Article 36 seizure: forfeiture process for vehicles used in the commission of an offense

by Lewis Gainor on September 26, 2013

Article 36 Seizure and Forfeiture

Drive a vehicle illegally on Illinois roads, and you might not take the vehicle home with you. An obscure law in this state allows the police to seize the vehicle and sell it.

And in situations where someone other than the owner was driving, those vehicles can be seized and sold over the owner’s objection.

The process is called an Article 36 seizure. Most vehicle owners become aware of it when they attempt to pay an administrative towing fee at the police station and are told that the vehicle won’t be released. Or they may see that the property inventory says, ‘Article 36′ or something to the effect of ‘pending forfeiture.’

Article 36 is a statute in the Illinois Criminal Code, found at 720 ILCS 5/36-1. It reads as follows:

Any vessel, vehicle or aircraft used with the knowledge and consent of the owner in the commission of, or in the attempt to commit [an offense]… may be seized and delivered forthwith to the sheriff of the county of seizure. See id.

Generally, the police department that seized the vehicle will transfer it to the custody of the county sheriff within a week or two. But this is an estimate, and depending on the department, the process can take much, much longer. After this takes place, the sheriff will notify any person who has a registered ownership interest in the vehicle of the seizure, the State’s Attorney will get involved, and so begins the forfeiture process.

Note that the sheriff will only notify persons with a registered ownership interest. Basically, no one owns a vehicle unless they have a title that is registered. The sheriff will only notify the person to whom the vehicle is registered with the Secretary of State. Further, the notice of seizure will be mailed only to the address on file with the Secretary of State. If the address is not current, the owner won’t receive this crucial notice.

The list of offenses that allow the police to seize the vehicle is long, and gets longer every year. State lawmakers in Springfield are eager to add ways for law enforcement to take people’s vehicles and generate revenue.

Let’s look at all the crimes that allow the police to seize a vehicle. Remember, this is the list on the date of this article. The General Assembly hasn’t updated Article 36 after making changes in the Criminal Code of 2012. Some statutes have been repealed or placed into other parts the code. A respondent may have a due process argument in a forfeiture that is based on a statute whose citation was changed.

These are the current bases for a seizure:

  • First degree murder, 720 ILCS 5/9-1
  • Reckless homicide/involuntary manslaughter, 720 ILCS 5/9-3
  • Aggravated kidnapping, 720 ILCS 5/10-2
  • Criminal sexual assault, 720 ILCS 5/11-1.20
  • Aggravated criminal sexual assault, 720 ILCS 5/11-1.30
  • Predatory criminal sexual assault of a child, 720 ILCS 5/11-1.40
  • Indecent solicitation of a child, 720 ILCS 5/11-6
  • Promoting juvenile prostitution, 720 ILCS 5/11-14.4
  • 720 ILCS 5/11-15.1 (repealed)
  • 720 ILCS 5/11-19.1 (repealed)
  • 720 ILCS 5/11-19.2 (repealed)
  • Child pornography, 720 ILCS 5/11-20.1
  • 720 ILCS 5/11-20.1B (repealed)
  • 720 ILCS 5/11-20.3 (repealed)
  • 720 ILCS 5/12-4.1 (repealed)
  • 720 ILCS 5/12-4.2 (repealed)
  • 720 ILCS 5/12-4.2-5 (repealed)
  • 720 ILCS 5/12-4.3 (repealed)
  • 720 ILCS 5/12-4.6 (repealed)
  • Stalking, 720 ILCS 5/12-7.3
  • Aggravated stalking, 720 ILCS 5/12-7.4
  • Theft, 720 ILCS 5/16-1 (if the theft was precious metal or scrap metal)
  • Armed robbery, 720 ILCS 5/18-2
  • Burglary, 720 ILCS 5/19-1
  • Possession of burglary tools, 720 ILCS 5/19-2
  • Residential burglary, 720 ILCS 5/19-3
  • Arson, 720 ILCS 5/20-1
  • Aggravated arson, 720 ILCS 5/20-2
  • Aggravated discharge of a firearm, 720 ILCS 5/24-1.2
  • Aggravated discharge of a machine gun or a firearm equipped with a silencer, 720 ILCS 5/24-1.2-5
  • Reckless discharge of a firearm, 720 ILCS 5/24-1.5
  • Gambling, 720 ILCS 5/28-1
  • Possession of a deadly substance (terrorism), 720 ILCS 5/29D-15.2
  • Aggravated battery, 720 ILCS 5/12-3.05(a)(1), (a)(2), (a)(4), (b)(1), (e)(1), (e)(2), (e)(3), (e)(4), (e)(5), (e)(6), or (e)(7)
  • Violation of an order of protection, 720 ILCS 5/12-4(a)
  • Criminal sexual abuse, 720 ILCS 5/11-1.50(a)
  • Aggravated criminal sexual abuse, 720 ILCS 5/11-1.60(a), (c), (d)
  • Unlawful use of a weapon, 720 ILCS 5/24-1(a)(6) or (a)(7)
  • 35 ILCS 130/21, 22, 23, 24 or 26 of the Cigarette Tax Act if the vessel, vehicle or aircraft contains more than 10 cartons of such cigarettes
  • 35 ILCS 130/28, 29 or 30 of the Cigarette Use Tax Act if the vessel, vehicle or aircraft contains more than 10 cartons of such cigarettes
  • 415 ILCS 5/44 of the Environmental Protection Act
  • Aggravated fleeing or attempting to elude a peace officer, 625 ILCS 5/11-204.1
  • Driving under the influence, 625 ILCS 5/11-501, when the defendant’s driving privileges are revoked or suspended for a DUI, for a violation of leaving the scene of an accident involving personal injury or death under 625 ILCS 5/11-401, or for reckless homicide under 720 ILCS 5/9-3. Note that the DUI in this case is supposed to be charged as a felony (eg, aggravated DUI)
  • DUI, 625 ILCS 5/11-501, where the accused has a previous conviction for reckless homicide involving alcohol or drugs, or a previous conviction for DUI where the violation caused an accident that resulted in death, great bodily harm, or permanent disability or disfigurement to another, when the violation was a proximate cause of the death or injuries. Note this should be charged as aggravated DUI.
  • Aggravated DUI, 625 ILCS 5/11-501, where the accused has two prior offenses
  • DUI, 625 ILCS 5/11-501, where the accused didn’t have a driver’s license. Note that this is supposed to be a felony (eg, aggravated DUI), but not all State’s Attorneys upgrade the charge.
  • DUI, 625 ILCS 5/11-501, for DUIs without insurance. Here also, this is supposed to be a felony (eg, aggravated DUI), but not all State’s Attorneys upgrade the charge.
  • Driving while license suspended or revoked, 625 ILCS 5/6-303(g), where the suspension/revocation is for a DUI, reckless homicide, or leaving the scene of an accident involving injury or death
  • Driving without a valid license, 625 ILCS 5/6-101(e), where the person also didn’t have insurance and caused an accident resulting in injury or death

As you can see, there are many offenses that allow the police to initiate an Article 36 seizure.

This article is only a summary of the Article 36 process. The vehicle owner has a right to be heard in court, and in fact, demand a trial in which the State has to prove that they are entitled to the forfeiture. This process should not be undertaken without a lawyer.

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