The Illinois Forfeiture Statue: A Critical Analysis
![handle is hein.journals/siulj2 and id is 243 raw text is: THE ILLINOIS FORFEITURE STATUTE:
A CRITICAL ANALYSIS
I. INTRODUCTION
The Illinois Forfeiture Statute1 could result in very surprising and
arguably unjust consequences to unsuspecting citizens. Consider the
following hypothetical: The owner-driver of an expensive sportscar,
who knows that his passenger has a small quantity of marijuana in his
possession, is stopped by police officers for a traffic violation. After
one of the officers notices a bag of marijuana on the seat of the car,
both the driver and passenger are arrested for possession of cannabis.
Although under Illinois law the owner's mere presence with knowledge
of his passenger's possession of cannabis would probably not be suffi-
cient for a criminal conviction,2 his car could very easily be forfeited
to the state. The state would merely have to show in a civil proceeding
that it was more likely than not that the car was used in the commis-
sion of a crime.3 Since the forfeiture action is distinct from the crimi-
nal action, no criminal conviction would be required for the forfeiture
to be instituted.4 While the owner of the car is waiting to be cleared
of the criminal charges, his car could be forfeited in a civil proceeding
1. ILL. REV. STAT. ch. 38, § 36-1 (1975) provides:
Any vessel, vehicle or aircraft used with the knowledge and consent of the
owner in the commission of, or in the attempt to commit as defined in Sec-
tion 8-4 of this Code, an offense prohibited by [certain enumerated statutes]
* . . may be seized and delivered forthwith to the sheriff of the county of
seizure. Within 15 days after such delivery the sheriff shall give notice of seiz-
ure to each person according to the following method: Upon each such person
whose right, title or interest is of record in the office of the Secretary of State,
the Director of the Department of Aeronautics, the Administrator of the Federal
Aviation Agency, the Director of the Department of Public Works and Build-
ings, or any other Department of this State, or any other state of the United
States if such vessel, vehicle or aircraft is required to be so registered, as the
case may be, by mailing a copy of the notice by certified mail to the address
as given upon the records of the Secretary of State, the Department of Aero-
nautics, Department of Public Works and Buildings or any other Department
of this State or the United States if such vessel, vehicle or aircraft is required
to be so registered. Within that 15 day period the sheriff shall notify the
State's Attorney of the county of seizure about the seizure.
See note 38 infra for included offenses.
2. People v. Nettles, 23 Ill. 2d 306, 178 N.E.2d 361 (1961); People v. Heerwagen,
30 Ill. App. 3d 144, 332 N.E.2d 136 (3d Dist. 1975); People v. Howard, 29 I11. App.
3d 387, 330 N.E.2d 262 (4th Dist. 1975).
3. Under the facts of the hypothetical it is conceivable that the owner's car could
be forfeited because it was used in the violation of ILL. REV. STAT. ch. 56 1/2, § 704(d)
or § 704(e) (1975), which provide a criminal penalty for possession of 30-500 grams of
cannabis or over 500 grams of cannabis.
4. See note 32 infra for cases which stand for this proposition.](ViewImageLocal?handle=hein.journals/siulj2&div=11&collection=journals&method=preview&ext=.png&size=3)
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The Illinois Forfeiture Statue: A Critical Analysis
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