Find Legal Information

Title III - Proceedings After Arrest

      (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.     (a) A person arrested with or without a warrant 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, 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 closed circuit television system, except that a hearing to deny bail to the defendant may not be conducted by way of closed circuit television.     (b) 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; and

(4) Admit the defendant to bail in accordance with

the provisions of Article 110 of this Code.

(c) The court may issue an order of protection in accordance with the provisions of Article 112A of this Code. (Source: P.A. 90‑140, eff. 1‑1‑98.)

(725 ILCS 5/109‑1.1) (from Ch. 38, par. 109‑1.1)     Sec. 109‑1.1. (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 Care 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. 82‑228.)

(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. He shall be admitted to bail in the amount specified in the warrant or, for offenses other than felonies, in an amount as set by the judge, and such bail shall be conditioned on his appearing in the court issuing the warrant on a certain date. 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. (Source: P.A. 86‑298.)

(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, and may provide for the forfeiture of a sum certain in the event the witness does not 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 shall, in addition to any forfeiture provided in the recognizance, be subject to the penalty provided in Section 32‑10 of the "Criminal Code of 1961", approved July 28, 1961, as heretofore and hereafter amended, for violation of bail bond.     (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. 83‑644.)

(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 on bail or recognizance 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. 83‑644.)

      (725 ILCS 5/Art. 110 heading)ARTICLE 110. BAIL

(725 ILCS 5/110‑1) (from Ch. 38, par. 110‑1)     Sec. 110‑1. Definitions. (a) "Security" is that which is required to be pledged to insure the payment of bail.     (b) "Sureties" encompasses the monetary and nonmonetary requirements set by the court as conditions for release either before or after conviction. "Surety" is one who executes a bail bond and binds himself to pay the bail if the person in custody fails to comply with all conditions of the bail bond.     (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, without probation, periodic imprisonment or conditional discharge, is required by law upon conviction.     (d) "Real and present threat to the physical safety of any person or persons", as used in this Article, includes a threat to the community, person, persons or class of persons. (Source: P.A. 85‑892.)

(725 ILCS 5/110‑2) (from Ch. 38, par. 110‑2)     Sec. 110‑2. Release on own recognizance. When from all the circumstances the court is of the opinion that the defendant will appear as required either before or after conviction and the defendant will not pose a danger to any person or the community and that the defendant will comply with all conditions of 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 of this Code regarding any change in his or her address, the defendant may be released on his or her own recognizance. The defendant's address shall at all times remain a matter of public record with the clerk of the court. A failure to appear as required by such recognizance shall constitute an offense subject to the penalty provided in Section 32‑10 of the "Criminal Code of 1961", approved July 28, 1961, as heretofore and hereafter amended, for violation of the bail bond, and any obligated sum fixed in the recognizance shall be forfeited and collected in accordance with subsection (g) of Section 110‑7 of this Code.     This Section shall be liberally construed to effectuate the purpose of relying upon contempt of court proceedings or criminal sanctions instead of financial loss to assure the appearance of the defendant, and that the defendant will not pose a danger to any person or the community and that the defendant will comply with all conditions of bond. Monetary bail should be set only when it is determined that no other conditions of release will reasonably assure the defendant's appearance in court, that the defendant does not present a danger to any person or the community and that the defendant will comply with all conditions of bond.     The State may appeal any order permitting release by personal recognizance. (Source: P.A. 89‑377, eff. 8‑18‑95.)

(725 ILCS 5/110‑3) (from Ch. 38, par. 110‑3)     Sec. 110‑3. Issuance of warrant. Upon failure to comply with any condition of a bail bond or recognizance the court having jurisdiction at the time of such failure may, in addition to any other action provided by law, issue a warrant for the arrest of the person at liberty on bail or his own recognizance. The contents of such a warrant shall be the same as required for an arrest warrant issued upon complaint. When a defendant is at liberty on bail or his own recognizance on a felony charge and fails to appear in court as directed, the court shall issue a warrant for the arrest of such person. Such warrant shall be noted with a directive to peace officers to arrest the person and hold such person without bail and to deliver such person before the court for further proceedings. A defendant who is arrested or surrenders within 30 days of the issuance of such warrant shall not be bailable in the case in question unless he shows by the preponderance of the evidence that his failure to appear was not intentional. (Source: P.A. 86‑298; 86‑984; 86‑1028.)

