(720 ILCS 5/44‑1)(from Ch. 38, par. 44‑1) Sec. 44‑1. As used in this Act, "telecommunications device" or "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. 86‑811.)
(720 ILCS 5/44‑2)(from Ch. 38, par. 44‑2) Sec. 44‑2. (a) A person commits unlawful transfer of a
telecommunications device to a minor when he gives, sells or otherwise
transfers possession of a telecommunications device to a person under 18
years of age with the intent that the device be used to commit any offense
under this Code, the Cannabis Control Act, the Illinois Controlled Substances Act, or the Methamphetamine Control and Community Protection Act. (b) Unlawful transfer of a telecommunications device to a minor is a
Class A misdemeanor. (Source: P.A. 94‑556, eff. 9‑11‑05.)
(720 ILCS 5/44‑3)(from Ch. 38, par. 44‑3) Sec. 44‑3. (a) Seizure. Any telecommunications device possessed by a
person on the real property of any elementary or secondary school without
the authority of the school principal, or used in the commission of an
offense prohibited by
this Code,
the Illinois Controlled Substances Act,
the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act or which constitutes evidence of the commission of such offenses
may be seized and delivered forthwith to the investigating law enforcement
agency.
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 telecommunication device for lawful and legitimate
purposes, shall not need to obtain authority from the school principal to
possess the telecommunication device on school property. Such
telecommunication device shall not be seized unless it was used in the
commission of an offense specified above, 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, lienholders 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. (b) Rights
of lienholders and secured parties. The State's Attorney shall promptly release a telecommunications device
seized under the provisions of this Article to any lienholder or
secured party
if such lienholder or secured party shows to the State's
Attorney that his lien or security interest is bona fide and was created
without actual knowledge that such telecommunications device was or
possessed in violation of this Section or used or
to be used in the commission of the offense charged. (c) Action for forfeiture.
(1) The State's Attorney in the county in which such seizure occurs
if he finds that such forfeiture was incurred without willful negligence
or without any intention on the part of the owner of the telecommunications
device or a lienholder or secured party
to violate the law, or finds the existence of
such mitigating circumstances as to justify remission of the forfeiture,
may cause the investigating law enforcement agency to remit the same upon
such terms and conditions
as the State's Attorney deems reasonable and just. The State's Attorney
shall exercise his discretion under the foregoing provision of this
Section promptly after notice is given in accordance with
subsection (a). If the State's Attorney does not cause the forfeiture to
be remitted he shall forthwith bring an action for forfeiture in the
circuit court within whose jurisdiction the seizure and confiscation has
taken place. The State's Attorney shall give notice of the forfeiture
proceeding by mailing a copy of the complaint in the forfeiture
proceeding to the persons and in the manner set forth in subsection
(a). The owner of the device or any person
with any right, title, or interest in the device
may within 20 days after the mailing of such notice file a
verified answer to the complaint and may appear at the hearing on the
action for forfeiture. The State shall show at such hearing by a
preponderance of the evidence that the device was
used in the commission of an offense described in subsection (a). The
owner of the device or any person with any right,
title, or interest in the device may show
by a preponderance of the evidence that he did not know, and did not
have reason to know, that the device was possessed in violation of this
Section or to be used
in the commission of such an offense or that any of the exceptions set
forth in subsection (d) are applicable. Unless the State shall make such
showing, the Court shall order the device released
to the owner. Where the State has made such showing, the Court may order
the device destroyed; may upon the request of the investigating law
enforcement agency, order it delivered to
any local, municipal or county law enforcement agency, or the Department
of State Police or the Department of Revenue of
the State of Illinois;
or may order it sold at
public auction. (2) A copy of the order shall be filed with the investigating law
enforcement agency of the
county in which the seizure occurs.
Such order, when filed, confers ownership of the
device to the
department or agency to whom it is delivered or any purchaser thereof.
The investigating law enforcement agency shall comply promptly with
instructions to remit received
from the State's Attorney or Attorney General in accordance with
paragraph (1) of this subsection or subsection (d). (3) The proceeds of any sale at public auction pursuant to this subsection,
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 device, shall be paid into the general fund of the level of
government responsible for the operation of the investigating law enforcement agency. (d) Exceptions to forfeiture.
(b) No device shall be forfeited under the
provisions of subsection (c) 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. (e) Remission by Attorney General.
Whenever any owner of, or other person interested in, a
device seized under the provisions of this Section files with the Attorney
General before the sale or destruction of the device
a petition for the remission of such forfeiture the Attorney
General if he finds that such forfeiture was incurred without willful
negligence or without any intention on the part of the owner or any person
with any right, title or interest in the device
to violate the law, or finds the existence of such mitigating circumstances
as to justify the remission of forfeiture, may cause the same to be
remitted upon such terms and conditions as he deems reasonable and just, or
order discontinuance of any forfeiture proceeding relating thereto. (Source: P.A. 94‑556, eff. 9‑11‑05.)
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