, aggravated stalking, | cyberstalking, harassment by telephone, harassment through | electronic communications, or an attempt to commit first degree | murder committed against an intimate partner regardless | whether an order of protection has been issued against the | person , | (1) whether the alleged incident involved harassment | or abuse, as defined in the Illinois Domestic Violence Act | of 1986; | (2) whether the person has a history of domestic | violence, as defined in the Illinois Domestic Violence Act, | or a history of other criminal acts; | (3) based on the mental health of the person; | (4) whether the person has a history of violating the | orders of any court or governmental entity; | (5) whether the person has been, or is, potentially a | threat to any other person; | (6) whether the person has access to deadly weapons or | a history of using deadly weapons; | (7) whether the person has a history of abusing alcohol |
| or any controlled substance; | (8) based on 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; | (9) whether a separation of the person from the alleged | victim or a termination of the relationship between the | person and the alleged victim has recently occurred or is | pending; | (10) whether the person has exhibited obsessive or | controlling behaviors toward the alleged victim, | including, but not limited to, stalking, surveillance, or | isolation of the alleged victim or victim's family member | or members; | (11) whether the person has expressed suicidal or | homicidal ideations; | (12) based on any information contained in the | complaint and any police reports, affidavits, or other | documents accompanying the complaint, | the court may, in its discretion, order the respondent to | undergo a risk assessment evaluation using a recognized, | evidence-based instrument conducted by an Illinois Department | of Human Services approved partner abuse intervention program |
| provider, pretrial service, probation, or parole agency. These | agencies shall have access to summaries of the defendant's | criminal history, which shall not include victim interviews or | information, for the risk evaluation. Based on the information | collected from the 12 points to be considered at a bail hearing | under this subsection (f) for a violation of an order of | protection , the results of any risk evaluation conducted and | the other circumstances of the violation, the court may order | that the person, as a condition of bail, be placed under | electronic surveillance as provided in Section 5-8A-7 of the | Unified Code of Corrections. Upon making a determination | whether or not to order the respondent to undergo a risk | assessment evaluation or to be placed under electronic | surveillance and risk assessment, the court shall document in | the record the court's reasons for making those determinations. | The cost of the electronic surveillance and risk assessment | shall be paid by, or on behalf, of the defendant. As used in | this subsection (f), "intimate partner" means a spouse or a | current or former partner in a cohabitation or dating | relationship.
| (Source: P.A. 97-1150, eff. 1-25-13; 98-558, eff. 1-1-14.)
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Effective Date: 1/1/2015
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