    (725 ILCS 5/110‑4)(from Ch. 38, par. 110‑4)
    Sec. 110‑4. Bailable Offenses.
    (a) All persons shall be bailable before conviction, except the following offenses where the proof is evident or the presumption great that the defendant is guilty of the offense: capital offenses; offenses for which a sentence of life imprisonment may be imposed as a consequence of conviction; felony offenses for which a sentence of imprisonment, without conditional and revocable release, shall be imposed by law as a consequence of conviction, where the court after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person or persons; stalking or aggravated stalking, where the court, after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of the alleged victim of the offense and denial of bail is necessary to prevent fulfillment of the threat upon which the charge is based; or unlawful use of weapons in violation of item (4) of subsection (a) of Section 24‑1 of the Criminal Code of 1961 when that offense 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, where the court, after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person and denial of bail is necessary to prevent fulfillment of that threat; or making a terrorist threat in violation of Section 29D‑20 of the Criminal Code of 1961 or an attempt to commit the offense of making a terrorist threat, where the court, after a hearing, determines that the release of the defendant would pose a real and present threat to the physical safety of any person and denial of bail is necessary to prevent fulfillment of that threat.
    (b) A person seeking release on bail who is charged with a capital offense or an offense for which a sentence of life imprisonment may be imposed shall not be bailable until a hearing is held wherein such person has the burden of demonstrating that the proof of his guilt is not evident and the presumption is not great.
    (c) Where it is alleged that bail should be denied to a person upon the grounds that the person presents a real and present threat to the physical safety of any person or persons, the burden of proof of such allegations shall be upon the State.
    (d) When it is alleged that bail should be denied to a person charged with stalking or aggravated stalking upon the grounds set forth in Section 110‑6.3 of this Code, the burden of proof of those allegations shall be upon the State.
(Source: P.A. 95‑952, eff. 8‑29‑08.)

    (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 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 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 or mandatory supervised release or work release from the Illinois Department of Corrections 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 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 a given amount for bail.     (f) When a person is charged with a violation of an order of protection under Section 12‑30 of the Criminal Code of 1961,         (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 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 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 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.

(Source: P.A. 95‑773, eff. 1‑1‑09; 96‑688, eff. 8‑25‑09.)

    (725 ILCS 5/110‑5.1)
    Sec. 110‑5.1. Bail; certain persons charged with violent crimes against family or household members.
    (a) Subject to subsection (c), a person who is charged

with a violent crime shall appear before the court for the setting of bail if the alleged victim was a family or household member at the time of the alleged offense, and if any of the following applies:

(1) the person charged, at the time of the alleged

offense, was subject to the terms of an order of protection issued under Section 112A‑14 of this Code or Section 214 of the Illinois Domestic Violence Act of 1986 or previously was convicted of a violation of an order of protection under Section 12‑30 of the Criminal Code of 1961 or a violent crime if the victim was a family or household member at the time of the offense or a violation of a substantially similar municipal ordinance or law of this or any other state or the United States if the victim was a family or household member at the time of the offense;

(2) the arresting officer indicates in a police

report or other document accompanying the complaint any of the following:

(A) that the arresting officer observed on the

alleged victim objective manifestations of physical harm that the arresting officer reasonably believes are a result of the alleged offense;

(B) that the arresting officer reasonably

believes that the person had on the person's person at the time of the alleged offense a deadly weapon;

(C) that the arresting officer reasonably

believes that the person presents a credible threat of serious physical harm to the alleged victim or to any other person if released on bail before trial.

(b) To the extent that information about any of the

following is available to the court, the court shall consider all of the following, in addition to any other circumstances considered by the court, before setting bail for a person who appears before the court pursuant to subsection (a):

(1) whether the person has a history of domestic

violence or a history of other violent acts;

(2) the mental health of the person;         (3) whether the person has a history of violating the

orders of any court or governmental entity;

(4) whether the person is potentially a threat to any

other person;

(5) whether the person has access to deadly weapons

or a history of using deadly weapons;

(6) whether the person has a history of abusing

Copyright © 2012-2022 Laws9.Com All rights reserved. Contact Us | About Us | Terms | Privacy