§ 109-1

Person arrested; release from law enforcement custody and court appearance; geographic constraints prevent in-person appearances. (a) A person arrested with or without a warrant for an offense for which pretrial release may be denied under paragraphs (1) through (6) of Section 110-6.1 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, within 48 hours, 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 audio-visual communication system, except that a hearing to deny pretrial release to the defendant may not be conducted by two-way audio-visual communication system unless the accused waives the right to be present physically in court, the court determines that the physical health and safety of any person necessary to the proceedings would be endangered by appearing in court, or the chief judge of the circuit orders use of that system due to operational challenges in conducting the hearing in person. Such operational challenges must be documented and approved by the chief judge of the circuit, and a plan to address the challenges through reasonable efforts must be presented and approved by the Administrative Office of the Illinois Courts every 6 months. (a-1) Law enforcement shall issue a citation in lieu of custodial arrest, upon proper identification, for those accused of any offense that is not a felony or Class A misdemeanor unless (i) a law enforcement officer reasonably believes the accused poses a threat to the community or any person, (ii) a custodial arrest is necessary because the criminal activity persists after the issuance of a citation, or (iii) the accused has an obvious medical or mental health issue that poses a risk to the accused's own safety. Nothing in this Section requires arrest in the case of Class A misdemeanor and felony offenses, or otherwise limits existing law enforcement discretion to decline to effect a custodial arrest. (a-3) A person arrested with or without a warrant for an offense for which pretrial release may not be denied may, except as otherwise provided in this Code, be released by a law enforcement officer without appearing before a judge. A presumption in favor of pretrial release shall be applied by an arresting officer in the exercise of his or her discretion under this Section. (a-5) A person charged with an offense shall be allowed counsel at the hearing at which pretrial release is determined under Article 110 of this Code. If the defendant desires counsel for his or her initial appearance but is unable to obtain counsel, the court shall appoint a public defender or licensed attorney at law of this State to represent him or her. (b) Upon initial appearance of a person before the court, 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; (4) admit the defendant to pretrial release in accordance with the provisions of Article 110 of this Code, or upon verified petition of the State, proceed with the setting of a detention hearing as provided in Section 110-6.1; and (5) order the confiscation of the person's passport or impose travel restrictions on a defendant arrested for first degree murder or other violent crime as defined in Section 3 of the Rights of Crime Victims and Witnesses Act, if the judge determines, based on the factors in Section 110-5 of this Code, that this will reasonably ensure the appearance of the defendant and compliance by the defendant with all conditions of release. (c) The court may issue an order of protection in accordance with the provisions of Article 112A of this Code. Crime victims shall be given notice by the State's Attorney's office of this hearing as required in paragraph (2) of subsection (b) of Section 4.5 of the Rights of Crime Victims and Witnesses Act and shall be informed of their opportunity at this hearing to obtain an order of protection under Article 112A of this Code. (d) At the initial appearance of a defendant in any criminal proceeding, the court must advise the defendant in open court that any foreign national who is arrested or detained has the right to have notice of the arrest or detention given to his or her country's consular representatives and the right to communicate with those consular representatives if the notice has not already been provided. The court must make a written record of so advising the defendant. (e) If consular notification is not provided to a defendant before his or her first appearance in court, the court shall grant any reasonable request for a continuance of the proceedings to allow contact with the defendant's consulate. Any delay caused by the granting of the request by a defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subsection (a), (b), or (e) of Section 103-5 of this Code and on the day of the expiration of delay the period shall continue at the point at which it was suspended. (f) At the hearing at which conditions of pretrial release are determined, the person charged shall be present in person rather than by two-way audio-video communication system unless the accused waives the right to be present physically in court, the court determines that the physical health and safety of any person necessary to the proceedings would be endangered by appearing in court, or the chief judge of the circuit orders use of that system due to operational challenges in conducting the hearing in person. Such operational challenges must be documented and approved by the chief judge of the circuit, and a plan to address the challenges through reasonable efforts must be presented and approved by the Administrative Office of the Illinois Courts every 6 months. (g) Defense counsel shall be given adequate opportunity to confer with the defendant prior to any hearing in which conditions of release or the detention of the defendant is to be considered, with a physical accommodation made to facilitate attorney/client consultation. If defense counsel needs to confer or consult with the defendant during any hearing conducted via a two-way audio-visual communication system, such consultation shall not be recorded and shall be undertaken consistent with constitutional protections.

Legislative History

(Source: P.A. 101-652, eff. 1-1-23; 102-813, eff. 5-13-22; 102-1104, eff. 1-1-23.)